Thursday, 12 July 2012
Industrial Relations (Amendment)(No. 3) Bill 2011: Committee Stage
Richard Bruton (Minister, Department of Jobs, Enterprise and Innovation; Dublin North Central, Fine Gael)
I thank Senator Cullinane for tabling the amendment. As he recognised, there was substantial debate on this issue on Second Stage. I have been around the Houses and back to the Attorney General to evaluate the point being made by the Senator's colleagues in the other House. What is being done is a weighing up of a series of different principles, which will sometimes be in agreement and other times in conflict. The phraseology used in the context of the "desirability" of maintaining competitiveness or sustainable rates of remuneration indicates that a series of matters is to be considered, all of which are desirable in themselves. The adjudication process seeks to weigh up these different principles. The Office of the Attorney General is firmly of the view that the reference to "desirability" should remain, as it gives an indication that these are appropriate principles to which the court and a joint labour committee should have regard and are desirable provisions in themselves. These provisions seek to embody the concept of weighing up different principles which, while desirable in themselves, can be also in conflict. If one leaves out the word "desirability", one moves from one of a range of principles that must be considered to an absolute position and removes the discretion of the Labour Court in evaluating principles which may, at times, be in conflict with other principles it is seeking to pursue.
In addition, if a criterion is inserted in absolute terms, it becomes open to challenge and fetters the freedom of the court. For example, if the court "must" observe the need for competitiveness, a person may challenge whether the court, in making a ruling, honoured this absolute statement. On the other hand, when one uses the qualification of "desirability", one effectively leaves the court unfettered to weigh up the different issues in coming to its conclusion. I assure the Senator that the use of the phrase "desirability" is not in any way designed to devalue the sentiment or importance of the principle. It is simply a reflection of the legal advice from the Office of the Attorney General which indicated to me that this is the appropriate way in which to draft legislation of this nature. Unfortunately, while I understand the reason the amendment has been tabled, I cannot accept it.