Gerald Nash (Louth, Labour) | Oireachtas source

Part 2 also provides for the making of sectoral employment orders, SEOs. The Labour Court may initiate a review of the pay and pension and sick pay entitlements of workers of a particular class, type or group in a particular sector and, if it deems it appropriate, make a relevant recommendation to the Minister. Such a review will be initiated at the request, separately or jointly, from organisations substantially representative of employers and-or of workers.

Where the Minister is satisfied that the process provided for in the new legislation has been complied with by the Labour Court, he or she shall make the order. Where such an order is made, it will be binding as regards the class, type or group across the sector to which it relates, and it will be fully enforceable.

There is broad acceptance that the re-introduction of REAs and a sectoral pay and conditions framework in a constitutionally robust manner will be of benefit to both workers and their employers. From a worker and employer perspective, the agreements and orders will provide certainty around what pay and conditions will be into the future, and the very real pay-off of industrial peace. These are critical for workers planning their future and for employers when tendering for and working through contracts. They will also maintain skill standards and help avoid races to the bottom that, in the end, are of no lasting benefit to employers or workers. In addition, there is no doubt but that REAs and SEOs will address the uncertainty around pay and conditions that has arisen since the McGowan ruling and should assist in resolving industrial disputes or potential disputes that have occurred following that decision.

Part 3 of the Bill marks the fulfilment of a significant commitment in the programme for Government to ensure that Irish law is consistent with recent judgments of the European Court of Human Rights. It will provide a clear and balanced mechanism by which the fairness of the employment conditions of workers in their totality can be assessed where collective bargaining does not take place.It will ensure that such workers, aided by a trade union, can advance claims about remuneration and conditions of employment and have these determined by the Labour Court based on comparisons with similar companies. It provides definitions of key terms as well as guidelines to help the Labour Court identify if internal bargaining bodies are genuinely independent of their employer, and policies and principles for the Labour Court to follow when assessing the comparability of the remuneration and conditions in dispute.

The Government knows that workers in some employments may feel exposed in seeking to improve terms and conditions and that making themselves known may have unwanted and unwarranted consequences. The legislation will bring in significant protection against such consequences. This will be done by way of interim relief in the Circuit Court where a dismissal is challenged by a worker who believes that he or she was victimised as a result of his or her participation in the invoking of the processes of the Act. Worker and employer stakeholders have played a critical role in assisting Government developing this clear and workable framework and I wish to acknowledge the huge contribution of the representatives of both sides of industry in this regard.

Part 4 of the Bill provides for a number of amendments to the Industrial Relations Acts in a number of important areas. Taken together with the National Minimum Wage (Low Pay Commission) Bill that has already been passed by this House, I believe that this suite of legislative reforms represents a unique opportunity for the Oireachtas to bring about the most significant shift in the industrial relations landscape seen in many years.

Part 1 of the Bill deals with the Short Title, citation, constructive provisions and commencement date and certain definitions. Part 2 of the Bill deals with REAs and SEOs. Chapter 1 of Part 2 provides for definitions of key terms to be used in Chapter 2. Chapter 2 of Part 2 deals with registered employment agreements.

Section 7 provides for the register of employment agreements to be maintained by the Labour Court, including the provision that the details of REA registration, cancellation and variation be published on the Internet.

Section 8 provides that where an application is made to register an employment agreement, the court shall register it only where it is satisfied that there is all-party agreement that it should be registered, and it is satisfied that it is desirable or expedient to have a separate agreement for the class, type or group of workers covered by the agreement. Similarly, the court shall only register the agreement where it is satisfied that the trade union of workers is, or trade unions of workers are substantially representative of such workers, and that the agreement provides that, if a trade dispute occurs between workers to whom the agreement relates and their employer, industrial action or lock-out shall not take place until the dispute has been submitted for settlement by negotiation in the manner specified in the agreement.

In addition, the court shall not register any such agreement unless it is satisfied that registration of the agreement is likely to promote harmonious relations between workers and their employer, and the avoidance of industrial unrest. It is important to note that an REA will not prejudice any rights as to rates of remuneration or conditions of employment conferred on any worker by or under this Act or any other Act.

