Tuesday, 3 July 1990
Dáil Éireann Debate
Mr. Rabbitte: We were dealing with amendments to section 11 which is the most controversial and, from the point of view of the trade union movement, the most important section of the Bill. It proposes to regulate picketing policy and  to impose restrictions on picketers that were not there before this Bill was brought before the House. It is all very well to say picketers have the right to place pickets and that workers have the right to withdraw their labour, but if one so restricts the ability to place pickets one effectively undermines the right to withdraw labour and the workers' right to strike. I am afraid the measures now proposed by the Minister go so far that they will effectively deprive a great many trade unionists of this ultimate sanction.
I ask the Minister to accept that we are operating in a world of holding companies, subsidiary companies, associate companies, multiple stores, chains of companies and contractors. In that situation it is simply not feasible to practically prosecute a trade dispute effectively unless the workers who have withdrawn their labour may place pickets on associate companies, subsidiary companies or whatever where they have an honest belief that that associate employer, subsidiary employer or whoever is acting to undermine, damage or frustrate a strike. That is the structure of the workforce out there at the moment, and the Minister must accept that it is now possible to transfer production, as Deputy Bell explained on the last occasion, from one plant to another plant owned by the same holding company in such a manner as to leave the workers outside high and dry because their dispute is not effective. If that is the case in production, it is most certainly the case in other forms of service industry, the retail trade for example, where one store can take up the slack and can argue they are doing no more than exploiting a niche in the market and that they are not assisting the primary employer.
I ask the Minister to consider what he is doing to contract labour, a growing feature of the economy and employing a great many workers. The Minister no doubt will say he is not taking away the right to strike, that these workers may picket their own employer. That is true but why would they want to picket their own employer where that employer has been undercut in the marketplace and  has lost the contract to a competitor? In that case it makes no sense for them to picket the headquarters of their own contractor. They picket the place where they worked in pursuit of employment with the new contractor. They may do that as the law stands but they cannot do so when this Bill is passed. It is regrettable that those in the most vulnerable sections of the workforce are effectively being deprived of that right.
On Committee Stage at column 757 of the Official Report on 30 May the Minister said at a late hour of the night that: “At present people do not have the right to picket in order to get themselves a job.” That is not actually the case. Under the Trade Disputes Act, 1906, workers have the right to prosecute for employment. We dealt with registered agreements where, for example, building workers frequently picket an employer on the site. The way the trade union movement have tried to combat the contract phenomenon is that they acknowledge they cannot prevent one competitor from undercutting a rival company, but they can give sanction to their members who are employed in providing that service in that employment for a number of years to take industrial action, to picket the new employer for the right to work. If a new company wins the contract that is fine but they must employ the workers who were providing the service. Under this proposition the trade unions cannot prosecute such a dispute for employment and that has a severe, adverse impact on the most vulnerable workers in the economy. I had hoped the Minister would have responded to that point.
We are seeking to take case law as established in Ellis and Wright which, in a nutshell, said that there must be a clearly discernible connection where workers decide to picket a secondary employer. The Minister has said that is too broad, too vague, and that there is a need for a statutory statement to tighten it. The statutory statement the Minister is making here is far too restrictive and will make the prosecution of a trade dispute  by a trade union in many cases virtually impossible. In addition, it rules out the rights of a large section of the workforce employed at the most vulnerable end of the market. I ask the Minister to reconsider his position on that.
Mr. Bell: Deputy Rabbitte covered the points I wished to make and I just support the view expressed by him. Both Deputy Rabbitte and I worked at senior level in the largest trade union here and we have experience of this type of activity.
One would get the impression that the FIE, the employer organisation have won the day over the ICTU. It appears this section was virtually written by the FIE and I would like reassurance on that from the Minister. At the moment it is difficult for workers to strike, as evidenced by the figures, due to pressures arising from people waiting outside the gate to get their jobs if they strike, without having this pressure on them as well. I understand the employers' submission on this section was put very forcibly to the Minister and from that one would get the impression that members of trade unions were running around willy-nilly putting pickets everywhere. Although not in legislation, there are clearly set out procedures to be followed in responsible trades unions before a strike is sanctioned. People like myself and Deputy Rabbitte would have to be convinced beyond reasonable doubt that a strike was properly conducted in accordance with union rules. Employer organisations making representations to the Minister for Labour would give the impression that all trade unionists have horns and that they go galloping around putting pickets everywhere they can. That is not true at all. Under this Bill where a company takes over the manufacturing of the product in the course of a dispute, the trade union would be acting illegally in striking and they would be totally hamstrung. This section is giving a licence to employers to abuse industrial relations procedures and that is regrettable.
