Brendan Ryan (Labour)
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I move amendment No. 1:

In page 7, between lines 31 and 32, to insert the following:

"(a) in subsection (1) after "designated for the time being under subsection (3)"

to insert:

", and includes a person who was formerly a worker but has ceased to be a worker prior to the making of a claim of breach of the said Acts relating to a period during which the person was a worker",".

I welcome the Minister of State. There is an unjust provision whereby a person who does not refer a complaint to the employment rights mechanisms prior to ceasing employment or retiring is deprived of redress. The amendment would define "worker" to include former workers. This is very important, as it must be open to former or retired workers to seek redress where they were deprived of rights when working. The requirements of justice are such that the legislation should be amended to provide a facility for such workers to have their grievances examined. I, therefore, ask the Minister of State to accept the principle of justice involved and the amendment.

Dara Calleary (Mayo, Fianna Fail)
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I thank the Senator for tabling this constructive amendment. I am very sympathetic to the suggestion made in it. The amendment, as he outlined, seeks to address the issue whereby retired people do not have access to the industrial relations machinery in circumstances where they did not proffer their claim prior to retirement. This issue arose over 30 years ago. At the time the Labour Court obtained advice from the Attorney General on whether a retired person could have locus standi to make a claim under the Industrial Relations Act 1969. The Attorney General advised that a retired person could not be regarded as a worker for the purposes of the Act. The advice was subsequently confirmed by the Attorney General some years ago in a case involving former Forfás workers. The matter has arisen on a number of subsequent occasions, most recently in two cases before the Labour Court in 2008 involving University College Dublin and two of its retired employees.

I acknowledge that the requirements of good employment practice dictate that retired people should have a facility whereby grievances can be examined on merit. The Department has raised the matter with the Attorney General and is exploring how the proposal can best be facilitated. It is only reasonable, therefore, that there should be some limitation on the access to be provided with regard to a time limit on claims. I am sympathetic to the Senator's suggestion and want to consider further the scope for setting a time limit on the bringing of claims. Therefore, I am not yet in a position to accept the amendment, although I hope to address the issue during the Bill's passage through the Dáil. In that event, this House will have the opportunity to examine the matter again.

Brendan Ryan (Labour)
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I thank the Minister of State. Having listened to his comments, I am happy to withdraw the amendment, given the commitment he has given. I hope we will have a successful outcome.

Brendan Ryan (Labour)
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I move amendment No. 2:

In page 7, line 35, to delete "(cc)" and substitute "(d)".

This is a drafting amendment. If the existing paragraph is to be deleted, there is no reason the new paragraph should not be labelled "(d)", rather than the unwieldy "(cc)". I ask the Minister of State to accept the amendment.

Dara Calleary (Mayo, Fianna Fail)
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It is generally the practice of the Parliamentary Counsel in the Attorney General's office not to reuse section or paragraph numbers because to do so can cause confusion. For example, a reference to paragraph (d) in future legislation might inadvertently be taken to refer to paragraph (d) being substituted by this provision. Accordingly, I am not in a position to accept the amendment.

John Paul Phelan (Fine Gael)
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It is a little bizarre.

Brendan Ryan (Labour)
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I am not prepared to press the amendment at this point but will reserve my position and may resubmit the amendment on Report Stage.

Brendan Ryan (Labour)
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I move amendment No. 3:

In page 7, paragraph (b), line 38, after "(6)", to insert the following:

"and in lieu thereof by the insertion after subsection (4) of the following:

"(5) Where having regard to the particular economic circumstances affecting any particular category of workers, the Government is of opinion that it is expedient that the procedures under the Industrial Relations Acts 1946 to 2009 ought to be

available to members of that category, the Government may by order declare that members of that category shall be deemed to be included in the definition of "worker" in subsection (1) and may by order revoke or amend any such order.

(6) Every order made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either House, within the next twenty-one days on which that House has

sat after the order has been laid before it, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder" ".

