Michael Ahern (Cork East, Fianna Fail)

On behalf of my colleague, the Minister of State at the Department of Enterprise, Trade and Employment, Deputy Fahey, I am pleased to be in the Seanad to speak on the Second Stage of the Industrial Relations (Miscellaneous Provisions) Bill. The Minister of State, Deputy Fahey, has asked me to express his gratitude to the House for facilitating him in taking this Bill and to pass on his apologies for not being present today.

During its passage through the Dáil a number of amendments, which have strengthened the Bill, have been made. I will comment on the main amendments later when outlining the various sections of the Bill. First, however, I propose to summarise the background and context of the Bill, the basic aim of which is to strengthen the industrial relations procedures given effect through the Industrial Relations (Amendment) Act 2001.

The system of industrial relations in Ireland is essentially voluntary in nature. The fundamental approach of successive Governments to industrial relations has been one of voluntarism. There is a consensus among the social partners that the terms and conditions of employment of workers are best determined through the process of voluntary bargaining between employers and workers and between employers' associations and one or more trade unions or staff associations. This approach to industrial relations has served us well over the years. In general, our laws do not try to impose a solution on parties to a trade dispute, but rather are designed to support the parties in resolving their differences. The State has, in general, confined its role to underpinning voluntarism through the provision of third party industrial relations machinery.

We have a number of dispute resolution services, which are at the disposal of workers and employers to assist them in resolving their differences. The Labour Relations Commission alone chairs more than 2,000 meetings per year and 80% of these cases are settled at conciliation. Issues not resolved by the Labour Relations Commission may be referred for investigation to the Labour Court. In 2002, almost 600 cases referred to the Labour Court under industrial relations and other legislation were completed. Despite the fact that the majority of recommendations issued by the court are non-binding, there is an acceptance rate of more than 80% by parties to the disputes.

The Government, however, has recognised and recognises there is a need for dispute settling mechanisms in situations where employees wish to be represented by a trade union or excepted body but collective bargaining does not take place. Under Partnership 2000, a high level group comprising representatives from IBEC, ICTU the Departments of Finance and Enterprise, Trade and Employment, IDA Ireland and Enterprise Ireland and chaired by the Department of the Taoiseach was set up to devise a mechanism for resolving such disputes. In its final report the group recommended two distinct procedures to be put in place. Its recommendations laid the foundations for the procedures we have in place today.

The first procedure is a voluntary one provided for through the code of practice on voluntary dispute resolution — SI 145 of 2000 — which was prepared by the Labour Relations Commission, in consultation with ICTU and IBEC, and promulgated by the Tánaiste in May 2000. In essence, the code of practice provides procedures for the negotiated resolution of these disputes.

The process under the existing code of practice for the successful resolution of a dispute can be summarised in four steps: (1) The dispute is referred to the Labour Relations Commission, which appoints an officer from its advisory service to assess the issues in dispute; (2) the advisory officer of the Labour Relations Commission works with the parties in an attempt to resolve the issues in dispute; (3) in the event that the issues in dispute are not capable of early resolution by the intervention of the Labour Relations Commission, an agreed cooling-off period is put in place. During the cooling-off period, the commission's advisory service continues to work with the parties in an attempt to resolve any outstanding issues. The commission may engage expert assistance, including the involvement of ICTU and IBEC, should that prove helpful to the resolution of any differences; and (4) if, after the cooling-off period, all issues have been resolved, the Labour Relations Commission disengages. Before disengaging, the commission may make proposals to the parties for the peaceful resolution of any further grievances or disputes. In the event of issues remaining unresolved after the cooling-off period, the Labour Relations Commission makes a written report to the Labour Court on the situation.