Two clauses in the section we dealt  with before lunch and this one will change the course of industrial relations for the worse. We will regret these two sections. It would have been better not to have introduced any legislation to update the law than to do this because we are effectively turning the clock back to the last century.
An Leas-Cheann Comhairle: I intervene to remind Deputies that we are dealing with specific amendments on Report Stage and I would discourage people from wandering too far into the section or into a general debate.
Minister for Labour (Mr. B. Ahern): There have been a great number of points on this section. I do not want to go back into a Committee Stage debate but, as briefly as possible, I will answer a few points. I assure Deputy Bell this is a balanced package; otherwise we would not debate it in the House. I acknowledge there are some pluses and minuses. The Deputy mentioned his involvement with a very big union. I accept that some unions have rules but only 70 per cent of employees are covered by ballot provisions and I ask the Deputy to remember that. I accept that most employees abide by good industrial relations practices. Here we are widening good industrial relations practices and that is all. The fact is that there are unions, other than the one of which the Deputy is a member, who are not so good and ignore everything, including their own rule books. I have refrained in this debate, and I am not going to do so now, from spelling out who I am talking about but I could have answered many of the points made.
Let me respond to a point made by Deputy Rabbitte before lunch in relation to stores. There is nothing to prevent an employee in a dispute with a store from picketing the store which has taken up  the business, if the same employer is involved. I acknowledged on Second Stage and Committee Stage that employers seek a way around this but there is nothing to prevent an employee in disupute with their store which is shifting the work to another store from picketing that store. One of the things employers requested, which neither Deputy Quinn nor I granted, is that employees be confined to picketing their place of employment.In relation to contract labour——
Mr. Rabbitte: The legislation as it is phrased positively invites the employer to have recourse to the courts. There would then be an onus on the union to prove to the court that that store has taken up the slack. That will be a very difficult thing to do.
Mr. B. Ahern: If an employee in dispute with a store reasonably believes that another store is taking up the slack they may picket that store. This does not only happen in cases involving stores. It also happens in cases involving bus companies who switch customers and in the construction industry as Deputy Bell indicated.Later I will explain why I removed the word “calculated” around which the debate centred the other day.
In relation to contract labour, employees may picket their own employer, their employer's headquarters or the employer who has been given the contract. Deputy Rabbitte argued the last day, and I must say I did not agree with him, that where an employer loses a contract his employees should be able to picket the employer who has been given the contract. I cannot agree with him on that point because if one follows this argument through to its logical conclusion, as I did on Committee Stage, we would end up with people putting up pickets all over the place. If an employer loses a contract because of price or inefficiency it is not reasonable to argue that the employees should be allowed to take off after the employer who has won the contract fair and square to picket him.
Mr. B. Ahern: The amendments the Government are accepting are amendments Nos. 10 and 13. The present test, provided for in subsection (2), is whether it is reasonable for those picketing to believe that the second employer has acted in a way calculated to frustrate the strike or other industrial action by directly assisting their employer. The last day I argued that in the case of most disputes it is not difficult to show reasonable grounds. Both the employees and the trade union movement know the normal routine in the workplace. Indeed, they may have worked there far longer than the management and will quickly realise if an employer is acting in a way calculated to frustrate the strike. Deputies argued on Committee Stage that picketers would find it difficult to meet this test and would be required to establish that a second employer had acted in a way calculated to frustrate the strike by providing direct assistance. There was a long debate on secondary picketing on Committee Stage when I made it clear I was not in a position to move away from the objective test of reasonable belief or the concept of direct assistance which is central to the balanced regulations on secondary picketing.
The argument on Committee Stage centred around the word “calculated” which was considered to be too strong, inflexible and ambiguous and I indicated I would look at the matter to see if we  could come up with an alternative. The wording we have come up with, with which both the trade unions and the Labour Party agree, is that it is reasonable for those so attending to believe that the employer “has directly assisted their employer who is a party to the trade dispute for the purpose of frustrating the strike or other industrial action”. In formulating the provisions on secondary picketing my approach to employers who have deliberately involved themselves in the dispute by providing direct assistance to the first employer with the aim of frustrating the strike is that they can be picketed. Deputy Rabbitte's amendment would widen the principle unduly.
