Tuesday, 30 June 2015
Industrial Relations (Amendment) Bill 2015: Second Stage
I am pleased to introduce the Industrial Relations (Amendment) Bill 2015 for the consideration of the House.
The Bill, in its totality, represents a significant step forward for workers and employers in providing clear, workable and constitutionally robust frameworks within which workers remuneration and conditions of employment can be discussed and determined. I am confident that the framework proposed will fit Ireland's constitutional, social and economic traditions and its international obligations, and importantly, will ensure continued success in creating jobs and attracting investment into the economy.
The purpose of the legislation is twofold. First, it will provide for the reintroduction of the registration of employment agreements between employers and trade unions in individual enterprises, and will provide for a new statutory framework to replace the former sectoral registered employment agreements. Second, the Bill will put in place the legislative amendments required to give effect to the programme for Government commitment to reform the Industrial Relations Acts 2001 and 2004.
Before moving to detail the various sections of the Bill, I will give Senators an overview of what the Bill achieves. Part 2 of the Bill provides for the registration of employment agreements between an employer or employers or a trade union of employers and trade unions of workers governing remuneration and conditions of employment in individual enterprises. The content of these agreements will be a matter for the contracting parties and they will be legally binding on the subscribing parties.
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.
I welcome the Minister of State to the Seanad. I note his statement: "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." The main purpose of this Bill is twofold. The first is to provide for the reintroduction of a mechanism for the registration of employment agreements between employers and trade unions governing remuneration and conditions of employment in individual enterprises, to provide for a new statutory framework for establishing minimum rates of remuneration and terms and conditions of employment for a specified type, class or group of workers, particularly in the context of transnational provision of services and promoting harmonious relations between workers. In effect, it is a framework to replace the former sectoral registered employment agreements. Second, the Bill will put in place the legislative amendments to the Industrials Relations Acts 2001 and 2004 required to give effect to the programme for Government commitment to reform the current law on an employee's right to engage in collective bargaining so as to ensure compliance by the State with recent judgments of the European Court of Human Rights.
Fianna Fáil welcomes this long-promised Bill. The proposals are broadly welcomed.The legislation strikes a balance between providing increased collective bargaining rights and anti-victimisation provisions for workers and maintaining the voluntarist approach to collective bargaining supported by employers. However, it is a damning indictment of this cynical and PR-obsessed Government - I do not like to describe it thus to the Minister of State, because he is one of the finer members of his party, but I cannot avoid doing so - that it took the plight of the courageous Dunnes Stores workers for Fine Gael and the Labour Party finally to agree on bringing forward this long-promised Bill.
The legislation aims to provide an improved framework for workers to seek to enhance their terms and conditions of employment where collective bargaining is not recognised by their employer and offer a replacement structure for the registered employment agreements system. The test for the new collective bargaining provisions in the Bill will be whether they are effective in resolving industrial disputes such as that at Dunnes Stores and facilitating all parties to engage with the industrial relations dispute machinery of the State. In particular, the legislation will stand or fall on the efficacy of the new proposals which allow a Labour Court determination in any industrial dispute to be subsequently enforced by the Circuit Court.
While I welcome the Bill, it comes too late for the 450 staff at the iconic Clerys outlet who were informed on 12 June that it was closing with immediate effect. The store is situated in the heart of our main city, on O'Connell Street, and has witnessed a great deal in almost 200 years of trading. It sits directly across from the GPO, where men died for our country during one of the most significant events in Irish history, and in close proximity to the statue commemorating James Larkin. Next year we will celebrate the 100th anniversary of the 1916 Rising. It is ironic, if not positively Shakespearian, that the Clerys store where workers were treated so brutally should be in direct view of the GPO, where the events that took place 100 years ago will be celebrated next year. The manner in which the workers were told they were losing their jobs was callous and marks a new low in management-employee relations in Ireland. There was a complete absence of engagement with industrial relations channels and no attempt to open a social dialogue between workers and management. It is vital that company law provisions are re-examined to legislate for circumstances such as those in which the Clerys workers found themselves on 12 June.
