Wednesday, 27 November 2019
Industrial Relations (Joint Labour Committees) Bill 2019: Second Stage
I welcome colleagues from the Services Industrial Professional and Technical Union, SIPTU, and the Irish Congress of Trade Unions, ICTU, who are here to support this crucial Bill.
Since 1909, we have had in Britain and Ireland a system for statutory minimum pay and conditions for certain employment sectors. They include hotels and restaurants. The purpose is to improve terms of employment in sectors where pay is chronically low and union representation is either non-existent or inadequate. The importance of industry-wide enforcement to prevent wage undercutting has been an essential feature of the legislation from the start. Since the time of the Trade Boards Acts more than a century ago, Irish law has reflected the twin-track approach to collective bargaining. Thus, on the one hand, there are sectors where trade unions are able to organise effectively and collective bargaining is encouraged as a matter of policy. On the other hand, there is machinery for collective bargaining, through the mechanism of trade boards and subsequently joint labour committees, JLCs, in sectors where organisation is weak or non-existent. However, gaps in the statutory framework arose after the Supreme Court struck down parts of the old framework on constitutional grounds. Senators will recall that there were two constitutional cases, John Grace Fried Chicken Ltdv. Labour Court 2011 and McGowan v. Labour Court 2013. The Industrial Relations (Amendment) Act 2012 was passed in order to reform the employment regulation order, ERO, system, which had been struck down in the John Grace Fried Chicken case. Broadly speaking, the Industrial Relations (Amendment) Act 2015 did much the same for registered employment agreements, REAs, which were struck down in McGowan. The 2015 Act provided for a new framework to replace the former sectoral REAs with sectoral employment orders, SEOs, in a constitutionally robust manner. In addition, that Act provided a mechanism by which employment conditions can be assessed where there is no collective bargaining in the workplace. We are happy that the machinery already established in both these Acts would withstand challenge if one were to arise.
The Bill before us is concerned with just one outstanding aspect of the ERO system under the Industrial Relations 1946 Act, as amended in 2012. This is solely related to the fact that the procedure does not work if one side does not turn up to the table. In the case of hotels and restaurants, for example, an effective veto is operated by bosses in those sectors, thereby depriving workers in those and other low-paid sectors of the economy of the legal right to be paid anything other than the statutory hourly minimum wage. We want to see this unwarranted vet removed. I anticipate that the official Government line will warn of the constitutional questions around the provisions of this Bill. Such concerns are, in my view, entirely bogus.
We believe that this is a mechanical rather than a constitutional issue. In other words, we do not believe that there is a constitutional right for a sector of industry to refuse to engage in a JLC. Section 35 of the 1946 Act allowed the Minister to apply for a JLC establishment order where:
(ii) the existing machinery for effective regulation of remuneration and other conditions of employment of such workers is inadequate or is likely to cease or to cease to be adequate, or
(iii) having regard to the existing rates of remuneration or conditions of employment of such workers or any of them, it is expedient that a joint labour committee should be established
The 1946 Act maintained a tradition of prior consultation, before appointing members to a JLC, by providing that, "Before appointing a representative member of a committee the Court shall, so far as is reasonably practicable, consult any organisation of employers or, as the case may be, workers concerned." However, in the judicial review proceedings brought by the Irish Hotels Federation against the Minister's decision to reconstitute a JLC for the hotel sector, the Minister's statement of opposition argued, not on constitutional grounds, but simply on the basis of statutory interpretation, that a JLC could not be established in the absence of employer representatives put forward by an employer representative organisation. This is peculiar.
The State argued that the decision to come together under a JLC framework with a view to making an ERO was a matter for the two sides of industry and was not compulsory. The case ended because of a shared assumption that the non-co-operation of an employer representative body would effectively stymie the appointment of representative members to a JLC. In short, there was an employers' veto. We do not agree with the approach adopted by the State in defending that case. We believe it is ahistorical and wrong. On the logic of that position, it would follow that, in any sector of industry where there is little or no worker organisation but there is an employer representative body, that representative body could prevent the establishment of a JLC by not turning up to the negotiation table even though these are precisely the sectors which the legislation has always targeted for intervention.
If it is indeed the law that a JLC cannot be appointed without the voluntary agreement and participation of bodies representing either side, this represents a dramatic collapse of the machinery that has been working for over a century and which was aimed precisely at sectors where representative bodies were not to be found. However, we would stress that this is not a constitutional issue. It stems from the interpretation placed on the current law by the State in defending the judicial review proceedings and from the fact that the Act has no backstop or default mechanism that comes into play when either side does not turn up.