Amendment No. 13 is consequential on amendment No. 10. We have been advised that the wording is not too restrictive.The objective test is whether employees have reasonable grounds for believing that an employer is acting in a way calculated to frustrate a strike. It would be pointless including the words “honestly believe” as one could honestly believe in anything at all. If someone has to show reasonable grounds to meet an objective test that would get over the first part of the matter.
In order to get over the second part we have removed the word “calculated” around which the debate centred the last day. I am sorry some Deputies believe I am not going far enough but I do not believe that employees will find it difficult to prove their case if they do have to go to court. A trade union cited the example in the construction industry of two lorries delivering materials each day and all of a sudden the number increases to 20. It would be clear to any layman that the second employer was acting in a way calculated to frustrate the strike. In time we will see that the trade union movement and individual shop stewards will have no difficulty in showing what the position was prior to and during the dispute. That is all I have to say on the matter other than that these amendments will improve the section.
Mr. Quinn: I will be very brief because I am conscious of the time and the other  amendments in the names of Deputies. I would like to thank the Minister for accepting the thrust of most of the arguments on Committee Stage in relation to the word “calculated”. Whatever about the onus on somebody in court to prove the existence of a reasonable belief, proving that there was a calculated intent by an employer to frustrate an industrial action would be far more difficult. I will not try to get philosophical at this point. It is clear that the Minister is trying to maintain a balance between the social partners and in that respect the task is not easy and has not been easy for some time. It should be noted, however, that a fear is expressed professionally by both Deputy Rabbitte and Deputy Bell that in their experience some employers — all that is needed is a small minority — may well use this law to establish a new culture, so to speak, in relation to the restrictions on picketing. My view is that we will have to wait and see. We need to get on with the law and we need to get on with its reform. I hope that the other components of this legislation, including the labour relations commission and codes of practice that might evolve from that, will resolve some of these problems. Since we are on Report Stage and the Minister has accepted in part some of the thrust of the argument expressed on Committee Stage, I welcome it and formally support amendment No. 10.
Mr. Rabbitte: The Minister's riposte to the effect that contract workers may prosecute a strike against their own employer is of no practical value to contract workers in the situation I postulated.If the headquarters of their contract company is in Merrion Square, the contract is in Coolock and the market place has given the contract at Coolock over to a competitor, there is no point in the workers, normally employed at Coolock, picketing Merrion Square, picketing their own employer who has lost the contract and can do nothing for them. Up to now the situation has obtained that they could picket their place of employment at Coolock and could do so up to a point where they  could force negotiations with the new contractor with a view to their being employed.
The Minister challenges the substance of this argument. I would like him to listen to this point. He does not accept that an employer merely filling a gap in the market is a legitimate case to prosecute a trade dispute against. The facts are — I am sorry Deputy Bell is not here at present but he will bear this out — that we have a myriad of examples where the trade union movement accepts — this is the point I was rising on earlier to clarify — that they cannot do anything about one contractor under-cutting another in the market place but what they can do is seek to employ a convention or set of rules that if that successful contractor takes over the contract he also takes over the workers or offers to the workers the prospect of being taken over.
There are so many employments in this city alone where you have the same contract, the same workers but different contractors. There are contract cleaners, contract security people that have been providing that service to the major employment or plant for the last 15 years but the contractor for whom they are working may have changed three times in those 15 years. It was accepted that, when he bought the contract for providing the catering service to Jacobs, he bought with it the workers in Jacobs who were providing that service. He may well have sat down and renegotiated the terms with them or he may have asked them to work an hour longer here, an hour less there or paid them 10p an hour more here or 10p an hour less there, but he gave them the prospect of being employed. If he did not do so the trade union movement, up to now, was free to prosecute a trade dispute to achieve that end. They may not now do it.
That is the distinction I am drawing between what I am saying and what the Minister is saying. It is important at least that we are ad idem on the facts. I am not trying to prevent the flow of one contractor winning a contract from another in the market place; the trade  union movement cannot do that. I am trying to protect the workers who have very little security. They have no permanent employment in many cases, all they have got is their trade union entitlement or their trade union ability to enforce that entitlement for them. A great many of them will lose out as a result of this measure.
Mr. Rabbitte: There has been resort to the court and a settlement has been secured in the interim. Only last week we had the revelation by one of the major unions involved in the Irish Press dispute of correspondence that came into the possession of the union that set out in great detail an elaborate plan by the new ownership of the Irish Press to circumvent a trade dispute and to publish the titles during the course of a trade dispute. It is all very well for the Minister to say to me here: “Well, workers know the situation, workers have a good instinct on this and so on and they will know who is undermining the dispute and who is frustrating it”. That is all very well; they may indeed know it but being able to establish it is a different matter.