Fianna Fáil welcomes the Bill before us today, which, as I said, will strengthen laws to protect and promote workers' rights, particularly those on low pay. We hope it will provide much-needed certainty for both workers and employers in respect of collective bargaining, enhancement of anti-victimisation provisions and an operable replacement structure for registered employment agreements. The provisions maintain the voluntarist approach, which means it will not be mandatory for employers to enter into collective bargaining. Employers have claimed that Ireland's voluntarist approach is key to our ability to attract foreign investment. I was a member of a national women's committee in the 1970s as representative of the Federated Workers Union of Ireland. In my heart and soul, I am a supporter of trade unions. However, there is no denying that foreign investors generally do not want to deal with trade unions, and that is a choice which remains open to them. When he was still writing for The Irish Times, Dan O'Brien observed in a piece which dealt with promoting and encouraging an entrepreneurial spirit in Ireland:
If there is a killer fact that illustrates the inherent weakness of indigenous business it is that Irish companies account for a mere 10 percent of the economy's exports. It is unique among OECD economies for indigenous companies to export so little. Without the foreign-owned sector, Ireland would be the most closed economy in the developed world and would almost certainly be among the poorest countries in Western Europe.I have a great deal more to say but the Leas-Chathaoirleach has indicated that my time is up. I am proud to say that the company I co-founded, Lir Chocolates, is expanding its export business. Ireland is a very small market, with only 4.5 million people, and it is vital that indigenous companies drive efforts to increase their exports. I wish the Minister of State success in all the important work he has to do.
I welcome the Minister of State to the House. This legislation represents a significant and positive reform to Ireland's industrial relations law. It enhances and protects workers' rights, particularly those of low-paid workers, and offers certainty for employers in terms of wage costs. The Bill is quite simple in its intent, providing for the reintroduction of a mechanism for the registration of employment agreements between an employer or employers and trade unions governing remuneration and conditions of employment in individual enterprises, providing for a new statutory framework for establishing minimum rates of remuneration and terms and conditions of employment for a specified type, class or group of workers, particularly in the context of the transnational provision of services, and promoting harmonious relations between workers and management. In effect, it is a framework to replace the former sectoral registered employment agreements. The Bill introduces the legislative amendments to the Industrial Relations Acts 2001 and 2004 required to give effect to the programme for Government commitment to reform the current law on employees' rights to engage in collective bargaining so as to ensure compliance by the State with recent judgments of the European Court of Human Rights. The Statement of Government Priorities 2014-2016 prioritised the enactment of the collective bargaining legislation as approved by Government.
The main concern that has been raised in respect of this legislation relates to the decision of the Supreme Court in McGowan and others v. Labour Court Ireland and others, which found that the operation of the previous scheme under the 1946 Act was unconstitutional in so far as it related to registered employment agreements. There is a suggestion that as the previous scheme was so held, the provisions of the new legislation are also, therefore, unconstitutional. With respect, that is an understandable misinterpretation of the Supreme Court's decision. In the course of the proceedings in McGowan, various claims were advanced as to the unconstitutionality of the legislation. These were distilled down to a very simple question which was considered by the court, namely, whether the operation of the Industrial Relations Act 1946 was in breach of Article 15.2.1° of the Constitution by delegating the making, variation and cancellation of registered employment agreements to the Labour Court and the parties to such agreements. Article 15.2.1° is very straightforward:
The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.The Supreme Court held that Part III of the 1946 Act appeared to effect a delegation of law-making power to a body other than the Oireachtas. The legislation before us today seems to make right that unlawful delegation and, therefore, is not, on the face of it, unconstitutional in and of itself. Of course, the Supreme Court might at some future date decide otherwise, but the decision in the McGowan case does not mean that alternative legislation cannot be introduced, particularly in the tight way this Bill has been drafted.