If the "inadequacy of existing machinery" is the statutory basis for setting up a JLC, then it cannot be right that the refusal of a representative body on one side to either support collective bargaining or to support a JLC can be a bar to its establishment. Such a stance on the part of a representative body should instead be proof positive that the existing machinery is inadequate and that a JLC is needed. For whatever reason, the current situation is that the process for setting up a JLC is stated by the Government to require the co-operation of both sides of industry and so the employer side, if sufficiently organised, can exercise a veto. Our Bill is aimed at clearing away this impasse. The new provisions will apply only where the Labour Court has sought to consult an organisation of employers or of workers, but that organisation has failed or refused to engage to any significant extent or at all in any consultation with the court.The factual assessment and the facts on the ground trigger the powers in the Bill.
The power to appoint has always belonged to the court. Up to now, it has engaged in prior consultation without there being a strict statutory obligation to appoint the preferred nominees of the bodies consulted with. We do not propose a very major departure from the current statutory structure.
Under the Bill the court must appoint persons who are, in the opinion of the court, representative of the interests of employers or workers, while not necessarily being representative of employers or workers. By way of comparison, a Citizens' Assembly made up entirely of Government nominees may, if it is properly composed, be considered representative of the population even though none of its members is an elected representative.
The policy issue that guides the Labour Court, when it considers whether this process should be by-passed and that it should formulate an employment regulation order, ERO, is one of simple practicability. If the court is satisfied that it is not reasonably practical for it to appoint a joint labour committee that includes persons who are representative of the interests of employers and persons who are representative of the interests of workers, the court may then, subject to certain conditions, formulate its own proposals for an ERO.
When formulating its proposals, the court must have regard to the legitimate financial and commercial interests of employers in the sector, the desirability of agreeing and maintaining fair and sustainable minimum rates of remuneration appropriate to the sector, the general level of wages in comparable sectors, the national minimum hourly rate of pay under the National Minimum Wage Act 2000 and the appropriateness of fixing a minimum hourly rate of pay above that rate. The section goes on to apply existing law, in this case the 1946 Act, as amended in 2012, to the formulation of proposals for an ERO by the court.
It is fair to say that the Bill, which will no doubt be attacked by Fine Gael and Fianna Fáil as a radical departure from industrial relations practice, is not radical at all. It simply allows for JLCs to operate as the Oireachtas originally intended. It is a backstop to ensure that one side of industry cannot continue to override or subvert the will of the Oireachtas, as reflected in legislation introduced as recently as 2012.
The best way for wages to be set in economic sectors is for trade unions and employers to come together to tailor agreements that work for everyone. Where this is prevented, the Oireachtas should accept the obligation to act on the principle of fairness, decency and respect across the economy and ensure we legislate and encourage decency where employer bodies refuse to engage.
I welcome the Minister of State, Deputy Breen, to the House. I also welcome the representatives from SIPTU, ICTU and the bodies with which we have worked on the Bill who are in the Public Gallery. I welcome the support not only from the trade union movement but also the Union of Students of Ireland and the student movement, in recognition that so many of their members work part time and in the casual workforce in low-paid sectors.
I commend my colleague, Senator Nash, for tabling the Bill and for being the driving force behind it. All of us on both sides of the House are aware of his long commitment and track record on workers' rights, trade union rights, decent wages and collective bargaining. Senator Nash has set out the context for the Bill and the history and original purpose behind the idea of joint labour committees. As he said, this is a well established principle going back more than a century when the language of the sweated industries was used to describe sectors where low pay was rampant and conditions were extremely poor. As he said, the idea of a mechanism to control rates of pay and conditions in such sectors is not only a mechanism conducted in the interests of employees, workers and trade unions but also in the interests of employers. The original motivation and impetus behind models such as the JLC policy was to reduce downward wage competition. As the explanatory memorandum sets out, one of the people associated with this mechanism, Winston Churchill, when introducing the first Trade Boards Bill pointed out that the good employer is undercut by the bad and the bad employer is undercut by the worst. It is a race to the bottom where we do not have a mechanism such as this in sectors where traditionally there is low trade union organisation and, therefore, a difficulty with collective bargaining to negotiate pay rates. This is the context in which the Bill has been introduced.