Section 9 provides for the variation of REAs. This may arise where all parties so agree or where one party wishes to vary the agreement but the other does not. In the latter case, the court, after the exhaustion of the agreed dispute provisions, may refuse or grant such a variation as the court deems appropriate. Provision is made for a party to withdraw from an agreement following a variation where the agreement provides for a party to do so.

Section 10 provides that the court may cancel the registration of an employment agreement at the request of all parties or on the application of any party, where the registration of an employment agreement has continued after the finishing date and consented to by all parties. This is to ensure that all parties are aware that a termination date is imminent. It may also cancel the registration where it is satisfied that the trade union of workers, or trade unions of workers, who were party to the agreement are no longer substantially representative of the workers concerned.

Section 11 provides for the incorporation of the terms of any REA in respect of remuneration or conditions of employment to be incorporated into a worker's contract of employment. Section 12 provides that the Labour Court may, where asked, give its decision on any question as to the interpretation of an REA or its application.

Chapter 3 of Part 2 of the Bill deals with the new mechanism dealing with SEOs. These will encompass pay and remuneration, pension schemes, sick pay schemes, or a combination of any or all three.

Section 13 provides for definitions of key terms to be used in Chapter 3.Section 14 provides that a trade union of workers or a trade union or organisation of employers which is substantially representative of workers or employers of a particular class, type or group of workers in a particular economic sector may, separately or jointly, request the Labour Court to examine the terms and conditions relating to the remuneration, sick pay or pension of workers of that particular class, type or group and request the court to make a recommendation to the Minister. The court may not consider a request where the Minister has made an employment order for the same workers in that sector in the previous 12 months, unless there are exceptional and compelling reasons.

Section 15 provides that the Labour Court shall not undertake an examination unless it is satisfied that the trade union of workers or trade union or organisation of employers are substantially representative of workers in the economic sector and, in satisfying itself, the court will take into account the number of workers represented by the trade union and the number of workers employed in the sector by employers represented by the trade union or organisation of employers concerned. Section 15 also provides that the court will have to be satisfied that it is normal and desirable practice to have separate rates of remuneration, sick pay and pension provisions in the class, type or group of worker in the sector concerned and that any recommendation is likely to promote harmonious relations.

Section 16 provides guidance to the Labour Court on the principles and policies that it must take into account before making a recommendation to the Minister, including the requirement to ensure that the recommendation would promote harmonious relations, promote and preserve high standards of training and qualifications and ensure fair and sustainable rates of remuneration in the sector. Section 16 also provides that the recommendation by the court may provide for a minimum hourly rate of pay in excess of the national minimum wage; not more than two higher hourly rates of basic pay based on length of service in the sector or enterprise concerned or the attainment of recognised standards or skills in the sector concerned; and minimum rates of pay in respect of young workers as provided for, and in accordance with, the relevant percentages set out in the National Minimum Wage Act. The recommendation may also include a minimum rate of remuneration for apprentices, any pay in excess of basic pay in respect of shift work, piece work, overtime, unsocial hours worked, hours worked on a Sunday or travelling time. Recommendations in this respect are at the discretion of the court. A recommendation will include the procedures to apply in the case of a dispute concerning the terms of a sectoral employment order, SEO.

Section 17 provides for the submission by the Labour Court to, and consideration by the Minister of, the Labour Court recommendation. The Minister shall refuse to make such an order if not satisfied that the process has been complied with, otherwise the Minister shall make the order. There will be a requirement for a positive Oireachtas resolution before any order is made.

Section 18 provides that if an order has not been amended or revoked within three years, the Minister may request that the court undertake a review of the terms and conditions of the previous order.

Section 19 provides that an SEO shall apply to all workers of the class, type or group in the relevant sector, regardless of whether the worker and his or her employer were party to the request to the Labour Court and for the incorporation of the terms of any SEO in a worker's contract of employment.

