Seanad debates
Tuesday, 7 July 2015
Industrial Relations (Amendment) Bill 2015: Committee Stage
2:30 pm
Gerald Nash (Louth, Labour)
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This is a technical amendment which removes references in section 23(1) of the Industrial Relations Act 1990 to an officer of a vocational education committee and an officer of a school attendance board. These amendments are consequential arising from an amendment brought forward on Report Stage in the Dáil which amended a reference in section 23(1) to a member of staff of an education and training board or a teacher employed by an education and training board.
David Cullinane (Sinn Fein)
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I move amendment No. 2:
During the pre-legislative scrutiny of the Bill, both the Irish Congress of Trade Unions and the TEEU called for a simple procedure to allow an employer who was not party to the REA when it was originally registered to be able subsequently to sign up. IBEC warned that employers might be very slow to enter into an REA if by doing so they would be exposing themselves to the REA being varied without their consent. This concern is not applicable in this instance as we are providing that an employer may apply to become party to the agreement that has already been registered. Therefore, the agreement itself will not be varied and an employer will simply be added to it. This was proposed by both the Irish Congress of Trade Unions and the TEEU and in our view it is important to table this amendment.
In page 8, between lines 33 and 34, to insert the following:“(5) An employer may subsequently apply to the Court to become party to the agreement in its application to any worker or workers to whom it applies.”.
Gerald Nash (Louth, Labour)
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I thank Senator Cullinane. The purpose of the amendment is to allow an employer sign up to an existing REA as a new party to the agreement. However, section 8 already provides for a mechanism by which an REA can be varied in its application to any worker or workers to whom it applies. In this regard, the variation provisions under section 8 would allow for an application by a new employer to become party to an existing REA, subject to one of the existing parties to the agreement making the application to the court. Alternatively, it is always open to an employer to enter into a separate collective agreement involving the same terms and conditions with a trade union and have that registered with the Labour Court. The amendment might also have the consequences of permitting an employer become party to an REA against the wishes of the original signatories and also and then to seek to have it modified, also contrary to the wishes of the original signatories. For the reasons outlined I cannot accept the amendment.
David Cullinane (Sinn Fein)
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I move amendment No. 3:
This proposal formed part of the submission from the Irish Congress of Trade Unions at the initial scrutiny stage. It sought an amendment to provide for adequate notice to be given to trade unions where the Labour Court might or intends to cancel an REA because the trade union is considered to be no longer substantially representative of the workers to whom the agreement pertains. Our amendment provides in this situation for notice to be given to the trade union or trade unions involved and to allow them to state their case, which is essentially what the Irish Congress of Trade Unions called for. It is a right to be heard and a right for unions to have their say.
In page 10, line 40, after “concerned” to insert the following:
“and 3 months’ notice of this decision shall be given to the trade union by the Court of its decision after which an appeal maybe heard no later than 6 weeks after the decision has been made”.
Gerald Nash (Louth, Labour)
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Section 10(5) provides that the Labour Court may cancel the registration of an employment agreement if it is satisfied the trade union party to the agreement is no longer substantially representative of the workers concerned. The purpose of amendment No. 3 is to require the court to give three months' notice to the trade union of its decision and to allow for an appeal within six weeks of the decision. Any consideration by the Labour Court as to whether a trade union is no longer substantially representative of the workers concerned would require the court to engage with the union in advance and to consider submissions from the union on the issue.In this regard the union would clearly have advance notice of the Labour Court's consideration.
It is not considered appropriate to allow an REA to remain in place for three months after it has been determined by the Labour Court that a trade union is no longer substantially representative of the workers. It is also important to remember that the cancellation of an REA does not affect an individual worker's entitlement to the terms of an REA under their personal contract of employment, which can only be changed by agreement between the worker and the employer. Accordingly, I cannot accept the amendment.
David Cullinane (Sinn Fein)
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I accept the Minister of State's response. I understand what is permissible and what is envisaged in the legislation and what the Labour Court will have to do in terms of consultation. However, the Irish Congress of Trade Unions is saying is that is not good enough, that it should be given the opportunity to state its case and that adequate notice should be given. We are seeking to strengthen that provision which, the Minister of State has said exists, and which we believe is too weak, as does the Irish Congress of Trade Unions. It would make sense and would strengthen the Bill if the Labour Court was to make a judgment that the unions were no longer substantially representative. At least the trade unions would be able to make a case rather than just being consulted, which is my understanding of what is being provided for in the Bill.
Denis O'Donovan (Fianna Fail)
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Is the Senator pressing the amendment?
David Cullinane (Sinn Fein)
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I move amendment No. 4:
This amendment may seem strange when one sees it written. Essentially the inclusion of country money is consistent with the existing practice within the construction sector. It is a term used to deal with the reality that many construction workers face where they have to travel to their place of employment, for example, the many people who may have to travel from different parts of the country to Dublin to work for large construction firms. That is the reality and costs are incurred by workers while working away from home. Country money and associated costs are different from standard travelling time pay, which is linked to different journeys on a daily basis, for example, provision for one hour travelling time, beyond four miles of a worker's workplace or fixed location. Construction workers often have to travel to a job for a period of days, weeks or longer and the existing practice of country money provides for this. We understand there is no opposition from contractors for the inclusion of such a provision. If the contractors are not opposed to it and the unions involved are supportive, it would strengthen the Bill if included and the amendment was accepted.
In page 12, between lines 8 and 9, to insert the following:
"(g) country money,".
