Wednesday, 19 December 1979
Seanad Eireann Debate
Mr. Cooney: On subsection (1) (a) (ii), clause (II), the effect of this question of the length of notice required to terminate the agreement has been raised by myself and supported by a very experienced trade unionist, Senator Kennedy. He thought that four weeks in the contingency situation that we adverted to was too long. The Minister says that he would rely on the good sense of employers and employees to deal with whatever contingency might arise. He might well be right but equally he might well be wrong in that for some particular reason the good sense needed might be missing and it might not suit one of the parties to agree with the other to terminate the arrangements during the existence  of the contingency. Consequently the party who would have to take unilateral action would be stuck with having to give four weeks' notice. The Minister shares the objective of all of us here that this Bill would come into operation as quickly as possible and that its use be as widespread as possible. To ensure that, we should remove from the Bill any factor which might cause people to have second thoughts or even first thoughts about it. The Minister could look at this question of the length of notice under which a person can unilaterally determine the agreement. Would the Minister have any views on it?
Minister for Labour (Mr. G. Fitzgerald): I appreciate the Senator's concern with this point. But, having discussed it with both sides of industry, realising and appreciating the need for that four weeks, there is the other outlet that would possibly satisfy the Senator if he is still concerned: there is nothing to prevent something being written into the agreement to provide for any contingency. I believe that for the normal operation of these procedures the four weeks is needed; not only is it desirable but it is needed. If it is felt that there is a necessity in any such agreement being drawn up there is no reason why both parties could not write into that agreement some arrangements for contingencies such as have been mentioned by the Senator.
Mr. G. Fitzgerald: The Senator will appreciate that both sides of industry do not like the Minister to encourage them, or to direct them, on what they might do. As I said earlier, I believe that both sides of industry are sufficiently responsible people to be able to control that situation if it arises. I would say, however, that within that agreement there is adequate room, if necessary, for such a contingency  to be written in. I suggest that the Senator might accept that situation.
Mr. Cooney: To get back to the original question of the rights of an individual or an employee to opt out when the agreement was originally entered into on his behalf by a trade union or a staff association, I made the point that his rights as an individual should entitle him to opt out if he, as an individual, wants to, notwithstanding that his colleagues want to continue their payments by cheque. I take the Minister's point that when an agreement is entered into by a trade union it should remain binding on all its members until all its members collectively decide to change it. That is a good argument where conditions of work with regard to pay, or such matters are concerned and in order to have a certain order about proceedings. But in a case like this, where a person's wages are concerned and their method of payment, I suggest to the Minister that that argument does not apply to the problem I am relating. Again, the person in question might be a member of a staff association; it might not be a trade union situation. It could be a staff association. The ease with which a person could opt out of the obligations entered into in that way would be considerably easier than if it was a trade union situation. I would feel very strongly that an individual should be entitled to opt out and have his wages paid to him in cash though his trade union has agreed that all its members would be paid by cheque.
The Minister, in reply to my last point, said the agreement could provide for this. I suggest to him that he might urge on staff associations and trade unions that the agreement should give individual members the right to opt out. There is a certain amount of contradiction, when we are urging the universal application of this Bill, to make provision for somebody to opt out. Nevertheless, there  could be situations, for compelling personal reasons, where an individual might seriously want to opt out. I think his freedom as a person demands that he should have that right.
Mr. G. Fitzgerald: I am sorry but I cannot accept the Senator's line of argument at all. I believe that this Bill in its entirety, and section 3 specifically, are very flexible. In other words, we have a document where the individual has complete freedom to opt out if he so wishes. We have the agreement which is an employer-trade union agreement. I do not think it would be in the good interests of work place practice. If that is a democratic decision taken by that specific trade union negotiating on behalf of that group of workers to agree to a particular method of payment, I do not think it is desirable that an individual member may have the freedom to opt out of that agreement. Also he has the opportunity—if for any reason he is ill or not at his place of work—of waiving that freedom, because circumstances may change. It would be highly undesirable that I should facilitate such opting out. I feel it could only cause problems rather than help the situation.
Of course there is the other aspect of it as well, that if an employer, his organisation and a trade union have agreed on a particular method of payment then that method should be the one accepted until such time as there is a new agreement made or there is a change in the circumstances for all. I do not believe that giving that option to the individual in the trade union situation and in the agreement situation as distinct from the document would in any way help but that it would damage the situation rather than improve it.
This Bill is very flexible. It is an encouraging and enabling piece of legislation that has been discussed in great detail with both sides of industry and accepted by them. An amendment of the kind proposed would certainly not help in any way but could be source of irritation and possibly of disruption in a work place and we have enough disruption already on that front.
Mr. Cooney: This gets back to one of the malaises of modern society. The individual does not count any longer. The trade unions have to be listened to and the employers' association have to be listened to. To justify his stance here, the Minister puts forward a very rigid doctrinaire sort of argument, an argument that nearly made in terrorem of trade union power. The Minister says it would cause problems if we were to gring in what I am suggesting. What problem would it cause if there was provision in an agreement to enable an individual have his weekly money paid to him by way of cash even though his colleagues want to be paid by cheque? The basis of this whole idea is that it is voluntary, that there is no legal compulsion on people to accept payment by cheque but here we have a provision that in effect is going to make it compulsory on someone to accept payments by cheque even though he may not want to, even though it might seriously inconvenience him or seriously prejudice him. The Minister is disregarding the individual for the sake of a pointless conformity in this area.
