SENATE SPEECHES

Industrial Relations (Amendment) Bill, 2000: Order for Second Stage 30th May, 2000 Bill entitled an Act to make further and better provision for promoting harmonious relations between workers and employers, to amend and extend the Industrial Relations Acts, 1946 to 1990, and to provide for related matters. Mr. Cassidy: I move: "That Second Stage be taken now." Question put and agreed to. Industrial Relations (Amendment) Bill, 2000: Second Stage. Question proposed: "That the Bill be now read a Second Time." Minister of State at the Department of Enterprise, Trade and Employment (Mr. T. Kitt): I wish to place in their proper context these proposals which concern industrial relations procedures. The basic approach to industrial relations in Ireland is one of voluntarism, whereby the law is not used to impose a solution on the parties but will, where appropriate, be used to assist them in arriving at a solution. While labour laws cover such matters as protection from arbitrary dismissal, organisation of working time, employment equality and occupational safety and health, there is agreement on all sides that the voluntary collective bargaining process between the employer and employers' association and one or more trade unions or staff associations shall determine the terms and conditions of employment of workers. The process covers the entire range of issues arising from the employment relationship. Unlike the position in many other countries, collective agreements - consistent with the notion of voluntarism - are not legally binding; they have a moral force only but in practice are no less successful for that. The State provides dispute resolution services to assist parties in resolving their differences. In the case of collective disputes the Labour Relations Commission provides a conciliation service. Some 2,000 meetings per year are chaired by the LRC and four-fifths of cases are settled at conciliation. Unresolved issues are normally referred for investigation by the Labour Court. The majority of recommendations issued by the court are non-binding. Despite their non-binding nature there is an acceptance rate of more than 80% by the parties to the disputes. As a result of agreements on the vast majority of disputes by the parties themselves and the assistance provided by third parties in facilitating resolution of disputes, only a very small proportion of disputes result in industrial action. The numbers of strikes and man days lost due to industrial action in recent years are at historically low levels. This improvement in our industrial relations culture is due to an approach by Government, employers and unions which is based on voluntarism, on partnership and mutual gains principles rather than adversarialism. By adopting a macro-economic approach based on social partnership all sides have benefited from the increased competitiveness of our economy. Partnership was defined in chapter 9 of the last national agreement, Partnership 2000, as an active relationship based on recognition of a common interest to secure the competitiveness, viability and prosperity of the enterprise. It involves a continuing commitment by employees to improvements in quality and efficiency and the acceptance by employers of employees as stakeholders with rights and interests to be considered in the context of major decisions affecting their employment. It is right to acknowledge that the turning point in our economic fortunes can be traced to this consensus formed by the social partners. The severe difficulties we faced in the mid-1980s were overcome by a common approach to economic recovery. National agreements which commenced with the negotiation of the Programme for National Recovery in 1987 and have continued through to the recent Programme for Prosperity and Fairness have helped to deepen that social partnership. We have built progressively through five successive national agreements to the point where the growth rate of our economy is the envy of many other countries. A feature of our national agreements has been the willingness of participants to appreciate and take account of the perspectives of other groups. The outcome has been the development of a wide ranging economic and social approach which has produced benefits to our whole society. A number of indicators amply demonstrate this. For example, a substantial current budget surplus in 1999 compared with a huge deficit in 1986, unemployment was reduced over 11 years from 17.5% to under 4.7% today, the numbers at work increased from 1.1 million in March 1987 to 1.6 million by March 1999, a dramatic reduction in our national debt/GDP ratio and a GDP growth in recent years of up to 11% compared with EU and OECD averages of 2% to 3%. This is not to suggest, however, that the story over the past decade has been entirely positive nor that it has been solely due to the partnership process. The persistence of long-term unemployment, the evidence of significant rates of poverty and social exclusion reflecting a tendency towards widening inequalities across the full range of income levels, regionally imbalanced growth and significant gaps in infrastructure all point to an uneven societal performance. There are also a number of structural factors which have been operating quite separately from the social partnership approach to economic management and industrial relations. The cumulative impact of increases in educational provision and participation, membership of the EU, including the benefits of participation in the Single European Market and the support of EU Structural Funds, the capacity for rapid expansion in the labour force and, crucially, high rates of overseas investment in high growth sectors have all played an important part in Ireland's success in recent years. Nevertheless, it must be said that a number of these factors were in place prior to 1987. It is difficult to resist the conclusion that their impact was, at the very least, facilitated by the conditions produced through social partnership. In particular, the credibility of economic strategy and the stability and predictability of multi-annual policy commitments and wage agreements provided a very attractive environment for development, not least to overseas investors. Clearly, it was not and is not necessarily the case that social partnership agreements will, of themselves, secure strong economic and employment performance. That can be expected only when the terms of such agreements reflect the objective of global competition and an internally consistent approach to interacting policies and behaviour. Recent performance is, however, highly suggestive of a policy mix and approach to the behaviour of key economic sectors which met these criteria in a way which was not true of many of our European partners over the same period. One of the features of our national agreements has been their ability to reflect a consensus on a range of issues apart from pay. In framing the previous national agreements, in particular Partnership 2000, ICTU and IBEC recognised the need to modernise our industrial relations procedures and institutions. One of the initiatives agreed was the establishment of a high-level group to consider detailed proposals submitted by ICTU on the recognition of unions and the right to bargain. This group was composed of representatives from IBEC, ICTU, the Department of Finance, the Department of Enterprise, Trade and Employment, IDA Ireland and Enterprise Ireland and was chaired by an official from the Department of the Taoiseach. Proposals made by the group in December 1997 were not subsequently accepted by the trade unions generally. In December 1998, I, as Minister of State with responsibility for labour affairs and on behalf of the Government, reconvened the group following publication of the report of the inquiry into the dispute at Dublin Airport - the Ryanair dispute. In revisiting the issue, the group had the Supreme Court judgment in the Nolan Transport case as well as the Ryanair report to hand. Members of the House are no doubt aware that the courts, including the Supreme Court, in Nolan Transport v. SIPTU, already accept that a trade union recognition dispute falls within the definition of a trade dispute as provided for in industrial relations legislation. The high-level group sought to agree a consensus approach. Following an intensive round of meetings the group reached agreement and published its findings in March 1999. The group reaffirmed that where negotiating arrangements are in place, the most effective means of resolving differences which arise between employers and trade unions representing employees was by voluntary collective bargaining. It went on to address the problems that arise in the case of disputes where negotiating arrangements are not in place, advocating two distinct procedures. The first procedure involves a voluntary approach to deal with those situations. This procedure had been incorporated into a code of practice on voluntary dispute resolution by the Labour Relations Commission which has now been circulated by my Department. The objective of this code is to provide a recognised framework for the processing of disputes in situations where negotiating arrangements are not in place and where collective bargaining fails to take place. Management and unions should co-operate fully in seeking to resolve the issue in dispute effectively and expeditiously by means of the following steps. First, the matter should be referred to the Labour Relations Commission which will appoint an officer from its advisory service to assess the issues in dispute. Second, the Labour Relations Commission's officer will work with the parties in an attempt to resolve the issues in dispute. Third, in the event that the issues in dispute are not capable of early resolution by the Labour Relations Commission's intervention, an agreed cooling-off period shall be put in place. During the cooling-off period, the Labour Relations Commission's Advisory Service will continue to work with the parties in an attempt to resolve any outstanding issues. The commission may engage expert assistance, including the involvement of ICTU and IBEC, should that prove helpful to the resolution of any differences. Fourth, if after the cooling-off period all issues have been resolved, the Labour Relations Commission will disengage. Before disengaging, the commission may make proposals to the parties for the peaceful resolution of any further grievances or disputes. Fifth, in the event of issues remaining unresolved after the cooling-off period, the Labour Relations Commission shall make a written report to the Labour Court on the situation. The Labour Court shall consider the position of the employer and the union and shall issues recommendations on outstanding matters.