Gerald Nash (Louth, Labour)
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Section 13 provides for a definition of "remuneration" for the purposes of a Labour Court recommendation for the terms of a sectoral employment order. The definition is based on the definition of remuneration included in the Protection of Employees (Temporary Agency Work) Act 2012. The definition includes basic pay and a list of other elements in excess of basic pay that may be included as part of the court's recommendation for a rate of remuneration for a particular sector. I understand that the payment of country money was a feature of the former registered employment agreement with the construction sector. Generally speaking, employees in that sector do not have a permanent fixed place of work and are required to travel, as the Senator pointed out, to different building sites according to the duration of the employer's contract at each site. In this context I do not consider that country money, which is designed to compensate employees for expenses incurred travelling distances to and from building sites and to cover subsistence expenses, is part of a person's pay. Moreover, I understand that the payment of country money may be made without deduction of tax and PRSI where certain conditions are met. Accordingly, I would not propose to include it as part of the definition of remuneration, therefore, I cannot accept the amendment.
David Cullinane (Sinn Fein)
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I move amendment No. 5:
This issue was discussed during the debate on the National Minimum Wage (Low Commission Bill) 2015. It is important to keep a focus on these issues because a number of factors in the labour market are of concern to everybody, for example, the high levels of low pay. I do not have to give the Minister of State my view of it. Report after report from EUROSTAT to the OCED, Task, the CSO, all show that 20% of workers in the State are deemed to be in low-pay jobs. We also have a difficulty with precariousness, an increase of under-employment, part time work and short hour contracts, which are becoming much more prevalent in the labour market, by design more so by accident if we are honest. The section provides that when making a recommendation to the Minister, the Labour Court shall have regard to a number of factors, for example, the potential impact on levels of employment and unemployment in the applicable sector and the potential impact on competitiveness in the sector concerned. The provision reflects similar factors that the Low Pay Commission must also consider when it makes a recommendation to the Minister.
In page 14, between lines 14 and 15, to insert the following:
"(e) the percentage of workers in the identified economic sector earning two thirds or less of median income;
(f) the pervasiveness of part time and/or short hour contracts in the identified economic sector,".
In order to be consistent with what the Low Pay Commission must do and the factors it must be asked to reflect on, we believe that is what should be done when looking at an REA. While these may be relevant factors, they reflect on an imbalance in terms of considerations that weigh heavily in favour of employers and encourage the increasing levels of sharp practice we see across the economy. Identifying and acknowledging high levels of low pay across the various sectors and the use of part-time or short hour contracts is highly relevant to one of the key objectives of this legislation, which is to promote harmonious relations between workers and employers. Is not that one of the reasons there is unrest in some sectors, such as the retail sector? We are aware of many companies which are exploiting their workers and of campaigns being fought by the trade unions involved to ensure that does not happen. When analysing data and information for the purpose of forming REAs it would make sense these issues of under unemployment, short hour contracts, levels of pay and low pay should also be considerations. I ask the Minister of State to support this amendment which has been supported by the trade unions who have been in contact with us.
Gerald Nash (Louth, Labour)
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Section 16 sets out a comprehensive and a challenging set of factors that the Labour Court has to take into account when making a recommendation to the Minister in respect of a sectoral employment order. Amendment No. 5 would add two further factors that the court would be required to take into account. I have given significant consideration to these criteria with Government colleagues. I do not consider it necessary to refer specifically to median earnings changes or proportions above or below particular proportions of median earnings, particularly when one of the criteria specifically requires the court to look at the general level of remuneration in other sectors where similar workers are employed. The Bill also requires the court, in making a recommendation, to be of the view that the recommendation is reasonably necessary to ensure fair and sustainable rates of remuneration in the sector concerned. I believe that the structure we are setting up in this legislation will do exactly that and has been welcomed by all sides of industry.
The suggestion in regard to the pervasiveness of part-time and short hour contracts is part of a wider decent work agenda that I am pursuing, including the issue of zero hour, low hour contracts. The Senator will be aware of the study I commissioned that is being undertaken by the University of Limerick. I expect that study will be completed soon. I look forward to considering its findings and sharing them with Oireachtas and Government colleagues. Where the evidence points to some adjustment being required to the protections that are already in place in Irish employment law, these will be brought forward for consideration by the Government. Therefore, I cannot accept the amendment.
Denis O'Donovan (Fianna Fail)
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Is Senator Cullinane pressing the amendment?
David Cullinane (Sinn Fein)
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No. I regret the Minister of State is not able to support the amendment. I do not wish to make the point again. This is an issue I would have argued over a long period with the Minister for Jobs, Enterprise and Innovation during debates on various Bills. The view is that wages are seen as simply a cost to the economy and not as a driver. We need to take a different view. I know it is a Fine Gael view but I would hope it is not a view shared by the Labour Party that competitiveness is all on the basis of driving down the pay and conditions of workers and seeing wages as an impediment to a thriving economy.In fact, all the evidence points to the contrary: those countries in Europe which have good wages, decent work and decent pay are actually better-performing economies than our economy. Some other countries engage in a race to the bottom and view wages solely from the prism of competitiveness and not as a driver of the economy - if people have money in their pockets they can spend and it is a positive rather than a negative. It is nonsensical that the court would have to consider the potential impact of a recommendation on competitiveness to the economy but not be asked to look at the opposite side or the other side of the economy.
To be honest, this is an ideological mindset, probably coming from the other side of Government. It seems they will not accept this amendment. I am disappointed. In light of the criticisms I had of the Low Pay Commission and this legislation there does not seem to be enough of a focus from this Government on the impact of low pay, short-term contracts and hours and precariousness of the economy as well as the policy decisions which flow as a result. Here is an opportunity for the Government to allow the courts to reflect and be mindful of those issues as well. I am disappointed with the response of the Minister of State. It seems to suggest he will not be accepting the amendment.
Denis O'Donovan (Fianna Fail)
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Do you wish to respond further, Minister of State?
Gerald Nash (Louth, Labour)
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It is as clear as the nose on my face that the legislation on sectoral employment orders seeks to ensure fairness and the same rate of remuneration. This is a requirement to reach an SEO or for an SEO to be made. That takes into account rates of pay and the fairness of rates of pay in a given sector. This architecture has been supported by the trade union movement, which has not found fault in it. I very much welcome that support for the legislation.
