Unfair Dismissals (Amendment) Bill, 1993 [Seanad]: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

Mr. Gallagher

(Laoighis-Offaly): At the conclusion of the debate yesterday I referred to the implementation of this legislation once it has completed its passage through this House and is signed into law. I asked the Minister to embark on a publicity campaign to inform employers and employees of its contents. That is a difficulty. Booklets and other documents are produced by the Department but it is often difficult for people living in rural areas to obtain this information.

The Minister should consider setting up local or regional centres, to deal with the publication and dissemination of information regarding labour law and provide easy access for people to the industrial inspectorate. The industrial inspectorate has been decimated as a result of cutbacks in the public service in recent years. In my constituency an inspector originally covered two areas but that was later changed to four counties. At one stage an inspector was expected to cover six counties and that is unacceptable. No secretarial or clerical backup services were available at local level and much of the correspondence had initially to be written by hand and sent to Dublin for typing to be issued to local areas. The Minister should investigate to see if the network of FÁS offices dotted throughout the country and accessible to people, could be used not only to help people seeking employment and training but to provide this type of information. People should be able to obtain advice and have their problems dealt with at local level.

Regarding the implementation of the provisions of the Bill, I would refer the Minister to the difficulty experienced by many people in obtaining payment of awards. This can take a long time. The people involved must contact the Department and staff there must follow up those who are responsible for making the payments. This arises in cases where companies have ceased trading or where individuals have disappeared leaving debts and obligations which have not been fulfilled behind them. It can be difficult for successful applicants to obtain the money due to them. The provision of a localised service through FÁS offices would enable people to follow up awards due. The staffing of the Department in that area would have to be supplemented.

I have dealt with the Department on a number of occasions and found them extremely helpful. The Minister shortly after her appointment assisted in sorting out a long running problem. People should be able to follow up on awards and claim their entitlements without having to go through a long process of contacting public representatives which involves letters going back and forth. Where awards are made recipients should be immediately able to follow up on them.

I welcome this legislation which is an example of the Government's commitment to improve equality in our society and eliminate disadvantages. I welcome particularly the extension of the categories of unfair dismissal which are automatically deemed to be unfair, namely race, colour, sexual orientation, age and membership of the travelling community. The Minister should take on board my concerns regarding the implementation and follow-up procedures in respect of this legislation. Information regarding protection and services provided under this legislation should be available at local level to allow people prompt access to it.

Mr. Callely

I welcome the Bill which updates the 1977 Act. That Act, which proved beneficial, put in place a structure under which claims of unfair dismissal could be investigated by a Rights Commissioner or by the appeals tribunal. It provides redress for unfair dismissals by way of reinstatement or compensation. Prior to the 1977 Act, there was little protection by way of redress for employees who were wrongfully dismissed. A lengthy expensive and slow process was involved for an employee who wished to seek redress. Since the passing of the 1977 Act we have had a speedy and fair means of access for resolving unfair dismissals disputes. That has greatly reduced the incidence of industrial disputes related to such dismissals.

A number of shortcomings have been identified in the 1977 Act and the Bill proposes to deal with them. I welcome the scope it provides, particularly in relation to fixed term and specified purpose contracts and in relation to matters of race, religion, sex orientation, union, non-union employees, monetary compensation, enforcement of awards and procedural issues.

In circumstances where companies have ceased to trade but are not in liquidation, employees who have been successful in obtaining awards in respect of unfair dismissal may not apply to the compensation fund. This matter has been brought to the attention of the Department of Enterprise and Employment on a number of occasions. Will the Minister clarify how it is intended to deal with these procedures?

The three avenues open for redress in an unfair dismissals case are compensation, re-instatement or re-engagement. The Minister in her Second Stage speech supplied various statistics in relation to cases before the Rights Commissioner and the Employment Appeals Tribunal. These indicated that the preferred option for employees was monetary compensation. The reason I am requesting special monitoring of the new sections, in particular section 7, is that I recognise that an unfair dismissal — and I emphasise an unfair dismissal — is a traumatic and stressful event in a person's life. Apart from the obvious effect it may have on living standards — and many of my colleagues have referred to this — there is also the effect of the loss of wages on a person's social circumstances.

In regard to the area of employment an unfair dismissal can result in an uphill battle by the employee to get back into the labour force. I do not know how the Minister intends to address this matter or whether it can be addressed but it must be examined in a fair and reasonable way. A person who has been unfairly dismissed may have given long service to a company and may have certain commitments if they are married with children in education and a mortgage. Is monetary compensation the fairest way to recompense a person who may find themselves in those circumstances?

Monetary compensation is addressed in section 6 of the Bill before us. If one takes, for example, a person in the 40 to 55 age group who has had a long service with a particular company, who has certain commitments and who may try to enter the workforce at that age, with almost 300,000 people unemployed that person may have grave difficulties reentering the labour market. In saying that the figures given to us by the Minister indicate that monetary compensation is the preferred option, I ask for special monitoring of the options available as outlined in this Bill. Relevant statistics should also be retained so that there can be proper evaluation in due course of unfair dismissal cases that may come before the tribunal.

I note that section 7 requires that clarification be given on the option that is chosen by an employee. This section is welcome but I ask the Minister not to allow a standard line to be used under the heading of "reinstatement" which may read: "We recognise the relationship between the employee and the employer has deteriorated and it is not wise to reinstate". I do not want to put the Minister on the spot or ask her to respond to a very difficult situation but she is very pragmatic in the manner in which she addresses issues. I would like the Minister to monitor this section of the Bill which provides that clarification be given as to why monetary compensation is the preferred option. I ask the Minister how she intends to address the issue if that line remains in the Bill in relation to reinstatement.

It is important for the State to encourage fairness and justice in the area of employment and there is nothing more fair than reinstatement when an unfair dismissal occurs. That is why I believe it is important to closely monitor this matter. At the same time I recognise the importance of an employer's right to dismiss an employee once it is carried out fairly and reasonably. Many commentators say that labour legislation of this nature hinders employment. That is not quite correct. Legislation such as this can be beneficial for both the employer and the employee. I am concerned that many employers feel that labour legislation hinders their ability — to use an old phrase — to hire and fire employees. I have experience of both sides of the coin on this matter and I recognise that labour legislation, and in particular the legislation that is before the House, is of benefit not alone to the employee but equally to the employer. It affords an opportunity to both sides to understand clearly the guidelines, regulations and the legislation that is in place in relation to employment. As the previous speaker indicated, it is important that all employers are fully aware of the regulations contained in the Bill before the House. It clearly puts in place a structure and a set of guidelines and I believe the right balance has been struck in relation to unfair dismissals.

I recognise, along with the Minister and many others on this side of the House, the right of an employer to operate their business in an efficient, businesslike manner. Most employers recognise the contribution of employees and it is their desire to act fairly in rewarding them for their work. If they decide to dispense with the services of an employee it is recognised they would do so in a proper and fair manner. This Bill deals with very technical aspects of amendments to the 1977 Act and it is timely that after 16 years of an Act that has proved to be successful we have come to recognise certain shortcomings in that legislation which have caused this Bill to be brought before the House. I congratulate the Minister for doing so and I commend the Bill to the House.

Mr. D. Wallace

Unfair dismissal at any time is a traumatic experience for the individual, their families and their employers. Therefore, I welcome this new Unfair Dismissals Bill as it makes necessary and pertinent amendments to the 1977 Act. While that Act has stood the test of time changing circumstances in relation to employment have meant that certain amendments and additions have become necessary. Legislation is at its most effective when it makes changing circumstances into account. This principle holds true for this Bill, which is an extremely effective response to changing circumstances.

The 1977 Act was solid legislation which had three main objectives. First, it provided that dismissals should be deemed to be unfair unless there were substantial grounds to justify them. Second, it provided through the Employment Appeals Tribunal and the Rights Commissioner, a speedy, informal and non-legislative mechanism to appeal against decisions of employers. Third, it provided redress for unfair dismissal in the form of reinstatement, re-engagement or compensation for financial loss.

In its time the 1977 Act was a legislative landmark, ground-breaking legislation which made great strides for workers' rights. It remedied the position of employees in which instant dismissal without reason was common and could only be challenged by trade union action. It has been acknowledged that the legislation has had many beneficial effects for mangement. It contributed to improved personal practices and to a more stable industrial relations climate. Statistics show that since its enactment the 1977 Act has been instrumental in reducing the number of strikes and stoppages relating to dismissals.

Social policy legislation must maintain a fine balance between safeguarding employees' rights and ensuring that entrepreneurships and employment creation are not stifled. However, it seems employment creation is not hindered by unfair dismissals legislation. An ESRI study in 1986 found that practically none of the firms surveyed saw the legislation as a problem and only a small minority cited it as having caused problems in the previous year. All legislation should be enterprise friendly and should take into account in its formulation the impact on enterprise growth. I have no doubt the Minister is fully aware of the needs of enterprise and will be sensitive to them. I compliment her on some of the provisions in this Bill.

This Bill does not propose a fundamental change to the broad intent of the 1977 Act. Its original aims still hold true. The main focus of the Bill is the introduction of desirable technical changes and improvements in arrangements for administration of the legislation. The Bill contains several new provisions, one of which relates to persons employed through employment agencies. This is a particularly important measure given the increasing role of employment agencies in organising employment. The Bill allows for protection in the case of the termination of certain second or subsequent fixed term and fixed purpose contracts. This is a significant measure. There has been considerable growth in recent times in the variety and amount of contract work in the jobs market, and it would be a major oversight if unfair dismissals legislation did not address this major change.

The Bill introduces a new basic award of up to four weeks' pay where the dismissal of an employee is found to have been unfair but where no financial loss has been incurred. This is a positive step and I welcome its inclusion in the legislation. Unfair dismissals procedures must work efficiently and smoothly. In this regard I welcome the significant improvements in claims and appeals procedures which will streamline and update the working of the Employment Appeals Tribunal. I welcome the extension of the Bill to prohibit dismissal on the ground of sexual orientation of the employee, age of the employee and the employee's membership of the travelling community. I pay tribute to the Minister for her foresight in these areas. The nature and structure of our workforce is changing. There is a growth in cotract work, job sharing, part-time work and other typical work forms and I welcome this Bill as an effective and timely response to this change.