As Senator Nash said, it is not a radical proposal for reform of our system of bargaining and negotiating on wages and conditions. It is entirely in keeping with the history and tradition of our industrial relations framework. This is a very important point. I must say it is very disappointing to see not only the Government and Fine Gael oppose the Bill but also Fianna Fáil, when it is a Bill that is very much in this tradition.
As Senator Nash said, we know the JLC concept was fundamentally altered by the judicial review taken by the Irish Hotels Federation. The Government accepted and assumed at the time that non-co-operation of an employer representative body would stymie the appointment of representative members to a JLC, thereby setting up an employer's veto, albeit with no constitutional basis. When one looks at the history and tradition of trade unions and the industrial relations framework, one sees the voluntary model to which the State referred in sharing that assumption was always supplemented by an understanding that a JLC or equivalent mechanism would have to operate in sectors where voluntarism did not work because there was not an organised trade union movement.
The employer's veto as it is called, or this impasse, has stymied the work of JLCs. This has had a serious knock-on effect on the working conditions and pay of so many of our lowest paid workers. I commend Senator Nash, SIPTU and the other unions for the excellent briefing with which they provided us in the audiovisual room in Leinster House last week, when we heard directly from some of the front-line workers who are so affected every day by the absence of a JLC. They are workers in catering, hairdressing, hotels and allied trades. The trade union organisers spoke about the positive impact where a JLC operates, for example in the security industry, where an employment regulation order sets a pay rate of €11.65 per hour compared with the minimum wage being earned by workers who are not in JLC sectors of €9.80 an hour. We see a race to the bottom in sectors where JLCs do not operate and we see this as being very much against the original spirit and intention of our industrial relations framework.
I appeal to colleagues on both sides of the House to support the Bill. It is a sensible and compassionate reform in the interests of the lowest paid and the most vulnerable workers in our society.
I am standing in for Senator Reilly and I will be very brief. The system of industrial relations in Ireland has been voluntary in nature. There has been agreement on all sides that the employment terms and conditions of workers are best determined by a process of voluntary collective bargaining between an employer or employers' association and one or more trade unions without the intervention of the State. Under this process, standard matters, such as wages and hours of work, are determined. In addition, some collective agreements lay down procedural rules that govern the conduct of industrial relations between the parties.
Over the years, however, legislation has been enacted in certain areas, such as minimum rates of pay, holidays, working hours, minimum notice, redundancy, dismissals and employment equality, that lays down certain minimum standards that may be improved upon by collective bargaining but cannot be taken away or diminished. EROs, the legally binding instruments resulting from an agreement reached at a JLC, can enhance these statutory minimums. The State's role in industrial relations in Ireland has been largely confined to facilitating the collective bargaining process through establishing by legislation institutions to assist in the resolution of disputes between employers and workers. This approach has served and continues to serve Ireland well. The Private Members' Bill contains proposals that undermine the voluntary nature of industrial relations and consequently we will oppose the Bill.
I welcome the Minister of State. Quite a lot of work has been put in by Senator Nash and his fellow Senators on the Bill. Fianna Fáil has a long track record in supporting workers' rights and balanced industrial relations. The constitutional right of citizens to form associative unions is enshrined in our progressive Constitution, introduced under Eamon de Valera in 1937. We have a long and strong record on worker protection, from introducing the national minimum wage to instituting the labour relations machinery of the State. Furthermore we secured the enactment of legislation prohibiting the exploitation of zero-hour contracts, as we have discussed recently.We do not support the Bill as it would undermine the voluntarist approach that has served the industrial relations landscape to good effect for a sustained period.
Joint labour committees, JLCs, are bodies established under the Industrial Relations Acts to provide machinery to fix statutory minimum rates of pay and conditions of employment for employees in particular sectors. There are currently eight JLCs, as Senators are aware. It is voluntary for workers or employers to seek the formation of a JLC in their sector. Under the Bill, where one side does not agree to the creation of a JLC in its sector, the Labour Court would be empowered to unilaterally appoint worker or employer representatives to the committee. Where this is impractical, the Bill would empower the Labour Court to formulate an employment regulation order, ERO. Such proposals go against the voluntarist approach to industrial relations and the current balanced industrial relations landscape. The role of the Labour Court is to make recommendations to the Minister on the maintenance, amalgamation or abolition of existing JLCs. It would be a conflict of interest for it to fulfil that role while deciding on the composition of JLCs and initiating EROs.
I will raise certain other points directly with Senator Nash.
I welcome the Minister of State to the House and congratulate Senator Nash on his tireless work on behalf of workers. When the Senator was a Minister of State he was very proactive in bringing forward legislation. His commitment to the workers of this country is beyond question. We are privileged to have people like him who are looking after the less well-off in society.