Members of the Association of Electrical Contractors Ireland have raised several issues with me in respect of the legislation. The Minister of State might confirm that the decision of the Supreme Court does not validate existing contractual arrangements as between employer and employee. In the circumstances, I take it that all such existing contracts will be unaffected by this legislation, which will only apply to contracts entered into in the future by way of mandating terms and conditions and pay levels.Some electrical contractors expressed the wish to have the National Employment Rights Authority, NERA, assume a role in monitoring compliance under the Bill. Will the Minister of State confirm that NERA has statutory authority to monitor compliance under the legislation?
Another issue that arises relates to reviews of orders and certainty for employers. The legislation provides that if there has not been a review of the sectoral employment order within three years, the Minister may order such a review. It would be preferable if the Minister were obliged to make such an order. I will be interested to hear the Minister of State's response on this issue. Constant reviews of orders should be avoided to ensure employers are not left in an uncertain position, particularly those with fixed price contracts.
This is another example of the extremely important legislation that has emerged from the Minister's office since the Government came to power. The Bill strikes an appropriate balance between the entitlement of workers to fair pay and conditions and the need to provide certainty for employers.
I welcome the Minister of State to the House. I will support this Bill and will first refer to the provisions I support. I am in favour of collective bargaining and trade union recognition, which is absent from the legislation. I discussed this issue recently with the Minister for Jobs, Enterprise and Innovation, Deputy Richard Bruton, when he introduced the Workplace Relations Bill. During that debate, the Minister informed me that it would be more appropriate to discuss two of the issues I had raised in the context of this Bill.
Employees should have the right to be legally represented by their trade union. This does not mean yellow-pack collective bargaining or collective bargaining through the back door for employers who do not want to recognise trade unions. It means that employees should have the same legal rights as employers who are in a position to employ expensive barristers and solicitors to represent them. Many companies will not recognise or engage with trade unions, although I accept that the Bill establishes a mechanism to force employers to engage with the industrial relations architecture. While this is a welcome step forward, it does not deliver trade union recognition and, as such, employers will not be required to recognise a trade union. This is an inherent flaw.
The reason workers need trade unions from time to time is that trade union representatives are trained, have a wealth of experience and understand the wide range of industrial relations laws in place. I acknowledge that the Government has streamlined some of this legislation and, by extension, the employment rights bodies. Nevertheless, many workers find themselves in a maze when they try to understand their entitlements, as was clear in recent cases involving workers in Clerys, Dunnes Stores, Vita Cortex, Game, La Senza, Lagan Brick, Waterford Crystal and TalkTalk. In all of these cases, workers were left without proper entitlements as a result of the weak protections and employment rights afforded to them. While the type of collective bargaining proposed in the Bill is a step forward, it still falls short of what is required, namely, collective bargaining and trade union recognition.
The other argument in respect of collective bargaining, registered employment agreements and the entire industrial relations legislation is the weak levels of enforcement and compliance. This has been replicated in the Bill where it re-establishes registered employment agreements and makes provision for the same types of enforcement and compliance mechanisms that have failed until now. It is ridiculous, for example, that an employer may withhold payment from employees. We are all familiar with cases where a trade union has taken a case involving the failure of an employer to pay proper wages. The appropriate employment rights body, whether the Labour Court or Employment Appeals Tribunal, will give the employer a slap on the wrist by ordering him or her to do little more than pay the workers. The lack of penalties and sanctions means there is little to deter employers from engaging in this activity in the first instance. It is akin to someone who is caught in the act as he or she walks out of a shop with groceries in a shopping basket telling the shopkeeper he or she will return the goods and everything will be all right. This is not how the system works. Deterrents are in place to prevent people from breaking the law. This does not appear to be the case for many unscrupulous employers, however, of whom we have seen many examples.
Unfortunately, compliance and enforcement across the industrial relations framework have been weakened under this Government's watch. Resourcing of enforcement bodies is inadequate. The Government has stripped out well established rights that were provided for in the previous legislation on registered employment agreements. These enabled access to workplaces for designated union officials to monitor compliance and ensure employees were protected from victimisation from an employer arising from such visits. The Government has also dragged its heels in addressing the industrial relations vacuum arising from the McGowan judgment. Rates of pay for many workers have hit the floor and their conditions have become intolerable.