I would like to bring to the Minister's attention the case of a person who was dismissed last September. He appealed to the appeals officer who upheld his appeal. The company appealed the decision to the tribunal but the case, which was heard recently in Cork, was not completed and was deferred to next September. It is unfair that this individual has to go to the end of the queue, particularly as he was originally found by the the appeals officer to be unfairly dismissed. I know there is a financial aspect in terms of the tribunal travelling around the country, but this person is under severe pressure. As I said in my opening remarks, people who are dismissed — their families and everybody involved — suffer great trauma. I hope the Minister will provide the additional resources necessary in this area. Again I compliment her on her foresight in many areas of the legislation which goes a long way towards solving the problems that have emerged since the enactment of the 1977 Act.

Mr. Flood

I warmly congratulate the Minister on bringing forward this enlightened legislation, building as it does on the very fine record built up since the 1977 Act. In her contribution to the debate here and in the Seanad the Minister pointed to improvements resulting from the operation of that Act. She said that the number of disputes arising from unfair dismissals fell from approximately 20 per cent to 10 per cent, and in some cases even lower. That is an indication of the Act's success.

The 1977 Act deals with the powers and functions of the Rights Commissioner and the Employment Appeals Tribunal.

In general employees who have had occasion to use the services of these offices have been satisfied that their case has been adequately heard and that decisions have been fairly made. The 1977 Act has had a positive effect on industrial relations and has led to a considerable decrease in the number of disputes arising from unfair dismissals.

Before the enactment of the 1977 Act it was very difficult for employees to seek redress for unfair dismissals. Their only recourse was to the courts, which was an expensive and intimidating procedure for people who already suffered trauma as a result of what they perceived to be an unfair dismissal. The court setting was probably not the best in which to resolve personal disputes and the introduction of the less authoritarian setting of the tribunal and the Rights Commissioner was welcome.

The Minister, while recognising the positive aspects of the 1977 legislation, is updating it bearing in mind experience gained in the operation of that Act. The fact that this Bill has arrived so soon after the Government taking up office is an indication of its commitment to improving labour legislation. Labour legislation will always need to be changed bearing in mind changes in work practices, management practices and in the trade unions. This will not be the end of the matter. In due course we will continue to update labour legislation.

The Bill covers a number of important issues, for instance the extension of the Act to include persons employed through employment agencies. I am glad the Minister has decided to tackle this issue. Many people were concerned at the emerging trend with regard to agencies and at the fact that abuses were creeping into the operation of this type of employment.

Another issue tackled in the Bill which was giving rise to concern related to replacing jobs with short term contracts. That is an unhealthy practice which I would not like to see becoming the norm in employment here. Fixed contracts do not really allow employees to plan for the future. One needs to be certain of one's employment. Any legislation which seeks to roll back that trend in favour of employees is welcome.

I would draw the Minister's attention to section 5 particularly with regard to extending the scope of the principal Act to cover unfair dismissal arising from sexual orientation, age and membership of the travelling community. The Minister might well reconsider section 5 because it frequently occurs that at the interview stage a prospective employee is ruled out because of sexual orientation, age or membership of the travelling community. I appreciate that the Minister will have to take this issue up with her colleagues in Government, particularly the Minister for Equality and Law Reform, Deputy Taylor. We must address the case of a person who feels he has been discriminated against at interview stage. The current legislation is not nearly strong enough to deal with the issue at that point.

Mrs. O'Rourke

It only refers to dismissals. The Deputy is quite right.

Mr. Flood

I appreciate that, but because of her interest in fairness I would ask the Minister and her colleagues in Government to consider the point I am making with a view to ensuring that there is no unfair discrimination at interview stage. That issue impinges on this legislation.

This legislation is very important in that it meets the objectives set down in the Programme for Government and is an indication of the Minister's intention to proceed as quickly as possible to implement all the positive aspects of this Bill which has developed from the 1977 Act. The Bill will make a major contribution to continued good management/employee relationships in industry. It is a pity that in the past some employers felt they had the right to summarily dismiss employees on the flimsiest of grounds. This led to a great deal of frustration, friction and industrial disputes. This legislation will further strengthen the relationship between the employee and the employer.

I would like the Minister to further consider the procedures leading to dismissal. Employers must be far more mindful of their responsibilities when they are proceeding towards dismissing an employee. Dismissals do not always take place because of blatant dishonesty or inability to cope with the work. Dismissals take place, for instance, because of the level of performance of an individual. In that area there are very vague conditions in relation to what might be regarded as a fair dismissal as opposed to an unfair dismissal. In the sales area an employee may be dismissed for not achieving a sales target. An employer might be tempted to increase weekly or monthly sales targets to such an extent that it becomes impossible for the employee to reach the target and then the employer will dismiss him because he is not performing at the level required by the company. That is a very grey area involving many problems and conflict. An employee who is dismissed for not reaching a sales target will find it extremely difficult to get work with another company even if the target which he could not achieve was beyond the bounds of possibility to achieve.

This is a small country and if a person is working in a small industry, he is known and therefore it becomes impossible for him to make a living having been dismissed in such circumstances. That is an issue that needs to be teased out and strengthened from the point of view of the employee. But it must be made clear to employer, and employee, the rights they have and the procedures to be adopted leading to dismissal; it should not be acceptable any longer for an individual employee to be dismissed at will, perhaps for the flimsiest of reasons.

These are examples of how I believe labour legislation will continue to expand and strengthen the hand of both employers and employees in this overall area. It is very important that the relevant procedures be clearly laid down for dealing with any disputes that may arise in the workplace rather than beyond the gates. Indeed the successful implementation of the provisions of the 1977 Act have been a major contribution in this respect.

Of course, the overall question of decisions of a Rights Commissioner and-or of the Employment Appeals Tribunal is one about which there is much doubt in so far as employees are concerned in relation to awards being paid, etc. I can understand the difficulties that may arise here because, if and when a company will have gone out of business, obviously it will become increasingly difficult to implement decisions and so on. That is understandable but is something that will have to be addressed, in terms of a special fund or whatever, to deal with the settlement of such claims. I am talking about employers making a contribution over the years to develop or strengthen such a fund.

The other issue that arises is whenever an employee has been found to have been unfairly dismissed and when reinstatement or re-engagement is recommended. There is room, in such circumstances, for the Employment Appeals Tribunal in particular to perhaps extend their remit, endeavouring to use their integrity and-or that of the Rights Commissioner to smooth the way back for an employee unfairly dismissed, so adjudged by the Employment Appeals Tribunal or a Rights Commissioner. If a wrong has been done essentially it is much better that it be righted properly and fully, particularly in these days of great difficulty in the overall employment area when the loss of a job means the loss of a major asset. One has great sympathy with redundancies but, whenever a person loses his or her job unfairly, and it has been decided by a third party to have been an unfair dismissal, every possible effort should be made to have such person reinstated or re-employed by the company concerned. Of course, I understand that, in those circumstances, difficulties will arise with regard to relationships and so on. But if employers and employees alike are to perceive the operations and-or decisions of the Employment Appeals Tribunal and a Rights Commissioner as being of full integrity then, in all fairness, they should be prepared to accept their findings even if they give rise to the suggestion that an employee should be reinstated. That is a difficult task to achieve. But we must remember that we have had here from time to time trade union disputes, when individual workers have been locked out. Ultimately, good sense must prevail, people must return to work, management must endeavour to co-operate with employees, they must work with their employees, and employees with management, even though such disputes may have been protracted, bitter and so on. There is no reason such opportunity should not be afforded such an employee, on having found himself or herself unfairly dismissed, that is the right to return to work, thereafter co-operating with their superiors, management and so on, and vice versa.

There is plenty of scope for us to continue to develop the type of labour legislation with which we are dealing today. I shall conclude by congratulating the Minister, as I did at the outset. I look forward to the speedy passage of this Bill through both Houses so that its provisions will be available to employees and employers in order to further expand the good labour legislation obtaining. I warmly congratulate the Minister on the speed with which she has introduced this Bill within the lifetime of this Government.

Mr. N. Ahern

The 1977 Act was very forward-thinking and its provisions valuable. It is only right and proper that nobody should be dismissed from employment at the whim of an employer. At the same time, employers have rights also so that, whenever an employee has committed serious misbehaviour, an employer should be able to cease to employ them.

I do not know what was said in the course of the debate yesterday, what were the views expressed by the hard right from the opposite benches. I do not know what was their attitude to the provisions of this Bill. I exclude Deputy Flaherty from those comments. Very often business groups complain about labour legislation on the grounds that it ties their hands excessively, rendering it almost impossible for them to recruit or get rid of employees. I totally reject that type of thinking. It appears to me that, no matter what legislation is implemented, some employers at least always will find a way around or through its provisions. Undoubtedly, the Minister and her Department have endeavoured to close some of the loopholes that have appeared. I very much doubt they will manage to close them all in that it is something akin to floodwaters, when on filling one gap, another will open up elsewhere. Some people are expert in finding ways around the provisions of such legislation.

When one examines what has happened since 1977, one finds that the provisions of the Act implemented that year have proved to be very valuable, not merely in protecting employees' rights but in the industrial relations area generally. For example, strikes that took place in the past, that might have involved one person only being sacked, often leading to a plant being closed down for days or weeks on end, in large measure, have beem reduced if not eliminated as a result of the provisions of the 1977 Act. However, they have not been totally abolished; too many still occur. The Minister gave some figures yesterday showing that, since employers' objective is to retain and keep people happy in the workplace, while they may complain about the labour legislation obtaining, will admit that its provisions have been very valuable to them. The statistics available of the numbers of disputes arising out of unfair dismissals show that the incidence has declined enormously, which is to the benefit of employers, employees and the nation.

Of course, some employers would like us to remain in the dark ages, would like employees to appear each morning on a type of hire and fire contract. But we must realise that ours is now a modern, industrial economy and employees must be treated in a civilised manner, it being one of the marks of a civilised society. We cannot revert to the system of 70 or 80 years ago. Employees are entitled to security of employment, which protection they should be afforded.