Mr. Rabbitte: They did it in the Irish Press because they got a letter on headed notepaper that came into their possession  from the new owner, but they were to give an interview to say that this was the case, short of being able to support it by correspondence, half of the country and half of the Members of this House would laugh at them. It would be too fantastic. Because they happen to have it in writing everybody says: “Would you believe that they would get up to something like that.” I would believe it. I have seen it happen before. That is one of the reasons I regret the additional restrictions on secondary picketing. If Mr. O'Reilly, for example, for his own reasons, decided that he wanted to facilitate Mr. Ingersoll in publishing the titles with some subsequent arrangement in mind, what could one——
Mr. B. Ahern: It is mischievous to say in the case of the Irish Press dispute that if Mr. O'Reilly started to print they would not be able to prove a fair case. It would take about 30 seconds to prove that that is a secondary picket. That is an unreasonable statement. If it is clear that the second employer is frustrating the strike, the employees have only to put forward a reasonable case, and then they can picket. I do not think the Deputy should say that is a blatant case where you have the Irish Press and the Irish Independent——
An Leas-Cheann Comhairle: This is not  governed by whatever form of debate governs industrial relations outside. We must confine ourselves to the standing order that governs this debate, Deputy Rabbitte. Each Deputy will make one contribution and the Deputy who moves the amendment will have the right to reply. He will have to satisfy himself with that.
Mr. Rabbitte: I am not disputing your wisdom on the matter, a Leas-Cheann Comhairle. I welcome the argument advanced by the Minister because it is helpful in teasing this out. The connection may be established there — because one is producing a product at the end of the day bearing the title the Irish Press— but what if one is producing jam jars or some other product that is in no way so discernible? The example was given of the multiple stores——
Mr. Rabbitte: Of course, a Leas-Cheann Comhairle. In the case of the store the Minister says it would be very easy to place a picket on the adjacent store if one considered that they were undermining the dispute. I contend it would not be very easy at all; there are a number of obstacles in the way. First, in order to be effective, there would have to be a ballot of the second store. In a great many cases——
Mr. B. Ahern: One can picket one's employer regardless of where he is. I know Deputy Rabbitte understands the provisions of this Bill to the same extent  as I do, but clearly he is being mischievous.If one's employer is located in Kerry and one is working in north Dublin one can go down and picket him. That provision is contained in the Bill.
An Leas-Cheann Comhaile: Would Deputies agree that it is time we put this question? We have a number of other amendments to deal with. No doubt Deputy Jim Mitchell will have the same concern about amendments appearing in his name later and we will not have time if we dwell overly on this group.
Mr. Rabbitte: I accept the need to move on. May I make this final point? It is possible — where it is as easily discernible as that — to circumvent the new restriction here, but in a world of holding companies, associate companies, new titles and so on, there are many cases in which it would be very difficult to establish that that employer was doing anything but taking up the slack in the marketplace, that he was merely availing of the fact that he now had a whole lot of clients he did not have before; to try and establish that he was doing it for the purpose — as the section requires — of frustrating the strike would be impossible.He is not doing it for the purpose of frustrating the strike. He is doing it for the purpose of exploiting the market and making profit out of a set of circumstances that have coincided. One would not be able to establish that it was for the purpose of frustrating the strike which is what is required here. That is regrettable.
An Leas-Cheann Comhairle: Deputy Rabbitte has availed of the discussion on amendments Nos. 9, 10, 11 and 13 to have on the record without any doubt his feelings on that amendment No. 9 and  is happy that we can proceed to other amendments.
In page 8, lines 18 to 20, to delete all words from and including “has acted” in line 18, down to and including “trade dispute” in line 20 and substitute “has directly assisted their employer who is a party to the trade dispute for the purpose of frustrating the strike or other industrial action”.
An Leas-Cheann Comhairle: We move to amendment No. 12 in the name of Deputy Jim Mitchell. Amendment No. 14 is regarded as consequential. With the agreement of the House perhaps amendments Nos. 12 and 14 can be discussed together. Agreed.
In page 8, line 25, after “life-preserving services” to insert “or any necessary action by an employer in other essential services covered by regulations made by the Minister after consultation with bodies representative of employers and trade unions.”.