The effect of the Bill and the amendments therein is to remove the power to make changes to the definition of "worker" by ministerial order and to ensure, in line with the decision in the Mulcreevy case, future changes to the definition of "worker" will be made in primary legislation. It is our view that the removal of the Minister's power to amend the definition of "worker" will create inflexibility. While we appreciate the existing provision may be constitutionally doubtful, we suggest the reworded provision in the amendment might pass the constitutional test. I note that the original section states the Government may, by order, amend the definition of "worker" in subsection (1) and may, by order, revoke or amend any other such order. We are attempting to reinstate the power of the Minister, rather than have it taken away. We want the matter to be dealt with on the basis of a wording which we consider would not meet with constitutional difficulty and where the Minister would have the power to deem a certain category of worker to be included in the definition of "worker". I ask the Minister of State to accept the amendment.

Dara Calleary (Mayo, Fianna Fail)
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There are two issues involved. It is not, as the amendment states, particular economic circumstances affecting any category of workers that would be expected to determine whether a category of worker should be included in the definition but instead the outcome of negotiations between the relevant employer and workers on the appropriate dispute settling framework for those workers. In addition, the amendment proposes to revert to a position where the definition of "worker" might be amended by order, albeit with some Oireachtas scrutiny. The Government has decided to remove the power to make changes to the definition of "worker" by order and to ensure that, in line with the decision of the Supreme Court in the case referred to by Senator, Mulcreevy v. the Minister for the Environment, Heritage and Local Government, future changes to the definition will be made in primary legislation. In accordance with that judgment, we are not in a position to accept the amendment.

Brendan Ryan (Labour)
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The amendment seeks to step back and remove any constitutional difficulty. Primary legislation can be the subject of a very lengthy process and there can be considerable and unnecessary delays before a defined matter may be included within the scope of the legislation. However, I take the Minister of State's point. I do not propose to press the amendment but may consider resubmitting it on Report Stage. I ask the Minister of State to reflect on the matter and take further legal advice as to whether the wording we propose might overcome potential difficulties.

Pat Moylan (Fianna Fail)
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Amendments Nos. 4 and 5 are related and may be discussed together, by agreement. Is that agreed? Agreed.

John Paul Phelan (Fine Gael)
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I move amendment No. 4:

In page 8, before section 12, to insert the following new section:

12.—(1) The Court shall not permit the establishment of more than one committee for a single sector.

(2) All committees shall operate on a national basis.

(3) Any Employment Regulation Order agreed after the commencement of this Act shall apply to all members of a particular sector.

Amendments Nos. 4 and 5 are related in that they both deal with joint labour committees. I welcome the Minister of State back to the House and have a general question that I may ask later. With regard to the amendments, about a month ago on Second Stage there were a couple of issues about which I expressed concern, one being the geographical spread of joint labour committees - that there is more than one such committee in many areas. I understand this may have been necessary in certain circumstances when the committees were originally established and that particular committees were required for certain sectors of the economy. This Bill is a missed opportunity to streamline the system and process by which joint labour committees operate. That is the fundamental difficulty Fine Gael has with it. Amendment No. 4 seeks to ensure we would have joint labour committees which would operate across the State. This is entirely reasonable and I hope the Minister of State may be able to respond positively to the amendment. Amendment No. 5 relates specifically to a Private Members' Bill that was published, although not read a Second Time, in the other House by my colleague, Deputy Leo Varadkar. The Industrial Relations (Protection of Employment)(Amendment) Bill 2009 deals again with joint labour committees and specifically with the chair of the JLCs. As constituted at present the committees have an equal number of members, comprising employers and workers in the related areas. The chairperson of the committee has a vote. Ultimately, when it comes to negotiations on terms and conditions, which is what joint labour committees are all about, the casting vote of the chair almost invariably comes down on the side from which the chairperson originates. This amendment is geared towards trying to get a genuine consensus and meeting of minds between the two sides who compose the JLC and removing the right of the chairman to have a casting vote. It is a genuine attempt to ensure we have proper agreement between both sides within the joint labour committee structure.