Some of the Minister's proposals under the provisions of the Bill, extending their remit to people employed in employment agencies and contract workers, is something that has developed in recent years. People who work in employment agencies appear to live in a type of limboland. I know of one woman who has been working for six or seven years with an established company, through an agency, yet she appears to have no rights whatsoever in relation to unfair dismissal. This lady got married two to three years ago and she cannot get a mortgage because the building societies do not consider that she is in secure employment. If she gets pregnant she will not be entitled to maternity leave. As I said, she is in limbo. In this way employers have managed to knock holes in the existing legislation. The provisions in the Bill which will plug those loopholes will have my total support.

It has been said that up to 1977 an employee had some protection. However, it costs a fortune to secure one's rights. It is all very well saying, as in many other respects, that one can look to the law of the land, particularly where one has the support of a huge lobby group, but it is not practical for the ordinary person to seek redress under it. We cannot do without the law but the legal eagles' advice is expensive and I always think they tell people what they want to hear.

In regard to the tribunal, if a person is a member of a trade union the representative of the trade union will support him but many people, who are not members of a trade union also avail of the tribunal. While I accept they can bring someone with them, such as a rights commissioner, people who work in small companies and are not members of a trade union may come up against the might of an employer. I think I am right in saying that in such cases the Department may provide financial assistance. Some people when met by solicitors and barristers representing the other side get tongue-tied even when they have a strong case. However, they may not make it very well when subjected to cross-examination. While the system is meant to be informal it may be more formal than people would like.

While I accept that one cannot cover every matter in legislation — I do not think the changes proposed will alter the position — employers have the right to dismiss employees on the grounds of redundancy, where the company finds itself in financial trouble, restructuring or reorganising. In many cases this is a genuine reason but in many others it is not. Words such as "rationalisation", "restructuring" and "reorganisation" can cover a multitude. I have come across cases where everything was done under the heading "restructuring". Nobody is ever sacked; because everything is done under the heading "restructuring" anything goes. In many cases their target is an individual or a number of individuals; yet they remain within the law because it is done under this heading. The law in this area is loose and I would like to see it tightened.

Under the original legislation part-time workers, in the main women, did not have protection but the position has improved in recent years with the introduction of legislation in this regard with the result that this is no longer a burning issue. Up to a few years ago it was a major problem and it seemed that the law did not cover such workers.

In relation to the provision whereby a person has to be in employment for one year before being considered permanent, one has to be reasonable but this provision has been abused; people have been let go after one year and then taken on again after a few weeks. While everybody cannot be considered to be permanent on the day they take up a job employers argue that the period should be greater than one year while the trade unions argue it should be far less. It would be difficult to have a hard and fast rule but I would like to think that, over time, it will be reduced.

Under existing legislation it seems that very few people manage to get their jobs back. Monetary compensation is not the answer. Even though the figure of £15,000 was mentioned, in most cases it seems to fall between £1,500 and £2,000. In this regard it should be remembered that a person may travel to pay a barrister a few hundred pounds. While I will not say that this amounts to a token gesture it seems that people achieve a moral victory and not much else. I know a person who achieved a moral victory recently when offered £1,500 but legal expenses amounted to half this figure. As part of the deal a reference was offered which was conspicuous for what it did not record. Even though people win they end up losing. I wonder if an award of £1,000 to £2,000 and a reference from which certain words about one's character are left out amounts to a victory.

In some cases employers are doing too well; they achieve industrial peace while the issue involved is put on the long finger. While it may not be feasible to get one's job back, particularly in small outfits where one deals with the owner on a daily basis, in bigger companies where one is removed from management this should be possible. Overall, I am disappointed at the size of awards granted; it does not represent fair compensation.

The statistics on the number of cases dealt with at the tribunal show that people believe in it and that it is a valuable system. However, I would like to see larger sums awarded and more people getting their jobs back. The amendments to the existing legislation are valuable and I hope they will block the loopholes. I congratulate the Minister for bringing this legislation forward and I hope the position will be greatly improved.

Mr. Rabbitte

I have just come from the special committee dealing with the Finance Bill and I have only had a quick glance through the Bill. However, I promise the Minister of State that, on Committee Stage, I will be more familiar with it.

Mrs. O'Rourke

I have no doubt about that.

Mr. Rabbitte

I am entering that caveat before I begin.

This Bill is welcome. The period from 1977 is a long time in the history of industrial relations. A great deal of water has gone under the bridge in terms of our experience and practice of industrial relations since then. This is reforming legislation in so far as it goes and for the reason it is to be welcomed. However, it seems to me to be minimalist in conforming to the commitments given in the Programme for Economic and Social Progress and not going beyond that. While it is certainly an improvement and a modernisation of the principal Act I regret that its scope is not wider, as a number of matters needs to be dealt with.

If my memory serves me, we have enacted 23 different labour laws since 1973. That is a minefield for the ordinary practitioner of industrial relations and I urge the Minister to consider a consolidation Act to remove some of the complexities and make it simpler. I understand from my collegue, Deputy Gilmore, that the Minister's response to a similar argument put by him earlier is that she does not want the law to become the preserve of the legal profession. I have great sympathy with that point of view and indeed I argued that point at the time of the 1977 Act. From my experience as a trade union official it has become the preserve of lawyers, whether we like it or not. My only regret is that I did not get paid the fee per case that the lawyers commanded in certain areas. The law relating to labour is scattered over a wide area. It is not confined to the 23 Acts introduced since 1973 but encompasses a growing body of statutory instruments and EC legislation. There is a need to take congnisance of constitutional law as it refers to the area of dismissals. During what appears to be the Minister's second reign in Government before she undoubtedly regains her status as a full Cabinet Minister, which I believe she will, will she start codifying the legislation? The ILO committee of experts has examined this issue and under the slogan "codify, clarify and simplify" they have addressed these very issues. If the Minister is disposed to keeping a rein on the legal profession's involvement, a necessary prerequisite is to codify, clarify and simplify the legislation.

The reforms introduced by the Minister are welcomed in their own right. Allowing fixed term contracts to come under the terms of this Bill is very important because trade union officials can recount cases of employers seeking to circumvent the terms of the Act by the manner in which they deliberately construct fixed term contracts. Even State agencies have done this. I remember the row we had with the health boards over a number of years where they employed people for 11 months, let them go for a period of three weeks and then re-employed them for another 11 months and so on. As a result they were denied redress under the existing Acts. It is a welcome development that fixed term contracts have the protection of this legislation.

The establishment of a minimum award of four weeks pay is another welcome development. I heard Deputy Noel Ahern say that when cases go before the Employment Appeals Tribunal very few get their jobs back and he was disappointed at the way in which the Tribunal discharges its responsibility. I share that view. Statistics have been compiled which show that the percentage of people awarded monetary compensation is in the high seventies. We need to carry out a great deal more analysis and reform in this area. The setting of a minimum threshold is important but it does not deal with the disposition on the part of the Employment Appeals Tribunal to award monetary compensation. I do not know why it has gone so far in this direction. If the Employment Appeals Tribunal does not reform itself, we should in legislation direct it to do so. The Minister will be familiar with the work of Ferdinand Von Pronzdinsky of Trinity College who has written on the question of industrial relations generally and on this area in particular. He recommends that we should enshrine in legislation a hierarchy of remedies, reinstatement, re-engagement and compensation. We will have to enshrine this in legislation because the Employment Appeals Tribunal for some reasons tends to award compensation even where a person is successful.

Mrs. O'Rourke

Many claimants, especially when they were employed in small concerns, do not want to go back to work in the same place.

Mr. Rabbitte

That is true in some cases but the Employment Appeals Tribunal seems to apply a rule of thumb that there is an irretrievable breakdown of relations, as if it were a domestic situation which the Minister for Equality and Law Reform, Deputy Mervyn Taylor, is at this moment poring over and struggling to incorporate in marital legislation. The Employment Appeals Tribunal is carrying the concept of irretrievable breakdown to its reductio ad absurdum because it seems to work on the presumption that the person does not want reinstatement. I continue to handle cases for constituents and others, without the remuneration that my legal colleagues apparently collect for doing so, and my experience is that the remedy is compensation. A case may be presented at the Employment Appeals Tribunal that makes it appear there is irretrievable breakdown and terribly bad relations between the management and workers, but in reality it may not be like that. Presumably that is the experience of anybody who goes into court. Once a case reaches court hearing relations degenerate somewhat. This can be seen in the case of the dismissal of an executive or senior person where a conflict of policy arises, a conflict I experienced myself in the not too distant past when, living between myself and the person responsible for my dismissal, was something that our worst enemies would not confer on either of us.

In a situation where a senior executive or a manager is dismissed, on a matter of policy or whatever, one can see how it could be against the interests of the company or the general workforce in the company that they ought to be forced to cohabit and that reinstatement would be recommended in those circumstances. Generally speaking, for the ordinary worker to say that reinstatement is not a feasible remedy is entirely wrong in my experience. Any analysis — I am sure the Minister has it at her finger tips — of the appeals tribunal cases will show that Deputy Noel Ahern is correct in saying that the number of reinstatements is very low even where the complainant is successful. We then come to the quantum of compensation, and frequently that is poor compensation for losing one's employment and one's livelihood.

I welcome the improvements introduced by the Minister. From a cursory glance at the Bill I think the Minister has abolished the practice whereby the tribunal took into account whatever social welfare one received in the interim and so on. It is important that the employment appeals tribunal would remain in touch with the real world. I would like to see the barristers and the lawyers kept out of it altogether because they do not add any flavour of reality. The more unreal it becomes the more lawyers flock around the tribunal and they all begin to have illusions of the nature of the real world that operates on the factory floor. I do not know how we can keep them out. We have seen this practice in Northern Ireland where the system of arbitration has virtually become the preserve of the legal profession. If they do not reform themselves legislation will be required to direct them and I hope that will come about.

I acknowledge that the reforms the Minister has introduced indicate a knowledge of the practitioner's experience of the 1977 Act as it operates. However, it does not pay sufficient attention to the dramatic changes that have taken place in the labour market since 1977. The year 1977 is an eon away, notwithstanding some of the remarks one may hear in the context of the present bus dispute. Trade union practices, industrial relation standards, procedures and experiences have changed so dramatically since 1977 that I do not think the Bill takes sufficient account of that. I accept that the Minister has made some concession to that end in terms of the decision she has made in respect of the use of agency workers. That is very important. It is a welcome reform that responsibility is now put on the third party in that situation. As I understand it — if I understand it correctly — the agency can place a clerk typist — if there is such a person nowadays — or a word processor operator with a company and that company is deemed to be the employer for the purposes of the Act. That is welcome and is a step forward.

