Seanad debates
Wednesday, 29 March 2006
Employees (Provision of Information and Consultation) Bill 2005 [Seanad Bill amended by the Dáil]: Report and Final Stages.
11:00 am
Rory Kiely (Fianna Fail)
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This is a Seanad Bill which has been amended by the Dáil. In accordance with Standing Order 103, it is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. On the question "That the Bill be received for final consideration", the Minister may explain the purpose of the amendments made by the Dáil. This is looked upon as the report of the Dáil amendments to the Seanad. For Senators' convenience, I have arranged for the printing and circulation of the amendments. The Minister will deal separately with the subject matter of each group of amendments. I have also circulated the proposed groupings. A Senator may contribute once on each grouping. The only matters, therefore, which may be discussed are the amendments made by the Dáil.
Tony Killeen (Clare, Fianna Fail)
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The first grouping is amendments Nos. 1, 3 to 10, inclusive, 13, 17 to 19, inclusive, 23 and 25. The majority are technical in nature and arise from the enactment of the Interpretation Act 2005 which came into effect on 1 January 2006. The other amendments are grammatical in nature. I am indebted to Deputy Howlin for drawing the effects of the Act on the Bill to my attention. These could not have been dealt with in the Seanad because the Interpretation Act had not yet been passed.
Tony Killeen (Clare, Fianna Fail)
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The second grouping, amendments Nos. 2 and 26, deals with the definition of appointment of employees' representatives. The issue of allowing employees' representatives to be appointed arose on Committee and Report Stages in both Houses. It was also raised in bilateral discussions with the social partners.
Having given the matter much consideration, I formed the view that it is important to provide for the appointment of representatives to cater for situations where employees do not want a formal election process or feel it is unnecessary. I was anxious to accommodate those enterprises where there is already good practice in this area. Having listened carefully to the arguments put forward in both Houses and after consultations with the social partners, it is vital that where employees wish to receive information on consultation with representatives, there is trust and support for those representatives and they are truly representative of the employees.
I introduced these amendments to alter the definition of "appointment" to ensure employees have control over the process of appointing their representatives. There was agreement on all sides of the House on that principle. At the time I did not have a means for altering the definition. I believe these amendments are a suitable means of doing so.
Joe O'Toole (Independent)
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This is an honourable compromise from all sides and moves matters forward significantly; it is important that people would have trust and confidence in each other. On the related issue of the way in which trust and confidence flows between various groupings, I wish to put to the Minister of State an issue that was also current when we debated this matter on the last occasion here. I refer to how this flow of information relates to employees and, in particular, the question of redundancy. Is the Minister of State aware of where the application for redundancy from Irish Ferries currently stands? He will recall there was a major row on the issue and that I personally took——
Rory Kiely (Fianna Fail)
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The Senator is going outside the terms of group 2.
Rory Kiely (Fianna Fail)
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We are dealing with amendments Nos. 2 and 26 and I do not think the Senator's remarks are relevant in that regard.
Joe O'Toole (Independent)
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I will raise the matter under group 3, which may be more appropriate.
Rory Kiely (Fianna Fail)
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Yes. We will now deal with group 3 which deals with changes to negotiated and pre-existing agreements and is the subject matter of amendments Nos. 11, 12 and 14 to 16, inclusive.
Tony Killeen (Clare, Fianna Fail)
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When dealing with this Bill in the Dáil, it came to my attention that the legislation as presented at that stage would not allow for existing employee representatives to approve a pre-existing agreement. That was because of the nature of the drafting which initially stated "These representatives must be elected or appointed for the purposes of negotiations under this Act." Pre-existing representatives would not have met that requirement, of course, so I brought in that provision to enable those enterprises that already have agreements toratify them.
The other matter concerns the word "method". I wanted to ensure that it is not limited in meaning but only to the choice of direct involvement of citizens or information and consultation to representatives. As I outlined on Committee Stage, many different methods are in use in various enterprises, so I wanted to ensure that they were legal for the purposes of this Bill.
Paddy Burke (Fine Gael)
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Group 4 concerns confidential information and is the subject matter of amendments Nos. 20, 21 and 24.
Tony Killeen (Clare, Fianna Fail)
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Government amendments Nos. 20 and 24 are relevant in this context. Similar amendments were tabled by Deputy Hogan on Committee Stage in the Dáil. The confidentiality requirement for the employee or third party who receives information in confidence from an individual, which is defined in section 14(1), is general and not qualified. On the basis of advice received from the Office of the Parliamentary Counsel, I brought forward these two amendments to ensure that the duty of confidentiality referred to there means only a duty under this Bill.