It is important that the Minister have reserved power to take action in relation to crucial services other than the life-preserving services within the health service.For example, the section as at  present drafted, does not cover the fire brigade — because the fire brigade does not come within the ambit of the health service — but yet it can be a life-preserving service. Likewise the section does not cover services such as electricity which could be crucial to life, to industry or in the national interest at any given time. Of course, there are other services such as sewerage and water which are perhaps less crucial. I am not proposing in these two amendments that we insert absolute cover for all of these areas.
What we are seeking is to give the Minister power to bring in regulations to extend the exemption here to other life-preserving services, or other essential services, after he has had consultations with the trade unions and employers. Then he must get the agreement of the House in advance of making any such regulation. This is a reasonable proposal. I welcome the provisions of the section as far as they go. Obviously it makes sense that the health services should be exempt in so far as they are life-preserving services, and should be exempt from actions which would otherwise be deemed to frustrate a strike.
It appears to me that it would be imprudent of the House to enact legislation without having at least the contingent power to extend a similar exemption to other essential services. I realise it would be most unwise to extend this exemption too far. I know also that it would be unwise to endeavour to enshrine in direct legislation every set of circumstances in which such exemption might be deemed to be necessary. That is why I propose that the exemption be extended by the Minister by regulation provided he has the advance approval of the House and only after consultation with both sides of industry.
Of course the section, as drafted, is the result of a balancing act following prolonged discussions between both sides of industry. I contend that the right balance has not been achieved. I did not intervene in the last discussion because Deputy Rabbitte had adequately covered the amendments. There is a great danger  that we have not reached the right balance in relation to secondary picketing either, especially in relation to contract workers, consultants or part-time workers.
On Committee Stage we raised extensively the question of contract workers, sometimes called consultants, people who are regarded as part-time workers, many of whom are deployed as a ruse to avoid the provisions of social legislation. This is a case in which the Minister at least can take onto himself the contingent power by way of regulation so that, in given circumstances, he can extend the exemption. I would urge him to accept my amendment.
Mr. B. Ahern: Section 11(3) was included to make it clear that any action taken by the health services to maintain life-preserving services would not be regarded as action taken to frustrate a strike. It is most unlikely that any court would hold that such action was taken for the purposes of frustrating a strike rather than for the purpose of preserving life. That subsection is designed to put the matter beyond doubt. I am sure Deputies would agree that the health services represent a special case and that any doubt in that regard should be removed.
On the Second Stage discussion Deputy Moynihan gave a long explanation of his views on this issue and certainly posed a number of questions resulting from his long experience of what might happen if one extended that exemption. The question of disputes in essential services in general is a much broader issue, one which is not amenable to the making of regulations in the way proposed by Deputy J. Mitchell. To even begin to arrive at any agreed definition of what constitutes an essential service would be a daunting task.
I have consistently taken the view that the best way to cater for the very wide range of issues which arise in the context of disputes in essential services is by means of codes of practice. The drawing up of codes of practice to cover all aspects of such disputes, including the critical issue of adequate levels of emergency  cover, is something to which I intend to ask the proposed new labour relations commission to give priority attention.
The amendments proposed would be strongly opposed by the trade union movement as being counter-productive. What we have done in section 42 (1) under codes of practice is to provide that the commission shall prepare draft codes of practice concerning industrial relations for submission to the Minister either on their own initiative or at the request of the Minister. What would happen, in effect is that if the commission or the Minister of the day required a code of practice on a particular area or on essential services — not all essential services but on any particular one — they could bring forward a code of practice and that would carry weight as part of the Act as it is in section 42 (1), but putting it in legislation would create great difficulties and would be opposed by the trade union movement. Section 42 (1) goes a long way towards what Deputy Mitchell is trying to achieve.
Mr. J. Mitchell: I am surprised the Minister thinks it would be opposed by the trade union movement because any regulation drafted under this could only be introduced after consultation with them. If any opposition arose it would be at the time the regulation was proposed. It seems that the Minister is being overcautious here and he or his successors may eventually regret it. It is not so many years since we had electricity strikes, for instance, and these can impinge on the services of hospitals. I remember the last time we had an electricity strike there were black outs in the middle of operations.
Mr. J. Mitchell: ——to put people in jail. My line consistently has been to try, as far as possible, to take out of the law courts any action in relation to industrial relations, as far as it is constitutionally possible, and I am absolutely opposed to the use of injunctions in the case of picketing for that reason.