The entire traditional structure of the workforce as we know it, has changed and disintegrated. From the point of view of the traditional trade unionist, it has changed in a way that is neither helpful, progressive nor welcome but it has happened. The proliferation of part-time workers, agency workers, contract workers and that entire range creates a whole new vulnerable underclass of employee. The Employment Appeals Tribunal is illustrative of the machinery that was created as between the employers' federation and the trade union congress on the other side. In other words it is predominently a mechanism for the world of trade union labour. Unfortunately, from my point of view but, perhaps, fortunate from the point of view of some other people in the House, trade unions for whatever reason are increasingly unable to cope with these new developments with the result that a great many of these new workers are not organised into trade unions. Some are at the top end of the market and as such have adopted the individualistic psychology of the era but a great many are part-time, unofficial, contract, agency workers who are exceptionally vulnerable to exploitation, and, frankly, the trade unions have not organised them. This raises the whole question of who represents them at the tribunal. They will not be represented by trade unions since they are not members of trade unions. To require a solicitor or a barrister to appear is prohibitive. In that situation we will have to examine the possibility of some access to free legal aid.

Mrs. O'Rourke

If we do that we are going into the very area which the Deputy sought not to enter by bringing in legalism to an ever greater extent.

Mr. Rabbitte

I accept that but as I said earlier the lawyers are in there already.

Mrs. O'Rourke

Should we not try to get them out?

Mr. Rabbitte

Unless there is some specific provision in the Act I do not know whether we can do that.

Mrs. O'Rourke

We cannot as it stands.

Mr. Rabbitte

If Deputy Kemmy and myself are ever in a situation where we are not Members of this House we could well set up our own contract agency where we could represent people and do the job for them at keener rates than they would get from lawyers. A number of Deputies do that in a voluntary capacity for particular constituents or whatever.

Mrs. O'Rourke

I know that.

Mr. Rabbitte

Generally speaking they do not have that access, they do not know how to get in to the system and when they get in they do not know how to do the job and are brow beaten by some barrister who spent a great deal of time making speeches in the literary and historical society on how to brow beat unfortunates who did not get a third level education.

An Leas-Cheann Comhairle

The Deputy has two minutes remaining.

Mr. Rabbitte

I did not realise there were time limits.

An Leas-Cheann Comhairle

I beg your pardon. The Deputy has exceeded his time by three minutes. I would appreciate if the Deputy would bring his contribution to a conclusion.

Mrs. O'Rourke

The Deputy was speaking about free legal aid.

Mr. Rabbitte

Obviously we will come back to that at another stage. I should like to mention just one other point in terms of these new workers. The exclusion of people employed on the basis of a contract for services is another area of widespread abuse. In Tallaght in my constituency a computer company shut down last December with the loss of 30 jobs. I have discussed this matter with the Minister for Enterprise and Employment, Deputy Quinn, and with several officials in the Department.

The employer concerned started up again a couple of weeks ago using the same name. The case went to the Employment Appeals Tribunal but now the 30 women have been re-engaged on a specific contract which states that it is a contract for service. They have been asked either to sign it or forego the offer of the job. That puts them outside the scope of the bulk of labour legislation, including this Act. This is one area that we must look at because it is another area of abuse and exploitation.

I meant to refer to the Irish Congress of Trade Unions' document which I, like other Deputies, have had submitted to me. I apologise to my colleagues in Congress for not having got around to it but I will refer to it on Committee Stage because there are a number of points in it that I want to take up.

Éamon Ó Cuív

Ba mhaith liom mo chuid ama a roinnt leis an Teachta Killeen.

Failtím roimh an mBille seo inniu. Cuireann sé díomá orm, áfach, nach bhfuil díospóireacht níos bríomhaire againn agus níos mó cainteoirí ná mar atá ag tairiscint chun labhairt ar an ábhar seo.

Tá sé an-thábhachtach go mbeadh cosaint chuí ag oibrithe. Mar dhuine a bhí ina fhostóir ar feadh beagnach 20 bliain nífhaca mé ariamh cosaint an oibrí mar bhac ar fhostóir maith. Má bhí cosaint réasúnta sa dlí chuidigh sé sin leis an bhfostóir agus leis an bhfostaí. Fáiltím roimh aon soláthar a choscann ar dhaoine dul taobh amuigh den dlí nó fáil timpeall air; tá a fhios agam nach dteastaíonn ó bhunáite na bhfostóirí a leithéid sin a dhéanamh.

Go minic bíonn de locht ar Éireannaigh leisce a bheith orainn oibriú de réir phlean nó de réir nósanna imeachta maithe. Arís, fuair mé amach ó thaobh na n-oibrithe de agus mar fhostóir go raibh toradh níos fearr ann nuair ab eol do gach duine cearta an oibrí agus cearta an fhostóra.

Bíonn níos mó ceangail idir oibrithe agus fostóirí i gcomhlachtaí beaga ná i gcomhlachtaí móra. Ba é mo thaithí an corruair arbh éigean dom gníomhnú in aghaidh fostaí ná go raibh tacaíocht na foirne agam go ginearálta má bhí an ceart agam. Tá sé de thuairim ag an bpobal, scaití, nach mbíonn an ceart ariamh ag an bhfostóir ach níorbh amhlaidh mo thaithí.

There is a myth that workplaces are like a battlefield with employers on one side and employees on the other. Most workplaces, particularly small workplaces, do not work like that. In most workplaces there is an excellent relationship between the employer and the employee. If an employee is not doing his or her work properly there is normally general support among the workers for appropriate action to be taken for the protection of their own employment.

What we are talking about here is unfair dismissals. Every employer and employee recognises that in the event of a downturn of work it is within the remit of an employer to let people go. I found very useful the little booklets giving a layman's interpretation of the labour Acts covering unfair dismissals, redundancy, holidays, etc. that are available to employers and employees alike. Too often ordinary people do not have access to information about their rights and the protections afforded in the legislation. It is important to ensure as wide a distribution as possible of these leaflets so that employers and employees will know their basic rights.

I am very concerned about the small number of employers in certain industries who work to get around labour law. I was pleased when steps were taken the year before last to protect part-time workers in certain circumstances where, for example, they were employed for under 24 hours a week for the sole purpose of excluding them from rights in relation to holidays, etc. I welcome the fact that two other loopholes are being closed in regard to agency workers and renewable fixed contracts. These loopholes, which are being used only by a small number of employers, are being closed to level the playing pitch for all workers.

I am somewhat concerned about the drop in the number of PAYE workers working in the building industry. More and more primary contractors are looking for people with C.2s because this relieves employers of many of the responsibilities applying to employment. This is not a good development because it also deprives people of rights under the social insurance code. I would therefore ask the Minister to look at that aspect to ensure that employers do not have the advantage of not having to comply with the stringent regulations relating to social insurance, etc, by employing a person in one way rather than another.

Bhí an-spéis agam sa mhéid a dúirt an Teachta Rabbitte i ngeall ar chomhdhlúthú a dhéanamh ar an Acht agus thiocfainn leis go m'fhéidir go bhfuil cás ann dó agus go gcuideodh sé leo siúd atá fostaithe. Caithfimid féachaint chuige freisin nach dtagann lucht dlí isteach sa chás seo an iomarca. Ba é mo thaithí nuair a bhí mé im' fhostóir agus im' fhostaí ag an am gcéanna go raibh tuiscint anmhaith ag lucht na gceardchumann ar an rud ab fhearr do na hoibrithe ar fad agus don oibrí aonaránach leis, sa chomhlacht ina raibh mé ag obair. I gcás an Rights Commissioner agus nuair a déantar achomharc ansin, b'fhearr liom ionadaíocht a fheiceáil ann ó na ceardchumainn ar lámh amháin agus ionadaíocht ó leithéidí IBEC ar an lámh eile. Ba mhaith an rud é dá mbeadh daoine fostaithe ag na ceardchumainn agus ag IBEC a dhéanfadh speisialtóireacht sa ghnó seo. Bheadh teagmháil leanúnach acu lena chéile a thabharfadh feidhm leanúnach chothrom don dlí agus a leagfadh béim ar chothromas agus ar cheart seachas ar phonití beaga dlí.

Ag deireadh an lae, is é an cothromas is tábhachtaí. Táimid ag iarraidh an ceart a chosaint agus ba mhaith liom go mbeadh an dlí bunaithe ar bhunchearta daoine, bíodh siad ina n-oibrithe nó ina bhfostóirí. B'fhearr liom go bhfeidhmeodh an tribunal ar an mbonn sin seachas ar bhonn na bpointí beaga dleathacha lenar féidir éalú ón chothromas. Is dóigh liom go mbeadh bunáite na bhfostóirí i bhfábhar sin mar go bhfeicfidís gurb shin atá ag teastáil.

Ní dóigh liom go bhfuil bunús ar bith le ráitisí ó fhostóirí agus ó dhaoine eile a deir go ngníomhaíonn reachtaíocht mar seo in aghaidh na fostaíochta. Tá sé cruthaithe ó tugadh an Príomh Acht isteach i 1977, go bhfuil laghdú mór ar stailceanna bunaithe ar aighneas idir fhostoirí agus fhostaithe mar go dtuigeann na ceardchumainn agus na hoibrithe go bhfuil córas ceart achomhairc ann má mheasann siad gur deineadh eagóir ar oibrí. Sa mhéid go bhfuil structúr éifeachtach simplí ann le gur féidir cásanna a thabhairt chun tosaigh go sciobtha is ea is móa fheicfear nach gá dul chun stailce chun aighneas mar seo a réiteach. Ní mór go mbeadh meas ag fostóirí agus ag oibrithe ar an gcóras achomhairc.