Section 20 provides for anti-penalisation measures to protect a worker who invokes any right conferred on him or her by the Act or takes other specified actions under the Act.

Section 21 provides for a mechanism to allow an employer experiencing financial difficulties to apply to the Labour Court for a temporary derogation from the requirement to pay the remuneration provided for by an order.

Section 22 provides for a requirement for employers to whom an REA or a SEO applies to keep such records as are necessary to show whether they are compliant with the terms of the REA or SEO.

Section 23 provides for the functions of an adjudication officer of the workplace relations commission and the Labour Court on disputes regarding the penalisation provisions under section 20 of this Bill, breaches of an REA and breaches of an SEO.

Section 24 provides for the amendments to the Workplace Relations Act 2015 to accommodate the necessary compliance and enforcement requirements regarding REAs and SEOs.

Part 3 of the Bill addresses the Government commitment on collective bargaining. Section 25 provides for definitions of key terms to be used in Part 3.

Section 26 amends the principal Act to provide for the insertion of a number of relevant definitions regarding collective bargaining and excepted body.

Section 27 amends the principal Act by the insertion of definitions of collective bargaining and excepted body. These definitions apply only to the principal Act and have no meaning in terms of other legislation.

Section 28 amends the principal Act to remove the right of access of an excepted body under section 2(1) of the 2001 Act.Since the decision of the Supreme Court in larnród Éireann v. Holbrooke and Others it is clear that a body can only be an excepted body within the meaning of the Trade Union Act 1941 if it actually conducts consensual negotiations with an employer. The existence of a genuine excepted body means that a fundamental requirement of the Act, that is, the absence of collective bargaining negotiations, cannot be met. Section 28 also amends the principal Act to provide for additional matters that the court must consider in determining the question of whether an employer engages in collective bargaining with his or her workers before embarking on a full investigation. In this regard, it is recognised that the processes under this legislation are not appropriate to disputes involving an insignificant number of workers. New provisions are added to the principal Act which balance the need to avoid the possibility of the creation of artificial grades, groups or categories designed to subvert the intention of the Act while at the same time avoiding the erection of a barrier to access for all reasonable cases. To achieve this, the principal Act now provides that the court shall decline to conduct an investigation of a trade dispute where it is satisfied that the number of workers party to the trade dispute is such as to be insignificant, either in relation to the grade, group or category of workers concerned or where the grade, group or category of worker to which the trade dispute refers is itself part of a larger related grade, group or category of workers, unless there are exceptional and compelling reasons that justify the conducting of such an investigation.

Section 28 also amends the principal Act to ensure that the same or a different trade union cannot repeat the process if the court has very recently made a recommendation or determination for the same workers. Specifically, it provides that, other than in particular stated circumstances, the Labour Court shall not admit a request by the same workers to which the trade disputes refers where the court has made a recommendation or determination in relation to the same workers in the previous 18 months.

Section 28 inserts a new subsection into the principal Act to give practical effect to the principle of independence of an excepted body. Specifically, it provides guidance to the Labour Court as to the criteria it should take into account in determining whether an excepted body is engaged in collective bargaining as defined in the Act, and is genuinely independent of the employer. Section 28 amends the principal Act by providing that where an employer asserts to the Labour Court that it is his or her practice to engage in collective bargaining with an excepted body in respect of the workers concerned, it will be for the employer to satisfy the Labour Court on this.

Section 29 inserts a new section into the principal Act to provide for supplemental matters relating to members of the trade union employed by the employer. The Government has decided, as a matter of policy, that it would be preferable for the workers involved in a dispute under this Act not to be required to make themselves known to their employer early in the process if possible, so as to avoid any potential for victimisation. The new section provides that a statutory declaration made by the chief officer of the trade union concerned, setting out the number of its members who are party to the trade dispute and period of membership in the grade, group, or category to which the trade dispute refers, shall be admissible in evidence without further proof unless the contrary is shown. However, where the employer asks that the matters specified in the declaration be examined, the Labour Court shall satisfy itself that these are indeed correct.

