Amendments Nos. 1, 2, and 3 are related and may be discussed together by agreement.
Packaged Goods (Quantity Control) Bill, 1980: Committee Stage.
Section 1 agreed to.
SECTION 2.
I move amendment No. 1:
In page 2, subsection (1), lines 28 and 29, to delete "an officer of the Minister" and substitute "a person".
Amendment agreed to.
Amendments Nos. 1a, a1b and 1b are related and may be discussed together by agreement.
I move amendment No. 1a.
1a. In page 3 subsection (1), line 3, after "who" to insert "directs and authorises".
I will be opposing amendment No. 1a.
We can discuss the other amendments with it. We must dispose of one at a time.
We discussed this on the Second Reading of the Bill and Deputy Enright raised certain points on the definition of the word "packer". I indicated to him that we would probably bring in some amendments. We each had the same view, that was that the packer, the worker on the floor, was not going to be the person who would be held responsible one way or another. Amendment No. 1a reads:
In page 3, subsection (1), line 3, after "who" to insert "directs and authorises".
That would alter the definition of the word "packer", which is "the person who in the course of business placed in the container included in the package the goods so included". This definition is important because the primary purpose of the Bill is to provide for the duties to be discharged by a packer in regard to the quantity of the contents of the package, the equipment to be used by him in the making up or checking of packages, the records he must keep and the way in which a package must be marked. Heavy penalties are provided for failure to perform these duties. It is intended that the duties should lie in the person or firm responsible for the packaging process rather than in an individual employee of a packaging firm who performed the action of filling goods into a container.
The intention of the proposed amendment to insert "directs and authorises" after "person who" would seem to clarify this concept. The amendment must be considered in connection with amendment No. 1b which proposes a further alteration arising from this amendment in the definition of "packer". If amendments Nos. 1a and 1b were to be accepted the definition of packer would read, " `packer' means, in relation to a package, the person who directs and authorises in the course of business and has placed in the container included in the package the goods so included".
The thinking behind the proposal to insert "and has" before "placed" is difficult to understand. At first glance it would seem to reinforce the idea of physically placing the goods in the container and consequently it would nullify the effects of the insertion of "directs and authorises" as proposed in amendment No. 1a. However, it may be that it is intended to mean "has caused to be placed". If so, it would exclude the owner of a very small packaging plant who both directed and performed the operation. The two amendments Nos. 1a and 1b, therefore, are not acceptable.
Amendment No. a1b is being proposed in the hope that it will eliminate the difficulties seen by the Deputy in the original definition. The amendment reads:
In page 3, subsection (1), line 4, to delete "business" and substitute "carrying on a business placed or caused to be".
The purpose of this amendment is to clarify the definition of "packer" to ensure that the duties to be discharged by a packer shall lie in the person or firm responsible for the packing process rather than in an individual employee of the packaging firm who performs the action of filling the goods into a container. If this amendment is accepted the definition of "packer" will read, "the person who in the course of carrying on a business placed or caused to be placed in the container included in the package the goods so included". This is a reasonable amendment which clarifies the position, and when the Bill is enacted it will indemnify completely the workman on the floor against being held responsible one way or another.
It is rather strange that the Minister has to come in and amend the definition in this fashion. It would seem that initially enough thought had not been given to the definition of the word "packer" in this case. This Minister is interpreting the word "packer" as a person on the factory floor, a servant of the owner, an employee who is carrying out the physical function of packing or causing to be packed through some automatic provision such as a machine or so forth. In the broader sense "packer" would mean a person engaged in the business of packing in a carton, tin or whatever receptacle the goods are being packed into. The Minister's amendment would seem to be tautologous in many respects if you accept that the broader sense of the word "packer" would be this more acceptable sense in the case of this Bill. I do not see that the interpretation of the word taken by the Minister, which is the person on the factory floor, the employee or the servant of the company carrying out the physical job of packing would be the normal interpretation and the Minister's amendment would seem unnecessary. The amendment proposed by Deputy Enright would be much clearer:
In page 3, subsection (1), line 3, after "who" to insert "directs and authorises".
There is no way in which the employer, or the packer as I see it, the person carrying out the business of packing as a business, could not be held responsible if Deputy Enright's amendment, "directs and authorises" is inserted after "who". That puts it beyond yea or nay. With all due respect to the Minister and the draftsmen I think it makes a much more concise effort at defining beyond any doubt the word "packer" than the Minister's amendment. There is nothing in conflict between amendments 1b and 1a, as the Minister has stated. If you read the amended definition "packer" means, in relation to a package, the person who directs and authorises in the course of business and has placed in the container included in the package the goods so included; I see nothing conflicting in having the two amendments made. In fact it is a much tidier effort at defining the word "packer" beyond any doubt provided you accept that packer is the person in the business of packing, not his servants or employees on the workshop or factory floor. In the light of what I have said, I am putting forward Deputy Enright's amendment.