It is vital that we have good labour law which will not deter people from employing others. We should have an equitable system to balance the right of the employees against those of the employer and the rights of an employer against those of an employee who may or may not be acting in a proper manner. Such a system would, in the long term, be in the interests of employers and employees. If employers and employees trust the system the number of disputes will be radically reduced. The cost of employing people will be reduced rather than increased by proper employment legislation. I support the tightening up of this legislation to close the loopholes that unscrupulous people might exploit and, on the other hand, ensure that where an employee acts in an improper manner that an employer has the right to dismiss that person, not alone to protect his position, but that of other employees in the company. They also have to be protected from the actions of the few who might not act in a proper manner.

Deputy Rabbitte referred to compensation versus reinstatement. From my experience most employers are very slow to dismiss a person, they have good relationships with their workers and that has generally been the case in the past 25 years. The idea of two groups of people at loggerheads has no bearing on the reality in most workplaces. In most cases before a dismissal there will have been a serious breakdown of relationships and employers will genuinely believe they have no option but to dismiss the person involved. I am not undermining the position of employees which must be upheld in law but that might be one of the reasons there are so few reinstatements. Most employers accept that dismissing an employee is the ultimate sanction and that of all the matters with which an employer must deal it is the most distasteful. In my experience that has been the case. However, in some cases, in the interest of the workforce, employers have no choice but to dismiss employees. However, most employers have no objection to monetary compensation in the case of a dismissal, but this is where we should strike a balance. Unfortunately, dismissal from the workforce is a fact of life, but the facts regarding reinstatement probably bear out that in most cases employers do not take such a decision lightly. On the other hand, nobody likes to see an employee dismissed without some monetary compensation. Generally speaking, the ratios are 80: 20, 70: 30 or 60: 40. Where an unfair dismissal is proven the ratio is the other way around and, obviously, the person is reinstated. In very few cases the ratio is 100: 0. Monetary compensation allows for a case where it is fair to dismiss a person under the terms of this Act, but where there are mitigating circumstances. In such cases employees do not begrudge monetary compensation.

Dá bhrí sin, ba mhaith liom an reachtaíocht seo a mholadh don Teach. Beidh breis cosanta ag oibrithe ann, rud a chuirim fíorchaoin fáilte roimhe. Caithfimid na hoibritheoirí a chosaint ó fhostóirí a dhéanfadh iarracht duine a bhriseadh go héagórach nó gan údar ceart as a bpost, mar is é an rud is luachmhaire atá ag éinne, go mór mhór sa lá atá inniu ann, ná a slí maireachtála.

Mr. Kemmy

I welcome the opportunity of contributing to this debate. I would like to give some of the background to the development of labour law here. In the past decade or so many changes and improvements in our labour law have resulted from the European Community framework on labour legislation. That is not said often enough here. I pay tribute to the influence of the European Community's labour law on our law, it have benefited Irish workers. The erstwhile Leader of the Labour Party, Michael O'Leary, is not too popular in Labour circles but I have no hesitation in saying that when he was Minister for Labour he introduced worthwhile legislation. Workers owe him a great deal and I pay tribute to him.

Mr. Creed

He got sense at last.

Mr. Kemmy

I disagree with Deputy Creed, but I will not go down that road. I will keep on the straight and narrow of labour law rather than dwell on labour history.

We need to bring our labour law more into line with labour law in Europe. It would be a good day for us if the Social Charter was implemented right across the Twelve members states. I was unhappy with the prevarication and delays of Mrs. Thatcher and her Government in trying to delay and frustrate the implementation of the Social Charter in those states. As far as I am concerned, the sooner that charter is implemented the better for this country.

I welcome the Bill and its improved provisions. I also welcome the fact that we are spending time debating labour law in this House. As Deputy Ó Cuív stated, we do not spend enough time considering the implications of labour law on the workforce and industry generally. Today is a good opportunity for people such as myself to air our views on this matter. As Deputy Rabbitte stated, I have taken more cases to the Employment Appeals Tribunal than any other person on the grounds of redundancy minimum notice, maternity and unfair dismissal. Since the initiation of the tribunal I have had wide experience in labour law, not alone in Limerick but in all areas of the country. Every society needs a civilised and compassionate code of labour law although not something that will mollycoddle employees. There should be a framework within which workers are guaranteed their rights will be protected in law.

I agree with Deputy Rabbitte's views in regard to barristers and solicitors invading the work of the tribunal. The tribunal, which was set up by one of the Minister's predecessors, was not meant to be a nest egg for barristers or solicitors. On the contrary, it was meant as a forum for employers and workers in which they could take their cases in an atmosphere that would not overawe either party. Sometimes the entire panoply of a courthouse — the wigs, gowns and the archaic languages and practices — overawe ordinary people who go before the courts. The Employment Appeals Tribunal was established as a forum where those type of archaic practices, dress or language would not prevail, where ordinary people, employers and employees, could go before it, state their case and get justice. I have seen many solicitors and barristers appear before the tribunal, some of them tout for work and give the impression that workers and employers cannot go before the tribunal without being represented by a solicitor or a barrister. That is wrong. There is no reason community groups, trade union officers and officials, residents' groups and other community information groups cannot represent workers or employers before the tribunal.

Deputy Ó Cuív made a good suggestion in relation to books published by the Minister's Department in this area. I would ask the Minister to go further and publish a booklet which would advise people about the procedures of crossexamination and the presentation of a case to the tribunal. Anybody can learn how to present a case to the tribunal. One would not want to be Einstein to go before the Employment Appeals Tribunal. Unfortunately the trend is developing, the legal representations are made on behalf of applicants. A small booklet published by the Department advising people how to conduct a case when cross-examined would be of great help to those who may bring cases before the tribunal and it would not involve a great deal of cost.

There are some changes introduced in the Bill which I welcome but there are some areas which the Bill does not address. It is impossible to enforce an award made by the Employment Appeals Tribunal in cases where an employer goes out of business but does not go into liquidation. I am aware of a number of such cases in recent years. There is no redress for employees in cases where nonnational employers leave the jurisdiction. There was one such celebrated case of a French employer, Killine Eyewear Ltd., in Killaloe, County Clare. The employer had obtained substantial grants from the Shannon Development Company. I do not know the amount involved but it was a substantial grant of Irish taxpayers money. An award was made by the tribunal in relation to three or four workers but it was impossible to enforce payment of those awards. The employer was proud of the fact that he was fluent in English. At the tribunal hearing his English was very laboured; he pretended, he did not understand the proceedings and sought the services of a translator. He was shamming and understood better than anybody what was happening. He was able to play this game and cause frustration to members of the tribunal. When the tribunal did not accept his act and his claim that he did not understand the proceedings, they made an award against him, but he left the country taking with him public money. Unscrupulous employers can exploit workers and this loophole must be addressed. In the case to which I referred much correspondence was involved in writing back and forth between the tribunal and the employer and at the end of the day there was no redress for the workers concerned.

Other aspects of the legislation must also be considered. It is implicit in the legislation that a worker must be in employment for one year before he or she can bring a case for unfair dismissal against an employer. Sometimes unscrupulous employers exploit that one year time limit by employing the person for 11 months and then letting the worker go. In those circumstances that worker has no redress to the Employment Appeals Tribunal but may invoke the services of a rights commission. I have secured ex gratia settlements in cases where workers have been wrongly treated. This is an area that should be examined by the Minister. Such cases have promoted closer links between the Employment Appeals Tribunal and Rights Commissioners. I have advocated the use of the services of Rights Commissioners and their services should be used more widely in the future.

I welcome the inclusion of part-time workers in this legislation. For a long time such workers were in limbo, excluded from their rights under the provisions of many of the Acts from which I quoted. It is good that they have been brought in from the cold. For too long part-time workers were the pariahs and Cinderellas of the labour force and that was not good enough. They make a useful contribution to our economy and society and this should be recognised by provisions in labour legislation. I welcome their inclusion in this Bill.

There are other abuses in relation to short term contracts. At one time such contracts were unknown in the Irish labour market. People were employed on a 40 hour week. In recent years, particularly in the last decade, more private firms and public bodies, for example, corporations, county councils and health boards, are offering short term contracts, as short as three months. Those contracts are put in place deliberately to avoid the provisions in this legislation. Many employers break an employee's service for one day to avoid the implications of the Act. I do not believe this area is provided for under the provisions of this Bill; it provides for part-term workers. Short-term contracts should not be invoked by employers to avoid the provisions in this Bill. That should be outlawed. Too many employers are breaking workers' service. It is unfair and deprives the worker of his or her rights under legislation dealing with unfair dismissals, minimum notice, maternity benefits and so on.

Deputy Ó Cuív referred to other practices engaged in by employers in the building industry. He referred to C2 and other certificates used by workers and employers. Such certificates are forced on workers who normally work on a PAYE basis. Most building workers in the past worked on an hourly basis. However, there has been a change in that practice in the last two decades. Most building workers whether permanent or temporary, now work on a bonus system. I do not see anything wrong with that. The work people do must be measured. It is easy to measure the daily output of a bricklayer. It is possible to count the number of concrete blocks he lays. Similarly the work of plasterers, carpenters and plumbers can be measured. Work in the building industry, not only in Ireland but in Britain and Europe, is remunerated on a bonus basis. I know from experience that building workers in Ireland are as productive as those in other parts of the world. In the last decade more C2 certificates and other certificates have been used in relation to employment. C2 certificates are used to employ people on a sub-contract basis. The national industrial agreement for the building industry stipulates that sub-contractors must fulfil certain criteria. It states that a sub-contractor must have a permanent base for his operations and must supply materials, equipment, machinery and so on. C2 certificates have been issued, perhaps not like confetti, but very liberally and widely across the board. This has led to evasion of taxes and the breaking up of many building industry agreements. Many people using C2 certificates are not genuine sub-contractors within any lawful meaning of the word.

Those certificates have been used, with other tax certificates, to avoid the PAYE payments in industry and reduce employers' obligations in that area in regard to a meal allowance, tool allowance, travelling time, holiday payments, the guaranteed week and many other agreements that are frustrated by the use of these certificates. The onus is placed totally on the worker to look after his interests in this area but if the worker loses employment and has not had his contributions paid by his employer he does not qualify for unemployment benefit or unemployment assistance. He is required to go to the health board and go through a long convoluted process in order to get assistance. Another aspect of this is that the worker has no insurance and if he has an accident on a site he is liable for the cost of his hospital care, convalescence and so on. There are no obligations on his employer in this regard. That should be addressed by the Minister.