This procedure is, I stress, the preferred approach where collective bargaining does not take place. It is only in the case of parties not participating in good faith in this voluntary approach that a special fall-back procedure, as set out in this Bill, could come into operation. It can be seen from its report that the high level group envisaged this second procedure would operate only in exceptional circumstances. The Bill will give effect to that special fall-back provision. The Bill provides for a unilateral referral by an authorised trade union or excepted body to the Labour Court in a case where all the following circumstances pertain. First, it is not the practice of the employer to engage in collective bargaining negotiations and the internal dispute resolution procedures normally used by the parties concerned have failed to resolve the dispute. Second, the employer has failed to observe a provision of the code of practice on voluntary dispute resolution, which I mentioned earlier, or has failed to observe such a provision in good faith. Third, neither the trade union nor the employees, as the case may be, have acted in a manner which, in the opinion of the court, has frustrated the employer in observing a provision of such code of practice. Fourth, neither the trade union nor the employees, as the case may be, have had recourse to industrial action after the dispute in question was referred to the commission in accordance with the provisions of the code of practice. I would like to emphasise that an employer must have failed to participate in good faith in the voluntary code of practice for the procedures in this Bill to commence. It is only where an employer has failed to avail of the voluntary approach by use of the Labour Relations Commission and the Labour Court that a trade union can activate referral to the Labour Court for a procedure culminating in a legally binding outcome. Under this Bill, issues in dispute will be processed through a number of steps. An investigation by the Labour Court will result in a recommendation. Failing agreement on the recommendation, the court may issue a determination which has binding effect for 12 months. If matters have not been resolved the Labour Court can review its determination and issue a final determination without a time limit as to its effect. Where an employer fails to comply with this final determination an enforcement order can be sought in the Circuit Court. This is a short Bill and I would like to outline its terms in detail. Section 1 deals with interpretation and provides for the definition of certain terms which are mentioned later in the Bill. Section 2 covers investigation of disputes by the court. The purpose of this section is to give the Labour Court a new dispute settling function where it is satisfied that the circumstances I outlined previously obtain. The section also obliges the Labour Court to take account of any existing practices in place in the employment concerned for setting terms and conditions of employment. It shall have regard to the entirety of labour relations practices in the employment concerned. In section 3, I am giving power to the Labour Court to hold a preliminary hearing in order to satisfy itself that the requirements of section 2 have been met. Section 4 extends the powers to summon and examine witnesses and require the production of documents, granted to the court under section 21 of the Industrial Relations Act, 1946, to any investigation carried out under this Bill. Section 5 empowers the Labour Court to issue a recommendation on terms and conditions of employment and on dispute resolution and disciplinary procedures. Consistent with the overall approach to this legislation, it will not be open to the Labour Court to include arrangements for collective bargaining in its recommendation. At this point the recommendation is not legally binding. However, if it does not result in resolving the dispute, the court under powers which I give it in section 6 may, at the request of an authorised trade union or excepted body, review all relevant matters and issue a binding determination. Section 7 requires determinations issued by the Labour Court to be in writing, to be served on both parties and also to include a statement setting out its reasons for the determination. Section 8 outlines the effect of industrial action. It requires the Labour Court, following a request from an employer or trade union, to cease its involvement and withdraw any recommendation it has issued if it is satisfied that industrial action has taken place prior to the issue of a determination under section 6. Section 9 enables the court to review and vacate, affirm or vary a determination after one year where requested by either party. Section 10 enables a trade union to apply to the Circuit Court for an enforcement order where an employer fails to comply with a determination after 12 months. If there is a review under section 9 the employer has six weeks to implement its findings following which the union can apply for an enforcement order. Section 11 allows a trade union or employer to appeal to the High Court on a point of law only. Section 12 is a routine provision enabling the making of regulations while section 13 outlines the Bill's short and collective titles and prescribes that it shall come into operation on such day as the Minister may appoint by order. In summary, the Bill charts a procedure for the processing of claims on behalf of employees where an employer has refused to follow the voluntary procedure outlined in the code of practice on voluntary dispute resolution. The Labour Court can use its existing powers in such circumstances to summon parties and can issue a determination on pay procedures or conditions of employment. If necessary, that determination can be enforced in the Circuit Court. Most trade union recognition disputes have their origins in concerns about pay and other working conditions. The new dispute settling power for the court is an agreement between the parties primarily concerned, ICTU and IBEC, which will enable a trade union to progress pay or other conditions on behalf of its members in that small number of cases where collective bargaining arrangements are not in place and the employer refuses to engage in talks. Social partnership is rooted in the principle of free collective bargaining. I am pleased that the high level group was able to come up with and agree proposals for dealing with this sensitive issue. The proposals demonstrate that free collective bargaining in a spirit of social partnership can achieve real results in progressing complex questions and can also contribute to the development of the prosperity and competitiveness of our economy. The justification for such procedures, as I have outlined in both the code of practice and the Bill, was put succinctly by Mr. Justice O'Flaherty in his judgment in the Supreme Court in the Nolan Transport case when he said: The State, representing the rest of us ordinary citizens and taxpayers, has a very keen interest in seeing to the harmonisation of Industrial Relations. We all stand to lose too much where there is strife and conflict. We should now have advanced sufficiently in our respect for democracy and the rule of law and all its refinements to work out a better way. At this stage of our development this country should be an example to other countries on how to avoid industrial conflict, and when conflict does arise on how to resolve it speedily. That is good for everyone; it will lead to more employment and increased trade. He went on to state that "employers have an obligation to accord trade unions a measure of respect: representing as they do the rights of the workers." The Bill will provide an avenue for the processing of claims without the need of recourse to industrial action. Members will recall that the Labour Party introduced the Trade Union Recognition Bill in the Dáil in February 1998. However, the high level group had been given the task by the previous Government of considering ICTU proposals on the matter in the context of chapter 9 of Partnership 2000. While the Private Members' Bill was a valuable contribution to the debate I indicated at the time that my approach was to seek a consensus between IBEC and ICTU before agreeing to legislation. The strongest commendation I can give to this procedure and this Bill is that it adopts an approach which enjoys the support of both ICTU and IBEC. That is my main message. It represents a measured response to a number of difficult disputes in recent years. Both unions and employers have opted for this approach which underpins and reinforces the voluntarist tradition. Many disputes concerning rights of representation and the