On amendment No. 21, Deputy Howlin raised this matter on Committee Stage in the Dáil in an amendment which sought to delete the second part of section 14(5). After detailed discussions with the Office of the Parliamentary Counsel, I was advised that the provisions of Article 6.2 of the directive, which deal with circumstances in which an employer can refuse to communicate information, are achieved by section 14(4) of the Bill and the remaining part of subsection (5). Therefore, the second part of subsection (5) was superfluous and the Parliamentary Counsel recommended its deletion.
Joe O'Toole (Independent)
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It is probably more appropriate for me to raise my point about the flow of information as an example of confidentiality. I wish to illustrate the point with an issue so that we will have a greater understanding of how this matter operates. Taking the Irish Ferries situation, for example, perhaps the Minister of State could outline how a determination is made on that flow of information on something that may or may not be confidential. As regards the current situation with Irish Ferries, we are all aware of the fact that the company has been examining the question of redundancy. This raises the question of the State paying redundancy to a company that was sacking workers who were fully employed, to be replaced by other workers. The question arises as to whether that would be redundancy. How, therefore, does the flow of information and confidentiality on that issue operate? Will the Minister of State tells us what is the current situation regarding the Irish Ferries issue in this respect? My understanding is that there may well be an application for redundancy payments but, if so, who will make that decision? Are we aware of how it will be made? Will it be referred to one of the deciding officers in the Minister of State's Department who will consider or deal with it there? Has the Government taken a view as to whether this is redundancy as defined under the Act? Will Irish taxpayers be funding, re-funding or otherwise supporting Irish Ferries in sacking Irish workers in order to replace them with other workers as a scam? What is going on here? Can this clause be used in any way to keep under the counter anything that is happening in this area? How will this matter play out if there is an application from Irish Ferries? Is something being done about it at the moment and, if so, how will it be dealt with? Is it the responsibility of the Minister of State? Does the matter have to go to the Government and, if so, does the Government have to refer it to the Attorney General? At the time, we were told that redundancy might not be recognised in this situation and that the Attorney General would have a view on it. Did that happen and, if so, where will the matter now be decided? I know it can be referred either to the appeals board or the redundancy tribunal.
Confidentiality is the kind of issue people are worried about. Senators will want to know about it from a political viewpoint, although I recognise that it is not necessarily a public issue in a normal situation. This is something that galvanised the whole country two months ago but where does it stand now? Is Irish Ferries still working behind the scenes to try to get money from the taxpayer to pay for its disgraceful act of replacing Irish workers in that manner? That upset everybody in this country. What exactly is going on in that area now and where does the Government stand on it?
Tony Killeen (Clare, Fianna Fail)
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Senator O'Toole is quite right in saying that a major redundancy situation begat a directive which led to the transposition in terms of this Bill. He is also correct in saying that the passage of the Bill through the Houses was informed or certainly otherwise affected by the redundancy situation at Irish Ferries. It has come to my attention that a redundancy rebate application was made to the Department through the on-line process at the end of last month. Under the customer service target, that would normally be dealt with within six weeks, although that certainly will not be happening. Many issues, most of which were referred to by Senator O'Toole, will come into play in that regard. My understanding is that section 39(16) of the 1967 Act might be the pertinent legislation in this regard. Clearly, however, we will need to obtain legal advice to decide how exactly to proceed and whether a redundancy situation exists under the terms of the various pieces of redundancy legislation. That is the current position and, to the best of my knowledge at this stage, that matter has not been adjudicated upon.
Feargal Quinn (Independent)
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I am very interested in what the Minister of State has had to say because that particular topic attracted everybody's attention. Does the Government have a position on this matter? That is the first time I have heard that an application has been made for a redundancy rebate. I would like to know if the Government has a position on it and, if so, what that position is.
Paul Coghlan (Fine Gael)
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This matter was not only topical but also very controversial. It is interesting to note that the Minister of State said the matter is still in the melting pot. It has not been decided or adjudicated upon. I think the Minister of State will agree that in the interests of everyone, we need to know what is the position. When does he believe there will be finality with regard to this matter? It was simply and solely a move to achieve a cheaper cost base but human beings were involved. As has been stated by other speakers, I do not think that anybody agreed with it. I support the points made by Senator O'Toole on this subject. I am sure the Minister of State would agree there is an absolute need to know what is happening. This matter cannot be allowed to continue indefinitely. When does the Minister of State think finality can be achieved in this regard?
Tony Killeen (Clare, Fianna Fail)
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On various occasions when the matter was raised in both Houses during the earlier stages of the dispute, and when the matter was very much in the public eye, I tried to make it clear that the Government's decision would have to be within the parameters of the law. My understanding is that the implications of the redundancy rebate application are currently being considered. No final decision has been made in that regard.