That is not what is in question here. There are very few services which can be considered absolutely crucial. Dublin Fire Brigade, for instance, must be as crucial as hospitals in the preservation of life, and yet this section does not cover fire brigades or actions taken by fire brigades as preservers of life. It does not allow the Minister, even in consultation with the trade unions, to extend by regulation the exemptions of this section to other areas. For instance, if there was a strike in the oil companies, would it be breaking the strike to give petrol to fire brigades, ambulances and Garda cars? It seems an absurdity that we are not prepared to take the rare opportunity we have in a period of calm for industrial relations to take even contingent powers — and contingent powers which would be exercised only in consultation with the social partners — to cover other crucial life preserving areas.
I very much regret that the Minister is not prepared to take this amendment on board. This amendment is dealing with crucial and essential services in a very restrictive way. As I said earlier, he may live to regret that he has not accepted this amendment, just as he has not paid enough attention, throughout the debate, to the position of contract workers or those who are employed part-time.
“(5) (a) Notwithstanding the provisions of subsection (1) or (2), it shall be lawful for one or more persons acting on their own behalf or on behalf of a trade union, in contemplation or furtherance of a trade dispute, to attend at a place where an employer who is covered by the terms of an Employment Regulation Order, or a Registered Employment Agreement, normally works or carries on business, if but only if, it is reasonable for those who are so attending to believe that the employer is failing to observe the terms of the Employment Regulation Order or the Registered Employment Agreement and that such failure is affecting the interests of those so attending, or is affecting the interests of other members of the trade union on whose behalf they are so attending, provided that such attendance is merely for the purpose of peacefully obtaining or communicating information or of peacefully persuading any person to work or abstain from working.
Mr. Quinn: In regard to section 11 (5), if the union changed the rules of the union to have a strike support committee of nominated persons, those persons would be entitled to assist on picket duty. In some cases, particularly where there are  registered agreements, there may not be people in the actual employ of a company.The union can change their own rules to provide for individual members appointed by the union from time to time to do picket duty. Would that be in order?
Mr. B. Ahern: It would not be possible to broaden it to that extent but they can broaden their rules to include a strike committee or a group. That would be in conformity. If, however, they tried to include any member of the union that would be seen as trying to get around this section.
Mr. B. Ahern: The principle underlying the picketing arrangements provided for in the Bill is that employees should picket at their own employer's place of business and that a trade union official should be permitted to accompany such picketing. It is not envisaged that picketing should be permitted at the premises of an employer who is not involved in a dispute with his own employees except where secondary picketing is permissible.
The terms of employment regulation orders and registered employment agreements are legally binding and there is an enforcement mechanism available to the general inspectorate of my Department to ensure that these are complied with. I feel this is the proper way to ensure compliance with EROs and REAs rather than through picketing. The system is a statutory system and recently we have extended the number of officials in this area as a result of requests from the trade union movement to ensure that the  EROs are complied with. Using the powers already available to my Department under the Industrial Relations Act is the most satisfactory way of dealing with the problem of non-compliance where it arises.
This is to make clear that the provisions of section 12 apply to any person and not merely an employer because we could have a situation where someone acting in concert with an employer might take an action. This amendment is by way of clarification.
Mr. B. Ahern: The legal advice which I have received is to the effect that the subsection as framed already covers the point addressed by the Deputy. The phrase “shall not be actionable” means that it shall not be actionable by any person and the additional words are not necessary.
An Leas-Cheann Comhairle: The next amendment, No. 17 is in the name of Deputy Rabbitte. Amendments Nos. 18, 20, 21, 22 and 23 are cognate. Therefore, with the agreement of the House, I propose to take these amendments together for discussion purposes. Is that agreed? Agreed.
Nobody in the House is objecting to the inclusion in the rule books of the unions of the requirement for a secret ballot in the case of a strike. The problem is the Minister is making it a prerequisite for any form of industrial action. My belief is that this will turn minor disputes into major ones. It will magnify the extent of an otherwise trivial dispute and will encourage the trade union leadership and officials to turn a blind eye to unofficial actions. Perhaps the Minister was unable to come up with more precise wording than “or other industrial action”. Deputy Mitchell tried to insert “major industrial action”. We are now on Report Stage and we have not improved this provision.