The second procedure, a legislative fall-back procedure, was provided for through the Industrial Relations (Amendment) Act 2001. This Act gave new dispute settling powers to the Labour Court in cases where no arrangements for collective bargaining are in place. Under the 2001 Act, disputes may be referred unilaterally by an authorised trade union or excepted body to the Labour Court in a case where all of the following circumstances pertain: first, it is not the practice of the employer to engage in collective bargaining negotiations and the internal dispute resolution procedures normally used by the parties concerned have failed to resolve the dispute; second, the employer has failed to observe a provision of the code of practice on voluntary dispute resolution, which I mentioned earlier, or has failed to observe such a provision in good faith; third, neither the trade union nor the employees, as the case may be, have acted in a manner which, in the opinion of the court, has frustrated the employer in observing a provision of such code of practice; and fourth, neither the trade union nor the employees, as the case may be, has had recourse to industrial action after the dispute in question was referred to the commission in accordance with the provisions of the code of practice. Cases that have satisfied these circumstances may go through the following Labour Court procedures: an investigation of the case by the Labour Court, which may result in a recommendation giving the court's opinion and, where appropriate, its view as to the action that should be taken; a review of all relevant matters, which may result in the making of a determination by the Labour Court; a review of the determination by the Labour Court; and an application to the Circuit Court for an order directing an employer to carry out the determination or review of the determination. Ultimately the 2001 Act provides for the issuing of a binding determination by the Labour Court, enforceable through the Circuit Court.

The Bill proposes to strengthen the procedures in the 2001 Act in line with commitments in the national agreement, Sustaining Progress. In the negotiations on Sustaining Progress, the trade union and employer organisations agreed that there is a need to enhance the effectiveness both of the procedures put in place by the Industrial Relations (Amendment) Act 2001 and the code of practice on voluntary dispute resolution. Under section 8.9 of Part 2 of Sustaining Progress, seven specific measures to enhance the effectiveness of existing procedures, as agreed between the Government and the trade union and employer representatives, are set out. Measure 1 states:

The introduction of an indicative overall time-frame targeting 26 weeks — with provision for up to a maximum of 34 weeks where necessary — for the processing of cases under the Dispute Resolution Code and Act to the point of issuance of a determination, save when an extension is agreed by the parties.

This measure sets out the timeframe agreed between the Government and the trade union and employer representatives for the completion of cases under an enhanced code of practice on voluntary dispute resolution and the amended legislation. Allowance has been made for the extension of the timeframe from 26 to 34 weeks, if necessary. The introduction of a timeframe will shorten the length of time required to process a case through the code of practice and Labour Court procedures.

Measure 2 states:

The amendment of Section 2 of the Act to provide that engagement by the Court could now take place on the basis of a breach of the timeframes within the Code, the exhaustion of the timeframes or the indication at any time by the Labour Relations Commission that it is unable to assist the parties. These provisions would be substituted for the existing Section 2(l)(b), while preserving the remainder of the Section.

This measure requires changes to the conditions to be met under subsection 2(1)(b) of the 2001 Act. This will facilitate the movement of cases from the auspices of the advisory service of the Labour Relations Commission to the Labour Court.

Measure 3 states:

The amendment of Section 3 so as to allow the Court to combine both the preliminary and substantive hearings, where it considers this to be appropriate.

Under section 3 of the 2001 Act, the Labour Court may hold a preliminary hearing to determine whether the conditions set out in section 2 of that Act have been met. This measure would allow for the combination of this preliminary hearing with the hearing of the case. However, the Labour Court may still hold a separate preliminary hearing, if it so wishes.

Measure 4 states:

The removal of the provision in the Act for the Labour Court to review a determination, prior to seeking enforcement of a determination by the Circuit Court, by deleting Section 9 and amending Section 10 to provide for an entitlement for the trade union or excepted body to apply to the Circuit Court for the enforcement of a determination immediately — or on expiry of whatever implementation period is provided for in the determination.

This measure was designed to contribute to the speeding up of the processing of cases to facilitate achievement of the agreed timeframes.

Measure 5 states:

The introduction of a new Code setting out the different types of practice which would constitute victimisation arising from an employee's membership or activity on behalf of a trade union or a manager discharging his or her managerial functions, or other employees, drawing, as appropriate, for consideration, on relevant definitions in existing Codes and legislation and best practice.

In this measure it was agreed to introduce a code of practice on victimisation. This code of practice will only be applicable in instances where the code of practice on voluntary dispute resolution has been invoked or where steps have been taken to invoke that code of practice. This code will cover victimisation of trade union members, managers and other employees.

Measure 6 states:

The amendment of the Act to provide that the Labour Court should have regard to breaches of the Anti-Victimisation Code and where appropriate should provide for redress in making its determinations.

This measure provides for redress in situations where a breach of the code of practice on victimisation has been established. The decision to provide for redress requires legislative provisions, which are included in this Bill.