It is always difficult to engage in a critique of an extensive Bill of this nature in the five minutes available to speakers. My party was asked by the Mandate trade union to raise a specific issue directly with the Minister of State. The provisions allowing for rates of pay above the minimum wage to be set through registered employment agreements is one thing but workers also want the issue of hours to be addressed. The problem for many workers in precarious employment is that they are on low-hour contracts and cannot move up to what are known as banded-hour contracts. Many of them will work for 30 or 40 hours per week consistently and solidly for many years and yet remain stuck on low-hour contracts. This issue needs to be dealt with in separate legislation and the Irish Congress of Trade Unions has proposed a fair hours Bill to address it. Sinn Féin will table amendments on Committee Stage to resolve some of the issues that arise in this regard.
The Bill is good in so far as it goes, for example, in re-establishing registered employment agreements, and its collective bargaining provisions are a step forward. Unfortunately, however, it falls short of what is necessary. This does not mean I will oppose it. I will support the legislation on Second Stage and await what emerges on Committee Stage. I thank the Minister of State for his contribution and look forward to a more comprehensive discussion on the details on Committee Stage.
I welcome the Minister of State. He has been busy introducing legislation and I compliment him on that. Before discussing the Bill, I am interested in his reference to the power of the Labour Court "to initiate a review of the pay, 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." Is it not terrible that we, in the political class, cannot apply the contents of the Minister of State's speech throughout the political class? I am aware that an election is imminent. I am speaking about members of local authorities, which is an issue on which I have tabled an amendment. The Minister of State should convey to the Minister with responsibility for this matter the need to address these issues.
I am pleased to note the inclusion of section 20 of provisions covering protection for workers from penalisation by employers. This is a tremendous step forward. I am also pleased that section 30, which deals with the totality of remuneration, has been included because, as the Minister of State pointed out, salary is not the whole story when it comes to these matters.
I rarely speak on issues related to industrial relations policy or legislation without harking back to the Irish Congress of Trade Unions, my parent group if one likes. ICTU supports the Bill and wishes to have it enacted as quickly as possible. For this reason, I will not do anything to impede the Bill's passage.
We could argue all day long about what additional protections the Bill could provide, for example, regarding the recognition of trade unions. We could probably try to force legislation through to provide that trade unions become part and parcel of every organisation. However, we live in the real world and those of us who are involved in trade unions are well aware that we have our own market and need to develop negotiation techniques, etc.
This Bill will go a little way towards solving the problems we have seen in companies such as Dunnes Stores. I will not raise any objections during the passage of the Bill as it is a tremendous step forward which has the potential to change industrial relations. I compliment the Minister of State.
I thank the Minister of State for presenting this legislation to the House. I attended the meeting in Leinster House last week at which members of the Irish Congress of Trade Unions, ICTU, discussed with Oireachtas Members their ongoing campaign to achieve fairness at work, to put it in simple terms. It was a constructive meeting in the course of which the delegates presented their view on a number of issues, including the provisions of this Bill. On first reading the legislation, one is inclined to welcome it and conclude that its provisions may well be necessary. However, as with all legislation, there are two sides to the equation, particularly in the case of industrial relations, where there is always a particular balance to be struck.
The Minister of State's opening statement included the following interesting comment: "[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." Will he clarify what he means by a "shift" in industrial relations? Does it involve a rebalancing of the current framework? Does it amount to a move to make the process much more strongly union-friendly than it was heretofore? I pose these questions in view of the statement we hear so often from the Taoiseach and some of his Cabinet colleagues that this Government is committed to ensuring Ireland is the best country, not just in Europe but in the world, in which to do business. We are given to understand a campaign will shortly be launched to offer strong supports to small businesses. If, as we are told, the Government is trying to build an economy that offers the best environment in which to create work and be a business person, is that easily, readily and comfortably compatible with the legislation that is before us today, which the Minister of State has described as initiating the most significant shift in the industrial relations landscape for many years?