right to bargain are resolved without recourse to industrial action. The majority of recognition disputes are referred by trade unions to the Labour Court under section 20(1) of the Industrial Relations Act, 1969. The outcome is binding on the trade union but not on the employer. This has been less than satisfactory as a finding made by the Labour Court can be disregarded. The provisions of this Bill ensure that a finding will be enforceable if agreement between the parties is not reached. The code of practice and this legislation chart two distinct procedures for dealing with differences between management and workers. The code provides a voluntary procedure while the legislation offers a fall back procedure where an employer has failed to engage in the voluntary procedure or to do so in good faith. Taken together, these measures offer an improved method of dealing with difficult disputes where collective bargaining fails to take place and where negotiating arrangements are not in place I draw Members' attention to a review clause under paragraph 3 of framework 1 of the Programme for Prosperity and Fairness. Under indent 10 the parties to the PPF have agreed to monitor the application in practice of the legislation which gives effect to the report of the high level group. As the Bill is rooted in an agreed approach to the right to bargain, it is entirely appropriate that the operation of the legislation be carefully monitored and reviewed in light of experience. I commend the Bill to the House. Mr. Coghlan: I wish to share my time with Senator Costello. Acting Chairman (Mr. Farrell): Is that agreed? Agreed. Mr. Coghlan: I will be brief in keeping with the brevity of the Bill. I very much welcome the general thrust of the legislation and I am pleased to note the agreement reached by IBEC and ICTU, ably assisted by others, which preceded its introduction. No dispute should be unresolvable given our success and good sense. The Bill extends existing legislation to give the Labour Court new dispute settling powers in circumstances where parties have not engaged in talks or failed to engage in talks and I very much welcome the measures contained therein where negotiating arrangements are not in place and where collective bargaining fails to take place. The Minister comprehensively outlined the two mechanisms to be utilised to settle disputes. The first is the voluntary procedure and where agreement is not reached the unresolved matter can still be referred to the Labour Court for adjudication and the second is the special fall back procedure. Great credit is due to the high level group which proceeded to reflect the agreement reached between ICTU and IBEC on various issues, which has been an important step in modernising industrial relations within the social partnership model. This entire measure is in line with our new maturity and there should be no such thing as a dispute which cannot be resolved. I agree with the thrust of voluntarism and our approach in that regard to industrial relations through the years. Nobody agrees with the use of the law to impose solutions. The rebel nature of our character has always struggled against that approach. However, we need to provide a mechanism to assist those who, for whatever reason, have failed to reach a resolution to their disputes. The Bill does this. The Minister of State said there is agreement on all sides that the collective bargaining process between the employer and employers' associations and one or more trade unions or staff associations shall, in general, determine the terms and conditions of employment of workers. In this regard, voluntary collective bargaining has served us well. Nevertheless, there have been some very difficult disputes. The Minister of State referred to the one that went as far as the Supreme Court. The high-level group had the benefit of learning from the distinguished judgments of the court in that case as well as from other matters. The Minister of State said that the majority of recommendations issued by the Labour Court are non-binding, yet despite this there is an acceptance rate of more than 80% by the parties to disputes. The number of man-days lost due to industrial action in recent times has, thankfully, been at historically low levels, which is welcome. Again, voluntarism based on partnership and mutual gain are the principles we would like to see applied, rather than adversarialism. Given this, I believe the Bill will meet with widespread acceptance. I welcome the commitment by the Minister of State that the provisions of the legislation will be kept under review. We pride ourselves on the consensus formed by social partnership. It is now the accepted norm by which industrial relations are conducted. The Bill provides further tools and aids to ensure greater success, please God, in the future. The Minister of State referred to the national agreements and a number of other matters. These represent the down side of the position. The persistence of long-term unemployment and the evidence of significant rates of poverty and social exclusion points to the widening gap in society. Despite the general success which, thankfully, most of us have enjoyed, a significant minority of the population has not managed to enjoy it. I feel especially for the elderly, many of whom are on very poor pensions. We read with great sadness the recent ESRI statistics to the effect that six out of ten elderly people are eking out a living on less than £100 per week. While this is not strictly relevant to this debate, the Minster of State touched on the matter. I hope that whoever is in Government at the time of the framing of the next budget will take serious steps to redress this imbalance. It is the one serious issue that is crying out to be addressed. The high-level group deserves great credit and praise for its work in laying down the background to this legislation. IBEC, ICTU, the Department of Finance, the Department of Enterprise, Trade and Employment, IDA Ireland and Enterprise Ireland contributed to the group and it was chaired by an official from the Department of the Taoiseach. The group sought to agree a consensus approach and it is good that it was able to do so and to publish its findings in March 1999. The Minister of State referred to the two procedures to be adopted to address problems that arise in the case of disputes where negotiating arrangements are not in place. The first involves the voluntary approach. This has been incorporated into a code of practice on voluntary dispute resolution by the Labour Relations Commission. The objective of the code has been set out in detail by the Minster of State. We all subscribe to it. It will allow the Labour Relations Commission to appoint an officer from its advisory service to assess the issues in dispute. The officer will work with the parties in an attempt to resolve the issues but in the event of the issues not being capable of early resolution there will be an agreed cooling-off period during which the advisory service of the Labour Relations Commission will continue to be available to the parties. If after the cooling-off period all issues have been resolved the parties involved can become disengaged, but before doing so the commission will make proposals on the peaceful resolution of any further grievances or disputes. If in the event of issues remaining unresolved after the cooling-off period, the commission shall make a written report to the Labour Court on the matter. The Labour Court shall consider the position of the employer and the union and shall issue recommendations on outstanding matters. I welcome the provision that the reasons for its recommendations be set out in writing. That is important. Sections 6 and 7 are important. Section 6 provides that the Labour Court, under power given to it by the section, may, at the request of an authorised trade union or excepted body, review all relevant matters and issue a binding determination. Section 7 requires that such determinations shall be in writing and that a statement setting out the court's reasons be provided. Social partnership is rooted in the principle of free collective bargaining, to which we all subscribe. This legislation will have a beneficial effect on the competitiveness of the economy. In his judgment in the Supreme Court case referred to by the Minister of State, the former Supreme Court justice, Mr. O'Flaherty stated: We all stand to lose too much where there is strife and conflict. We should now have advanced sufficiently in our respect for democracy and the rule of law and all its refinements to work out a better way ... employers have an obligation to accord trade unions a measure of respect, representing as they do the rights of the workers.