It is important to point out that in a number of JLCs the workers are represented by union representatives in sectors of the economy that are non-unionised. A number of JLCs deal with specific areas where trade union membership is low and, in some areas, almost non-existent. The workers are being represented by people who, it could be argued, are not representative of their views but are none the less members of the JLC. This amendment simply seeks to ensure the independence of the chair and remove the right of the chair to have a casting vote in respect of future agreements on joint labour committees.

Dara Calleary (Mayo, Fianna Fail)
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I thank Senator Phelan for his amendments. Regarding amendment No. 4, which provides that all JLCs and employment regulation orders produced by them should apply nationally, the Towards 2016 social partnership agreement provided for a commitment to modernise the joint labour committee system. To this end, the Labour Court was asked by my Department in late 2006 to draw up measures to give effect to that commitment. To assist the court in its task, a working group was set up comprising representatives of the court's administration, the Irish Congress of Trade Unions and the Irish Business and Employers Confederation. The court also involved the National Employment Rights Authority in its deliberations.

The working group concluded its work last year and prepared a report on the progress made on the various issues. Among the issues addressed in this exercise were the amalgamation or abolition of some JLCs. Implementation of the report's recommendations in this regard was progressed by my predecessor, the Minister of State, Deputy Billy Kelleher, during 2008. This exercise resulted in the abolition of one JLC and the amalgamation of a number of others in the contract cleaning, hairdressing and clothing sectors. In addition, following their agreement to harmonise their terms and conditions, especially with regard to the Sunday premium in employment regulation orders, the two JLCs in the catering sector have agreed to amalgamate. This has resulted in the number of JLCs being reduced from 19 at the end of 2006 to 13 at present.

It is important to stress that applications for the establishment of a joint labour committee are made to the Labour Court by representative employers or employees. It is a matter for them to determine the geographical and precise sectoral scope of any individual committee.

As I stated, the Government is encouraging businesses in sensitive sectors to ensure employer and trade union representatives on JLCs are responsive to the very severe challenges for the continued viability of services and, in particular, the sustainability of employment. In this context, in addition to the catering JLCs, the hotels, agriculture and retail JLCs have recently reached agreement on labour cost-cutting measures in their respective sectors. These recent initiatives demonstrate the responses of both employers and trade unions to the challenges faced. It also shows a willingness to find practical solutions to the economic problems faced on the basis of agreement among those directly involved and should be encouraged rather than enforced. Accordingly, I cannot accept amendment No. 4.

Concerning amendment No. 5, the review of the operation of joint labour committees was undertaken by researchers from the University of Limerick on behalf of the Labour Relations Commission. These researchers adopted a consensus approach to their brief. Regarding the role of the chairman, the report commission concluded that abolishing the casting vote would undermine the entire JLC system. The likelihood of deadlock would mean that issues would have to be resolved elsewhere, such as the Labour Court, and would unnecessarily lengthen the process of setting employment regulation orders, EROs.

I acknowledge the crucial role the chairman of a JLC plays in the process. In this context, it has been the policy for some time that as positions of chairman of JLCs arise, they are being filled by industrial relations officers of the Labour Relations Commission whose independence in the area of collective bargaining is not in doubt. Accordingly, apart from putting forward the provision dealing with the term of office of the chairman, at this stage I do not propose to introduce further changes to the role of chairperson.

John Paul Phelan (Fine Gael)
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I do not agree with the Minister of State regarding amendment No. 4. The remit of a JLC should apply across the State, not to specific geographic areas, and it was to that the amendment applied. However, I will not press it at this juncture.