The fact that we are introducing sectoral employment orders soon after the old registered employment agreement architecture was struck down by the Supreme Court is an illustration of the Government's commitment to address the pay issue. We see it in a balanced way. We need to be competitive and ensure that businesses can grow and not only survive but thrive, because we need businesses to create jobs. However, we also need to ensure that the rates of pay in our economic sectors are fair and sustainable. We have to take a balanced approach.
No one can say this Government is not mindful of the need to ensure that there are decent rates of pay in the economy. That is reflected in the fact that we have set up the Low Pay Commission, introduced collective bargaining legislation in the context of this Bill and that we are introducing a new SEO and REA system. This is not happening anywhere else in Europe.
It would have been easy for the Government to take the view after an unprecedented economic crisis that we would hollow out our employment protections and throw low-paid workers to the wolves, but we have not done that. In fact what we have done is to the contrary and that has been recognised internationally. We did not take that option, as other countries have. Other countries have been subject to troika programmes. We have done exactly the opposite and we should acknowledge that. That is not to say there are no challenges. My only regret is that I have only had a year to do some of this work. I would have preferred five years and I look forward to completing my agenda in the next term.
David Cullinane (Sinn Fein)
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I admire the optimism of the Minister of State.
Denis O'Donovan (Fianna Fail)
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That is obiter dictum. Leaving that to one side, can you confirm whether you are pressing the amendment, Senator?
David Cullinane (Sinn Fein)
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I will not press the amendment.
David Cullinane (Sinn Fein)
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I move amendment No. 6:
We were asked to include this amendment by the Mandate trade union. The court is asked to look at a number of things. Obviously the rate of pay is the main element. The Minister of State will be aware that the difficulty for workers in short-term contracts is not so much the rate - obviously that is one of the issues - but the short-term nature of their contracts. This came up in the context of the ability of the Low Pay Commission to vary the minimum wage. It may increase the minimum wage and that would be good for those workers affected, but for someone on a low-hours contract the difficulty or problem is the hours. Their hours can be cut because of the precarious nature of their employment or because of the nature of their contracts. We are asking that amendment No. 6 be added so that the hours of work are also taken into account.
In page 14, after line 38, to insert the following:“(c) hours of work;”.
This would actually do something pragmatic and constructive for Dunnes Stores workers. This legislation, if passed, in some ways might do something. It is one of the employers which simply will not engage with the trade unions. It is despicable that we have a domestic retail company which makes vast amounts of money and very healthy profits in this country but simply will not negotiate with the trade union involved. That is an absolute disgrace. Whatever about my views of the limitations of the collective bargaining provisions in the Bill, at least it opens up the possibility that the company may be forced to engage with the industrial relations machinery.
This is one of the clear difficulties facing that category of workers. Pay is one element but hours is the critical point and low-hour contracts is the critical issue. We are asked about this over and over again and pressure is being put on us. I saw numerous Labour Party Deputies and Senators at the Clerys protest and at the Dunnes Stores protest and rally some weeks ago, and rightly so. People ask us what we are going to do as legislators to ensure that their issues are dealt with. This is something we can do, small as it is. The Minister of State could accept this amendment and ensure that hours of work is something to which the court would have to give consideration. I call on the Minister of State to support the amendment in that spirit.
Gerald Nash (Louth, Labour)
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I am pleased to have the opportunity to respond to Senator Cullinane on this point. The Mandate trade union has not formally made the point to me about hours of work, but it has made the point, publicly and privately, that the utility of the collective bargaining legislation is clear in terms of potentially assisting the trade union in the context of the dispute to which Senator Cullinane has referred, a dispute that has appalled all of us in this House and elsewhere.
This provides a strengthened opportunity for trade unions to bring cases on behalf of their members to the Labour Court in a robust fashion and have the terms and conditions of a particular group of workers compared against an analogous group of workers in similar employment, whether they are represented by trade unions, and, crucially, where collective agreements are commonplace. I believe this provides a host of opportunities in constitutionally robust law that will allow for people's pay and terms and conditions to be improved if it is a case that a trade union brings a case through the Labour Court and secures a recommendation, ultimately imposed through the Circuit Court, if it is the case that there is no engagement or if an employer refuses to engage. All of the provisions are, by and large, welcomed by trade unions. We can see how effective they can be in advancing the rights of working people to improve pay and terms and conditions.
The purpose of amendment No. 6 is to provide that in addition to a recommendation in respect of the remuneration, sick pay and pension provisions for a sector, a recommendation from the Labour Court may include hours of work in the recommendation. Section 14 provides that a trade union of workers or organisation of employers, which, the Labour Court is satisfied, is substantially representative of workers or employers in a particular sector, may, separately or jointly, call on the Labour Court to examine the terms and conditions relating to the remuneration and sick pay or pensions of workers in the sector and ask the court to make a recommendation to the Minister on the matter. Accordingly, the Labour Court examination is confined consideration of remuneration, as defined, including sick pay and pensions provisions. Hours of work do not come within the scope of the court's examination in the context of sectoral employment orders and, therefore, it would not be appropriate for the court to include hours of work in a recommendation. Hours of work are of course already governed generally by the Organisation of Working Time Act 1997 and, therefore, I cannot accept this amendment.
Paul Bradford (Independent)
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I have two queries for the Minister of State on the section. The first relates to section 16(2).It states that when making a recommendation, the court shall have regard to certain matters, the most important of which is the potential impact on employment levels. How will that adjudication be framed? Perhaps a broader debate is taking place on the issues of low pay, pay rates and pay increases, but unless there is employment, the issue of pay does not come into it. What will be the determination on the potential impact on employment levels? Is there a prescribed yardstick or will a philosophical discussion take place within the court? Will guidelines be issued? Employers are adamant that employment levels will be impacted on. How will that adjudication be made?