Measure 7 states:

Transitional provisions will be developed to allow for the processing of cases in current disputes where access to the Code of Practice on Dispute Resolution as at the date of agreement is not available.

This measure provides for the introduction of changes to subsection 2(1)(d) of the 2001 Act. This subsection is one of the four existing conditions that must be complied with before the Labour Court can investigate a case.

Implementation of the measures agreed in Sustaining Progress requires a revised code of practice on voluntary dispute resolution; a code of practice on victimisation; a number of amendments to the Industrial Relations (Amendment) Act 2001; and the introduction of legislative provisions to provide for a prohibition on victimisation, to provide for the processing of complaints of victimisation and redress where appropriate.

A new code of practice on voluntary dispute resolution will support the provisions of the Bill. This code of practice has been the subject of discussions between the Labour Relations Commission and trade union and employer representatives. Following these discussions the Labour Relations Commission prepared an enhanced code of practice on voluntary dispute resolution for the consideration of the Minister. The Minister of State, Deputy Fahey, has signed the necessary statutory instrument under section 42 of the Industrial Relations Act 1990, SI 76 of 2004, to give effect to this code of practice.

The enhanced code of practice on voluntary dispute resolution prepared by the Labour Relations Commission sets out the procedures for the effective and expeditious resolution of the issues in dispute. A period of six weeks will be provided for the processing of cases under the enhanced code. An advisory officer will be appointed to facilitate proceedings. Accordingly, a dispute, which has not been resolved by the Labour Relations Commission within six weeks, will be deemed to have been exhausted and the advisory officer will disengage. However, in instances where real progress is being achieved, the parties may agree a time extension during which the advisory officer will continue to work with the parties towards achieving a resolution. The code also sets out the actions or inaction involved in determining whether a breach of the timeframe has occurred.

It was agreed to introduce a code of practice on victimisation. This will set out the different types of practice which will constitute victimisation arising from an employee's membership or activity on behalf of a trade union or a manager discharging his or her managerial functions or other employees.

The Bill gives effect to the legislative provisions agreed in Sustaining Progress. I will outline to the House a summary of the sections of the Bill and the main amendments which have been made during its passage through the Lower House.

Section 1 is a standard section in all Acts. It provides for the interpretation of certain references which are mentioned later in the Bill and also permits abbreviated references to sections, subsections and to other Acts. This section was amended on Committee Stage in the Dáil to include definitions for the terms "Act of 2001", "Court", "excepted body" and "employee". As a result of a very useful exchange of views on the alternative definitions of "employee" put forward on Committee Stage, the Government brought forward a further amendment to the definition of "employee" on Report Stage which was agreed.

Section 2 deletes section 2(1)(b) of the 2001 Act and replaces it with a provision that allows the court to investigate a trade dispute if one of three different conditions has been met. These conditions are a breach of the timescales in the amended code of practice on voluntary dispute resolution; the exhaustion of the timescales in the amended code of practice; and the receipt of a report from the Labour Relations Commission that no further efforts on the part of the commission will advance the resolution of the dispute.

A further amendment to section 2 of the 2001 Act was brought forward on Report Stage in the Dáil to clarify that the provisions of the 2001 Act apply where the employer does not engage in collective bargaining negotiations with the grade, group or category of workers who are party to the trade dispute.

Section 3 replaces section 3 of the 2001 Act. This section enables the Labour Court to allocate its resources more efficiently by allowing it to combine preliminary and substantive hearings in a dispute referred to it under section 2(1) of the 2001 Act, if it considers it appropriate. This section would also have the effect of reducing the length of time taken by the Labour Court to conduct an investigation.

Section 4 replaces section 10 of the 2001 Act to enable a trade union or excepted body to apply to the Circuit Court for the enforcement of a Labour Court determination, if an employer has failed to implement its terms. The Labour Court's determination is binding and is enforceable by order of the Circuit Court.

Section 5 provides for the processing of cases, which had, at the date of enactment, been referred to the Labour Court under the 2001 Act. These cases will be treated, from a procedural perspective, as if they had been referred to the Labour Court under the new legislation. The cases being dealt with under the 2001 Act, as well as any new cases, will benefit from the streamlined procedures contained in this Bill.