These Acts do not apply to workers, mainly building workers, who invoke the C2 system, and other forms of subrogation, to avoid paying the same amount of tax as their fellow workers. This should be examined by the Minister and the Revenue Commissioners. I have nothing against productivity arrangements or building workers in general trying to earn as much as they can. I am not against an employer using the skills and talents of their workers. However, grave abuses are taking place in this area and safety precautions are not adhered to on occasions when people are trying to make money. It is very hard to place apprentices in that situation because contractors have no great interest in taking on apprentices and teaching them the skills of the trade. This is unfortunate as we all suffer because of that. It is important that we end these malpractices and abuses because it is an area which the Bill does not address. It needs to be examined in the future and I hope we will have an opportunity to return to that aspect of labour law later.

In general, I welcome the Bill. It is enlightened legislation which improves the protection of workers provisions contained in other Acts. It also helps to bring us into line with European law which is favourable from our point of view. We cannot remain isolationist and we must not allow sectional interests to control this area. It would be wrong of us to think that we had some form of dispensation from labour law that is now universally enshrined in legislation throughout Europe. I hope this Bill will go some way towards redressing some of the abuses and malpractices I have outlined. I wish to share my remaining time with my colleague, Deputy Broughan.

Acting Chairman (Mr. Leonard)

There are three minutes remaining.

Mr. Kemmy

Three minutes will not be sufficient for Deputy Broughan. Perhaps he may have an opportunity to contribute later.

Acting Chairman

A number of speakers have indicated their wish to contribute to the debate.

Mr. Kemmy

It would be unfair to afford only three minutes to the Deputy. I was unaware my contribution had taken up so much time.

Acting Chairman

Unfortunately, there is only one minute of time remaining.

Mr. Kemmy

The Deputy will contribute at a later stage.

Mr. Killeen

Ba mhaith liom mo chuid ama a roinnt leis an Teachta Foley.

Aontaim leis na Teachtaí eile a d'fháiltigh roimh an mBille seo agus tréasláim leis an Aire Stáit as ucht é a thabhairt os comhair Thithe an Oireachtais. Is léir go bhfuil feabhas mór tagtha ar chúrsaí fostaíochta ó 1977 i leith, go háirithe mar a bhaineann leis an ngaol idir fostaí agus fostóir. Déanfaidh an Bill seo leasú breise ar an dlí ar mhaithe le cách.

It is clear that the Unfair Dismissals Act, 1977 was a milestone in industrial relations and provided for an impartial investigation either by a Rights Commissioner or by the Employment Appeals Tribunal. If an employee was successful in an unfair dismissal case against an employer that person was entitled either to reinstatement, re-engagement or compensation. The 1977 Act worked extremely well and the tribunal was extremely busy. In 1991 the tribunal dealt with 872 cases and from 1984 to 1991 a total of 7,751 cases were referred which would appear to be a big number. I notice that amendments before the House suggest an extension from six to seven weeks of the time for giving notice of a case being taken. I understand that is because of the huge amount of administration involved in dealing with cases coming before that tribunal. The Minister should consider dealing with that matter not just by an extension of the time limit but by providing extra staff. This is a most important service and one which has improved industrial relations here. It provides a release valve which prevents more precipitive action, has improved personnel practices and reduced the number of strikes and stopages. The 1986 ESRI report indicated that few employers considered the 1977 Act as posing problems for them.

It is inevitable that since the passing of the 1977 Act minor and some major shortcomings would be highlighted and some are addressed in the Bill. It is significant that the commitment in that issue in the Programme for a Partnership Government is being implemented so quickly. I commend the Minister of State for her alacrity in this matter. This action augurs well for the success of the Government.

The 1977 Act draws a distinction between dismissal and unfair dismissal. This distinction has been explored by a number of speakers and is in no way affected by the Bill. Indeed, the Bill can in no way be interpreted as giving a carte blanche for irresponsible employee behaviour.

I welcome in particular the provision covering people employed through employment agencies. The terms of employment of these people who have been in somewhat of a limbo situation up to now, are now covered more adequately than before. It is important to bear in mind that other legislation has been effective in this area. I would cite in particular, the Payment of Wages Act, 1991, and the Worker Protection (Regular Part-time Employees) Act, 1991. Until Deputy Rabbitte mentioned it I was not aware that 23 legislative measures have been passed since 1973 dealing with this matter which is an indication of how complicated it is. It is a favourable reflection on the development of our society that this Bill provides for an extension of the number of grounds for unfair dismissal to include age, sexual orientation and membership of the travelling community. The Oireachtas must be seen to take a lead in these matters and to resist those who engage in discrimination on any grounds and avoid the inevitable slippery slope which pandering to such elements would inevitably lead us.

A perceived weakness in the 1977 Act, which has been referred to by speakers, is that in practice some employers ignore the findings of the tribunal and force an employee to seek redress in the courts. In some instances this was too expensive a route for the employee to follow and the case remained dormant with no subsequent action against the employer. I would welcome a stronger requirement on the employer to act on the findings of the Rights Commissioner or the Employment Appeals Tribunal or the provision of a strong financial disincentive for ignoring such findings. I am not sure that the section 7 amendment to section 8 (4) of the principal Act adequately addresses this matter, particularly in relation to the timescale involved. I am aware it is addressed also in section 11 but I would welcome the Minister's further clarification on this.

I would welcome also a provision that the Minister would automatically take the appeal to the Circuit Court rather than as appears in the Bill, if I understand it correctly, that the case be taken either by the employee or the Minister. I would welcome also clarification on the time limit involved. This would be particularly important in cases where an employer is likely to go out of business in the short term with the result that by the time the case is taken the employee has no redress.

I welcome the basic financial award of four weeks' pay, a provision which will strengthen the hand of the employee. We need to remain vigilant in ensuring that employers do not have the opportunity to use devices to circumvent legislation. We should be prepared to introduce further amendments as required or perhaps a composite Bill covering all elements of employment legislation. I very much welcome this Bill and commend the Minister on its introduction.

Mr. Foley

I thank my colleague, Deputy Killeen, for sharing his time with me. I welcome this opportunity to make a brief contribution on the Unfair Dismissals (Amendment) Bill, 1993. A model society with continued change and increasing complexity, as a result of which there is need for continuous development and updating law. People frequently express impatience with the process of updating legislation. In certain instances constructive criticism is justified. Today we are considering a range of amendments to the Act which has made an excellent contribution to natural justice since 1977. Proper planning at the time resulted in legislation which has stood the test of time.

The amendments we are now considering are concerned mainly with extending and clarifying the scope of the 1977 Act rather than changing it in a fundamental manner. It is vital that even the most effective legislation is subject to regular scrutiny and review. The key phrase in the current Bill is the need to maintain a balance between the rights of the employee and the rights of the employer. High levels of unemployment place an extra burden on employees because they may feel that the employer will avail of any excuse for dismissal to employ somebody else on a lower salary. Similarly, in the knowledge that employees are readily available the employer may be tempted to be overdemanding on the employee. The trend towards an increase in the number of non-union employments further increases the problems experienced by a large number of employees.

On the other hand the employer must make every effort to survive in a tough and competitive business world. There is little room for complacency on the part of the employer. Customers and financial institutions allow little or no room for excuses. If a business is not run efficiently or if it fails to show profit it is unlikely to survive for very long. Consequently, the employer constantly needs the full support and co-operation of the staff.

I congratulate the Minister, Deputy O'Rourke, on her initiative in this area. I welcome the principle of the Bill. It is essential that legislation on unfair dismissals be updated and brought into line with changing circumstances. This legislation arises from shortcomings in the 1977 Act and the necessity to amend it. It is hard to consolidate complex legislation and it is very easy to lose sight of the major issues that need to be tackled. There has been much dissatisfaction with the operation of the Unfair Dismissals Act, and any legislation which will eliminate its shortcomings is most welcome.

The Unfair Dismissals Act, 1977, provided legal protection for workers and dismissal could take place only where substantial grounds justified it and when the action by the employer was taken according to procedure. That Act provided for a system of investigation by Rights Commissioners and the Employment Appeals Tribunal of claims for unfair dismissal. This was a positive and progressive measure. Where an individual was found to be unfairly dismissed the Act provided for redress by reinstatement or compensation for financial loss. Since 1977 a comprehensive and well tried code of practice has been devised relating to control, discipline and dismissal, and this is accepted by employers and unions. The 1977 Act provided for a degree of certainty in the workplace.

Section 7 of the Bill which provides that an explanation be given of a decision of a tribunal or a court is welcome. The reasons for decisions of courts and tribunals often mystify us and it is essential that they be made public so that there is an understanding of the operation of legislation. I welcome the provision in section 8 to increase the time within which to make an appeal and the provision in section 13 to extend the scope of the legislation to include persons employed through employment agencies. The Unfair Dismissals Act has had a major impact on management policy and practice, especially in large organisations with fully developed personnel departments. Employers and employees now have a clear understanding of where each stands. The system is more open and transparent and there is a greater awareness of what is fair. Procedures — for example, in the case of discipline — should be clearly understood. The focus should be not so much on discipline or dismissal but on employees' needs.

The Unfair Dismissals Act has contributed to the improvement of relationships at work. In this regard I congratulate the various unions which played their part in complying with this Act. I welcome this legislation. We must ensure protection for workers, particularly those in jobs with low pay and bad conditions. Employment must be maintained and employers encouraged to employ a greater number of people. I commend the Bill to the House.

Mr. Broughan

I welcome this Bill as a valuable addition to existing legislation in this area. However, many areas are not covered by this legislation. Perhaps the Government will consider consolidating all the legislation of the last 20 years. Cognisance should be taken of ILO submissions and the Social Charter, which resulted from the activities of the European trade union movement and the European confederation of socialist parties. The existence of such strong social European legislation, which has deeply influenced our country since the mid-1970s is welcome. However, 20 years later many aspects of this legislation have not been fully applied to our country. It is notable that under the Maastricht Treaty unanimous agreement of Labour Ministers is required in relation to matters such as dismissals and social security. There is scope for wider application of European legislation. We are grateful that measure has influenced the legislation before us.