My second question relates to section 16(4) which states the court will not make a recommendation unless it is satisfied on certain factors. One of the conditions is that the recommendation promote harmonious relations between workers and employers. It is difficult to understand at what point the adjudication will take place, given that if a matter is before the court for determination, it means that the relationship between workers and the employer may not be that harmonious. Will there be a set of guidelines, rules or provisions to be used in making an adjudication leading to harmonious relations between workers and the employer? I know what I am saying is rather vague, but in a sense, it goes to the kernel of the decision-making process. Who will decide whether a decision is good or bad in terms of employment and whether it is good for the creation or maintenance of harmonious relations? Unless we are clear on that matter, while the legislation appears strong and to be proactive, it may not do what the Minister of State wishes it to do because of these clauses which are necessary. We can have a debate about pay rates, but, above all, we must have employment and employment creation opportunities. Will the Minister of State outline his thoughts on these queries at this initial stage?
Gerald Nash (Louth, Labour)
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It is an interesting point. Let me start with the Senator's reference to harmonious industrial relations, a principle with which those engaged in the sector will be familiar. The Minister of the day will need to be satisfied before signing an order that it will promote industrial peace and harmonious industrial relations. In the absence of the old REA system which was struck down by the Supreme Court in a judgement in 2013 we have seen difficulties in the construction sector. That sector may decide independently that it wishes to have a sectoral employment order under this legislation. Having harmonious industrial relations and industrial peace is important. We need them for the industry to flourish, jobs to be created and contracts to be completed. Let us be honest: the wisdom, experience and judgment of experienced members of the Labour Court and their staff will be important, as they always are in settling industrial disputes, but this is about the avoidance of industrial disputes and creating harmonious and peaceful industrial relations to allow jobs to be created and maintained and employers to win contracts.
The Senator's point about the maintenance of employment is important and central to consideration of sectoral employment orders. In discussing the previous amendment we spoke about fair and sustainable rates of payment and how they were central to the court's consideration in making an order or recommending that an order be signed by the Minister of the day. No less than the Low Pay Commission, the Labour Court should and will use evidence from both sides of industry when making its recommendations. It is also in a position to carry out its own research, which it does on a regular basis. Ultimately, it is the expert judgment of the court that must be applied in situations such as this, but the Minister of the day will have to be satisfied that a sectoral employment order will promote harmonious industrial relations and have an impact on employment levels. He or she will have to be conscious of the levels of unemployment in a particular sector because it would be completely pointless if he or she were to decide to make an order that had a negative impact on employment levels in an economic sector. It is about trying to promote job creation and ensuring businesses can win contracts and flourish and that we promote harmonious industrial relations in a sector.
Denis O'Donovan (Fianna Fail)
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Amendments Nos. 7 and 8 are related and may be discussed together, by agreement. Is that agreed? Agreed.
David Cullinane (Sinn Fein)
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I move amendment No. 7:
There is no provision in the legislation on the blacklisting of trade union activists. We have referred a number of times in both Houses of the Oireachtas to the blacklisting scandal exposed in Great Britain. It has been found that major construction companies engaged in systematic surveillance and the blacklisting of trade unionists over a 30-year period, resulting in victimisation, violence, unemployment and horrific hardship for families and communities. BAM, Carillion and Balfour Beatty are just three of over 30 companies named and shamed in the scandal. For years, trade union activities and the day-to-day lives of the families, friends and loved ones of construction workers were monitored and recorded. Construction workers were left perpetually unemployed. When work was secured, they would be let go without fault or warning within a day or so. Subcontractors lost contracts on sites because they refused to lay off labourers who happened to be on the principal contractor's blacklist. The Government tells us on a regular basis that the Irish and British economies are intertwined. If that is the case, it would be preposterous to suggest the widespread blacklisting of trade unionists in Great Britain has not been repeated here or that the companies involved in this scandal take a different attitude to Irish trade unionists when operating in the State. Earlier this year the House of Commons Scottish Affairs Committee produced a damning report on blacklisting in employment and recommended the holding of a full public inquiry.
In page 16, line 36, after "not" to insert "blacklist,".
When this issue has been debated publicly, I have heard from some, mainly employers, that there is no evidence of the blacklisting of trade unionists in this state. The same argument was made in Great Britain until the work of the consultants' association was uncovered, exposing the widespread and systematic practice of the blacklisting of over 3,000 trade union activists by over 30 major contractors. It would stretch people's imaginations or the credibility of the argument to suggest this is not happening or has not happened in this state. I believe it has happened. In Dave Smith and Phil Chamberlain's recently published book on the blacklisting scandal in Great Britain, Labour Party MP John McDonnell wrote that blacklisting had three direct and deliberate effects. The first, obviously, is to break the individual in order that he or she is forced to choose between earning a living and being an active trade unionist. The second is to quarantine the individual in order that in denying him or her access to the workplace, he or she will have no ability to represent, influence, persuade or mobilise others to stand up for their rights at work. The third is to send a message to any other person who may be tempted to join a trade union.
There has been always a major gap in legislation in this state when it comes to anti-victimisation measures. It is welcome that there are provisions in the Bill that provide further protection for workers. It is a credit to the Minister of State and the Government that they have included these elements in the Bill. In the case of the Dunnes Stores workers, Mandate has clearly indicated where it sees potential for the victimisation of workers.That is the problem with such contracts. If anyone steps out of line, joins a trade union or wears a trade union pin, he or she will not get the hours. It would not make sense, when we look at what has happened in Great Britain and the huge controversy caused by the reports and findings following investigations on blacklisting, to suggest it would not happen here. In fact, many people have come to me, primarily in the construction sector but it happens in other sectors also, to tell me that they have been blacklisted because they stood up for themselves and their fellow employees. As a result, they are unable to find jobs or if they do, they will only last a week or two.
The amendments seek to deal with the issue of blacklisting in a satisfactory way. Amendment No. 7 reads: "In page 16, line 36, after “not” to insert “blacklist,”. Amendment No. 8 reads:
In page 16, between lines 36 and 37, to insert the following:“(a) trade union membership or activity,”.