It is not quite unusual for a Minister of any Department to bring in amendments of many kinds to his own Bills. When Deputy Enright and I discussed this matter on Second Stage we agreed that the employee should be protected at all costs and that there should be no doubt about it. The amendment we are introducing places responsibility fairly and squarely on the person carrying on the business. That means definitely that it is the person who is carrying on the business, the proprietor. In Deputy Enright's amendment it states:
"packer" means, in relation to a package, the person who directs and authorises....
You could direct and authorise and still not be the person carrying on the business. You could be an employee at some level directing and authorising somebody to proceed with something while you would still not be the person carrying on a business. We do not want to have any doubt about this once the Bill is passed, if anything goes wrong. If the weights and measures people are involved they will want to know who is carrying on the business and want to go to the person who is carrying on the business and is held responsible. That would be the law and if there was a court case they would want to see that it is the person carrying on the business who would be held responsible.
I am not complaining about the Minister having put down an amendment. I welcome the fact that, after discussion, he has sought to clarify the position. That is a welcome effort on his part to ensure clarification of a definition that might be misinterpreted. I do not agree with the Minister's idea that the amendment from this side of the House—"directs and authorises"— could relate to a person other than the person who has ultimate responsibility for the packaging plant. I appreciate that there are intermediate people who have authority to direct employees but ultimately responsibility for any breach of this Bill when it becomes an Act must rest with the person who owns the premises or carries on the business. The intermediary, the person down the line of authority, will himself be an employee, so by no stretch of imagination could he be held responsible. This Bill purports to make the "packer" in the broader sense responsible. It is the owner of the packing plant who is responsible and not a foreman or assistant in the normal running of the plant. The Minister must admit that in no way could he be held responsible because he himself would be an employee.
Amendment, by leave, withdrawn.
I move amendment No. a1b:
In page 3, subsection (1), line 4, to delete "business" and substitute "carrying on a business placed or caused to be".
Amendment agreed to.
Amendment No. 1b not moved.
Section 2, as amended, agreed to.
SECTION 3.
Amendments Nos. 1c and 1d are related and may be discussed together.
I move amendment No. 1c:
In page 3, subsection (2), lines 38 and 39, to delete paragraph (e).
May I ask the Minister what is the reason for the provision for payment of fees to the Minister? The inspectors who will be carrying out the inspections will be employees of the Department. I am talking about section 3 (2) (e), providing for the payment to the Minister of prescribed fees as regards such inspection, testing and certification, even before there is any hint or suspicion of a breach.
It is bad enough to have to pay in the form of a fine if a person is found in breach of any section but having to pay for the privilege of being inspected, I suggest, is going a little too far. Could the Minister say why this subsection is included? Is it normal practice in such cases?
It is quite normal in regard to weights and measures. I think the Deputy was discussing paragraph (e) which the amendment proposes to delete. That paragraph reads:
provide for the payment to the Minister of prescribed fees as regards such inspection, testing and certification.
The purpose of the paragraph is to enable the Minister to prescribe fees for the inspection, testing and certification of equipment used in making up or checking packages. Most of the equipment which will be so used will already have been certified and stamped under the Weights and Measures Act and it is not proposed to charge a further fee for testing this Bill. Under the power conferred by paragraph (h) of section 3 (2), however, it is proposed to make regulations permitting certain types of equipment to be used in making up and/or checking packages without verification and stamping. In such cases it is considered equitable that a fee similar to that which would be chargeable under the Weights and Measures Acts for verification and stamping should be charged for inspection and verification under this Bill.
The level of fees to be set has not yet been decided. It will be in accordance with section 3 (1), which requires the consent of the Minister for Finance, where it will be comparable with the levels set out in the Weights and Measures (Verification and Stamping Fees) Order, 1978. It will not impose any undue burden on packers as they are already accustomed to the payment of verification and stamping fees. This is all tied up with what is happening under the weights and measures legislation. Therefore the amendment is not acceptable.