Regarding amendment No. 5, the Minister of State said that if it were accepted the JLC structure would be undermined and there would be deadlock. Surely the purpose of the committees in the first place was to have a meeting of minds between employers and employees. Invariably, each side comes to the table with its own perspective on an issue. If we are concerned with trying to reach a genuine agreement, surely the JLC is the right structure to achieve that, not by allowing the chairperson have the casting vote but by having genuine agreement between both sides. At present, that does not happen in practice in some JLCs. I do not question the credibility of people who fulfil the role of chairperson of JLCs at present but I believe their role would be strengthened if they were not permitted to have a casting vote when areas of disagreement arise. As it stands, the JLC structure was designed to try to achieve agreement between both sides within a particular sector. Amendment No. 5 would help to ensure that and therefore I press it.

Brendan Ryan (Labour)
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If the casting vote of the chairperson is removed I believe this could very well result in the deadlock to which the Minister of State refers. I would not have concerns about the chairperson siding one way or another. Before I entered full-time politics I had dealings on the opposite side to the unions and also had many dealings with the Labour Relations Commission and the Rights Commissioner. In many cases where I might have expected that a person such as the Rights Commissioner, for example, or somebody from the employers' side, would go a particular way, that proved not to be the case. I have no question about the independence of that group of people. I do not see the merit of this amendment and believe it could result in difficulties.

John Paul Phelan (Fine Gael)
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I move amendment No. 5:

In page 8, before section 12, to insert the following new section:

12.--(1) The Fifth Schedule of the Act of 1990 is amended by the substitution of the following for paragraphs 2 and 3:

"2. (1) A Committee shall be appointed by the Court and shall consist of:

(a) a Chairperson, who shall be a rights commissioner;

(b) such number as the Court thinks fit of persons (in this Schedule referred to as representative (employer) members) who, in the opinion of the Court, represent employers in relation to whom the Committee is to operate;

(c) an equal number of persons (in this Schedule referred to as representative (worker) members) who, in the opinion of the Court, represent workers in relation to whom the Committee is to operate;

(d) in making an appointment under paragraphs (b) and (c) the Court shall take all practicable steps to ensure that such representatives are representatives of the employers and workers, as the case may be, and shall in particular, have regard to the interests and protection of workers who are not members of a trade union, even in circumstances where they are represented by a trade union at the Committee.

(2) The Chairperson of the Committee shall not be vested with the right to vote on an employment regulation order.

(3) All decisions of the Committee shall be made by a simple majority of its members. Failure to reach a decision shall result in no employment regulation order being made.

(4) In order to constitute a meeting of the Committee, the Chairperson and at least one third of the members shall be present.

(5) In order to constitute a meeting of the Committee there shall be at least one of both the representative (employers) members and representative (workers) members present.

(6) Where a representative member of the Committee ceases, in the opinion of the Court, to be representative of the employers or, as the case may be, workers whom he or she was appointed to represent, the Court shall determine his or her membership.

(7) The Court may, in its discretion, determine the membership of any representative member of a Committee. Where the Court has so determined, the member shall cease to be a member of the Committee.".

John Paul Phelan (Fine Gael)
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I move amendment No. 6:

In page 8, before section 13, to insert the following new section:

13.—An Employment Regulation Order which is in being at the time of the passing of this Act shall expire within six months of its passing, or upon the making of a new Order in accordance with the provisions of the Principal Act as amended, whichever be the earlier.".

This amendment concerns employment regulation orders and proposes a mechanism whereby orders would be renewed only by positive action rather than as happens at present where some EROs may be in place for a number of years. The amendment proposes a definitive time period within which an ERO would have to be renewed.

On Second Stage the Minister of State agreed with Opposition spokespersons on the need for an inability to pay clause and indicated that an amendment would be tabled to include one. Four or five weeks have passed since Second Stage and I thought the amendment would have been tabled on Committee Stage but it will probably be when the Bill is taken in the other House. Perhaps the Minister of State might indicate his position on the matter, as well as on this amendment on the need for a mechanism for the renewal of employment regulation orders.