We subscribe to these sentiments in this enlightened age and I welcome them. I was not aware of them, although I had followed the case. The Minister of State said that this approach underpins and reinforces the voluntarist tradition. I also subscribe to that. I cannot say a bad word about the Bill and I am delighted the Minister said he will keep the matter under review so that if issues come to light, it can be re-entered and those issues addressed. Mr. Costello: I thank Senator Coghlan for sharing his time and I welcome the Minister and the Bill. It is difficult to appreciate that the issue of trade union recognition was particularly thorny a few years ago. Until recently it did not appear possible to secure a resolution to it, but the Bill appears to cover the issues involved in terms of the voluntary code and the powers that will be given to the Labour Court to take matters further. I am pleased to support the legislation. The starting point of this issue is Article 40.6.1o of the Constitution, which covers the "right of the citizens to form associations and unions", how that right is interpreted and its implications. It has appeared to the Labour Party for some time that the provision gives every group of workers the right to bargain and that it does not entitle employers to place a prohibition on it. The former Supreme Court Justice, Mr. O'Flaherty, who is in the news at present, said in a very enlightened Supreme Court decision that employers have an obligation to accord trade unions a measure of respect representing as they do the rights of workers. The legislation is particularly appropriate in cases where an employer is reluctant to provide bargaining rights. The Bill is also particularly appropriate when one considers the way in which industrial relations have developed over the past two decades. It is a long way from the dark days when it involved confrontation on the streets and the serving of strike notices. Negotiation appeared to be the last option that employers or trade unions considered until both had shown a degree of muscle. They only sat down to negotiate after many working hours had been lost in industrial disputes. Significant progress has already been made and the Labour Relations Commission was a seminal development in recent years. It provided reconciliation and resolutions to what could otherwise have been intransigent problems. The figures quoted by the Minister are extremely significant. He said 2,000 meetings a year are chaired by the Labour Relations Commission and that four fifths of cases are settled through conciliation. If matters proceed to the Labour Court, 80% of cases are settled there by the parties to disputes. The existing mechanism is good and has been fine-tuned over the years. The further mechanism of social partnership has developed since 1987. In this, most of the major players meet the Government and agree a partnership approach to industrial relations. The only major player omitted is the Opposition. The Government does not consult the Opposition on such matters. It does not even hold a debate prior to the negotiations. It has always been difficult in this House to secure a debate on social partnership. However, I am sure the Leader will address this matter in the coming session. Mr. Cassidy: Why are the Senators sharing the spokespersons' time today? There are only two speakers from the Opposition on this Bill. Is that correct? Mr. Coghlan: I am sure another Senator will contribute. Mr. Costello: I do not understand the relevance of the Leader's remark. Acting Chairman: Senator Costello without interruption. Mr. Cassidy: It is unprecedented in my time in the House and I have been a Member for more years than any of the Senators. Mr. Coghlan: Sometimes the Leader provides eight minutes and other times he provides 30 minutes. Sometimes that should be rearranged. Acting Chairman: Senator Costello without interruption. Mr. Costello: The Leader may remember No. 18 on the Order Paper, First Stage of the Trade Union Recognition Bill. This is a Bill entitled an Act to provide for resolution of disputes concerning trade union recognition, for the effects of recognition, and for related matters. This Bill was discussed in the other House in 1998 and is sponsored by the Labour Party. We have already highlighted all these matters. The Labour Party has been dealing with this issue for some time. It has taken the Government and the Leader's party much longer to see the light. Mr. Cassidy: It is a larger party. We have more than three Members in the Seanad. Mr. Costello: Now that the Government has done so, we are happy to welcome it to the fold. It is a recognition of the Labour Party decision which was presented to the Houses of the Oireachtas over two years ago. The Leader is beginning to annoy me. Mr. Cassidy: I am very pleased. Mr. Costello: Perhaps I should quote what the Government said when the Labour Party introduced its Bill two years ago. Mr. Cassidy: That is typical of the Labour Party. It has no policies of its own so it must discuss Fianna Fáil policy. The people are fortunate to have the Fianna Fáil Party. Acting Chairman: Senator Costello without interruption. Mr. Coghlan: The Leader should be respectful. Mr. Costello: I do not think the Leader heard me. I read from the Order Paper of the Seanad of which he is the Leader. I mentioned the Bill which is the precursor to the Bill that the Minister of State, Deputy Kitt, introduced earlier. The Minister agrees that is the position. The Leader does not appear to realise what is going on in the House. Mr. Coghlan: I do not think he heard the Minister's speech. Acting Chairman: Senator Costello without interruption. Mr. Costello: During that debate, speakers on the Government side said that such legislation would undoubtedly lead to litigation and industrial relations disputes. They added that a quasi-legal role for the Labour Court would undermine the effectiveness of the court in assisting dispute settling and that the Labour Court could not have a role in that matter. Thankfully, the light is dawning. The Minister of State said in that debate----- Mr. T. Kitt: I acknowledge the Senator's role in the process but we brought the parties together at the right time. Mr. Coghlan: In fairness, the Minister of State was generous. Acting Chairman: Senator Costello without interruption. Mr. Cassidy: We work in alliance here. Acting Chairman: Please allow Senator Costello to make his points. Mr. Coghlan: When the Minister is courteous, he is treated with respect. Mr. Costello: That is the case. Mr. Coghlan: The Leader could learn something by taking a leaf from the Minister's book. Mr. Cassidy: Did I hear a squeak from the other side? Acting Chairman: Please allow Senator Costello to make his contribution. Mr. Costello: The reception on the Government benches at that time was negative. I am delighted that, since then, the high level group was reconvened and I congratulate the Minister on that move. The recent Programme for Prosperity and Fairness included the recognition of trade unions as part of the deal that was done. These developments led to the introduction of the Bill. Our industrial relations machinery has improved considerably and the social partnership arrangements would be an anomaly without the inclusion of trade union recognition in legislation. The combination is good and the voluntary code of practice will, in the vast majority of cases, lead to a resolution of disputes. However, if that fails, I am delighted that the Labour Court will have the power to make binding recommendations. The Bill outlines the process that will come into play if the code of practice is not accepted by an employer. The Labour Court can investigate the matter and that will result in a recommendation. If there is no agreement on the recommendation, the Labour Court can make a determination which is binding for 12 months. This determination can be reviewed before a final determination is made. The Labour Court can then make an enforcement order. This is the key to the matter. This addresses adequately what we sought to address in the context of the Ryanair and Nolan Transport disputes. Some issues will probably arise, such as at what threshold the process begins. In other words, what number of workers will be regarded as the threshold for the machinery to be put in place? That relates to the private sector and the greatest problems have arisen in the relatively small indigenous private industrial sector. There is also the issue of the multinational sector and the sweetheart deals struck between the Government and the trade unions regarding non-recognition of trade unions. Human resource management is the method in operation in many multinationals. Will this legislation give scope to a group of workers in the multinational sector to decide they want trade union representation and for the process to be then implemented? I would like a response from the Minister of State to that issue. The key issues are the level of demand from workers which will initiate the process and how it will operate in the indigenous and multinational sectors. The high level group is the correct approach because it represents the various interests in areas where industrial relations problems exist. The collective view of the group is probably an accurate reflection of the problems perceived and the method of dealing with them. I hope that, in the context of the legislation, soundings have been taken in the smaller industrial and business sectors on this matter, especially given that companies such as Ryanair have been adamant in not engaging with industrial relations machinery. I refer specifically to the small business sector which finds it difficult to pay the minimum wage and which does not like trade union recognition. I hope soundings have been taken in that sector as to how it will respond. I also hope soundings have been taken in the multinational sector on how it sees this legislation affecting its industrial relations arrangements. Mr. Mooney: Like my colleagues, I welcome the Bill and I endorse all that has been said in the context in which the legislation is before the House, which is that it is the result of agreement, consensus and voluntarism. This is a new term which my colleague, Senator Coghlan, used and which occurred frequently in the Minister of State's speech. I am not familiar with that term and have always been happier with "consensus". However, in the spirit of this new initiative, "voluntarism" seems to be the word. Mr. Coghlan: Who are we to question the Minister of State and his advisers in this matter? Mr. Mooney: Who are we to question our betters? I suppose the Senator is correct. I endorse and agree with what the Minister of State said, that the Labour Party should be acknowledged for the role it played, as should Senator Coghlan's party. The high level group established under Partnership 2000 was established by the rainbow coalition Government. However, the sad episode of the Ryanair dispute and the issue of trade union recognition at Dublin Airport sent the high level group members scurrying back to their respective burrows. Obviously, there was no basis for agreement or advancing the argument while the dispute was ongoing and it ultimately went to the Supreme Court. Any attempt to find a way around the complex issue of trade union recognition was left in abeyance until the current Administration took office and the Minister of State, Deputy Tom Kitt, asked the high level group to reassess the situation and report to him. The first report was submitted in December 1997 and the high level group was asked to continue its work and to address issues outlined by the Minister of State at its first meeting last year. As a result of that initiative, we now debate a Bill which, as the Minister of State and others said, is an indication of our maturity as a democracy in addressing and tackling issues in the field of industrial relations which traditionally have been complex and for decades have been beyond resolution. The issue of trade union recognition is not far from the top of the bubbling pot that is the complexity of industrial relations. Senator Costello was right to identify the many multinational companies which have located here in the past decade, especially American companies, which have adopted a non-union policy. That is not to suggest those employers do not discharge their legal and other obligations to their employees. On the contrary, the emphasis in those companies is on agreement, as evidenced by the low level of disputes in many multinational companies involved in inward investment. I do not suggest that the absence of unions in the interaction between labour and employers is a bad thing. However, the Bill is concerned with trade union recognition and addressing the issues which arise whenever disputes come to the fore which cannot be solved on a voluntary basis under the code of conduct and must, as a last resort, go to court. It is with that subject that this legislation is concerned. It is a landmark in industrial relations history that we debate this legislation because it has not been an easy road to travel. While I acknowledged earlier the contribution of the Labour Party in advancing the debate with the Bill introduced by Deputy Broughan in the other House, I question whether that legislation, while welcome in terms of initiative and maintaining debate in this area, was the right Bill at the right time. The legislation was introduced after a messy dispute at Dublin Airport between Ryanair and a group of its workers who were members of a trade union. Unfortunately, it extended the dispute into other areas and companies in Dublin Airport resulting in the closure of the airport. It is salutary to remind the House that, in middle of a boom of unprecedented economic prosperity, the major airport was closed not because of a dispute directly involving workers employed at the airport but one involving a component part of the airport. It was obvious this could not be allowed to happen again in the interests not only of trade unionists and workers but also of employers and the general interest of the country as a whole. The main reason the high level group and the Minister of State came together following that and why they were asked to focus their minds was the serious consequences which would have arisen if the issue had not been addressed.