Unlike some speakers, I believe the overriding power in industrial dismissals disputes and in most industrial relations rests with employers, in the private or public sector. Many of us are aware from previous employments that the balance of advantage lies with employers. As society and the economy change the Government must strive to keep up with the natural advantages which employers will have in a free enterprise economy. It has been observed that reinstatement has not been a preferred option for employers when the Employment Appeals Tribunal or a court has found against them. They much prefer a grant of compensation rather than reinstatement.

Section 5 provides that the Employment Appeals Tribunal can take account of the reasonableness of the employer. Deputy Rabbitte referred earlier to the huge hunting ground that the Employment Appeals Tribunal has become for the legal profession. That phrase "reasonableness of the employer" will generate a lot of legal action in the future. There remains a decided advantage to the employers.

This Bill is to be welcomed because it attempts to address some of the changing social structures. Britain is still enduring the Thatcherite revolution of the eighties. The British economy has tended to move towards Japanese and Far Eastern labour conditions. That movement is developing here. There is an alarming number of factory workers on temporary contracts and on short term fixed contracts. I welcome the attempt in section 3 to deal with this. If a case goes before the tribunal we can aggregate the amount of time which has been served by the employee. A feature of our economy today is part-time work and fixed contract work. I asked the Minister for Enterprise and Employment about this a few weeks ago and in reply he indicated that our civil servants are not aware that this sort of Thatcherite revolution is spreading throughout industry.

I welcome the provision by which we apply the 1977 legislation to employment agencies. There is a plethora of employment agencies, particularly for office workers. Years ago temporary workers who had worked well for a number of years were employed permanently by the company. It is interesting that now the third party concerned will become liable for all the penalties under this Act and the 1977 Act.

I agree with the remarks which were made about foreign employers and situations where employers have left, leaving employees without any recourse to protect their rights. For a long time I dealt with a case involving a number of workers who worked for a company which closed down but which did not go into liquidation. It is very difficult to achieve compensation for such workers. The Minister and the Government might consider that point in future consolidation legislation. I agree with remarks in relation to the subcontracting area where effectively a workforce can be offloaded. In one of our large Irish companies about 15 years ago virtually the whole driving force was offloaded into subcontracting. This has occurred in some service companies recently. In the subcontracting world the rights enshrined in labour law and even in this new Bill are not available.

I welcome the extension of the grounds for unfair dismissal. The partnership Government will be taking strong action in the area of sexual orientation during the next few weeks. It is interesting that this is being covered in labour law. In Seanad Éireann it was proposed to include age as grounds for unfair dismissal. There is huge discrimination against people on grounds of age. Some people are told they are too old for a job when they are in the mid-twenties or thirties. From mid-forties on, one is certainly consigned to the scrap heap. Workers have been encouraged to leave jobs and accept redundancy and workers who found one task extremely difficult were not redeployed but were simply dismissed. I hope this is the start of a proper respect for older workers. We should have provisions for older workers in society. Many people want to work beyond their mid-sixties even on a part-time basis.

I welcome the other provisions in relation to the extra four weeks along with the two years and so on. I also welcome the extension of time limits because of the backlog of cases and the huge increase in fines for employers who are not prepared to take cognisance of the activities of the Rights Commissioner when a case has been referred. I welcome the new choices open to workers to use either the courts or the Employment Appeals Tribunal.

I welcome section 14 in relation to apprentices and others engaged in trade union activity who did not have protection under previous legislation because length of service was less than one year. In general, this Bill is a fine advance by the partnership Government and I fully support it. However, there are many areas, within the changing circumstances of our economy overall, particularly in relation to short contracts and temporary workers, which the Minister's Department should examine. These areas affect a growing segment of our working population, leading to additional problems when people are dismissed summarily and have no recourse whatsoever available to them. With that caveat I commend this Bill strongly.

Mr. Durkan

Like other Members I generally welcome this Bill and recognise the need to protect employees, particularly at a time when the labour market has considerably more potential employees than there would appear to be jobs available. In such circumstances the tendency is for the buyers' market to prevail, the same regard not being had to employees' rights, privileges and so on. For that reason alone the provisions of this Bill are important. I should point out that a number of practices that have evolved over the years, leading to the necessity for the introduction of this legislation, must also be tackled by the Government. This partnership Government would do well to examine those practices.

Other speakers have mentioned the development of subcontracting. Why has there been such an increase in subcontracting nationwide? The short answer is that it is too costly and administratively difficult to employ an individual. Whether in the manufacturing or services area, all employers will readily concede that it is difficult to take on staff, for a number of reasons. The first reason is the cost involved in terms of PRSI, administrative costs and so on. Even in the case of a small business of, say, five or six employees, fairly considerable administrative assistance is required, to the extent that it has become undesirable to recruit, leading to the growth in subcontracting. In the subcontracting area it is not always as easy to enforce the regulations as in the case of ordinary employees. Let me take the example of a large firm employing cleaners. There was a time when most firms employed their own cleaners. This type of business has changed totally in the past ten years, in that all of this work is now done by subcontracting. That begs the question why it should be so. It is most undesirable that this should be the case. The reason is that it is not profitable for a firm, no matter how large, to employ people fulltime because of all the administrative requirements, PRSI, holiday pay and so forth. The main burden cited continuously by employers is PRSI and the difficulty of allowing somebody access to employment. In other words, an employee seeking work has a problem; an employer who wants to give work also has a problem. For an employer to make employment readily available to an employee, he or she must incur certain penalties of a financial nature.

Let us examine what might be done to rectify that position. The opportunity for an employee who has been out of work intermittently over recent years to obtain gainful employment is obstructed by virtue of the fact that, if they return to low-paid work, they will be caught in the poverty trap; that is the first disincentive. If they are recruited by an employer, automatically that employer has to do one or two things. He or she will examine what it will cost the firm in a single year to recruit such an employee. When the old insurance stamp system prevailed— although people scoff at such a system nowadays — it was so simple to recruit somebody, even for three, four or five months in the normal way. There is a crying need for simplification of the system at that level to encourage a prospective employee to seek employment if they happen to be unemployed and render it profitable for them to do so. The incentive is the all important factor. If a person finds on seeking employment that they will finish up with £20 or £30 per week less than they would otherwise receive, that is no incentive whatsoever. A simple system should be devised whereby an employer can recruit somebody, especially in summer when there is more seasonal work available. However, I know there is a downside to that in the abuse of casual labour and so on. In the present climate with over 300,000 people unemployed and no prospect of any appreciable reduction in the near future, there is an obvious need to re-examine the paraphernalia, bureaucracy and red tape surrounding the overall issue of employment. My conclusion is that this Bill is desirable. Employers and employees alike will readily accept that, although there will always be exceptions to the rule, as there are in every walk of life and we must have safeguards in place for those exceptions. The general view would be that the provisions of this Bill are desirable but would not have been necessary had we in place a system operating to the advantage of both employer and employee. At present there is no encouragement or incentive for either; in fact quite the reverse. Therefore, we are dealing with a problem that has arisen from an over-burdening of the system.

With the development of subcontracting, within a market in which there is an over-supply of labour, naturally there will be the tendency to abuse the regulations. I hope the provisions of this Bill will deal effectively with such abuses. We will all have heard of or dealt with cases of an employee finding himself or herself out of work on account of some very minor matter. The tendency for such to occur within a market in which there is an oversupply of labour is much greater than if the reverse were the case. It will clearly be seen that the provisions of this Bill have become necessary as a result of other factors. Those other factors need to be dealt with as well. If they are not, there will be an exacerbation of the problems obtaining, leading to the necessity for further legislation to cater for them. Unless the fundamentals are dealt with we shall continue in this vein and will not solve any of our problems.

I would much prefer to see circumstances prevail in which we could make employment more readily available to those at present seeking it. If there is one issue fundamental to that objective surely it must be removal of some of the trappings, bureaucracy and red tape surrounding any effort on the part of an unfortunate person at present seeking employment and the unfortunate employer who might be able to provide such employment. Unless some of that bureaucracy is abolished and the system simplified, we shall not make progress in this area.

I might mention that one of the disincentives to employers recruiting people is the fact that they, the employers, become liable to a whole series of penalties if they retain an employee beyond a certain period. I can never understand why that should be so. It should be the other way around; they would be encouraged to retain an employee unless the performance of that employee is unsatisfactory. There should be incentives to ensure that the maximum number of jobs is maintained; the more labour intensive the better for everyone concerned. For some unknown reason during the years labour law has evolved in such a way that disincentives have been created. I am not talking about unscrupulous employers who will always retain employees until shortly before they qualify for statutory payments and then release them to go on the unemployment register. There is a need to provide incentives to encourage employers to retain employees. It should be possible to come up with a remedy.

There is a need to tackle the difficulties encountered by a person in seeking gainful employment and the difficulties encountered by a potential employer in taking on an extra employee. The cost involved in terms of administration, particularly for a small business is great. We seem to spend much time in this House talking about small businesses but there is no incentive for such businesses to take on extra employees. Indeed, given the cost involved, over and above what they would pay an employee, it would be better for them to do so. For this reason the Minister should consider the possibility of introducing further legislation to solve the problem to which I referred.

Mr. E. Walsh

I welcome the Bill. I have dealt with many cases in the past where it was clear there was a need for legislation and regulations to clarify people's entitlements. The first matter I would like to deal with in this regard is the new basic award. This provision should be welcomed because it is clear and simple. We should now be in a position to inform people of their entitlements.

It is my experience in cases where people have been unfairly dismissed that the problem is a lack of knowledge of the procedures and what is available under existing legislation. As mentioned by a previous speaker, a large volume of complex employment legislation is in place. Following the implementation of this Bill we should consider the question of whether it would be possible to simplify this legislation so that people would be able to acquire necessary information to avail of their entitlements under this and previous legislation. It is my experience that people tend to seek advice on what is available. Many young people seem to be unaware of legislation in place and their entitlements. They do not seem to be aware that the trade union movement is available as a source of information. It is a sad fact that today many people are not members of a trade union and cannot avail of their expertise and protection.