The statistics on workers' engagement with official union representation are interesting and an issue I raised with the ICTU delegates last week. If my figures are correct, approximately 35% of workers in the private sector are members of trade unions, with a corresponding figure of 70% in the public sector. These participation rates are very low in comparison with those that applied in the 1960s and 1970s and even into the 1980s. I am not sure whether the lower rates are simply because of changed practices on the part of employers or because workers are making the choice to represent themselves. Against that backdrop, the trade union organisations have work to do in advocating the importance of union membership and seeking to maximise the numbers of new entrants to the workforce they are able to attract.
We all agree on the importance of workers ensuring their concerns are fully met, whether by way of the conventional trade union organisations, through looser associations within the workplace or by way of direct dealings between individual employees and individual employers. I cannot adjudicate as to which form of representation is the best; people must make their own decisions. It is to be hoped, however, that we have moved a long way from the very black and white view of industrial relations that prevailed in the 1960s, 1970s and 1980s. It was what we saw in the UK at the time, too - that version of strident industrial relations where unions viewed employers as the big bad wolf and employers saw the unions as most unhelpful. We have matured very much from an industrial relations perspective since that time, and I hope this legislation does nothing to return us to that era. Our core focus should be less about seeking to resolve conflicts and more about trying to ensure there is no conflict in the first place. It is about working to achieve an environment where there are harmonious relationships in the workplace.
The most significant aspect of this legislation is the provision whereby the Circuit Court will be able to intervene and enforce a particular decision. That is a very strong power. I assume the Oireachtas, via the Minister, will have to approve such decisions. Will the Minister of State explain in more detail how significant a change that will be? If colleagues in this and the other House who wanted to see strong new legislation on collective bargaining were not able to get their way, how close is this new Circuit Court route to what they proposed?
It may be helpful when considering this legislation to look to the situation in France, a country which is seen to have a much stronger left-of-centre view of economics and labour relations than many other countries. As I understand it, many of its regulations regarding workers' rights and representation come into effect only where a company employs more than 50 people. In other words, there is a clear line of demarcation between large companies and smaller ones. What is the Minister of State's view on our introducing some degree of separation along those lines?
I look forward to the Minister of State's reply and to engaging with him on Committee Stage. We all must advocate the strongest possible supports for workers and the principle of absolute freedom to negotiate for one's wages and entitlements. We must also be mindful, however, in a country where hundreds of thousands of people are still out of work, that support for job creation and entrepreneurial efforts should remain high on our political agenda and that no element of industrial relations policy should operate as a hindrance in that regard. I will take up these matters in more detail on Committee Stage. I thank the Minister of State for his initial observations and look forward to his further engagement with the House.
I thank Senators for their contributions to this important debate. To respond to one of Senator Bradford's questions, the provisions we are discussing do represent a significant shift in or rebalancing of the industrial relations landscape in this country. What I mean by this is that the Bill addresses a major gap in the efficacy of our existing laws. There is a long-established right to collective bargaining in this country, as confirmed by the European Court of Human Rights. Since the 2007 Supreme Court judgment in a case involving Ryanair, we have not had what could rightly be called an effective collective bargaining system. That particular case had a chilling effect on the conduct of industrial relations in Ireland, which I will deal with in more detail presently.
We should not be under the false impression that there is some type of inconsistency between having strong industrial relations legislation and employment protections and, at the same time, a strong indigenous business sector and foreign direct investment culture. Those two principles are not mutually exclusive. They can manage to coexist, and it is the mark of a progressive society where that is the case. We can have strong industrial relations legislation with strong supports for employment rights.We can also have a flourishing business and job creation sector, where entrepreneurs and risk are rewarded and encouraged. I call it social democracy. It works very well elsewhere and there is no reason it cannot work here. We always have to manage to strike that balance and the legislation before us recognises the need to address that lacuna in Irish law, rebalance the position and level the playing pitch in terms of collective bargaining.
The Senator asked a question regarding the Circuit Court, which comes into the legislation in two respects. The first is the opportunity to access interim relief if it is a case that a worker is threatened with unfair dismissal in the context of the Act and the provisions in this Bill. It has been the case since the implementation of the Industrial Relations (Amendment) Act 2001 that a person can go to the Circuit Court to seek the enforcement of a Labour Court determination. That is not new and it is reiterated in this particular legislation.