It was in that context the Labour Party introduced its Bill. I suggest it was a knee-jerk reaction and that, perhaps, it may have been influenced by the fact that some of the workforce involved in that dispute at Dublin Airport may have been members of the Deputy's constituency. I am not questioning his entitlement to introduce a Bill but his motives at that time. I agree it was also a reaction to trade union recognition which had become a controversial issue. Time is great for reflection. As the Minister of State pointed out, and I agree with him, it may have been the right Bill, although it was flawed, but it was the wrong time because it did not address the fundamental reality of the position. What was the attitude of the employers and the unions? Was there an agreement between the social partners on the Labour Party legislation and on introducing legislation that would recognise and respect the two positions of IBEC and ICTU and their respective agendas? There was no consensus or agreement at that time. I agree with Senator Coghlan that it is a tribute to the Minister and to the social partners that consensus has been achieved so that we now have a double mechanism to address such difficulties. Copies of the voluntary code of conduct, which is signed by the Minister, Deputy Harney, were circulated to Members today. Its sections contain a mechanism through which employers and trade union employees can successfully negotiate a resolution of their problems. The Minister of State said that the overwhelming majority of disputes will be resolved by adhering to the voluntary code of conduct. That is a welcome development in this economy. It is also salutary to remind the House of the environment in which this legislation has been introduced. The Minister of State mentioned it briefly but I want to amplify it. Prior to 1987 we were closer than we had ever been to the economy collapsing. I accept there were external as well as internal reasons for that. The International Monetary Fund intervened, which was unprecedented in a modern western democracy, and said that unless we got our economic act together we were in severe danger of not being able to repay our debts. That was the environment in which the concept of social partnership arose. The House should be reminded that from 1981 to the late 1980s more than a quarter of a million young, talented and well educated people left this country. I have no need to remind the House that a week did not pass without Gay Byrne having someone on his programme decrying the sad state of the economy. I remember him saying on one occasion that the country was banjaxed. Almost 18% of the population, or 300,000 people, were unemployed. At one stage our inflation rate touched 20% and we did not have any growth. That puts the current 4.5% inflation rate with a growth rate of 11% in perspective. The national debt doubled from £12 million to £25 million in the same period. I am not scoring political points but attempting to outline the context in which the concept of social partnership came into being. When one looks back over the past couple of weeks at the agenda pursued by those outside this House, one wonders if they have short or no memories. Perhaps those working in the media are not any older than 18 or 19 years of age. Some of the things they have been writing about give the impression that they are young, inexperienced and immature and were not born prior to 1987. Some 13 years later we have five social partnership agreements under our belt and we are embarking on another. We are also enjoying a period of prosperity we have not known since the days of Cuchulainn and Tír na nÓg. That is not to detract from Senator Coghlan's comments, with which I also agree, that there are significant groups of people who have not benefited from the economic largesse. However, those issues are being addressed. The prosperity we are experiencing as a result of our high growth rates and high employment and the money generated by inward investment and by the 1.6 million people employed in the workforce, which has increased from 1.1 million a few years ago, is permitting the Government to channel its significant resources into addressing the many social inequities in our society. I will continue to ensure that challenge is sustained and that the efforts of the Government of the day, whether it is a Government in which my party is a member or another Administration, are constantly monitored. That is the context in which this legislation has been introduced. It is a tribute to the social partners that they achieved a consensus at a time when belts had to be tightened and many difficult decisions had to be taken by the Government. It is a credit to the trade union movement and the employers' organisations that they stuck with it when it was not the most popular thing to do. The social partners have not been found wanting when faced with the complex issue of trade union recognition. It is a perfect example of the symmetry between Government and the social partners and the result of their deliberations is in this Bill. Without the consensus achieved by the hard work of the Minister of State in recent years in concert with the social partners we would not be debating this legislation. It is important to recognise that the Bill is not just about protecting the interests of trade unionists or trade unionism but about bringing employers on board. It is a significant advance on existing legislation which, up to now, put the onus on the trade union movement to discharge its responsibilities on Labour Court recommendations and where the employer could, and did in a number of significant cases, ignore the recommendations or not turn up to listen to them. This legislation complements the voluntary code of conduct. It is unlikely that any employer will ignore the voluntary code of conduct. It is highly unlikely, given the environment of voluntarism and consensus in which employers, employees and the Government are working, that sections of this Bill will be brought into force. However, this legislation will ensure that, in matters involving the national interest - not sectional interests - or in instances where employees believe that their rights are not being recognised or that they are not being allowed to negotiate with their employers in the traditional fashion, a third party will mediate in any dispute which may arise and offer recommendations. I welcome the fact that, in this legislation, we are not using a sledgehammer to crack a nut. It will not simply be a matter, when the opportunities offered by the voluntary process have been exhausted or ignored, of bringing an employer, kicking and screaming, into the Labour Court; consensus will have to be reached. An attempt will be made in the initial stages of the process to ensure that both sides are given a fair hearing. If both sides cannot agree, there will be a cooling off period which can last upwards of 12 months. At that stage, a recommendation will be made and if an employer refuses to play ball the sanctions contained in the legislation will come into effect. Those sanctions are a last resort and, as already stated, I cannot see a need for them arising. However, it is important that the legislation is put in place. I wish to refer to a quote the Minister of State read into the record. The comments to which he referred were made by the then Justice O'Flaherty. Is it not ironic that, in the week in which we are discussing ----- Mr. Coghlan: Great words from a Kerryman. Mr. Mooney: ----- this benchmark industrial relations legislation - a week in which this man has been pilloried outside the House - the Minister of State referred to a judgment relating to the code of practice which was handed down by the then Justice O'Flaherty in the Supreme Court in respect the Nolan Transport case? I wish to highlight one section of the quotation to which the Minister referred and put it forward as a vindication of this man's humanity and also as evidence of his strict adherence to the rule of law and democracy. Mr. O'Flaherty's comments contradict the perception of him that has been peddled outside the House. Mr. Coghlan: He handed down many great judgments. Acting Chairman (Mr. R. Kiely): Senator Mooney without interruption. Mr. Coghlan: The admonition of the Chair is noted. Acting Chairman: I know Senator Coghlan likes to praise Kerrymen but Senator Mooney must be allowed to continue without interruption. Mr. Mooney: In his judgment, Mr. Justice O'Flaherty stated, "We should now have advanced sufficiently in our respect for democracy and the rule of law and all its refinements to work out a better way." These are hardly the words of a person who wished to interfere with due process. In tracing the background to the development of this legislation and the context in which it has been presented, I wish to comment on the point we have reached as a result of the consensus that has permeated the debate on this matter. The consensus between the social partners and the Government has brought this country to a point in its economic development where we can look forward to full employment, a period of unprecedented industrial peace and a country in which all citizens will be cherished equally. Credit is due not only to the Government for the imaginative policies it has pursued - I do not expect Senator Coghlan to agree with my comments in this regard ----- Mr. Coghlan: The Chair will not allow me to comment. Mr. Mooney: ----- but, equally and importantly, to the social partners, the trade unions, IBEC and various State and semi-State bodies. An all-inclusive consensus has brought us to the point at which we find ourselves today. Will the Minister of State indicate the thresholds which may be introduced on foot of this legislation? As stated at the outset, there are a significant number of companies in this country in which there is no trade union involvement. What will happen if a group of workers in one of these companies decide to join a union? When will the provisions in the legislation come into operation in such circumstances and