Tony Killeen (Clare, Fianna Fail)

I thank all Senators who contributed to the debate. It has been wonderful to find people prepared to say what they think in the manner they have. What has been said will certainly be helpful in the deliberations to conclude the process.

The Bill transposes the European Union information and consultation of employees directive. The thrust of my overall approach has been to attempt to ensure we have the maximum flexibility while transposing the directive within the limitations set out. While the constraints are in some senses fairly wide, we must recognise that a wide variety of systems of workplace relations are in operation in Ireland. It would be impossible to introduce a single model to fit all sizes, which is why there is a perception the Bill is somewhat clumsy. It was an inevitable effect of trying to transpose the directive in a manner which best serves the interests of the great range of Irish enterprises which exist as illustrated by many of today's speeches.

I am very pleased that Senators have publicly enunciated opposing views which I have heard ad infinitum from the social partners but which I am not sure they have heard from each other to the extent they might have in the past. Senator Coghlan spoke about the length of time it took to bring the Bill to this stage. There were various points at which I thought we were coming close to a level of agreement in the consultation process only to have my hopes dashed subsequently. This was the principal reason it took so long. Senator Coghlan said rightly that the directive should have been transposed by 23 March of this year. That it will clearly take longer is something about which the Commission cannot be too pleased. I will deal first with queries raised by a majority of speakers before addressing within the limitations of time and my capacity to read my own writing remarks by individual Senators.

The directive could have been applied either to undertakings of 50 or more employees or establishments with 20 or more employees, which was a choice which had to be made. The vast majority of submissions received favoured applying it to undertakings. Senators Mansergh and Leyden were quite right that a definition of each term is included in the directive and it is reasonable for us to consider before Committee Stage the potential merit of including both in the legislation. It would certainly be more accessible if the definitions were included in the legislation rather than simply in the directive. That only one definition has been included at this stage is reflective of the choice we made.

A number of speakers referred to penalties and, interestingly, they were mentioned from both perspectives. Senator White, in particular, felt that some of these were unusually draconian and unwarranted. Senator McDowell was concerned that the Bill lacked the teeth to deliver a proper information and consultation process. A few other speakers shared that view. Article 8.1 of the directive requires that member states shall provide for appropriate measures in the event of non-compliance with this directive by the employer or the employee's representatives. In particular, they shall ensure that adequate administrative or judicial procedures are available to enable the obligation deriving from this directive to be enforced and so on. Naturally we took advice from Parliamentary Counsel and we have enshrined in the legislation what we think meets that obligation. Senators may well wish to table amendments in that regard and, if that is the case, we will consider what they have to say.

A number of speakers referred to the trigger mechanisms from both perspectives. A very telling point was made by Senator Quinn to the effect that the maximum of 100 equates to 2% of the workforce in a particular establishment. We have very strong representations from the trade union side that the trigger mechanism, as Senator McDowell stated, militates against the information and consultation process coming into play. We have gone with what we believe meets the requirements of the directive and appears reasonable to us. I consider it unlikely that 100 employees would be likely to be on some daft crusade but in the event that they were and they invoked the trigger mechanism, ultimately if falls to the majority of the employees in the company to decide whether the process is continued with in that manner.

To be fair to the FDI companies, it must be acknowledged that more than any others they have had in place comprehensive systems for conveying information to their employees. Some of them may well meet the requirements of pre-existing agreements which are provided for in the Bill. Many of them have had the common sense to take the nod that the directive exists and that we would be complying with the obligation to transpose it into legislation. The ones who have done that will have in place pre-existing agreements which meet the requirements both of the directive and the legislation.

It would be unfair to impose additional requirements in the legislation above and beyond those of the directive. Nobody could truthfully or accurately say we have done that. We have tried to strike a reasonable balance. We have put it in what the Leader might rightly say is a somewhat convoluted fashion but because of the nature of what we were trying to do, it was difficult to do it any other way.

Senator Leyden raised an interesting question about the public service. It really goes down to the definition of an undertaking as defined as the public or private undertaking carrying out an economic activity, whether or not operating for gain, which is located within the territory of the member state. Within the terms of the undertaking it will be decided who is in and who is out. We went for the undertaking rather than the alternative because we felt that, on balance, it was the better way. The representations and submissions suggested that it was the preferredway.