Senator Naughton raised a couple of concerns about the legislation, one of which related to the issue of monitoring, compliance and enforcement. It is the role of the National Employment Rights Authority, NERA, and the Workplace Relations Commission, WRC, to have sole responsibility for monitoring and compliance of this legislation and sectoral employment under the new Workplace Relations Act and this legislation. She also made a point regarding the incorporation of terms of a registered employment agreement, REA, into contracts of employment. Following the Supreme Court ruling in the McGowan judgment in 2013, existing terms and conditions in the former registered employment agreements were still incorporated into an individual's contract of employment and they, of course, can only be changed by agreement. That is the case in any contract. Newly recruited workers after the McGowan judgment of 2013 could be, and were, recruited on lesser rates, terms and conditions. That would have been by agreement, in essence, with employers. That was only subject to the national minimum wage legislation.
The Senator made a point about a three-year review. I consider it appropriate that the option should be open to the Minister of the day to request a review after three years. It may be the case that trade unions and employers might decide that they are happy to have the existing sectoral employment order continued in operation without change but that would be a matter for the parties and the Labour Court.
I apologise for my colleague, Senator John Kelly, who wanted to be here this evening to make a contribution but who has, unfortunately, been waylaid. I thank Senators for their contributions to the Bill. It is fair to say that the vast majority of them have welcomed the publication of this Bill and its principles as well as what it seeks to achieve. I assure Senator Mary White that the genesis of this legislation and the publication of various heads of Bills predates the current Dunnes Stores dispute. The legislation was committed to in the programme for Government of 2011 and we are now delivering on it. It provides for very significant reforms to Ireland's industrial relations laws. As I stated earlier, the process will balance the interests of workers and employers by providing certainty and clarity for businesses while enhancing collective bargaining in workplaces and it will provide for registered employment agreements to be re-established, with sectoral wage rates and conditions to be reintroduced. It will provide an improved framework, as we are required to carry out, for workers who seek to better their terms and conditions where collective bargaining is not recognised by the employer as well as providing a replacement for the registered employment agreement system in individual enterprises. There is a new mechanism whereby pay and pensions and sick pay provision in a particular sector can be introduced by way of sectoral employment order.
The legislation will provide new, clear, balanced and, crucially, evidence-based mechanisms to deal with specific industrial relations issues. This will address particular gaps that exist in protections for workers and the low-paid and it will also provide stability and certainty for employees, employers and businesses, both Irish and multinational, on whom we rely on to create the jobs that we need in our society and economy. As I stated, a lacuna has existed for several years in the framework for workers who seek to improve their terms and conditions, either through collective bargaining or registered employment agreements. This arose as a result of a Supreme Court judgment that struck down the old REA framework on grounds of constitutionality while the Supreme Court had also found fault with the application of the legislation that existed in terms of collective bargaining. This legislation is a direct response to these rulings.
The collective bargaining proposals in this Bill are in fulfilment of the programme for Government commitment to reform the current law on employee rights to engage in collective bargaining. In addition, the House knows that the International Labour Organization, ILO, in 2012 issued its report in response to a complaint referred to it by the Irish Congress of Trade Unions and IMPACT, arising from the 2007 Ryanair Supreme Court judgment. As part of the Government's response to the ILO report, we indicated that these matters would be addressed in the context of the programme for Government commitment and they are being addressed in this legislation. Extensive consultation with stakeholders has taken place, both with respect to the experience of the operation of the 2001 and 2004 legislation before and after the Ryanair judgment.
