David Cullinane (Sinn Fein)
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I welcome the Minister to the House. He will know that, during the Lisbon treaty campaign, there was much talk about the Charter of Fundamental Rights of the European Union, and that commitments were given to trade unions that if they supported the treaty the issue of collective bargaining and trade union recognition would be dealt with through legislation. I understand collective bargaining is referred to in the programme for Government.

I have raised this matter not to convince the Government that what I propose is necessary, because it is in the programme for Government, which I hope the Minister supports, but to seek information. I want to understand what is involved and what will be necessary. Is it simply a matter of legislation or will we need a constitutional amendment? If the latter is required, I hope it will be part of the constitutional convention and will be achieved during the lifetime of the Government.

The Minister is currently reviewing the employment rights bodies in the State. This is welcome because it affords an opportunity to deal with a number of anomalies and problems in the system. I approach the matter from the perspective of seeking to strengthen workers' rights, entitlements, terms and conditions.

In the Minister's preamble, which was a discussion paper in respect of which he sought submissions, one of which was made by me, he refers to workplace disputes being resolved at the earliest possible stage at workplace level. This, however, can only happen through dialogue. There can only be dialogue when a company recognises the representatives of its workforce, that is, a trade union, if there is one. Surely, therefore, the Minister will agree it is good, right and proper that there be proper dialogue in which all employers recognise the representatives of their workforces, engage with them through dialogue and use the industrial relations machinery at our disposal in the State to resolve workplace disputes.

Is the Government committed to enshrining in the Constitution, if necessary, the right to collective bargaining or is it a matter for legislation?

Richard Bruton (Dublin North Central, Fine Gael)
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I thank Senator Cullinane for raising this issue on the Adjournment.

While Article 40 of the Constitution guarantees the right of citizens to form associations and unions, it has been established in a number of legal cases that the constitutional guarantee of the freedom of association does not guarantee workers the right to have their union recognised for the purpose of collective bargaining. It has been the consistent policy of successive Governments to promote collective bargaining through the laws of this country and through the development of an institutional framework supportive of a voluntary system of industrial relations that is premised upon freedom of contract and freedom of association. There is an extensive range of statutory provisions designed to back up the voluntary bargaining process. The freedom of association and the right to organise and bargain collectively are also guaranteed in a number of international instruments which the State has ratified and which it is, therefore, bound to uphold under international law.

The 2007 decision of the Supreme Court in Ryanair v. The Labour Court cast doubt on the mechanisms that had been established in the Industrial Relations (Amendment) Act 2001 and the Industrial Relations (Miscellaneous Provisions) Act 2004 to resolve problems between employers and workers on employee representation issues, where that could not be done through existing procedures. Prior to the outcome of the Ryanair Supreme Court case, the original legislative arrangements had been seen as a workable compromise. The legislative model for resolving issues relating to employee representation had reflected a shared commitment that, where negotiating arrangements are in place, the most effective means of resolving differences which arise between employers and trade unions representing employees is by voluntary collective bargaining. In the absence of a practice of voluntary collective bargaining, subject to agreed qualifying criteria, the industrial relations Acts 2001 and 2004 provided a mechanism by which the fairness of the employment conditions of workers in their totality could be assessed.

The social partnership Towards 2016transitional agreement of 2008 committed to establish a review process to consider the legal and other steps necessary to enable the employee representation mechanisms that had been established under previous agreements - and in legislation - to operate as they had been intended. The agreement also provided for a commitment to bring forward legislative proposals to prohibit the victimisation of trade union members and the incentivisation of persons not to be members of a trade union. The review process did not result in any substantive progress being made on the issue. There is a commitment in the programme for Government to ensure that Irish law on employee's rights to engage in collective bargaining is consistent with recent judgements of the European Court of Human Rights. This process will require consultation with stakeholders, including employer and worker representatives, and a review of the experience of the operation of the existing legislative framework as put in place under the industrial relations Acts of 2001 and 2004 and the consequences of the litigation that has arisen in the course of the operation of these Acts. The programme for Government also contains a commitment to establish a Constitutional Convention. The Government has approved the establishment of the convention and has agreed in principle, arrangements for its structure and operation.

The programme for Government sets out a programme of topics to be considered by the convention and the Government does not propose to depart from that. The programme for Government proposes that the convention examine the following matters - review of the Dáil electoral system; the presidential term; giving citizens the right to vote at Irish embassies in presidential elections; provision for same-sex marriage; amending the clause on the role of women in the home and encouraging greater participation of women in public life; increasing the participation of women in politics; removing blasphemy from our Constitution; and reducing the voting age to 17 years. The programme for Government also makes it clear that the convention is free to consider "other relevant constitutional amendments that may be recommended by it". It is the Government's view, however, that the convention should deal first with the topics that were assigned to it in the programme for Government. To get the convention started, the Government proposes that initially it should look at two matters of reducing the presidential terms to five years and reducing the voting age to 17 years. This Government is committed to the implementation of its programme for Government commitment to reviewing our legislative provision for collective bargaining in the light of international jurisprudence. I would remind Senators, moreover, that the programme for Government is a five year programme. I believe that the established dispute settling institutions should continue to play an important role in disputes over trade union recognition. The established procedures can be improved and secured without introducing a mandatory requirement upon employers to recognise trade unions for collective bargaining purposes.

I am certain that satisfactory arrangements can be put in place that are suited to our constitutional, social and economic traditions, as well as our international obligations. I am also convinced that they can be framed so as to ensure continued success in attracting investment into our economy.

David Cullinane (Sinn Fein)
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I asked the Minister to clarify if it would be necessary to amend the Constitution in order to legislate for a right to collective bargaining. In his response, the Minister said that it had been established in a number of legal cases that the constitutional guarantee to freedom of association does not guarantee workers' rights to have their union recognised for the purpose of collective bargaining. Is it correct, therefore, that it would require a change in the Constitution to establish the absolute right to collective bargaining? Is that a fair assessment of the situation?

Richard Bruton (Dublin North Central, Fine Gael)
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It is not Government policy to introduce mandatory recognition of trade unions, as outlined in my reply. The policy is to seek to deal with court rulings that have occurred in this area and in particular to find a workable solution that-----

David Cullinane (Sinn Fein)
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If somebody were to request, for example, that there would be mandatory trade union recognition, would it require a constitutional change? I am not asking whether the Government would do it.

Richard Bruton (Dublin North Central, Fine Gael)
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I do not have the legal expertise to advise the Senator on that.

David Cullinane (Sinn Fein)
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That is the question I raised on the Adjournment.

Richard Bruton (Dublin North Central, Fine Gael)
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Yes, indeed. To be honest, I do not know. It is not Government policy to have mandatory recognition, as it is essentially a voluntary system. The reason is that many investors do not recognise trade unions. We have a mixed system. What evolved under the industrial relations Acts, is that trade union representation was not recognised and there were still issues that needed to be resolved and a means of adjudicating on them in the Labour Court, that did not require mandatory recognition, was developed under the Acts. The ambition of Government is to get back to restore a system for dealing with such cases. It has not been Government policy to seek to introduce mandatory trade union recognition. I am not a constitutional lawyer, but if I can find information I will send it to the Senator.

Pat O'Neill (Fine Gael)
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I thank the Minister, Deputy Richard Bruton for his co-operation. I welcome the Minister of State at the Department of Jobs, Enterprise and Innovation, Deputy John Perry.