will thresholds be laid down? I wish to suggest - I agree with Senator Costello in this regard - that a mechanism be put in place which would allow elected public representatives to have an input into the development of legislation of this nature and, in a wider context, in the debate and negotiations on social partnership agreements. No such mechanism exists at present. Partnership agreements are hammered out by the Government and the social partners in Government Buildings and we are left to debate the aftermath. I accept that the Government is elected to represent the Dáil, the Seanad and the people of Ireland. I fully accept that it does an excellent job in carrying out that representational role in its dealings with the social partners and the voluntary sector. However, there is a flaw in the architecture of the partnership process, namely, that elected representatives have no input other than by way of involvement in informal discussions or debate in the House. Perhaps the Government might consider establishing an all-party joint committee on economic affairs. This would allow Members to have a direct input into the negotiations on social partnership from the outset rather than their being expected to enter the debate when agreements have already been reached. This happens in other parliaments where similar committees are involved in helping to form executive policy. There is something inherently undemocratic about a process which permits trade unionists, employer organisations and, in the case of the most recent agreement, the voluntary pillar - three non-elected groups - to act in concert with the elected Government of the day and to which neither House of Parliament, the Dáil and Seanad, has a direct input. Perhaps there is a need for the Government to consider establishing a committee of the kind to which I refer which would have real power in terms of being directly involved in all stages of the social partnership process. This would give more meaning to debates on this nature and to the wider debate on social and economic matters. As stated earlier, the Bill is an indication of our growing maturity as a democracy and it is a further indication of how far we have come in industrial relations terms. When I was growing up, not a year passed when a major industrial dispute did not have a disastrous effect on the economy. I agree that the recent Dublin Bus dispute caused difficulties but, hopefully, legislation of this nature will help to resolve such disputes in the future. Overall, we have enjoyed a 13 year period of unprecedented industrial peace and increasing prosperity. I wish the Bill well on its passage through the House. Dr. Henry: I was impressed by the Minister of State's contribution and I was particularly taken by his reference to partnership, as defined in chapter 9 of Partnership 2000, which he stated "involves a continuing commitment by employees to improvements in quality and efficiency and the acceptance by employers of employees as stakeholders with rights and interests to be considered in the context of major decisions affecting their employment". I was also pleased to note that the Minister today published a code of practice on voluntary dispute resolution by the Labour Relations Commission which he read into the record. This is a very good procedure. I also welcome the Minister's statement that this Bill will provide an avenue for the processing of claims without the necessity for recourse to industrial action. While I agree that we should avoid industrial action if at all possible, I hope that other groups which go before the Labour Relations Commission will have better luck than my colleagues, the non-consultant hospital doctors, are currently having. I am delighted to welcome to the Visitors Gallery Dr. Mick Molloy, leader of the non-consultant hospital doctors and Vice-President of the Irish Medical Organisation. The fact that he has come here this afternoon is evidence of the seriousness of the current situation. Acting Chairman: It is not appropriate to refer to people in the Gallery. Dr. Henry: I apologise. I am delighted to see the Minister of State at the Department of Health and Children, Deputy Hanafin, in the House because I know her to be a very honest woman. Last week, I saw a reply in her name to concerns expressed about the shortage of doctors in our hospitals. The person who wrote the reply for the Minister stated that there were not any shortages at all. That is simply not true. The non-consultant hospital doctors went to the Labour Relations Commission, in spite of the fact that the employers had not made any firm offer to them. It was most unusual for them to attend the commission in those circumstances but they did so because they were very anxious to avoid industrial action. They attended the commission in spite of the fact that the previous contract, drawn up in 1997, was still not in force in some of the employing authorities. It is extraordinary that the non-consultant hospital doctors went to the Labour Relations Commission without the recommendations made under the 1997 settlement having been implemented. The non-consultant hospital doctors did not go out on strike on 17 May and no further ballot will be required before 16 June if the situation in the Labour Relations Commission is resolved. I really believe that Members do not understand the huge workload carried out within the health service by senior house officers and staff nurses. The most appalling crisis within the health service is being experienced at this level. On the occasion of his previous attendance in the House, the Minister for Health and Children recognised that there was a shortage of 1,200 staff nurses in the Dublin area alone but that, through people working overtime, the real shortage was in the region of 400 nurses. This means people have to work far longer hours than they should be working. I was on a hospital ward a few nights ago and instead of there being eight staff nurses on the 5 p.m. to 7 a.m. shift, there were only two. What about the safety of patients in that situation? Non-consultant hospital doctors are in the same position. Last week, as I read through the medical journals, I looked at the job advertisements. I raised on the Order of Business recently the serious problem of staff shortages in hospitals, particularly hospitals outside Dublin, only to hear the Leader praise himself and the Midland Health Board in regard to the situation in Mullingar hospital. I contacted the non-consultant hospital doctors in Mullingar that evening to discover they work 96 hours one week, 45 hours the next week and 68 hours the third week. How close are those hours to the recommendations made under the working time directive issued by the former EU Commissioner, Pádraig Flynn, which stated that it was quite wrong for people to have to work longer than 65 hours per week and that it was ridiculous that a 13 year run-in period would be required to rectify matters? I did not see any advertisements for staff in Mullingar hospital but there were advertisements seeking several staff members for Portlaoise and Tullamore hospital, the other two hospitals in the Midland Health Board region, from 1 July. I also recall that there were job advertisements for hospitals in Sligo, Castlebar and Galway and for St. Luke's Hospital in Dublin, to name but a few. Those hospitals are seeking to recruit staff for 1 July but if they have not filled the vacancies by now, they will not fill them by 1 July. I was delighted with the initiative on the waiting lists announced by the Minister for Health and Children but who will operate on these people? Who will admit them? Who will administer the anaesthetics? It is still traditional to administer anaesthethics, be they local or general, to patients undergoing surgery. Surely we are not going to abandon that practice. The situation in the health service is extremely serious. Locums are being sought in the last days of May for June. People will not be available to take up positions in June. What will happen to people who should be going into hospital for elective surgery, aside altogether from the number of people coming in through hospital casualty departments? Some 70% of the people admitted to the medical wards in our hospitals are being admitted via the accident and emergency departments. One can only imagine how general practitioners feel about that. All these problems are currently before the Labour Relations Commission. The position in regard to locums is terribly serious because some hospitals will be grossly under-staffed. People are entitled to take a holiday at the end of their six months in the job. I do not think any attempt has been made to recruit locums from abroad. Junior staff in one hospital were informed that they would have to double up, in spite of the dreadful hours they are already working, because it would be too expensive to recruit locums from abroad. I am terribly concerned that, owing to the increased restrictions on non-EU doctors coming to work in this country, such doctors now have to sit an examination which they were not previously required to sit. In the past, many non-EU doctors came to Ireland rather than England but it is now more expensive for them to sit an examination here than in England. The situation is so dire that the Irish Medical Council, in an attempt to address staff shortages, feels obliged to lower the standards required for non-EU hospital doctors. Is this really a good idea? We must remember that these doctors will be treating Irish patients. The recommendations issued in all of these areas are, quite rightly, not legally binding but they are morally binding. How can the doctors currently before the Labour Relations Commission feel there is any moral impetus to this issue when they are still seeking to have the 1997 recommendations implemented? The proposals currently being made to address the situation are most extraordinary. The Minister will be aware that there is a great deal of trouble in regard to overtime cover. I heard a suggestion yesterday that all surgical staff