The process also encompassed discussions on the import of certain European Court of Human Rights decisions. Comprehensive submissions and presentations have been received that contain a range of often conflicting but very rationally espoused positions. The extensive consultations have resulted in the broad areas of acceptance by employer and worker representatives and on the legislative proposals contained in this Bill. In developing the proposals, we have been very keen to respect the positions articulated by stakeholders to develop proposals that sustain our traditional voluntary system but also ensure that workers have confidence that where there is no collective bargaining, there will be an effective system that will ensure people can air grievances about remuneration and terms and conditions and these can be determined by the Labour Court, if necessary, based on those in similar companies and secured by way of Circuit Court order. The legislation also ensures workers will not be victimised for doing this and it includes new and enhanced protections for workers who may feel they are being victimised for exercising their rights in this regard by way of a new provision to secure interim relief through the courts in the case of potential dismissal.
I pay tribute to all involved in contributing to the development of these proposals. Enactment of this legislation is a key commitment of the Labour Party as part of the Government and one that I am very proud to be delivering and be associated with. I entered public life 16 years ago as a councillor in order to improve people's living and working conditions and the new collective bargaining legislation will do exactly that as part of a package of measures we are introducing to promote the dignity at work agenda. I ask colleagues to view this legislation in the context of the totality of legislation and innovations we are introducing around areas like low pay, for example.
The reintroduction of REAs and sectoral employment orders in a constitutionally robust manner will be of enormous benefit to both workers and their employers. Such mechanisms may be used in resolving disputes or potential disputes and we have seen a number of such disputes arise in recent years following the Supreme Court ruling. This new legislation will bring a sense of certainty to both sides of industry who engage in such agreements around terms and conditions, particularly when the employer is tendering for contracts. Ultimately, the legislation will improve industrial relations after a period of uncertainty. It will also help to prevent a race to the bottom in terms of skills, training and terms and conditions of employment.
A number of issues were raised by Senators and I have addressed a number of them to the best of my ability. I will elaborate on the enforcement provisions. I agree with some of the comments made by Senators and the importance of enforcement and compliance cannot be overstated. The compliance and enforcement provisions relating to REAs and sectoral employment orders are fully consistent with provisions contained in the Workplace Relations Act 2015, which was recently passed. In this context, the powers given to NERA inspectors are quite extensive. They include the powers to use reasonable force to enter a place of work or premises reasonably believed to be used in the employment of persons or keeping of records. NERA inspectors have powers to copy records and remove books, documents or records for a period that the inspector reasonably considers to be necessary. Inspectors can, under warrant of the District Court, enter a domestic dwelling with other inspectors or members of the Garda Síochána in pursuit of documents or records.In regard to enforcement and compliance, another issue about which Senators are concerned, although they may not have mentioned it today, is bogus self-employment. The issue has been raised in this House, in the Dáil and at committees, particularly in regard to the construction sector, and I share some of the concerns people have raised in regard to the issue.
NERA inspectors carry out inspections of employers' employment records and workplaces to determine compliance with employment law and an employee’s statutory entitlements. In 2014, NERA carried out over 5,500 such inspections, including on construction sites. The policy of NERA is to seek voluntary compliance where breaches of employment law are detected. NERA works with employers and trade unions and it allows employers every reasonable opportunity to rectify breaches. Allegations of non-compliance with employment rights legislation should be referred to NERA which investigates matters brought to its attention.
It is not within the remit of NERA to make determinations regarding the employment status, for example, of individuals vis-à-vis employment or self-employment. That is a matter of responsibility for the Department of Social Protection. Other agencies would be concerned with that area as well, including, for example, the Revenue Commissioners. It is important to restate that. It has been an issue in the construction sector, in particular, which has been brought to our attention and has been a matter of significant public focus. The very fact we are seeking to reintroduce a sectoral employment order approach is really designed to ensure that standards are retained in an industry like construction. If there were to be a sectoral employment order in the construction area, it is important we use it to try to promote industrial harmony to ensure people are paid adequately and fairly for the skilled jobs that the do and to ensure we have a level playing pitch in terms of tendering, labour costs and so on. At the same time, we must ensure that standards, skills and competencies in an important industry for this country are maintained and protected. Where we do not have these structures, standards slip and nobody wins and, in fact, we are all losers in such scenarios.
I thank Senators for their contributions. We will have another opportunity to deal with the matters raised today in some more detail on Committee and Remaining Stages. I look forward to that engagement.