Gerald Nash (Louth, Labour)
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Amendment No. 7 seeks to include a prohibition on the blacklisting of a worker in the anti-victimisation provisions in section 19 if workers are covered by an SEO. The blacklisting of persons, for whatever reason, is an abhorrent practice, particularly for those exercising their rights regarding their remuneration or terms of employment. If there is evidence that this is a widespread practice in Ireland, I will move on it, but, to date, I have heard no evidence that it is and in my daily contacts with trade union officials the issue has not been raised with me. The Senator appears to have suggested he is aware of some cases of blacklisting. If he is, perhaps he might bring them to my attention in whatever way he wishes. The issue could and should be addressed. However, it is unwise to address such a fundamental issue in a piecemeal manner, as suggested in the amendment. If action is needed in this area, it will have to be addressed in the round and the context of the suite of industrial relations and employment legislation.
The purpose of amendment No. 8 is to add trade union membership or activity to the activities in respect of which an employer may not penalise a worker to whom an SEO applies. A number of protections are in place for workers who consider they have been subjected to victimisation in the workplace. Any worker who finds himself or herself the subject of victimisation already has the opportunity to take a case under the Industrial Relations Acts.
The 2004 code of practice on victimisation provides that, where there is a dispute in an employment where collective bargaining fails to take place and where negotiating arrangements are not in place, no person should be victimised or suffer disadvantage as a consequence of his or her legitimate actions or affiliation arising from that dispute. A procedure for addressing complaints of victimisation is set out in the Industrial Relations (Miscellaneous Provisions) Act, 2004 and these protections will be further enhanced in the provisions in Part 3 of the Bill in regard to the Government's commitment on collective bargaining. I welcome the Senator's reference to it, but, given what I have said, I cannot accept the amendments.
Denis O'Donovan (Fianna Fail)
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Amendments Nos. 9 to 11, inclusive, are related and may be discussed together, by agreement. Is that agreed? Agreed.
David Cullinane (Sinn Fein)
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I move amendment No. 9:
These three amendments have been tabled to provide access to workplaces for designated union officials, to provide a right for employees to be represented by a trade union in their place of work and to ensure compliance by employers. Prior to the McGowan judgment, these entitlements were part and parcel of the REA framework underpinning the right of an individual to trade union representation and all that it entailed. We had this discussion on Second Stage in identifying one of the perceived weaknesses in the Bill, namely, the voluntary element of the collective bargaining framework being put in place. This goes back to a fundamental right workers should have, that is, to be represented by their trade union in their place of work or at an employment rights body. The reason workers join trade unions in the first place is that if they find themselves in difficulty or conflict with their employer, many of them obviously will not understand the myriad industrial relations laws and the maze the employment rights bodies can be. Even though it has been simplified by the Government through the Workplace Relations Commission, it is still quite onerous for workers to understand exactly what they are entitled to and to negotiate with employers.
In page 17, between lines 25 and 26, to insert the following:“(6) The Minister may authorise other persons, including designated union officials, to carry out inspections and monitoring of Registered Employment Agreements, Registered Employment Orders and Employment Regulation Orders.
(7) The Minister may make regulations providing access, for union officials, to the workplace and employees for the purpose of this Act.
(8) An employer shall not coerce workers to relinquish or abstain from a registered employment agreement.”.
Sometimes, because of the power structure, employers hold all of the cards. They are the ones who employ and it is very difficult for employees to even raise questions about their terms and conditions of employment, let alone engage in conflict. That is why we have trade unions. They are skilled, understand industrial relations law, are qualified, can properly represent workers and make sure they have fair representation. It would be preposterous if trade union officials were not able to be present in a person's workplace to try to solve problems, given that part of their remit is try to find solutions to workplace problems where there is conflict. We would see these amendments as strengthening the Bill and they would certainly be welcomed by the trade unions involved. As I said, trade unions should be entitled to represent their members' interests and should have access to workplaces. If the amendments were accepted to be by the Minister, it would strengthen the overall intent of the Bill.
Gerald Nash (Louth, Labour)
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Amendment No. 9 seeks to provide a role for trade union officials in the enforcement of registered employment agreements, registered employment orders which are more correctly entitled sectoral employment orders and employment regulation orders. It would also provide for the Minister making regulations providing for a right of access for trade union officials to the workplace and employees. It seeks to prohibit an employer from coercing workers to relinquish or abstain from an REA.
In respect of registered employment agreements , it is clearly a matter for the parties concerned whether they wish to include in the agreement provisions on access to workplaces for trade union officials. A REA will be binding on the parties to the agreement. I am aware that some previous REAs such as the construction sector REA provided that, in the event of concerns regarding compliance, a union official would have access to a designated member of management. It is totally open to the parties to an REA to agree to similar provisions in the future. It had been suggested during the course of these debates that primary law provided for this under the former REA regime, but it manifestly did not and we should not be confused on this point.
On the appointment of other persons, including union officials, as inspectors, it has to be appreciated the powers given to National Employment Rights Authority inspectors are extensive. They include, for example, the power to use reasonable force to enter a place of work or a premises where there is a reasonable belief it is being used for the employment of persons or the keeping of records. NERA inspectors have powers to copy records and remove books, documents or records for a period they reasonably consider to be necessary. They can, under warrant of the District Court, enter a domestic dwelling with other inspectors or members of An Garda Síochána in pursuit of documents or records. Such extensive powers are rightly and appropriately reserved solely for officers of the Minister who are appointed as inspectors.