I appreciate what the Minister said—that such fees are chargeable at the moment by inspectors for services rendered in the checking of a varying number of items for which we already have regulations. One of the problems with consumer legislation is that unless such legislation is approached very carefully it will add to the price of goods being sold, thereby defeating to some degree the objective it sets itself, which is the protection of consumers. There is little point in providing regulations if they add to the cost of the goods. On the one hand we are providing the consumer with a certain degree of protection, while at the same time we are asking him to pay for it. If this kind of approach were applied across the board by any Government, anything could be implemented as long as the great unwashed pay for it. Therefore, the benefits accruing to the public at large by the implementation of such charges are cut and become less attractive.
The Minister said it has been the tradition that under regulations people are charged a fee for inspections of this type. I appreciate that, but that is no reason why the Minister, who is breaking new ground in introducing this Bill, should not break new ground in this area of inspection and provide it free of charge. We are talking about people who are in the employment of the public service. I do not know what kind of revenue would accrue to the State from charges of this type, but overall I would say it would be minimal. It would be a great gesture to the consumers who appreciate what the Minister was doing if he allowed such inspections to take place without a charge, thereby obviating the necessity for the producers and packers to increase their charges to cover themselves, because ultimately, whatever expense is involved by the packer or producer, that cost will be passed to the person at the end of the queue—the consumer.
That is one of the traps into which consumer legislation falls too easily and regularly. This trap has been fallen into now. The Minister has broken new ground in introducing this Bill as a result of EEC directives; I ask him to go further and provide this service free of charge, to show his goodwill to the consumers, the producers and the packers. Because of competition the person paying this fee must stand the loss. This amendment ought to be looked at very seriously in the light of what I said and, hopefully, it might be accepted by the Minister.
The Deputy referred to the inspection system, testing, certificate of equipment, and so on. He said extra money was being charged and that the consumer would have to pay. This Bill allows packers to pack to average using much more sophisticated, bigger, newer machines which are very time saving. Thus the packers are not at a loss even though they have to pay for the inspection. We all know that for any Bill to be effective there must be an inspectorate, people who will carry out inspections and see that the rules and regulations are adhered to and that the goods are in order. There is nothing unreasonable in this legislation, because once we have an inspectorate somebody has to pay, either the packer or the consumer and, as a rule, the consumer means the taxpayer. Under the new system the packers will save money. As I said, this Bill is being introduced because of EEC directives to allow for high-powered packing systems using newer and more sophisticated machines.
The Minister's argument does not hold water. He mentioned the sophisticated methods of packaging which will mean faster operations, but we are talking about competition. If I, as a packer, avail of sophisticated methods and the Minister, as my competitor, avails of the same method, we are both fishing in the same pool and competing with one another. Therefore, competition will level off any advantage that might accrue from new-fangled up-to-date packaging ideas. That argument does not hold up because if everybody avails of new technology in packaging, the benefit that might accrue to one person using that is gone because of competition; if his neighbour is going to avail of the same thing there is no benefit to anybody, because they are all starting from scratch. My point is that if, at the end of the day, they are going to be charged for inspection and certification and so on, that fee will be passed on to the consumer at the end of the line, thereby increasing the cost of the commodity. That is the main argument which Deputy Enright made in proposing the amendment. The Minister's argument does not stand up to any deep scrutiny.
Deputy O'Toole, like myself, accepts the need for an inspectorate.
I accept that.
Who is going to pay the inspectorate? Will it be the taxpayer who may not be availing of some of the goods packed by these firms at all? My claim is that, with the new methods which this Bill now allows, the packers will be much better off. If the inspectorate are not paid at that level the taxpayer will have to pay since we both accept that there must be an inspectorate to make the Bill effective.
I appreciate that there must be an inspectorate. Of course the taxpayer has to pay the inspectorate who are already employees of the State. The point I make is that while revenue is accruing to the State as a result of charges by the inspectorate it may very well not end up accruing to the consumer. There is no direct link between moneys coming in under such heads to the revenue side and the disposal of same. When that money is being dispensed again there is no guarantee that it will go to the people who are charged extra as a result of the inspection charge simply because it is impossible to direct money like that directly into the channels it came from originally. The Minister knows that. So, while the overall responsibility for payment of the inspectorate rests with the taxpayer because they are public employees, that same taxpayer is being asked to come up again and pay extra as a result of the charge imposed. I doubt very much if the revenue accruing to the State from such charges will go to benefit the consumer in the long run. It may indirectly in some very far out, peripheral way, but as a direct input into assistance for the consumer it may or may not and the latter is more likely than the former.
This amendment is quite important. This matter is new as far as I am aware. I would like the Minister to explain the full position. It is unfair to ask companies to be responsible for the payment of fees imposed by the inspectorate. I would like to qualify that to some extent. This is a new Bill. While there have been occasions where fees have been demanded I feel that it is unfair on this occasion. As far as I am aware the person carrying out inspections under this Bill is the person in charge of weights and measures.