Whereas any kind of minor, localised, trivial dispute, would normally be capable of being resolved after a five minute stoppage by a small number of the workforce, the workers are now seriously being requested to contact the headquarters of their union and set in train the procedures for a secret ballot, but that will not happen because it is not practical. If it happens and the trade union leadership accedes to it, they will feel that as they have gone so far and gone through so many procedures, they might as well have a serious dispute. It is more probable there will be more cases of unofficial action and the trade union leadership will turn a blind eye. They will decide that it is simply not practical to engage the entire workforce in a minor grievance and will encourage a major dispute. That is regrettable. The whole purpose of the trade union movement and of official action is to get some kind of control over the direction of any grievance or dispute. Under this legislation the official trade union movement will be left without control. Control will devolve to the shop floor where unofficial action is invited by this section.
Mr. J. Mitchell: I completely agree with Deputy Rabbitte in this respect.  This is one of the loosest provisions of the Bill and could render it unworkable.It could bring into disrepute the whole balloting requirement. It is not reasonable that trade unions should be asked to have ballots for minor localised disputes. On the other hand, if we delete “or other industrial action”, we are confining the need for ballots to premises where a picket is placed, whereas a sit-in would have as much impact as if the workers were on strike.
I regret very much the Minister did not accept my amendment which proposed to insert “other major industrial action”. In the definition section on Committee Stage we tried to define “other major industrial action”. It was made clear that the legislation does not require a ballot in the case of every localised skirmish, or maybe at 6.30 a.m. when people have sore heads after the weekend. In this case the matter could be sorted out in half an hour with a bit of commonsense or maybe later in the morning when senior management and trade union officials arrive. I urge the Minister not to leave the provision as loose as it is because it could render industrial relations on the shop floor impossible. We have to allow for a certain amount of discretion and tact and depend on the good sense of local managers and shop stewards. They should be allowed a certain flexibility in sorting out disputes. Anybody with shop steward experience will know it is madness to require a ballot for every little skirmish. I plead with the Minister to see the sense in these amendments.
Mr. Quinn: I draw the Minister's attention to certain industrial disputes we have had in this House since Friday, which were not resolved by successive votes. but discussions outside the House resolved them.
Mr. Quinn: I simply want to put on record our inability to provide a definition of industrial action, an adequate legal definition that could be discerned in  law and that would satisfy the Minister's advisers. This is at the root of these series of proposed deletions. I share the concerns of other Deputies in relation to how this might affect the Irish industrial relations scene. The arguments and concerns have been already expressed sufficiently and I will not delay the House by repeating them.
Mr. B. Ahern: I dealt with this issue at very great length on amendment No. 3. Like the Deputies, I will not repeat all the arguments other than to say that the principle which underlies the secret ballot provisions in the Bill is that workers have an entitlement to a democratic say in any decision as to whether they should become involved in a strike or other form of industrial action. I do not think anyone would disagree with that principle or seriously argue that secret ballots should be confined to strikes. Other forms of industrial action can be equally seriously disruptive. At the request of the Deputies in the House, I spent a considerable amount of time in debate with employers, trade unions, legal advisers and draftsmen in the Attorney General's office, endeavouring to find something that would distinguish between major and minor but that has not been possible. If you go one way it may be too loose and if you go the other way it may be too tight. There will have to be an understanding in this regard at Congress level. The intention certainly is not that, when there are little pinches of tails, as Deputy Rabbitte colourfully described it on Second Stage, there would be a ballot. I am sure there will be a workable solution. I certainly intend to do what I can to get an understanding at an early date rather than just leave the matter to be argued out. It has not been possible to come up with a definition other than this one. I set out the reasons earlier today and I will not be repetitive.
This amendment is an important one. Maybe it is the trade unionist in me that finds the phrasing offensive. The Minister has required not just the major trade unionists, for whom this is custom and practice, but every union to enshrine in their rule books the obligation to have a secret ballot. No one is quibbling with that, but he has gone further here and required the union to take all reasonable steps to ensure that everyone who wishes to ballot may do so. He then goes on to say “without interference from, or constraint imposed by, the union or any of its members, officials or employees...”.The Minister has found it necessary to impose restrictions and obligations on the trade union concerned and on its members, employees and officials which I find offensive. There is no corresponding obligation on the employer. The inference is that trade unionists may indeed manipulate or interfere with the conduct of the ballot but employers would never do that.
