We stand for legislation on JLCs that will work and not legislation that could ultimately be faulty
Following the the recent court decision in relation to JLCs and EROs, Fianna Fáil brought forward a piece of legislation called the Industrial Relations (Amendment) Bill 2011 which was discussed in the Dáil chamber last night.
It is not unreasonable for Deputy O’Dea to introduce this Bill in order that we can have a debate on the issue. Apart from one or two new proposals in the Bill, it is largely the same as the Industrial Relations (Amendment) Bill 2009, which I supported and spoke in favour of in the Seanad. The Deputy is correct in saying that the 2009 Bill was an attempt to anticipate the likely frailty and ultimate fate of a challenge that was then being brought to the orders and to the JLC system.
While I understand where Deputy O’Dea is coming from as regards the notion of the Government appealing the decision of Mr. Justice Feeney to the Supreme Court as a “tactic”, he will appreciate that such an approach is fraught with danger, particularly for a Government in circumstances in which – according to the Deputy and if I heard him correctly – the prospect of success is “minuscule”. And it would be wrong for the House to have the impression that bringing forth such an appeal would mean the Government would automatically obtain a stay on the existing Employment Regulation Orders. Indeed, obtaining a stay in the context of the High Court decision would be extremely difficult.
It is not unreasonable for the Deputy to introduce the Bill, but the Government is right and the Minister and Taoiseach are correct in the approach they have taken in saying that the Bill is not sufficiently robust. If the legislation is to achieve what people want, a number of matters must be addressed and necessary and vital improvements must be made to make the legislation fit for purpose.
We cannot forget that there were two essential pillars in the Feeney judgment. One was the absence of principles and policies to guide the Labour Court and the JLCs and the other was the issue of whether property rights under the Constitution were offended by the JLC system. As a minimum, a prudent Government and the House would want to proof legislation in the context of the latter issue, given the fact that previous proposals on protective and trade union legislation came up a cropper on this issue. This issue of property rights and their effects presents a considerable problem to those of us who want real reform and full collective bargaining rights for trade unions. It also presents a problem in this instance, in that it would be most imprudent to rush legislation when the High Court has identified that the property rights issue must be addressed. Perhaps it cannot be dealt with in legislation alone. Given the nature of these rights, dealing with them solely in legislation is difficult, but they must be addressed.
The other issue is that referred to by the Minister of State, Deputy Sherlock, and my colleague Deputy Mitchell, namely, the question of principles and policies raised in the judgment. The Minister, Deputy Bruton, has signalled an intention to introduce reforms, the Government has committed to reforming the JLC system and there has been consultation and debate on how that should be achieved and what the changes would be precisely. I expect that agreement can be reached on this agenda, and the principles and policies resulting from the agreement should be incorporated in any new legislation. Those contained in Deputy O’Dea’s Bill come from the 2009 Bill, referring to the “interests” of the workers, employers and so on, are somewhat bland and cover a bit of ground but not all the ground. We should use the legislation to provide for those new principles and policies as well.
I wish to make two crucial comments regarding the Deputy’s introduction of this Bill. While I am not criticising him, I ask him and the House to consider a point. It is not true to claim that, were all Stages of the Bill to be passed tonight, it would immediately bring about a change. As the Deputy must know, if a JLC needs to be set up again, the procedure under the 1946 Act requires an absolute minimum of 30 days. One would need to do the basic of bureaucratic and administrative work first, after which there would then be a 30-day period in which an inquiry into whether a JLC should be set up would have to be held. Having set up the JLC, and upon making an employment regulation order, there would be a further 30-day minimum period. So, an absolute minimum 60-day period would be required the moment this Bill were passed. Meanwhile, we would have our August break until the middle of September, which is a shorter period than 60 days, and the Minister could be working in advance with the Attorney General to introduce legislation that would actually function the way we need it to.
We were taunted somewhat by Deputy O’Dea and his colleague, Deputy Niall Collins, who asked what the Labour Party was doing and what it stood for. We stand for legislation that will work and for not giving the impression to the 200,000 people we are all in the Chamber to defend and support that we can do something by way of legislation that could ultimately be faulty. Let us do it right and stop pretending that this is emergency legislation that could sort everything out in one day if passed. It cannot and will not.
If the Ceann Comhairle will indulge me, I wish to discuss another significant flaw in Deputy O’Dea’s proposals to decriminalise breaches of the orders. He is not wrong in seeking to do that, but he does not replace the provision with a proper civil enforcement mechanism. He stated that an order would be made by the Labour Court. As he is aware, though, an order of the Labour Court stands for very little and is not enforceable in the courts. For 20 years, our employment legislation has allowed people to take their Labour Court orders to the Circuit Court to have them transformed into court orders, which could then be enforced against employers. I will not disrespect the Labour Court by stating that one of its orders is not worth the paper on which it is written. It is important because it is an order, but it is not enforceable. The Bill’s proposal to decriminalise does not replace the current measure with a proper enforcement mechanism. Clearly the Bill must be examined and I support the Minister in what he intends to do.