I assure the House that the Government will adjudicate and decide on the matter on the basis of legislation and legal advice that must be obtained to achieve certainty on the issue. I probably gave the impression in the other House and perhaps here that it is open to the Minister to refer the matter to the Employment Appeals Tribunal along the lines suggested by Senator O'Toole. I gave the impression that may be where the decision would be made. I am awaiting legal advice and I am not certain that will be the process. I assure the House that the Government will make a decision on the basis of the legal advice and the provisions of the legislation.
Joe O'Toole (Independent)
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On a point of order, does that mean the jury is still out on whether this is a legal issue?
Paul Coghlan (Fine Gael)
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Is the Minister of State unaware of what will be the timeframe because legal advice is necessary in the first instance?
Tony Killeen (Clare, Fianna Fail)
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The Department's customer service target is to turn around payments within six weeks. In this instance, the company is awaiting the rebate. From what Members stated they are extraordinarily sympathetic to the company's plight. Perhaps if there was a delay people would not be as concerned as they would otherwise be. At the same time, it is the intention of the Government to adjudicate within the parameters of the law. It is reasonable to obtain and act on legal advice to do so. To the best of my knowledge that is the stage it is at.
Joe O'Toole (Independent)
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To recap so we understand the situation, the jury is still out on whether this will be dealt with as redundancy. The Government is awaiting legal advice and it is still in the lap of the gods. A decision has not been made on whether it will be decided within the Department or referred to the Employment Appeals Tribunal. This will be watched closely from Government Buildings on Merrion Street during the talks on social partnership. Will this issue raise its head there?
I do not doubt that the issue reverberates in the debate on labour law. Will it now be raised in Government Buildings and will this be delayed in some way to accommodate discussions? This is a critical issue with reverberations in all types of directions and I would understand if the Department was delaying a decision on it. Perhaps the Minister of State is not at liberty to explain that to us. He handled this issue with such adeptness to date on such programmes as Morning Ireland that we can only stand back in wonder at his capacity to deal with it. Will he give us a few hints on how he sees it? People listening to this discussion will want it put in context and will want to know whether that context involves the legal aspect, the Employment Appeals Tribunal, the Government or all three within the parameters of the social partnership discussions. Where will it play out eventually?
Paul Coghlan (Fine Gael)
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The Minister of State is good at diplomatic coded language.
Tony Killeen (Clare, Fianna Fail)
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I strongly suspect that Senator O'Toole has more information than I do on some of what plays out in Government Buildings on partnership. The Government is bound by the legal provisions in place at present. When it receives definitive legal advice the Government must decide on how to proceed with this case. I do not doubt that the issues which arose in this case and in similar labour relations situations will impact on social partnership. I do want to state too much and prejudice the outcome. However, it is fair to expect and speculate that any outcome in this case might inform legislative changes arising from agreement at partnership.
As far as I am concerned, and perhaps I should not speak for the Government on this point——
Tony Killeen (Clare, Fianna Fail)
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——this issue falls to be determined on the basis of the legislation in place at the time the application was made. That may lead the parties to social partnership to form the view that the legislation or process must be changed. However, I previously gave the impression that a question of doubt was likely to be referred to the Employment Appeals Tribunal for its quasi-judicial judgment on whether it was a redundancy situation.
Paddy Burke (Fine Gael)
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In group 5, the subject matter of amendment No. 22 is the internal dispute resolution process.
Tony Killeen (Clare, Fianna Fail)
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I brought forward this amendment because the word "usually" in the Bill could have lead to uncertainty about the application of the internal dispute resolution procedures in the event of a first dispute arising, as there would be no history of using the internal procedures. The amendment was drafted on the advice of the Parliamentary Counsel and adds clarity on this matter. It was brought to my attention by Deputy Hogan.
Feargal Quinn (Independent)
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I agree with the amendment entirely and I credit the Minister of State with finding a solution to this matter because it had been left in a little doubt.
Joe O'Toole (Independent)
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Yesterday, I raised the issue of the situation in France and I want to compare it to the situation here during the Irish Ferries dispute and the demonstrations three months ago. What happened in France yesterday was a sense of outrage among ordinary people that young workers would be treated in such a cavalier fashion. It is important to recognise that Irish management, unions and Government have ensured genuine protection is in place. It is worthwhile for all sides of the argument to recognise that.
This Bill copper-fastens the type of agreement in which management and unions are required to speak to and engage with each other and sort out their business. That is important because people are not allowed the dubious pleasure of meeting with their own group, stating what that group wants to hear and having their polarised position reinforced. They must engage.