It is vital that trade unions are able to represent the interests of their members and take action in support of these interests. The laws of the State vindicate that right and the provisions of this legislation will help in the context of a new collective bargaining regime. However, the suggestion that trade union officials should have a statutory right to enter a workplace to meet workers, even in workplaces that do not recognise trade unions, does not accord with the voluntarist approach to industrial relations that has been adopted through the decades. Whether we accept that voluntarist approach, that is a fact. Moreover and significantly, it would leave the urgent legislation before us open to the possibility of a legal challenge on an employer's constitutional right not to engage with or recognise trade unions. We must be mindful of this point, particularly given the necessity and urgency of this legislation. Having worked with the relevant actors to restore sectoral frameworks following the McGowan decision in 2013, I am not going to jeopardise for one minute the significant gains for workers and employers contained in the Bill by opening the door to such a challenge. I do not think there is any shortage of people who do not agree with me and the Senator on the urgency of the legislation and what it has been designed to achieve. There may very well be individuals and organisations that will be looking closely at the legislation and would be prepared to challenge it and I do not want to open the door to any degree for that to happen.Accordingly, I cannot accept this amendment.
Amendment No. 10 provides an entitlement for a union to represent an employee's interests under an REA or sectoral employment agreement, including on matters involving discipline and grievance procedures. In this regard, section 41(15) of the Workplace Relations Act 2015 already provides that a trade union official can accompany a worker in proceedings before an adjudication officer in regard to a complaint. Section 44(9) of that Act has the same provision in respect of proceedings before the Labour Court. Accordingly, I cannot accept amendment No. 10.
Amendment No. 11 proposes further rights of access to workplaces for trade union officials, for the purpose of monitoring compliance with REAs and SEOs and also with a view to carrying out trade union business on the premises with workers. Therefore, for the reasons I outlined previously in regard to amendment No. 9, I cannot accept this amendment.
David Cullinane (Sinn Fein)
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I fully understand and appreciate the legal and constitutional constraints under which the Government is operating in framing this Bill, both in terms of collective bargaining and of reinstating REAs. We are doing so against a backdrop of employers who have consistently challenged the industrial relations architecture of the State through the courts and have tried to dismantle it through the High Court and Supreme Court. We have seen that. I fully appreciate therefore the concern the Minister of State has that when he brings forward legislation within the confines of the existing Constitution, we must protect all of us and employees against further challenges of that nature.
I accept that, but the difficulty is that we are operating in that very narrow view. The provisions seem to be heavily weighted in favour of employers, where the rights of employers and the right to private property seem to take precedence on almost every occasion, above and beyond the rights of workers. It might sound draconian when we say there should be mandatory trade union recognition or it should be mandatory that a trade union official could walk into a place of employment without the consent of the employer, but no employee can prevent an employer from getting legal advice. An employer can spend huge amounts of money on getting advice from solicitors and barristers and get all the support and advice he wants. There is no problem in doing that and there is nothing employees can do about it. However, when they want to be represented in their place of work, or if they have a conflict with their employer and have paid union dues to be properly represented when there is conflict, they cannot do that if the employer does not want to engage with the trade unions.
Is it not telling that the very companies that do not engage with the trade unions, whether Ryanair, Dunnes Stores or any of those companies that will not recognise the trade unions, have the worst possible record when it comes to paying their workers and treating them fairly? There is a clear issue here that must be dealt with at some point. I believe we must have the courage at some point to go to the people on a constitutional referendum about mandatory trade union recognition. Essentially, that may be what is necessary to deal with the issues I have raised.
I am not saying the Minister of State is opposed to that. I understand the difficulties and the challenges this would present to the labour movement and to all of us who believe in fairness and justice for workers. However, the provisions currently are weighted very heavily in favour of employers. We see this all of the time and we must continue to challenge it. We cannot simply always accept there are constitutional constraints and that there is nothing we can do. We cannot continue to wash our hands of responsibility every time there is a problem - Vita Cortex, Lagan Brick, Game, Waterford Crystal, Clerys, Dunnes Stores - and say there is nothing we can do about it, because the situation is too complex. All of these issues are complex when we need to do something for workers, but there is no problem with introducing legislation for other issues.
If we are serious about having fairness for workers and a level playing field, we must grasp the nettle and deal with these issues. I accept the limitations on the Minister of State in framing this Bill. I have also spoken to many senior trade unionists, who would be very concerned about the possibility of a referendum, because of the forces of the Right and all the employer organisations that would line up against it, with all sorts of nonsense arguments. I accept that, but we must also accept that we cannot continue with the narrow constitutional framework we are all operating under currently while trying to get the best possible protections for workers, and then having to bring forward legislation that is rigid, narrow and quite limited because of these constraints we operate under. We need to have the vision to look beyond that and have the courage, at some point, to go beyond what is in this Bill. In saying this, I accept the huge steps forward being taken in this Bill.
I will say no more on this because similar issues will be raised with the next amendment coming forward.
David Cullinane (Sinn Fein)
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I move amendment No. 21:
In page 17, between lines 25 and 26, to insert the following:
“Union entitled to represent members' interests21. (1) A trade union, at the request of the employee, may represent the employee in relation to the employee's rights and entitlements under a registered employment agreement and sectoral employment order.(2) A union is entitled to represent its members in relation to any matter involving the discipline or grievance procedure.”.
David Cullinane (Sinn Fein)
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I move amendment No. 12:
Introducing an amendment on Report Stage in the Dáil in regard to this, to include retired or deferred workers in the collective bargaining section of the Bill, was a positive move which we supported. However, in practical terms the Minister of State's amendments do not guarantee that IASS deferred members will now be assured of representation in negotiations on their pension scheme or that retired pensioners at Tara Mines or the ESB retired staff association will be allowed representation before trustees apply for a section 50 order to the Pensions Authority, rather than after, as provided for by the Minister for Social Protection in the regulation. This is a problem that needs to be examined and this is what we seek to do through this amendment by inserting: "The Minister may by regulations provide for a mechanism to provide for representation by or on behalf of retired employees, including organised groups of retired employees, in relation to his, her or their pensions, deferred or otherwise."