The IBEC reaction has been enunciated strongly here, as has the ICTU view. Senator Coghlan raised the issue of workplace bullying which was also mentioned on the previous occasion I was in the House. I received the report of the expert group in the interim. One of its recommendations is that specific legislation be put in place and that is something we must deal with in due course. I look forward to coming back to the House with that. It is not something that can necessarily be provided for within this legislation, except to say that the safeguards we have provided for employees who invoke their rights under the Employees (Provision of Information and Consultation) Bill are very strong. I will revisit the matter if anyone can persuade me that it needs to be strengthened but I believe the safeguards are particularly strong.

I thank Senator Coghlan for his comments and Senator Hanafin for his proposal and the points he made, especially one which I believe would get agreement across the spectrum, that all citizens must benefit from the economic prosperity and that all stakeholders in an enterprise at every level have a right to some involvement. In many instances they already have this, but sadly, in some cases, including the one that is on everybody's tongues today, Irish Ferries, they clearly have not. It would be well for us not to pretend that everything is rosy and to accept that there is an obligation on us to provide legislation or whatever is required, including penalties, to ensure that what we see as fair and equitable is provided for in the workplace.

Senator Hanafin also referred to pre-existing agreements. We must also face the fact that there are workers who do not want to have representatives receive or pursue information and consultation on their behalf and who very much want to have a personal involvement. Insofar as we can within the directive, we have also allowed for that to happen.

Senator O'Toole mentioned that from long experience the consultation process must be long. On this occasion it was long without achieving what I had hoped. That is one of the things one learns as one goes along. It is a quality of good partnership that it forces people to face up to, listen and confront each other's difficulties. That is one of the great benefits of the social partnership model. It will be a benefit that will go into enterprises on foot of this legislation. Senator O'Toole is right to point out that we have been successful in increasing productivity and that it is only fair and equitable that the wages of workers should reflect this.

Like virtually every other speaker, Senator O'Toole raised the point about the Irish Ferries case and whether it is a legitimate case for the payment of redundancy. More particularly, it has been asked if it is appropriate for the taxpayer to pay a substantial chunk towards that redundancy. That is a serious question and one to which we must face up, specifically in the case of this company. We must also face up to the underlying ethos, which, if it is allowed to go unchecked, will undoubtedly do enormous damage to this economy. It would not take very long for that to happen. I have no difficulty whatever about forcing the pace in regard to the payment of redundancy to people in a situation where a company has collapsed and the unfortunate workers are left with nothing. In that circumstance I will do everything in my power to ensure that redundancy is paid. That is not the situation in this instance and the matter will be looked at very carefully.

I have already dealt with some of the points raised by Senator White. She made the point, echoed by Senator Quinn and others, that sometimes we may be overly prescriptive or regulatory. In this instance, what we have tried to do is comply with the requirements of the directive and to do so in a manner that is fair to all the players. Given the diverse nature of our workplaces, it is very difficult to do that. It is inevitable that people would feel it is either clumsy or overly prescriptive. We have tried to do it in a manner that takes account of reality, the voluntary nature of the industrial relations system and the positive role that has been played by both employers' representatives and union representatives with Government and the other social partners over the past 17 or 18 years.

The Leader is right; along with education, social partnership has been the foundation of the success of the economy. We must operate within the parameters of that process. We are trying to do that. I accept, as we all do, that the contribution of the American FDI companies to this economy has been tremendous. We know that, on the whole, their company management is not open to having union involvement in their affairs but I can assure them that the provisions of this legislation will be entirely to the advantage of their companies. There is no question of a blurring of the distinction which Senator Quinn made between the provision of information and the attendant consultation on the one hand and a sudden change to a management model from the workfloor on the other. That is not the intention of the legislation. In places where it has been a little too prescriptive it is in an effort to ensure that is what it provides for.

Senator McDowell raised what he sees as the central problem that this Bill will not move the practice forward. He is concerned that it lacks teeth to enforce good practice. If I believed that were the case I would be open to looking very carefully at it. I will state my views on it openly in the House and if Members make an alternative case I will consider it and, on balance, decide one way or the other. We must do this.