One of the downsides of our growing economy has been the fall-off in trade union membership. Yesterday, I spoke to a woman who was made unemployed a couple of weeks ago. She told me the contracts she is being offered are four-hour contracts with the possibility of up to 20 hours over a week. The casualisation of labour has become a real concern to those who are or have been involved in the labour movement. I acknowledge the representatives of SIPTU and ICTU who are present, as well as those of IBEC who may be watching these proceedings. There is something for them, and us all, to learn from this situation.
The Bill proposes much-needed reform of the JLC system. It would give new powers to the Labour Court to set binding rates of pay above the national minimum wage. As Senators are aware, workers in sectors such as the hotel and catering industries continue to be severely disadvantaged when employer representative bodies refuse to engage in the long-established JLC process. In a time of full employment and high economic growth, it will come as no surprise to many that almost a quarter of Irish workers are on low pay and that only the contract cleaning and security sectors are covered by an employment regulation order. The loophole in the law which effectively allows employer bodies to veto JLCs in the other low-pay sectors stymies the objectives of the Industrial Relations Act 2012. The great strength of the Bill is that it will force employer bodies to choose whether to engage in the JLC process and work with unions to agree rates of pay and terms of work for their sector or to have a solution imposed on them by the Labour Court and Oireachtas. This would honour the intentions of the 2012 Act and give protection to the most vulnerable workers in our society. It would also offer security to employers in respect of the retention of staff and planning for future growth.
Pay rates should never be a race to the bottom. I fully support the Bill and what Senator Nash is trying to achieve. I and other Senators recently introduced legislation to protect the tips of the lowest paid workers. My colleague, Senator Bacik, referred to university students. I have been contacted by university representative bodies. These young people who are struggling to make ends meet as they pay their way through college are being paid a pittance and, until recently, their tips were being taken from them by unscrupulous employers. Not all employers are unscrupulous, but there is a significant number of fly-by-night employers. We are trying to ensure that people are paid a proper wage for their labour, are looked after and have recourse to an organisation such as the Labour Court if they are ill-treated.
I implore workers to join a union. The only protection they have is under the flag of their union. A union is there to support workers and to be at their back when things go wrong. We should instil the value of trade unions in children as they go through the secondary education system. Somewhere along the line, we have lost the recognition of that value. My father, God be good to him, was a member of the plumbers' union. He worked for a company for 42 years without missing a day. He got a pension of IR£15 a month. I and others complained on his behalf. For 15 years, we constantly wrote to the pension board and told it the company had done him out of his pension and that he was entitled to more because if he had retired a year later, he would have received a lump sum and a pension of IR£100 a month. In the end, the pension board told us it had miscalculated his pension. "Happy days", we thought. It then clarified that it had miscalculated by 75 pence. He got a pension of IR£15.75. That is what can happen without the trade union movement. The trade union did not have the power in that company to pursue his cause.
We need trade unions. We need young people to join them. There is nothing to be lost from being a member of a trade union. We need decent legislators such as Senator Nash to bring forward legislation that is of national rather than local benefit and which will benefit every young worker. I ask the Government to set aside any reservations it may have, accept the Bill and drive it on. We must drive it on to make life better for workers, particularly the young and the most vulnerable who are slaving long hours on minimal wages to keep body and soul together. That is no way for people to live. I thank Senator Nash. I commend SIPTU on its lobbying. Thank God for it and ICTU. I look forward to the response of the Minister of State.
I welcome the Minister of State and my comrades from the trade union movement. Sinn Féin fully supports the Bill. I commend my colleague and friend, Senator Nash, on producing it. One of the good things about the Seanad is that Senators on the left tend to work together and have done so from day one. I am particularly proud of that. Perhaps there is a lesson there in terms of electoral politics which we could discuss further for the sake of working people.
Sometimes there are moments of clarity in politics. Today is such a moment. I do not wish to be disrespectful to my good colleague from Fianna Fáil, Senator Davitt. I expected Fine Gael to oppose the Bill. It has always been for the bosses.
That is the fact of the matter. Members of the trade union movement are here to support the Bill and some of the most vulnerable workers in the State. As a former trade union official and a proud member of SIPTU, I know that when a trade union tries to organise people employed in hotels, they get fired.