Section 6 enables the Labour Court to investigate disputes where, at the date of the ratification of Sustaining Progress on 26 March 2003, access to the Labour Court was not available due to industrial action. An amendment to this section was agreed on Committee Stage in the Dáil to the effect that in order to avail of this provision, industrial action must have ceased when this legislation comes into operation.

Section 7 enables the Labour Court to give priority to cases referred to it under this Bill to enable it to resolve the dispute within the agreed timeframe. Section 8 defines victimisation and allows for acts which will be specified in the code of practice on victimisation to be included within the definition of victimisation. A complaint of victimisation may be made in circumstances where there is a trade dispute in which the code of practice on voluntary dispute resolution has been invoked, or where steps have been taken to invoke the code, and arises from an employee's membership or activity on behalf of a trade union, a manager discharging his or her managerial functions, or other employees. There were a number of minor amendments made to this section on Committee Stage in the Dáil.

Section 9 deals with complaints of victimisation and empowers a rights commissioner to hear such a complaint from an employee and to make a decision on the matter. Rights commissioners already hear complaints under 14 different sets of legislation and two sets of regulations and are experienced and well-positioned to adjudicate on the issues involved in any cases that might be taken under this section. This section also provides that a rights commissioner may award compensation, where he or she considers it just and equitable. The timeframe in which a rights commissioner can hear a complaint under this section was the subject of detailed discussion on Committee and Report Stages in the Dáil, with both Government and Opposition amendments put forward.

The Bill, as published, provided that a rights commissioner could hear a complaint of victimisation within six months of the occurrence of the alleged victimisation, or within six months of the most recent occurrence. A Government amendment to extend the period in which a rights commissioner could hear such a complaint by a further six months, where the failure to present the complaint was due to reasonable cause, was agreed on Committee Stage. While empathising with the Opposition amendment put forward on Committee and Report Stages in the Dáil, the Government considered that an extension of the timeframe by six months was a reasonable one while providing certainty to all parties.

Section 10 provides for an appeals mechanism to the Labour Court from a decision of a rights commissioner. Section 11 empowers the Labour Court to take evidence on oath, to administer oaths and to compel a person to attend to give evidence where there is an appeal from a decision of a rights commissioner in a victimisation case as provided for under section 10. This section was amended on Committee Stage to provide that a witness in a hearing of an appeal before the Labour Court has the same privileges and immunities as a witness before the High Court. Section 12 allows the Labour Court to refer a question of law arising in an appeal of a rights commissioner decision under this Bill to the High Court. Also, with regard to an appeal of a rights commissioner decision under the Bill, this section allows a party to the proceedings before the Labour Court to appeal to the High Court on a point of law only.

Section 13 enables a party to apply to the Circuit Court for an enforcement order of a decision of a rights commissioner or a determination of the Labour Court in respect of a victimisation case where the decision or determination has not been carried out within a period of six weeks. A new section 14 was introduced by amendment on Report Stage to provide for an amendment to the First Schedule of the Industrial Relations Act 1990. This amendment has the effect of increasing the level of fines which can be imposed by the courts in cases where there are breaches of registered employment agreements.

Section 15, an amendment of the Protection of Employees (Employers' Insolvency) Act 1984, was introduced by amendment on Committee Stage. This is a technical amendment to the Act to enable employees of insolvent companies to apply to the Department of Enterprise, Trade and Employment under the insolvency payments scheme for payment of statutory minimum notice entitlements directly through the liquidator or receiver without having to obtain an award from the Employment Appeals Tribunal.

Section 16 repeals section 9 of the 2001 Act which provided for a review of a determination by the Labour Court. This amendment to the 2001 Act, as in the case of section 3, will facilitate achievement of the overall timeframe and more efficient allocation of Labour Court resources. Section 17 gives the Short Title, collective citation and construction and prescribes that the Bill shall come into operation on such day or days as may be appointed by ministerial order. This section was amended on Committee Stage to take account of the inclusion of section 15.

The purpose of this Bill is to strengthen the procedures of the existing legislation, as agreed by the trade union and employer representatives. The Bill provides employers and employee representatives with the opportunity to negotiate a solution to industrial disputes in situations where collective bargaining arrangements are not in place. Only if the voluntary process fails will the Labour Court become involved and, as under the 2001 Act, the court shall not, in its recommendations and determinations, provide for collective bargaining. I look forward to hearing Senators' views and I commend the Bill to the House.