Senator Quinn commented on my intention to introduce amendments. Virtually all of my proposed amendments are technical but one or two will not have the effect of undermining the confidence of the companies about which the Senator is concerned, or the confidence of the trade union people. When addressing the Health and Safety Bill in this House, after its fairly tough passage in the other House, I discovered Senators were able to point out fairly obvious points to which none of us in the other House had adverted. In considering the role of the Oireachtas one must be aware that it is the job of Government to govern and the job of the Oireachtas to make the legislation. It would be very wrong of any Minister to close his or her mind to what might be said by any Member on any side of the House. I assure the Senators I will not do that.

Senator McDowell is correct in that a model has evolved that has used parts of the Germano-European model, parts of the Anglo-American model and parts which are entirely our own. If one were examining the theory behind the Irish social partnership model from outside, one would say the model could not work. In theory it seems to have many shortcomings but, in practice, we seem to work it wonderfully well in Ireland and very much to the advantage of all the stakeholders and the economy. Ultimately, while we want to ensure that wealth is distributed fairly, we must acknowledge that we will not be in a position to deliver any of the services people want unless we are in the business of creating wealth. In this regard, we have struck a reasonable balance. To ensure we have the very desirable level of consultation that ought to exist, we must accept that penalties must exist. We have done this as well as we can but we will consider what Members have to say on Committee Stage.

Senator O'Rourke asked whether the legislation will deliver. I believe it will. The legislation will bring about an evolution in practice in response to its provisions rather than have a big impact on day one. If it does so, Ireland, the companies and the operated enterprise level will be much the better therefor. It would quite undesirable to have a big-stick approach on day one rather than a facilitation of evolving circumstances with which, to be frank, people on both sides have enormous difficulty coming to terms. However, we are obliged to put the framework in place to encourage people to come to terms with the legislation, such that the kind of model Senator Quinn operated in his business will become much closer to the norm than is presently the case. If we manage to do this, we will have made significant progress.

We would be very big-headed if we were to assume for a moment that we are the people who must deliver everything for the next hundred years. People will emerge in three, four or five years with their own views and will decide how the process is to proceed. We will have done a good job if we have provided a reasonable platform on which the economy can be further advanced by the participation of workers and managers together. That is certainly what we have set out to do by way of this legislation. I am only sorry we are doing so against the background of the Irish Ferries dispute and the appalling message it sends as we are about to enter the next phase of social partnership.

Senator Quinn made a point about the confidentiality clause. It is clear to me that we need to have it in the legislation and that we need the capacity to enforce it. However, I accept the Senator's point that it might at some level be regarded by employers, and by FDI employers in particular, as unduly intrusive in their business. That is not the intention of the directive, nor will it be the outcome when the legislation is enacted. There is certain information which is clearly not that sensitive but is currently not provided in many instances. It is the kind of information that would allow employees to play a far more meaningful role in their companies and ultimately allow employers to operate a far more profitable business. The benefits, for all sides, arising from the enactment of the legislation and its adoption will far outweigh the concerns that frequently loom large in advance of enactment and almost always dissipate subsequently when it is put into practice.

Senator Leyden made a very important point about the need to consolidate legislation. I am trying to do this and we have set the ball rolling. It will take some time but would bring considerable user-friendliness to this entire area. Senator O'Rourke knows exactly the difficulties that arise when one tries to decide under which of the 25 items of legislation, and with which of the seven bodies, one ought to proceed. This is a considerable job which we must complete. I am glad to have set it in train.

Senator Mansergh referred to the lack of a definition. As I explained, it is in the directive and I will consider whether it should be in the legislation. However, the legal advice is that we do not need to include it. I was very taken by what the Senator said about social partnership. Since I have been in this job, I have noticed, perhaps with more sensitivity, the number of people who are making what seem to be all kinds of unprovoked attacks on social partnership. I always say to them that if they have an alternative model, they should let us know about it. In the meantime, we should note that the social partnership model has worked very well for us. We will certainly use it until we have a better one.

Senator Mansergh also made the point about striking the correct balance. We have tried to do so. I agree with his point on the appointment of directors and his points about Irish Ferries, just as I agreed with the similar points made across the entire political spectrum of the Seanad. I heard most of the comments on Irish Ferries in the Seanad before I entered the House and it is unfortunate that this is the background against which we are introducing this legislation. I look forward to a more detailed debate on specific aspects on Committee Stage. I thank the Senators very much for their participation.