When a trade union tries to organise people in restaurants, they get fired. JLCs were set up to protect certain sectors in which trade union density will always be low. My colleague, Senator O'Mahony, stated that the current system has served Ireland well. Whom in Ireland has it served well? Has it benefited hotel workers or people working in retail who must wait to see whether they will get hours of work the following week?I have a question that I invite the Minister of State to answer. How does a hotel worker get a pay rise? It is not something the Minister of State and I have to worry about because we have had our pay rises. Mind you, Sinn Féin Members have not taken them. How does a hotel worker, retail worker or agricultural worker get a pay rise? Does it just not matter to the Minister of State?
I live in Limerick, as does my colleague in the Chair, Senator Byrne. The Minister of State is from Clare. There is one hotel in Limerick that recognises trade unions. Some of the richest hotels in the city, which are showered with taxpayers' money every year to put on all sorts of events that the Minister of State and I have attended, fire workers who join a trade union. I have met workers from these hotels. At the top of their contracts, they are referred to as casual workers despite their having been working for the hotels for three or four years. The Government has done absolutely nothing for those workers.
The current system does not work. We know this because in all the sectors — agriculture, catering, hairdressing, hotel, retail, grocery and allied trades — there is no joint labour committee up and running. The Minister of State has no answer to that. His Government was happy to shower money on the hotels for years and cut VAT for them but they are now making record profits. This will be evident to those who try to get a hotel room in the city tonight. The workers in the hotels will be on the minimum wage, or a wage barely above that. This Bill would see them get some rights and a pathway towards a decent pay rise and better terms and conditions. It would help build a better sector in which pay rises could be dependent on service, for example. Some decent terms and conditions could be established over time. It would improve the quality of the sector itself. The Government is saying "No". It is for the bosses. The Senators in this Chamber know that. The Government should be better than that. The Government has absolutely nothing to offer the weakest and most vulnerable workers in the State.
I am disappointed in Fianna Fáil. My dad was a Fianna Fáil voter. It was a tradition. There was a time when Fianna Fáil represented working people. This Bill presented an opportunity to Fianna Fáil to come on board with this progressive agenda. It is disappointing that it has said "No".
The voluntarist sector does not work. If the Minister of State knew people working in retail or hotels, not in management but on the floor, stacking the shelves or changing the beds, he would know the sector is completely wrought with poverty pay and insecurity. There is now an agency operating in Kerry supplying workers to make the hotel beds. Any worker who complains about an incredibly sore back because of the amount of work they are doing just does not get hired the following week. That is what this sector has been brought down to. The Government side has little to say. I will hand over to my colleague.
I commend Senator Nash on introducing this Bill. It is about democratising workplaces, giving workers a voice and setting livable conditions where there were previously none. The principles have been rehearsed. The joint labour committees have not been established for agriculture workers, catering workers, hairdressers, hotel workers, with the exception of those in Cork, and the retail, grocery and allied trades. There is no doubt that many of these sectors have employers who hire workers under some of the most precarious conditions. Having heard Senator Gavan allude to some of the most vigorous opposition to the tips Bill, which simply allowed workers to retain their tips, we can see why many employers do not want workers to have a seat at the table. With regard to the opposition to that Bill and the utility of the loophole in the joint labour committee legislation, good employers have nothing to fear. Where workers are paid a reasonable wage and have fair conditions, there is no need for joint labour committees.
The reality, however, is that the joint labour committees are necessary. There are instances in which staff are subject to increasingly precarious conditions. The sectors in question employ large numbers of young people, students and migrant workers, many of whom are vulnerable. I thank the deputy president of the Union of Students of Ireland, USI, Ms Michelle Byrne, for passing on a USI survey of working students last year that found that 34% were paid under the minimum wage and that 58% were paid €9.55, the then minimum wage, or €10.55 per hour. Workers also indicated that many of them do not receive contracts and they highlighted questionable practices concerning tipping in their workplaces. Mr. Conor Stitt, with whom I work upstairs, attended the audiovisual room briefing held by Senator Nash. One SIPTU member, Mr. Martin Murga, a chef, said it best:
The pursuit of profit pits worker against worker, good employer against bad employer. Such a process leads to ever declining pay and conditions in a sector. This adversely impacts on workers and customers. JLCs are the best way to ensure that the race to the bottom is ended and this proposed new law will help them function better.
I understand the Government is opposing this Bill. I respectfully ask it to reconsider. I ask Fianna Fáil, in particular, to reconsider. Opposing this Bill sends a terrible message to workers that their voice is not worthy of being heard in any reasonable way and that they must wait. Workers will not wait and they deserve better.