should be pooled to provide cover within the bigger hospitals at night time. This could result, for example, in an orthopaedic registrar in his final year prior to gaining a consultancy post, who has not carried out general surgery for years, not to mention ophthalmology or gynaecology - which he would have done at some stage - trying to cover all areas in which patients may be experiencing difficulties. I do not think this is desirable for our patients. Certainly the general public would not consider it the right way to staff hospitals. While I welcome the provisions the Minister has introduced in the Bill, I get extraordinarily depressed when I see what happens in practice. It was suggested regarding that last issue, where one would pool all the hospital staff at night and it would be a matter of luck for an ill patient to be attended to by somebody from the specialty concerned, that it would be good for one's training. One of the major problems is that there is such a shortage of consultants that the training programmes are in the most appalling position. If we are to attract people to work in Ireland, we must instigate training programmes which are better, and not only as good as, those in place elsewhere in Europe. Otherwise there is no possibility of maintaining the situation in hospitals. This is why I again return to where the Minister of State, Deputy Kitt, stated in his speech that the employees are "stakeholders with rights and interests to be considered in the context of major decisions affecting their employment". I pointed out the major problems which exist with one group despite all the labour relations legislation and I am sure the Minister of State is not deaf to these complaints. As it will be a voluntary code and we are saying that we are morally responsible for bringing this forward, if in practice we do not try to fulfil the spirit of the legislation, irrespective of how good it is, people will not take seriously any legislation which is in place. Before we know where we are, we will be back to the days when there were serious industrial disputes such as those to which other Members alluded. Mr. O'Toole: The Government is to be congratulated on bringing forward this legislation, which has been sitting there for a long time, which has been requested on many occasions and which we found ourselves in need of on a number of occasions over the past years. I am sure the infamous Ryanair dispute has been brought into the debate many times today. Mr. Mooney: Never mentioned. Mr. O'Toole: That was the time when ordinary citizens saw the net outcome of what happens when there is no industrial relations structure. Irrespective of where people stand in the political spectrum, whether left or right, whether on the side of labour or the employer, one must recognise that there is a need for structures. It is important that people co-operate with each other and respect each other's point of view. Their points of view may differ and they must recognise each other's different view but also recognise that one must make progress, and the Bill does precisely that. I congratulate the Minister of State, Deputy Kitt, on his courage in quoting the judgment of the former Mr. Justice O'Flaherty because it is very relevant. That judgment, more than any other, probably had the trade union movement thinking seriously about the need for this kind of legislation. Effectively the Nolan Transport case was the one which could have undermined the operation of industrial relations in Ireland. The issue which brought this legislation to fruition is where former Mr. Justice O'Flaherty stated that employers have an obligation to accord trade unions a measure of respect, representing as they do the rights of the workers. In fairness, Members on all sides of this House would say that is the way we should do business. It goes back to the old days and the catechism questions on the Fourth Commandment regarding the rights and duties of employers and employees. Much of this was written at the same time as the Sermon on the Mount and there is not much new about what we are trying to achieve here. It is about respect for individuals and moving matters forward. That is the only bit of proselytisation which I will do during the course of this speech, a Chathaoirligh. I thought it was important to tie in former Mr. Justice O'Flaherty with the Sermon on the Mount, value judgments, the rights of individuals and such like. Mr. Mooney: I was on the mount before the Senator but he is welcome to join me. Mr. Coghlan: He made great judgments. Mr. O'Toole: This legislation also represents a compromise. I could not abide listening to much of what Senator Mooney was saying while I was in the anteroom and I disagree fundamentally with the latter part of his speech about how social partnership came to fruition - shortly I will give him a history lesson on that. Every paragraph of the social partnership document and the main sections of the Bill represent an extraordinary compromise. I want to outline what that means. The high-level group was put together by the Minister of State, Deputy Kitt. He had much to do with making sure that it worked its way through the system. Indeed, he raised it with me in social conversations on many occasions during that time and I want to give credit to him for his commitment to make this work. It was an impossible issue to deal with. The high-level group made certain recommendations which represented compromise from the point of view of both IBEC and ICTU, and the Bill is the result. As Vice-President of Congress, I accept and support this Bill and I will vote in favour of it, but I also want to voice the kinds of reservations which activists in the trades union movement will be articulating to us in order that people will recognise that these matters are never easy. I am sure that the IBEC representatives could just as easily refer to what its people did not like. The Bill deals with the situation where there is no domestic remedy to deal with a dispute, in other words, where the employer and the trades union involved have not put in place a collective bargaining structure to deal with agreements, negotiations, the determination of salaries, etc. The Government and we, as legislators, are stating on behalf of the people that we will not stand by a situation where a company can be brought to its knees simply because one side refuses to put in place structures to deal with difficulties. That is the important purpose of the Bill. If an employer, for instance, refuses to put in place a structure to bring about a domestic remedy, either of the parties or the court can now intervene to resolve the problem and the Bill lays out how one will go about doing so. The Bill outlines the form of determination. An important aspect of the matter is not addressed in the Bill. The Bill does not require a company such as Ryanair to attend at the Labour Court. I would like to have seen such a provision. I would argue that there should be such a provision and trade unionists would say that that is a weakness in the Bill. It is a weakness, but owing to the need for consensus we could not have it included. However, that will not stop the Labour Court from making a determination. It may determine the issue without the involvement of the employer. In coming to a determination the Labour Court will also have regard to the code of practice. I recognise that the Minister of State, Deputy Kitt, in his speech made reference to the code of practice and that the group charted two distinct procedures for dealing with the differences. In responding to the debate I want the Minister of State to go into the detail of how the code of practice fits into this. The code of practice obliges or expects the employer to attend at the Labour Court but that is not a statutory obligation. Nonetheless if the Minister signs off on the code of practice, does that give it a statutory basis? I am not quite clear on that point. The other important aspect is that the court, in coming to its determination, can take into account the fact that the employer, for example, chooses not to attend. Where the employer decides to ignore the determination of the court, the matter may be taken to the Circuit Court to get an enforcement order, which can only be appealed to the High Court on a point of law, as is the case with much of the industrial relations legislation. Therefore, if there is no domestic remedy, if the matter cannot be settled by the Labour Court and if it then goes to the Circuit Court or High Court, the determination then has the force of law. There appears to be no penalty for non-attendance or non-compliance, although I suspect that relates back to the part of the Industrial Relations Act which deals with the issue of an employer not respecting an enforcement order of the Circuit Court. The Minister of State might respond to this point at the conclusion of the debate. I would prefer if the Bill did not include the measure in section 6 which states that a determination of the Labour Court may have regard to the terms and conditions of employment and dispute resolution "but may not provide for arrangements for collective bargaining". This will cause difficulties for me and for many of my colleagues in the trade union movement. I support the Bill because I believe it goes as far as we can take matters but it will be difficult to explain this measure to the 750,000 members of trade unions affiliated to the ICTU. Trade union members will ask if the point of this legislation was not to have collective bargaining at local level in order to force employers to sit down with trade unions. This is still not a requirement. This "hands off" policy is unfortunate. I realise that compulsion can never make co-operation work and I hope the moral force of this legislation will tell the Ryanairs of this world that they need not be afraid of the trade union movement and can sit down with their employees and their representatives. If a company like Ryanair can deal with other airlines throughout the world it can also deal with a trade union