Dara Calleary (Mayo, Fianna Fail)
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I hope to update the House at a later stage on the amendment providing for an inability to pay clause.

Amendment No. 6 provides that, in the event that an existing ERO is not varied within six months of the passing of the Bill, that ERO would lapse. In recent months I have sought to encourage businesses in sensitive sectors, especially the hospitality and retail sectors which are being affected by the collapse in domestic demand and in which a relatively high proportion of employees are on minimum wage rates, to ensure the employer and trade union representatives on joint labour committees are responsive to the severe challenges faced by these sectors. Already progress is being made in a number of sectors, especially in the catering, hotels, agriculture and retail sectors, where agreement was reached on measures to address labour cost difficulties. These efforts demonstrate the responsiveness of both employers and the trade unions to these concerns and a willingness to find practical solutions to the severe problems we face.

The introduction via this amendment of a provision that effectively would require mandatory renegotiation of existing EROs would detract from the flexibility available to the parties involved and would not be in keeping with the co-operative approach adopted to addressing difficulties which have been evident in recent months. Accordingly, I cannot accept the amendment.

Dara Calleary (Mayo, Fianna Fail)
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I thank everyone who has shown an interest in the matter on Second and Committee Stages for his or her helpful contribution to the debate which has shown the usefulness of this House in such debates. The legislation will strengthen and ensure the continued effective operation of the joint labour committee and registered employment agreement systems. As Senator John Paul Phelan stated I indicated I propose to bring forward proposals to include in the Bill a provision providing for the inclusion of an inability to pay provision in both the EROs, employment regulation orders, and employment regulation Acts. Such a provision is necessary to balance the current demands of both trade unions and employers by continuing to modernise and streamline the JLC, joint labour committee, system and to strengthen the legal status of REAs, registered employment agreements, while also alleviating the very great pressures on employers facing financial difficulty currently experienced under both systems. The final details of this provision have still to be settled and will be the subject of further discussions with the social partners. In these circumstances I propose to introduce an amendment to the Bill in the Dáil to give effect to this objective.

I have also indicated I am favourably disposed to proposals from Senator Ryan and his Labour Party colleagues to amend the definition of "worker" to give retired workers access to the Labour Relations Commission and to the Labour Court and I am considering how best to give effect to this objective.

My officials are also in discussion with the Department of Finance regarding a request from Civil Service unions who also wish to have access to the industrial dispute resolution agencies of the State. This would also involve an amendment to the definition of "worker" in the Industrial Relations Act 1990 and such an amendment will be considered on Committee Stage in the Dáil.

I regret I have not been in a position to introduce the proposed amendments in this House. However, such amendments may be considered when the Bill returns to the House at a later stage.

Brendan Ryan (Labour)
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On a point of clarification, is it proposed to complete the Bill tonight? I assumed that with regard to some of my amendments -----

Paddy Burke (Fine Gael)
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We are discussing the question that the Bill do now pass which is the Final Stage. It was agreed on the Order of Business that all Stages be taken today.

John Paul Phelan (Fine Gael)
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I agree with Senator Ryan. The schedule did not state that all Stages would be taken; it only listed Committee Stage for today.

Paddy Burke (Fine Gael)
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I am informed by the Clerk that the Leader proposed that all Stages be taken.

John Paul Phelan (Fine Gael)
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I was not present for the Order of Business. The Leader is making it up as he goes along.

I thank the Minister of State and his officials one of whom was very helpful to me on Second Stage. I accept the Labour Party amendment to amend the term "workers" and I understand that following on from the court decision, the Government has to act and to define "worker" within primary legislation. That definition needs to be extended somewhat. I hope we will be in a position to debate an amendment in this House on inability to pay when the Bill returns from the Dáil.