In page 20, between lines 4 and 5, to insert the following:
“Regulations
22. The Minister may by regulations provide for a mechanism to provide for representation by or on behalf of retired employees, including organised groups of retired employees, in relation to his, her or their pensions, deferred or otherwise.”.
Gerald Nash (Louth, Labour)
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Amendment No. 12 deals with the issue of access by retired persons to the industrial relation machinery of the State and provides for the insertion of a new section to the Bill providing that the Minister may by regulation provide for a mechanism to provide for representation by or on behalf of retired employees in regard to pensions matters.
I fully appreciate the concerns of retired and deferred members of pension schemes whose schemes are being restructured, particularly where such restructuring may impact on existing or potential pension benefits. I am only too familiar with the cases involving the Tara Mines pensioners and I have worked on behalf of many of them over the years and on behalf of the Aer Lingus group also.
This is an issue to which careful consideration has been given, not just by me, but by Government colleagues. In doing so, it was important to bear in mind that the industrial relations system in Ireland is voluntary in nature, both as regards access to the Labour Relations Commission and the Labour Court. Any change to that principle which would put in place a mandated right to be part of the process would alter fundamentally the conduct of industrial relations in this country. As matters stand, where changes to pension schemes are negotiated at company level, whether as a result of a crisis in the scheme or otherwise, the outcome of that engagement cannot, of itself, change the pension scheme. Rather, any proposed changes to the scheme are effected through the trust deeds and rules of the scheme and are at the discretion of the parties so designated in the rules or deeds of the scheme.
In terms of changes to pension schemes generally, Senator Cullinane will be aware that the trustees of a particular pension scheme are required by law to act in the best interests of all the members, be they active, deferred or pensioner members. Until recently, this has been done on an individual basis and did not provide for a collective voice to be heard.
As I have stated, the matter has been careful consideration and as a consequence, the Tánaiste and Minister for Social Protection has recently introduced regulations and approved amendments to guidance issued by the Pensions Authority to provide for the recognition by the trustees of a pensions scheme of groups representing the interests of pensioners and deferred members of pension schemes. These changes mean that all groups representing the interests of the various categories of pension scheme membership are treated the same in the context of the provisions in the Pensions Act.The changes to the regulations will require the trustees of a pension scheme to notify the groups representing the interests of retired and deferred scheme members where the trustees of a scheme propose to apply to the Pensions Authority to restructure scheme benefits under section 50 of the Pensions Act. This notification affords the representative group an opportunity to make a submission to the trustees of the scheme in relation to such proposals.
In addition, the Pensions Authority is now required to notify groups representing the interest of scheme members where the Pensions Authority proposes to either issue a unilateral direction under section 50 of the Pensions Act to the trustees of a scheme to restructure scheme benefits or to wind up a pension scheme under section 50B of the Pensions Act. This notification affords the representative group an opportunity to make representations to the Pensions Authority in relation to such proposals. The regulations also give the representative group the right to appeal such a direction by the Pensions Authority to the High Court on a point of law. It is within this framework, rather than through the State’s industrial relations machinery, that a collective approach should be correctly effected. Accordingly, I cannot accept amendment No. 12.
David Cullinane (Sinn Fein)
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I move amendment No. 13:
This relates to the second last contribution of the Minister and the debate we had on the three grouped amendments. We seek to delete the word "voluntary" and we do so knowing it is not the solution that would be necessary to bring about mandatory trade union recognition, but we do so as an opportunity to again raise the issue and to have a discussion on it. While welcoming many of the Bill's provisions, we could not let it pass without raising the need for mandatory trade union recognition. When one uses a word such as "mandatory", it can conjure up images of draconian legislation where one is forcing somebody to do something, but in reality it is very simple. It is actually about rights - the right of a worker to be represented by his or her trade union.
In page 22, line 32, to delete “voluntary”.
I was elected through the Labour Panel to represent those who are in work, as were other Members. I wish all of them the best of luck in the next Seanad election. Some of them are present, although none of them have spoken on the Bill so far. Perhaps that is something they might have to consider if they are seeking re-election on the Labour Panel. Nonetheless, it is an important issue because if we continue along the road of the voluntarist way of doing things, even with the provisions in this Bill, we will still have big employers in the State who think it is acceptable to disregard trade unions and treat their workers with contempt. That is essentially what they do when they refuse to recognise trade unions. It is not that they are protecting some sort of right, that they see the provisions as being draconian or in contravention of their rights, it is a case of them being involved in a battle with trade unions and their employees. In effect, it is employers saying they will not recognise workers and they do not care who workers consider their representatives, that the employers will not talk to them or engage with them just because they can.
The vast majority of employers in the State are good, decent employers who recognise trade unions and the value of working out arrangements and resolutions to issues with the representatives of workers. Such a situation benefits everybody. That is why, by and large, employment regulation orders, EROs, registered employment agreements, REAs, and joint labour committees, JLCs, worked in the past, because employers and employees from various sectors came together, agreed and registered agreements and then had collective agreements in place. By and large, that worked until some unscrupulous employers decided they did not like it and they decided to challenge the system, which is what they did. We are dealing with the results of what happened. It will continue to be a problem in industrial relations law for as long as we allow it to be the case.
In reality, what we are doing is setting up a system for unscrupulous employers who do not recognise trade unions to be forced to go in the back door and to be obliged to resort to the industrial relations or employment rights bodies. At least that element is now in place, which is a step forward. While I am critical of the employers involved, I accept the constitutional limitations on the ability of the Government to introduce legislation. I accept that the Minister of State has done his best in the context of the existing constitutional position and also in the knowledge of the court cases and court challenges that have already taken place. I fully appreciate and understand that, but if we ever want to deal with the issue in its totality and to allow workers to be properly and fairly treated, including represented by their trade unions, which they should be, then we will have to take a step further. We will commit to that in our election manifesto in the next election. We want to see mandatory trade union recognition. We will have the courage to do so. I do not say the Minister of State or his party would not have the courage to support that. Let us work with the trade unions and get the best possible constitutional framework that balances the rights of both employers and employees. Unfortunately, at the moment the balance is skewed in favour of employers.