Mr. Harte: I am not taking either side on this point but the banks have got to send their officials in to sell the idea to any trade union or organised body. The bank officials will be messed around until such time as the workers get what they want out of the transaction. In the democratic process when you argue along these lines, when you have got all the conditions you want, it then goes to a vote of whether the majority agree or disagree. If there is disagreement, the acceptance of being paid by cheque is not on. There are situations where the employer has agreed to pay all the cash payments for the cheque transactions during a period of four or five years. By and large, agreement is never reached in matters of this kind before there is a good deal of argument, usually extending over a six-month period. I used recommend to the people I represented that they be awkward until such time as they got what they wanted but when people get what they wanted and when  they have gone through the democratic process of a vote there is an obligation on them as well as a right and they are bound by the majority decision the same as they are bound in a normal trade union transaction agreed between the employer and trade union through the negotiating machinery. We as a trade union people have the means at our disposal for dealing with this situation.
Mr. G. Fitzgerald: There are two other points I would make to the Senator. This section was discussed in more detail with both sides of industry than was any other section in the Bill. The document and the agreement were discussed in very close and very great detail and I am satisfied that the suggestion as made by Senator Cooney would not be helpful. Senator Cooney said that I was adopting a doctrinaire line. That is not true. The point I was going to make to him, and which has been made already by Senator Harte, was that I was supporting the democratic decision of a group of people.
But the Senator must also appreciate the employers' situation in a scene like that—that if what he is proposing were freely available it could mean, to carry it to its logical conclusion, that the employer might have to contend with a number of different methods of payment in respect of different groups of people. Consequently, I do not see any merit in the argument put forward particularly in view of the fact that on the document side there is freedom and that on the group side or on the trade union agreement side the same freedom does not exist but for very understandable reasons. One has to reach a decision, taken by a majority of members, as to whether payment by cheque is acceptable until such time as that agreement expires I would ask Senator Cooney not to press his point of view on this.
Mr. Jago: Senator Cooney's suggestion would be creating a very dangerous precedent because all matters relating to working conditions are negotiated between the employers and the unions. If we bring in this exception in this case we  will create a precedent whereby in any working condition one employee could stand out against what is agreed, in which case there would be chaos.
Mr. Cooney: I take that point that in most trade union situations an agreement is entered into and that if there is to be order it has to be binding on everybody, but we can differentiate between the subject matter of the agreement. The argument put forward by Senator Jago is valid where the subject of the agreement is the rates of wages, or the division of work, or the hours of work, and where, therefore, what is agreed for all will be binding on all equally because if an individual were to be allowed opt out of that situation obviously you would have a chaotic situation very quickly. There would have to be uniformity there, but we can differentiate that situation from the one proposed in the Bill.
What I am seeking is to allow a person to opt out and effect nobody but himself. If he decides to take his wages by cash instead of by cheque he is not upsetting the whole modus operandi in the factory. Lines of production are not going to be interfered with. He may cause certain administrative difficulty to his employer in so far as he will have to be paid in cash and the others paid by cheque. I do not think that is a high price to pay for allowing him have this freedom. I do not think it is a good argument to say that it would be inconvenient for the employer, that if we let this exception come in, substantial numbers might seek payment one way and substantial numbers payment another way, because it is envisaged in the Bill that where agreement is made on an individual basis each individual will make his own arrangement. In a factory of 500 employees where the arrangements are done on an individual basis and not through the trade unions there could be any number of arrangements. I am seriously outnumbered but I still have to make the point in favour of the individual in this humble situation.
Mr. G. Fitzgerald: One brief point. This might be part only of a wider agreement between the trade union and the employers' organisation, and I do not think it would be desirable that he would opt out of the agreement. Productivity or something else could be another part of it but——
Mr. Cooney: I find the wording of section 4 a little odd. Subsection (2) states that “where an employee to whom this section applies is required to work....” I take it that the employee to whom this section applies is the person working away from his normal place, away on leave or absent on illness. The way this section is worded one would think it was somebody else. Subject to subsection (2) of this section, “where an employee to whom this section applies is required to work at a place other than his usual place of employment...” such and such a thing happens. It seems a circular definition.
Mr. G. Fitzgerald: The Senator will appreciate that some sections in the Bill apply to all employees; some apply to those covered by the Truck Acts. This  section applies to those covered by the Truck Acts only. I am not quite clear what the Senator's difficulty is. He was asking about an employee who is required to work at a place other than his usual place of employment.
This Act, other than sections 5 and 8 (4) applies only to employees as regards the payment of whose wages the provisions of the Act of 1831, or the provisions of that Act as extended by section 10 of the Act of 1887, or the provisions of the Act of 1874, apply.
Mr. G. Fitzgerald: The anomaly was created for those people covered under the Truck Acts by the introduction of the 1927 Currency Act. In other words, there were some workers for whom this problem did not exist. These workers, referred to in section 4, are those caught by the anomaly created by the 1927 Act or the workers covered by the Truck Acts.
Mr. Cooney: This is a question of confidentiality. While I indicated on the Second Stage that I was in total agreement with what the Minister is trying to do here, I suppose all he can do in the legislation is express a pious hope. There is hardly a way in which he can impose a sanction that will ensure confidentality?
Mr. G. Fitzgerald: I am sure the Senator appreciates that one cannot go further than is gone in the Bill in that respect. I agree entirely with him when he says it is most important to consider the confidentiality aspect, we have to rely on trust in so many cases.
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