Section 30 amends the Principal Act to substitute the term "terms and conditions of employment" with "the totality of remuneration and conditions of employment". This is required to ensure that the totality of pay and conditions is examined by the Labour Court. Section 30 makes provision in the principal Act to the effect that the Labour Court shall not make a recommendation providing for an improvement in the remuneration and conditions of employment of a grade, group or category of workers unless it is satisfied that the totality of remuneration and conditions of employment of the workers concerned provides a lesser benefit to the workers concerned having regard to the totality of remuneration and conditions of employment of comparable workers employed in similar employments. This provision is required because the principal Act, as it stands, provides no guidance to the Labour Court on the factors that should be taken into account in formulating a recommendation or determination under the Act.

Section 30 provides new guidance to the Labour Court, in considering whether to make a recommendation on the dispute, as to the procedures to follow in assessing whether the totality of remuneration and conditions of employment of the workers concerned provide a lesser benefit to the workers concerned having regard to the totality of remuneration and conditions of employment of comparable workers employed in similar employments. Specifically, the court is required to have regard to the totality of the remuneration and conditions of employment of comparable workers employed in similar employments - regardless of whether such comparable workers are represented by a trade union - and the comparability of skills, responsibilities and physical and mental effort required to perform the work in which the workers are engaged. In this regard, the court may have regard to those of similar employments of an associated employer outside the State. In addition, the section provides that where collective agreements concerning the relevant worker are commonplace in similar employments, the court shall, in addition to other evidence presented by the parties, have due regard to the terms of such agreements for the time being in force. Where collective agreements concerning the relevant workers are not commonplace in similar employments, the court shall have due regard to all evidence presented by the parties, whether by way of collective agreements or established to the satisfaction of the court by other means. The amendment provides that the court shall, for the purpose of making a recommendation, have regard to the effect such a recommendation may have on the maintenance of employment and the sustainability of the business of the employer in the long term.

Section 31 provides guidance to the Labour Court when considering the issuing of a determination where a recommendation has not been accepted or where the employer has resiled from the implementation of a previously accepted recommendation. It mirrors the relevant provisions in section 30.

Sections 32 and 33 amend the principal Act by the deletion of "or excepted body," as the term is no longer relevant in the context of this legislation.

Section 34 amends the principal Act by the insertion of a new section to provide interim relief pending the determination of any claim for unfair dismissal pertaining to a member of the trade union involved and subject to the provision of evidence, information or assistance for the purpose of the examination or investigation made by the Labour Court under the Act. The appropriate amendment to section 6 of the Unfair Dismissals Act 1977 is provided in section 39 by adding an additional ground on which a dismissal is deemed an unfair dismissal. The terms "worker" and "employee" are given the same meaning to ensure consistency between the two Acts.

Sections 35, 36, 37 and 38 provide for amendments to the Act of 2004 by the deletion of references to an excepted body, in line with other similar amendments in this Bill.

Section 39 amends the Unfair Dismissals Act 1977 to provide protection from victimisation through dismissal for workers who are members of a trade union involved in a dispute.

Part 4 provides for a number of miscellaneous amendments to the Industrial Relations Acts. Sections 40, 44 and 45 encompass the necessary amendments to the Industrial Relations Acts to provide for access to the Workplace Relations Commission and the Labour Court for individual retired persons for the purpose of pursuing issues relating to their terms and conditions at the time of retirement.

Sections 41 and 42 provide for necessary amendments to the Industrial Relations Act 1946 to address a potential weakness in the provisions dealing with the establishment of new joint labour committees and to ensure that in future, orders providing for the making, variation and revocation of establishment orders will be a matter for the Minster, with appropriate Oireachtas oversight.

Section 43 provides for an amendment to the definition of "agriculture" in the Industrial Relations Act 1976 to reflect the Labour Court recommendation arising out if its 2013 review of existing joint labour committees. Section 46 amends the original establishment order for the agriculture joint labour committee to reflect the new definition.

I commend the Bill to the House.