The reason we tabled the amendment is to raise the issue again and to debate what the next step will be. In any situation, when there is a gain, it can be a step or two forward but there is always the next step and the step after that. For all of us who are interested in labour rights, equality and workers rights, the next step is to have mandatory trade union recognition in the State, despite how it will be spun and challenged by some vested interests. The vast majority of employers would have no difficulty with the concept because they already recognise trade unions and they have a good relationship with trade unions but it is the minority, those who have something to hide or to fear, who do not want trade union recognition. For all of the criticisms multinational companies come under at times, very few of them have any difficulty with trade unions. They encourage them because they see it is an important function of democracy that people have a right to be represented by their trade unions. Employers see it as a benefit in that they deal with a small number of very qualified and skilled trade union officials. It is the next step along the road and I hope that after the Bill is passed and we net the gains contained in the Bill that we will move towards the next step at some point.
Gerald Nash (Louth, Labour)
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I am pleased to have an opportunity to respond to Senator Cullinane who made some very important points. I am also pleased that he very responsibly pointed out the constraints and limitations in terms of the Constitution, because not everybody who is contributing to the debate acknowledges that. Senator Cullinane has widely acknowledged the point, not just today but regularly in his public commentary on the issue. There is very little point in discussing the matter without recognising the constitutional constraints. It is another argument as to whether that would be addressed at some stage in the future. The proposed legislation has the potential to transform relationships between employers and employees in this country. We will have a legally and constitutionally robust system.
In talking about mandatory trade union recognition we must look at the experience of analogous countries across Europe. In countries where there is mandatory trade union recognition we must be conscious of the different models that are applied. From my experience of speaking to trade unionists internationally, I am aware that in some countries where mandatory trade union recognition is available they might prefer to have the collective bargaining model we seek to introduce because the bar is set so high in some mandatory regimes as to make it ineffective. We must have an honest discussion about what mandatory trade union recognition would look like, how it is modelled elsewhere, and how it works elsewhere in practice. I am convinced that the legislation we hope to see enacted in this country will have the potential to transform industrial relations in this country in a positive way and to rebalance the agenda in some respects.
The purpose of this amendment is to remove the reference to the term “voluntary” from the proposed definition of collective bargaining in section 23. In developing these legislative proposals, the Government has been keen to respect the positions articulated by stakeholders to develop proposals that sustain our voluntary system.It also ensures that workers have confidence that, where there is no collective bargaining, they have an effective system that ensures they can air grievances about remuneration, terms and conditions and have these determined by the Labour Court, if necessary, based on those in similar companies and secured by way of Circuit Court Order.
Worker and employer stakeholders have played a very critical role in assisting Government to develop a clear and workable framework in this area, in the spirit of social dialogue and partnership. In this context, the definition of collective bargaining, provided for in section 23, was the subject of very detailed consideration by me, by my Department and employer and worker representatives. It has been agreed, in essence, with those stakeholder interests in the spirit of collaboration, partnership and very real social dialogue.
It is important to remember as well that it has been the consistent policy of successive Irish 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 the freedom of contract and freedom of association. However, we will not go into the constitutional arguments about that, at this point.
The system has, notwithstanding all the points made by Senator Cullinane, served the country well in delivering industrial peace and economic development in recent years. It has made a significant contribution to our economic success in the two decades preceding 2008. It remains central to sustaining Ireland’s economic recovery. I think it will be instrumental in delivering a fair and balanced recovery.
The principle of volunteerism is also recognised at an international level. Article 4 of ILO Convention 98 is on the right to organise and collective bargaining. It states:
Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements.Accordingly, I cannot accept the amendment.
Denis O'Donovan (Fianna Fail)
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Amendments Nos. 15 and 16 are related and may be discussed together by agreement. Is that agreed? Agreed.
Government Amendment No. 15: In page 32, to delete lines 22 to 29 and substitute the following:“(a) (i) the production of animals, including the production of meat and other animal produce intended for human consumption,(ii) the sorting and packing of meat and other animal produce, and (iii) the production, sorting, and packing of crops, including fruit and vegetables, intended for human or animal consumption, on farm land (within the meaning of section 664 of the Taxes Consolidation Act 1997), and(b) horticulture, including market gardening, garden nurseries and nursery grounds;”.”.
Gerald Nash (Louth, Labour)
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Section 43, which was introduced on Report Stage of the Dáil, provides for an amendment to the definition of “Agriculture” in the Industrial Relations Act 1976, for the purposes of giving effect to the Labour Court recommendation on the scope of the agriculture JLC, arising from the 2013 review undertaken by the court of all existing joint labour committees.
In addition, section 46 of the Bill amends the original establishment order for the agriculture JLC to reflect the new definition in section 43. However, for the avoidance of doubt that the new definition may inadvertently be construed as having included meat processing plants within the scope of the agriculture JLC, it is proposed that the definition be explicit, that the scope of any employment regulation order, ERO, for the agriculture JLC would just cover workers on a farming establishment, which was the clear intention of the Labour Court recommendation.
An amendment to section 46, which itself amends the original establishment order for the agriculture JLC, is also required.
Government Amendment No. 16: In page 33, to delete lines 26 to 33 and substitute the following:“(a) (i) the production of animals, including the production of meat and other animal produce intended for human consumption, (ii) the sorting and packing of meat and other animal produce, and (iii) the production, sorting, and packing of crops, including fruit and vegetables, intended for human or animal consumption, on farm land (within the meaning of section 664 of the Taxes Consolidation Act 1997), and(b) horticulture, including market gardening, garden nurseries and nursery grounds;”.”.
Denis O'Donovan (Fianna Fail)
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When is it proposed to take the next Stage?
Hildegarde Naughton (Fine Gael)
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Next Tuesday.