I would ask the Minister and his advisers to focus on the section as a whole. It requires the trade union to publish as soon as is practicable the number of ballot papers issued, the number of votes cast, the number of votes in favour of the proposal, the number of votes against the proposal and the number of spoilt votes. Can it really be that the professionals advising the Minister are unaware of what goes on on the factory floor in such a situation? It is the employer who will seek to manipulate the outcome, naturally to his own advantage. The requirement to publish the outcome means that the result will be with the employer immediately, before workers have time to leave the factory. If the outcome is close the employer will immediately set about trying to overturn the narrow majority. There will always be a segment of the workforce who will be more open than the rest to arguments  insinuated by the employer to the effect that if they go too far it could have appalling consequences and so on. In other words, the employer will use this information to manipulate the outcome. There is no corresponding restraint imposed on him. It is to be inferred that the trade union side, employees, officials and members, will interfere.
My amendment is eminently reasonable, since it would provide that the union shall take reasonable steps to ensure that every member entitled to vote in the ballot may do so. What could be more straightforward and reasonable than that? The obligation is clearly on the union to take all reasonable steps to provide that facility to its members. If left as it is, it is inevitable — apart from the employer role to which I have referred — that some sore head on the union side will quibble with the outcome. There is always a minority, on either side of the argument. That sore head will advance the argument that somehow his right to vote was interfered with. He will make allegations about pressure put on him and so on, throwing the whole thing open to question and putting additional pressure on the trade union.
I thought the Minister might have accepted this amendment and I still plead with him to do so. I cannot see why this is central to the legislation. Why should doubt be cast on the integrity of the trade union, its members and employees? They should have the full right to canvass in favour of a recommendation, to argue for it and influence the outcome of the ballot. That is the democratic way of doing things and it should not in any way be impaired.
Mr. B. Ahern: There is no difficulty whatsoever. There is nothing to prohibit a trade union official making whatever speech he likes in whatever form. If he wants to put forward his views in an electioneering way he is quite entitled to do so. All we are providing is that the union shall not organise, participate in, sanction or support a strike or other industrial action without a secret ballot. It is also  provided that members should have a reasonable time to ballot and have a say in the matter.
Deputy Mitchell asked earlier in this debate why we do not provide for the right of an employer to take action against decisions and against various clauses in the Bill. I refuse to give that right to the employer.
Section 14(3) provides that the rights conferred by a provision referred to in subsection (2) are conferred on the members of the trade union concerned and on no other person. No outside person can take action against a union in breach of this legislation. This right is conferred only on a member of that union. One has to protect the individual member and ensure that his rights are covered in the trade union rule book. Section 14(2)(f) provides that the trade union shall take reasonable steps to make known to its members the result of the ballot. They do not make it known to the employer.
Mr. B. Ahern: I will not do that. If one knocks one side, one must give credit to the other. Every employer would like to take a crack at the unions for not following the rule books. We are saying that only the membership can take that action. That is fairly restrictive. I do not think many union members will take such action over the next 25 years. If there is a union official who does not believe in following any democratic procedures, it  is proper that a union member should have protection.
Mr. J. Mitchell: It is appropriate that we should be on the section dealing with the whole question of secret balloting, which is central to this Bill, as we reach the end of this debate. I certainly hope that this legislation will stand the test of time and help to bring lasting industrial peace. I hope in its implementation it will be fair to employers and fair to those at work. My suspicion is that we will have to return to this issue in relation to parttime workers, contract workers and consultants.I hope the legislation will be effective. The debate has at least been useful.
Mr. B. Ahern: Since the debate on that series of amendments we have made substantial progress and moved the log jam in the area of conciliation and arbitration and the Rights Commissioner. I believe we will have substantial progress which may resolve the issue in a short time; it arose from the debate on Committee Stage. While I am not accepting the amendment, it is only because I believe a solution is on the way. If not, I will look at it again.
Mr. Rabbitte: All sides of the House welcome that. It is a major breakthrough. If the discussion on Committee Stage has facilitated that development, I think it is an important achievement of this legislation.
I am reluctant to send the Minister to Tralee with this ringing in his ears because nobody was more surprised than the Minister when I revealed on Committee Stage the paternity of this section we have been discussing. I found the precise wording the Minister had advanced in a recent order by the British Government to the Act Norman Tebbit introduced in 1983. I do not think the  Minister's adviser's made him aware of the paternity of that section but I believe conclusively and Lord Wedderburn put it better than I could, and this bears out my argument, when he said the “staggering” partiality of this section.
Mr. B. Ahern: We have had a fairly lengthy debate on Second, Committee and on Report Stages. I wish to put on record my thanks to Deputies Mitchell, Quinn and Rabbitte for their contributions.We have substantially amended a number of sections, in particular the all-out picket section. I thank the Deputies for their co-operation and for the time they have spent in going through the various sections.
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