official. Where does the code of practice stand and what is the status of an enforcement order if an employer refuses to put a Labour Court or Circuit Court determination in place? Furthermore, I regret the fact that the Bill does not contain a commitment to collective bargaining. These issues worry me. As the Minister of State has said, the partners to the Programme for Prosperity and Fairness have agreed to monitor the application of the legislation in practice. This legislation has come out of the discussions on the Programme for Prosperity and Fairness. I must explain a point to Senator Mooney. The parties to the national negotiations on social partnership are the trade union movement representing workers, the employers' organisations representing business and employers, the social and voluntary pillar and the Government which represents the Houses of Parliament. Mr. Mooney: I made that point. Mr. O'Toole: We must make it again because no one in these Houses appears to remember it. If the Government chooses not to consult with either House in the course of its discussions it is lucky because no other partner would get away with doing likewise. Mr. Mooney: The Senator has made my point. Mr. O'Toole: On at least five occasions I asked that the House discuss industrial relations and the new national programme. I asked for this during the later months of last year. I made this proposal to the Leader and to several Members on the Government side. Government Members had the opportunity to discuss this matter but they did not take it. Mr. Mooney: We were not in Government Buildings during the negotiations. Senator O'Toole was there, but not as a Senator. Mr. O'Toole: When an agreement is finalised politicians want to be part of it. Senator Mooney makes a valid point that industrial relations should be discussed. Like foreign policy, industrial relations should be discussed in general terms. This Bill is common sense. Some people might see it as another piece of labour legislation to give more power to trade unions. Anyone with common sense will see that the legislation will regulate and co-ordinate and will put co-operation in place. We want more of this rather than less. The Bill represents a development in labour legislation which is missing in the United States, in many parts of Europe and in the United Kingdom. The Bill represents industrial relations maturing and growing up. It will allow us to do business without conflict or confrontation. It will help to get rid of conflict, bring us into regulation, partnership and negotiation and recognise that as the world matures we must put structures in place to deal with our difficulties and differences. The Bill does this in a manner which represents a compromise by those of differing points of view but I commend the Minister of State on his personal role in bringing forward this legislation. I also commend the officials of his Department who have worked day and night on this issue for many months. I commend the Bill to the House and will support it strongly. I may introduce a minor amendment to section 8. This section states: The Court shall cease its investigation or review under section 6 and withdraw any recommendation where, either at the request of the employer or on its own initiative, the Court has satisfied itself that industrial action in relation to the dispute that is the subject of an investigation has taken place. This is too open. Industrial action might have taken place three years previously. This section could be interpreted to mean that the court would not involve itself in a dispute in that case. I believe the section was intended to apply to industrial action which was current. I ask the Minister to look at this point. Minister of State at the Department of Enterprise, Trade and Employment (Mr. T. Kitt): I thank Senator O'Toole for his concluding remarks and I thank all who have contributed to the debate. Senator O'Toole has rightly said this is common sense legislation. I thank him and others whom I consulted, formally and informally, over the last period. It is important that we debate matters such as this in the House and I welcome the points made. Both the code of practice and the Bill emanated from the high level group report. Taken together they represent an agreed approach by ICTU and IBEC in dealing with disputes where negotiation arrangements are not in place. Senators Coghlan, O'Toole and others expressed their appreciation of ICTU and IBEC and other members of the high level group for their perseverence in reaching a consensus. Such a consensus has eluded the social partners for many years and successive Governments had rightly resisted the temptation to impose a solution in the absence of a common approach between employers and unions. I acknowledge the role of the Labour Party in producing its Bill. My approach is to bring the parties together. Senator Costello posed the question of the extent of the right of workers under Article 40 of the Constitution. Case law shows that Article 40 does not place a corresponding obligation on an employer to negotiate with any particular citizen or body of citizens. With regard to the level of demand which might trigger a referral - the point Senator Costello made - the Labour Party Bill of 1998 provided a single mechanism for processing recognition disputes. The process was linked to the issue of whether a trade union was representative of a category of employees or all employees in a particular employment. The approach taken by the high level group was to deal with dispute resolution processes for specific issues of pay or conditions. This is the approach taken in both the code of practice on voluntary dispute resolution and the Bill itself. The issue of the number of trade union members does not arise because this approach avoids the problem of argument over whether employees are members of a trade union. In some previous disputes where negotiating arrangements were not in place, arguments between the sides concentrated on whether the number of members claimed by a trade union were members at a particular point in time. This debate had the effect of prolonging the strikes. The approach in this Bill is to allow the processing of substantive issues on pay and conditions to finality where the parties have not availed of the voluntary procedure set out in the code of practice. There is no distinction as to the ratio of trade union members or whether the enterprise concerned is in an indigenous sector or otherwise. I refute the suggestions made by Senator Costello on sweetheart deals and human resource management systems. The Government, in keeping with the voluntarist tradition, leaves it to employers and employees to agree on how their relationship should be regulated. The composition of the high level group was such as to ensure that the interests of all types of employments were taken into account before we finalised this report. We can deal with the mechanics of the procedures on Committee Stage. It is in keeping with the best tradition of social partnership that representatives of IBEC and ICTU succeeded in devising a balanced formula which takes account of the different views which were brought to the table. They were ably assisted by public servants and I am happy that this fact was acknowledged here in the House. It is also fitting and appropriate that the formula agreed would be subject to review by the parties themselves. Senator Coghlan also referred to this aspect. The voluntarist approach has served us well in the past and is the bedrock of our industrial relations system. I agree with Senator O'Toole when he said that we are the envy of many countries who have studied our system. The strength of our social partnership system is unique. It has yielded results for our economy and socially. Like Senator Mooney I hope the remaining Stages of this Bill can be processed on the basis of all-party support in the context of the agreement between IBEC and ICTU. The Bill has the same broad thrust as the Private Members' Bill proposed by the Labour Party. The imprimatur of the social partners which has now been given to this Bill's provision through the report of the high level group is most welcome. It avoids the undesirable position where legislation might be foisted on unions and employers which they could find unacceptable. Senator O'Toole asked how the code of practice fits into the overall structure. The code outlines the agreed voluntary process which culminates in a non-binding recommendation. This legislation comes into play where the code has not been adhered to. The high level group agreed that collective bargaining arrangements would not be covered under the fall-back procedure. Paragraph 2(iv) of the report provides for binding recommendations on pay, procedures and conditions of employment. Senator O'Toole touched on the three essential areas. He also said that this Bill is a compromise particularly between the social partners. It is designed to ensure that aggrieved parties have a place to go to pursue their dispute. Part of the compromise is in the context of a voluntary system and mandatory arrangements for recognition are not a feature of this formula. I thank the Senators for their support of the Bill. There were some critical comments but they were constructive. It has taken a long time to bring this legislation forward but it is important that we proceed with speed. This Bill will be accepted by both sides. There will be some criticisms from individuals in ICTU and IBEC because this legislation is a compromise. This Bill is important to me and I wanted it to be put in place by this Government. I had the job of talking to the high level group. It was a privilege to work with them and I thank them for their tremendous work. That is all I have to say and I know we will move on from here. Question put and agreed to. Committee Stage ordered for Tuesday, 13 June 2000. An Cathaoirleach: When is it proposed to sit again? Mr. Mooney: At 10.30 a.m. tomorrow. The Seanad adjourned at 5.05 p.m. until 10.30 a.m. on Wednesday, 31 May 2000. Speech Menu Top