I ask the Minister of State to bring the following important point to the attention of every group he speaks with, including business and union representatives and members of Government. This Bill is an attempt to balance and reflect the responsibilities we have to all groups. If anything else must be done in this area, such as with the Irish Ferries dispute, we must do it. We do not want anyone to run riot through it.
I heard some of my trade union colleagues on the radio this morning stating fair play to the French because they were not taking it lying down. However, what happened in France cannot happen here because on a partnership basis between business, labour and Government, we put in place protections for workers and seek to achieve a fair balance. I am not happy with the outcome because I believe it favours employers and business. My colleague, Senator Quinn, takes an opposite view and perhaps that is good because it is how we balance our arguments and progress. This Bill is part of the process to make those taking polarised positions engage with each other and force people to find resolutions through domestic redress and remedies, sharing information and problems and finding joint solutions.
I congratulate the Minister of State and his officials for the difficult work done. I am aware of the work done by people in ICTU and of the arguments with the Department over the telephone and across tables. It is work well done. People from other countries such as New Zealand wonder how the outcome of social partnership is achieved. This Bill is part of how it is done. It not easy and I am aware the Minister of State's advisers and officials spent long nights and had long arguments on these issues. Nobody is either completely happy or unhappy. As parliamentarians we believe it is progress.
Feargal Quinn (Independent)
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I do not always agree with Senator O'Toole but in this case I agree with his comments on social partnership through which a great deal has been achieved. Opinions on this differ, for example, in regard to the problem in France, Senator O'Toole said it could not happen here. That is not correct. There is a difference here but we must work hard because what happened in France could happen here. It is difficult once one has given something to take it away again.
The French have a serious problem because their legislation makes it difficult to create employment. Some 24% of young people are out of work in France, partly because employers are loth to give them a job for life when they know that in a risk-taking entrepreneurial marketplace jobs for life are no longer guaranteed. The French Government is attempting to encourage employers to take on new employees in the knowledge that if it does not work out they can let them go again.
The Minister of State has pursued the correct policy in this legislation, in making sure there is compromise and an agreement to discuss, talk and inform before steps are taken. I congratulate the Minister of State and his officials on their determination to ensure they listened to all sides in bringing this legislation to its conclusion.
Paul Coghlan (Fine Gael)
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I too congratulate the Minister of State and his officials on a job well done. We all agree with the amendments he has brought to us from the Dáil. Regardless of whether, as Senator O'Toole put it, one is on the ICTU side or the IBEC side, with Senator Quinn, the truth is that in this country we believe in social partnership, the worker shareholding agenda and the importance of workers being part of the team. In any business, right up to management level, Senator Quinn is a living example of how to achieve this. In his own business, he has rewarded the people he employed for their loyalty and so on.
We believe that workers are a vital component in any management team, in any business, and the provision of information is a vital component of any management strategy. The Minister of State has got it right and achieved the best balance possible. I wish the legislation well.
John Gerard Hanafin (Fianna Fail)
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I welcome the Minister of State to the House and thank him again. He and his Department have facilitated a co-operative and positive approach by individual companies and their employees in meeting the objectives of the directive. This has resulted in a Bill which recognises the voluntarist tradition in Irish industrial relations which will assist companies and their employees in establishing effective and efficient information and consultation arrangements.
The Employees (Provision of Information and Consultation) Bill 2005 is without doubt a welcome addition to our employment rights and industrial relations legislation and represents an important opportunity to foster and deepen a customised partnership style approach to anticipating and managing change. The Bill affords an opportunity to meet the challenge of embedding partnership at enterprise level and making it a reality for workers and employers. I commend the Bill to the House.
Tony Killeen (Clare, Fianna Fail)
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I thank the Members of both Houses for their co-operation during the passage of the Bill and remind them that I am transposing it a year and three or four days later than the date on which this should have been done. One of the reasons for the delay was that we engaged in long negotiations. I particularly want to thank the officials in the Department for the hard work they did in the background, liaising with the various interest groups and preparing the material for the various Stages in both Houses.
I tried to approach the transposition with an open mind but it was clear at an early stage that there were somewhat unrealistic expectations and ill-founded fears, which created difficulty for the social partners who strongly made their cases on the Bill. It will, however, improve individual workplaces and bring the partnership model, which has been successful at national level, into the workplace in a way that has not been the case heretofore.
I said many times that it is only about information and consultation but some people thought it should cover wider topics. It is a positive development and fears that people may have had about the impact of the legislation will turn out to be unfounded. I thank Members for their co-operation.