In the past the weights and measures inspectors called around and carried out inspections and, to my knowledge, they never charged fees. That is why I say this is an innovation in regard to weights and measures. Perhaps the Minister would explain whether weights and measures inspectors did in fact charge fees in the past. I did not think they did and therefore it seems unusual that they should be asked to do so now.
As I said earlier, most of the equipment which will be used will already have been verified and stamped under the Weights and Measures Act and it is not proposed to charge a further fee for testing it under this Act. The level of fees to be set has not been decided yet but it will be comparable to the levels set out in the Weights and Measures Verification and Stamping Fees Order, 1978 and will not impose any undue burden on packers as they are already accustomed to the payment of verification and stamping fees.
Can the Minister give some examples of that?
I can give individual cases if the Deputy would like.
I would like to know the type of cases in which fees are charged.
When they verify that machinery is suitable for trade and so on a fee is paid. That goes back to the order of 1978; there is a fee due there and it is the normal practice.
I would like the Minister to consider the matter. He could do so while I am speaking. I would like more details because it is important.
One example is bottling plants. While I accept that there must be an inspectorate we are really discussing a system of payment, whether the packer or the taxpayer pays. The Deputy accepts that there must be an inspectorate to see that the law is fulfilled and that must be done to help the consumer by seeing that goods measure up to quantity. The next question is who is going to pay that inspectorate? It is wrong at this time to ask the taxpayer to bear the cost in full.
I do not think that would be the net position when this goes through. The Minister says it should not be paid by the taxpayer but when it all boils down that cost may be increased down along the line and the consumer will end up paying it. I would ask the Minister if there is sufficient staff at the moment to do this job. As far as I am aware the people in weights and measures used to make regular checks in regard to licensed premises, in regard to the quality of drink being sold. This was standard practice, and a good and wise practice. As far as I am aware, in certain instances a weights and measures inspector has not called for 12 years. This used to be done on a regular basis. Under this Bill the weights and measures inspectors will be asked to do additional work and the Minister will charge a fee for their work.
When this Bill becomes law there will be an inspectorate. That is quite clear. I will not mention numbers. Consumers want to be safeguarded. It is as simple as that. It is then a case of who pays for the inspectorate. We said in the debate on the Second Stage of the Bill that it will help the home packers to compete with foreign packers.
I have proposed that this section be deleted. I want the Minister to consider this point carefully. The packer is asked to pay the prescribed fee for inspection, testing and certification. I understand the Minister is setting up an inspectorate to carry out this work. If the Minister charges for this work, the consumer will have to bear the cost. We will reach a stage where the consumer will be asked to pay whatever small cost may be incurred, and eventually the cost will be expanded. The result will be that the consumer will be asked to pay far more for the items than would otherwise be the case. That is not what the Minister desires. Therefore, it is incumbent on him to ensure that this section is deleted.
The Minister has seen examples where costs of this nature have been levied on companies. They do not suffer a loss. They transfer the cost to the consumer. Therefore, the item purchased will cost far more than would be the case if the costs were met by the Central Exchequer. I know the Minister is flexible. He is trying to present arguments against the amendment. If he examines my argument carefully he will see the logic of what I am saying.
It all boils down to who pays. As I said before, there is no fairy godmother. Somebody has to pay. The cost will not be very significant. I guarantee that the cost of the inspectorate for a whole year will not be significant. It would be much more equitable for the producer to bear the cost than to spread it out over the taxpayers in general. Does Deputy Enright want the taxpayers to meet the cost? That is what the amendment really says. The system we propose is more equitable. The packer should pay. The consumer and the packer will have protection. The packer will be more competitive. The advantage will be with him.
The Minister says the cost will not be significant. Perhaps he could supply figures. I do not want to pin him down on this, but I should like him to tell me what type of figure he has in mind. Are we talking about £100,000, or £250,000, or £500,000? Could we know the cost of administering the scheme and employing the staff? How many staff will be employed? Are we talking about 100 people employed in the administration of the scheme, or ten, or fewer? Will it be necessary to set up a separate Government Department or a special section in a Government Department to administer the scheme? I hope the Minister will look into this matter and come back and provide me with some information on the actual figures he has in mind. Does the Minister envisage a separate inspectorate with a secretariat? If so, I should be obliged if he would let us know—if he would elaborate on that point when we resume the debate.
Progress reported; Committee to sit again.