Brendan Ryan (Labour)
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I have great difficulty with this procedure although I accept the Clerk's advice. The communication about today was that the House would deal with Committee Stage. Notwithstanding any decision this morning, there has been no communication clarifying a change in the schedule for today, as far as I am aware, and I have been in constant contact with my office throughout the day. I have difficulty with this arrangement and I would like it to be changed.

Paddy Burke (Fine Gael)
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There is nothing I can do at this stage. The Senator will have to speak to the Leader of the House. It is clear from the Order of Business which was agreed by the House that Committee and Remaining Stages would be taken today.

Brendan Ryan (Labour)
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I withdrew some of my amendments on Committee Stage on the basis there would be an opportunity to put them forward on Report Stage. If it was known in the House that Report Stage was to be taken today, that should have been brought to my attention. Perhaps the blame lies with me but I do not see it that way.

Paddy Burke (Fine Gael)
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I apologise to the Senator but there is nothing I can do at this stage as my hands are tied by the Order of Business.

Ivor Callely (Fianna Fail)
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I thank the Minister of State and his officials for their assistance in the passage of this Bill.

I did not make a contribution when Senator John Paul Phelan tabled his amendment. I will take this opportunity to bring to the attention of the Minister of State that I received a submission from IBEC today. One of the issues brought to my attention in the submission was the difference in pay rates in the hospitality industry with a variance of approximately 46% to 48% compared to our counterparts in the North and in the UK. This is linked to the issue of competitiveness. I mention this in light of Senator Phelan's earlier comments. The issue of inability to pay was mentioned and it received an interesting response. I appreciate the approach taken by the Minister of State in this regard, his understanding of the position and the manner in which he hopes to achieve agreement on this issue. I wish him well in the discussions with the social partners and others to reach what one would like to think is a fair position, given the very difficult and challenging position in which we now find ourselves. We all recognise that many businesses are in a survival mode. They are facing significant challenges and great difficulties. Competitiveness is a major issue and labour costs must be addressed in some form or fashion to ensure competitiveness. We cannot allow what has been happening in the hospitality industry whereby others come in from outside and because of their low base costs are able to compete and push out Irish industries and enterprises.

I have sympathy for Senator Ryan because I understand the position in which he finds himself. He was anxious to participate on Committee, Report and Final Stages. My understanding is that as the Minister of State has indicated the Bill is going back to the Dáil and that amendments will be tabled there. The amended Bill will return to this House and it is hoped that Senator Ryan will then have an opportunity to table whatever he requires and to speak on the issue. It might be helpful if the Leas-Chathaoirleach could clarify if this is the position.

Paddy Burke (Fine Gael)
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The Bill will come back to the House but it will only come back with amendments made. It will not be open for this House to make amendments to the Bill at that stage.

Ivor Callely (Fianna Fail)
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Senator Ryan could then go on the record of the House if he so wished.

Paddy Burke (Fine Gael)
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He can speak.

Brendan Ryan (Labour)
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Bills that commence life in this House typically come back but this is not the point. Report Stage is another stage. There is no need to take all Stages now. It is open to the Government-----

Paddy Burke (Fine Gael)
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That is a matter which the Senator needs to take up with the Leader.

Brendan Ryan (Labour)
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On the question as to when the House will take Report Stage, it is open to the Government side to say next week.

Paddy Burke (Fine Gael)
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We have gone past that stage.

Brendan Ryan (Labour)
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But not by agreement. There was no agreement by the House.

Paddy Burke (Fine Gael)
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It was agreed on the Order of Business but I suggest the Senator take up the matter with the Leader of the House.

Ivor Callely (Fianna Fail)
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In light of what Senator Ryan has said it is important to acknowledge the position put this morning by the Leader was agreed by the House unanimously and there was no division on it. It was agreed by the House, including by the Labour Party.

Paddy Burke (Fine Gael)
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When is it proposed to sit again?

Ivor Callely (Fianna Fail)
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Tomorrow at 10.30 a.m.