In regard to the tribunal, many people try to argue their own case, albeit with the help of the tribunal. Despite this it is still difficult to process a case in such circumstances. I am aware that the trade union movement has, in many cases, offered the services of its personnel to people who are not members of a trade union. These personnel provide assistance and advice to the person concerned.

The question arises as to whether persons should be entitled to legal representation at the tribunal. I am not sure if this is the correct course of action because there is a possibility that people may be further alienated with the result that they may feel they have to take their case with the assistance of the legal profession.

Many part-time workers seem to have no knowledge of their entitlements. In many cases part-time workers are on contract. Traditionally, people were employed for a fixed number of hours per week whereas now a week's work is regarded as five days. As I said, many part-time workers who seek our assistance do not know their entitlements in terms of holidays, sick pay and redundancy payments. The way part-time workers are treated and dealt with can often lead to dismissal; in other words, if there is an argument the employer may feel that the easiest thing to do is to get rid of the employee.

Following the enactment of this Bill the Minister of State should consider ways and means by which the information available to people can be improved. There is a need to condense and simplify the information contained in this and existing legislation so that it can be advertised and made available to young people in particular who should be able to understand the process and avail of their rights. Members should take into account the effect legislation has on the people it has been designed to help. I would like to see all the information contained in this Bill simplified and made available so that people can make use of it.

Mr. Kavanagh

I was associated with the Department of Enterprise and Employment for two and a half years and although I have had responsibilities in other areas I have always followed closely legislation produced by that Department.

The Bill is welcome because it updates the principal Act, the Unfair Dismissals Act, 1977. As time goes on and as work practices and customs change there will be a need to review labour legislation. The Department of Labour was set up in 1966, making it one of the most recent and its first Minister was the former President Hillery. Some of the Ministers who served in it, with the exception of myself, achieved great things. Indeed the former Deputy, Mr. Michael O'Leary, was responsible for enacting much of the labour legislation prompted by the European Community. The body of legislation is so voluminous that it has taken many years for people to come to grips with it. Indeed it took employers a long time to accept that they were governed by this legislation.

Legislation becomes outmoded and needs updating and, therefore, I welcome the proposed changes in this legislation. A discussion document was prepared in 1986-87 which covered three areas; unfair dismissals, employment equality and the payment of wages. A payment of wages Bill was enacted a year ago and this Bill before us is a follow-up to the other areas under discussion which were considered in need of updating. I am sure the Minister for Equality and Law Reform, Deputy Taylor, will have an input to the equality aspects of this Bill and we look forward to the introduction of legislation in that area.

This is a very welcome Bill. Although the Minister with responsibility in this area is not present, I commend her on the job she is doing and I am sure she will ensure that the legislation enacted by this House is enforced.

I look forward to the implementation of the European Social Charter, which sets out the rights of workers. It is worth reminding the House that the Charter of the Fundamental Social Rights of Workers lists the rights of workers: (1) workers have a right to work in any EC country of their choice; (2) they should be guaranteed a fair wage; (3) they should have improved living and working conditions. It is interesting that the EC Foundation for Living and Working Conditions is located just down the road from me and it would be interesting to hear its reports discussed in the House. It would be useful if an invitation was extended to Members to visit this foundation; (4) they should have social protection under the prevailing national systems; (5) freedom of association and collective bargaining — we are reasonably up-to-date in this regard — (6) vocational training; (7) equal treatment of both men and women; (8) information, consultation and participation; (9) health protection and safety at work; (10) protection of children and adolescents; (11) minimum living standards for the elderly and (12) improved social and professional integration of the disabled. It would be hard to find anybody who could find fault with that Charter.

Members on all sides of the House are in agreement that the Social Charter should be adopted as part of the Maastricht Treaty agreement. There may be some confusion because in the Maastricht Treaty agreement it is known as the Social Chapter, but I still refer to it as the Social Charter. Some of the Community countries have adopted a pick and mix approach to the Maastricht Treaty agreement. Germany, Holland, France, Belgium, Luxembourg and Ireland are enthusiastic about the adoption of the Social Chapter but others are not because it will impose an additional cost on production. It is worrying that our neighbour across the water is totally opposed to the adoption of the Social Chapter of the Masstricht Treaty agreement.

It should be remembered that the Social Chapter states only fundamental social rights, and they must be enacted in every country. Britain's feet dragging on the Social Chapter gives cause for concern. This will give them a competitive edge in attracting foreign investment to set up in Britain. As it imposes a cost on industry, investors from America, Japan and other countries may not wish to be tied down by legislation that does not apply in their own country. I hope that the Minister of State at the Department of Enterprise and Employment, the Minister for Foreign Affairs and anyone representing us in Europe will insist that all countries should adopt the Social Chapter and that the Maastricht agreement is not one from which they can pick and mix. The Danes have said they do not like the defence policy and the British have said they do not like the Social Chapter and they are allowed to take on board what they want. It would be very dangerous for us if this were allowed to happen.

When one considers that Digital transferred its operation from Galway to Ayr in Scotland one wonders if an added attraction was the fact that Britain did not adopt these rights. In Packard Electric approximately 200 workers were laid off and a certain section of that operation was moved to Portugal. If countries like Spain, Portugal and Britain will not apply these fundamental rights to workers why incorporate this chapter in the Maastricht agreement? Why incorporate a chapter that advances the conditions of workers unless we ensure that it is accepted by all EC countries so that labour legislation throughout the Community is on the same base? I cannot see how anybody in an advanced Community can say: "this is an aspirational document, we do not have to adopt it but we may adopt certain parts of it".

If we are adopting the 12 rights they should apply to the entire Community. Ireland, the poorest country in the Community, is prepared to accept these conditions and rights. I insist that our Ministers ensure that the bigger, wealthier and stronger countries do something similar, otherwise I see a danger in their having a more attractive package to offer in rural investment. That is dangerous for us, the IDA and the 300,000 people who are unemployed. It is not for us to lower our standards, but we must ensure that the standards of other Community countries are raised to the highest levels.

When we adopt certain aspects of the social chapter, as contained in this Bill, we have to say loud and clear that countries who are not prepared to accept forward legislation on behalf of their workforce should not be allowed to remain within the Community. If we are part of the Community we should accept all the conditions, simply not those that suit us.

I am vice-chairman of the British-Irish Inter-Parliamentary Body, on which there are 25 members from each Parliament. At our plenary session in Cork at the end of next month it is my intention to table a motion on this subject not to embarrass our British friends, because I know that half the group are totally supportive of the social chapter but to have open discussion. The British-Irish Inter-Parliamentary Body was set up to deal not only with security and protection in the country but to discuss all issues, for example, social issues, our position within the EC and problems arising from that and the position and conditions under which Irish people in Britain and British people in Ireland live and work. I have already indicated to the joint chairmen that I will be moving this motion which cannot be brought forward without the support of the Dáil, Seanad, the House of Commons and the House of Lords. According to the rules, a motion has to be joined by members from both sides. I hope to have the opportunity of a full open discussion in Cork on this matter and to encourage our British colleagues to ensure that the social chapter is adopted by them.

I am glad the Minister is bringing forward legislation which will give protection in the case of the termination of certain second or subsequent fixed terms and fixed purpose employment contracts. This has become popular in Ireland in the past ten or 15 years. Fixed contracts are being offered rather than contracts which are debated and agreed between the trade union movement and the employer. In my view, fixed contracts are being offered to exclude the trade union movement organising, particularly in new ventures some of which are multinationals setting up in Ireland. Fixed contracts are being applied right across the board from the most highly paid person down to the lowest paid worker in the organisation. This reminds one of film stars or TV personalities who sign up for a length of time. That is where the idea originated. The person could work only in accordance with that contract for the term it was set up. This is a way around all the legislation we enact.

I welcome that provision in the Bill and I hope it will discourage employers from thinking they can get around the legislation by offering jobs to potential employees on the basis that they sign contracts. With 300,000 people unemployed those seeking employment are almost forced into taking whatever is on offer. Legislation such as this is needed to ensure that these people are protected when they are in a vulnerable position. I welcome that section and I hope, when enacted, it will remove the present weakness and discourage potential employers or companies setting up in Ireland from excluding workers from the terms of any legislation in the labour area.

Obviously, this Bill will improve the lot of people who work in small businesses where there is no tradition of organised labour, where they are unorganised employments and, therefore, employees have to work in unacceptable conditions. A number of Deputies referred to the fact that those workers are ignorant of the laws enacted over the years to protect their interests. It is important, therefore, that Bills such as this update the provisions and make their position clearer.

It has been said that many people who are dismissed have no knowledge of the law in this area and are not concerned about how they can get redress. In our clinics we meet people who have been let go by employers who are either ignorant of their responsibilities or who flout the legislation. I hope we can improve these matters. In rural areas the situation for workers is not good. Travelling to Dublin to a Labour Court or unfair dismissals hearing can be off putting for many people. The old idea of holding hearings in local areas should be maintained. More publicity should be given to the fact that a worker can have the services of the Labour Court in his or her own county. Local newspapers are keen to report discussions at council meetings, court hearings and so on and would be keen to attend such hearings and highlight the difficulties people experience. I hope rural employers accept they have the same responsibility as if they were in any part of the city of Dublin or any of our other major cities.

I congratulate the Minister on her appointment. She is very capable and the first woman to have responsibility for industrial issues. I congratulate her on taking over that job. That position used to be known as the bed of nails in comparison with other Departments. It is now a progressive Department, and has expanded its area of operations. Many people now depend on it. I wish the Minister well in dealing with her first legislation in the House. It is excellent legislation with which to start and I look forward to its operation.

Minister of State at the Department of Agriculture, Food and Forestry (Mr. O'Shea)

I apologise for the absence of the Minister who has an official engagement. She obviously looks forward to Committee Stage of the Bill.

Deputy Kavanagh raised the question of access to information about the Bill by workers and employees. It is not within the terms of the Bill, nevertheless it is very important. In areas where there is no definite trade union activity and organisation workers may not always be aware of their rights and may have difficulty in gaining access to the procedures which would allow them to bring forward their case under the Act. I am sure that is an area to which the Minister will apply herself because obviously there should be equal access to the provisions of the Unfair Dismissals Act for all our citizens.

I thank Deputies for their wide and varied contributions to this debate. I understand that this Bill was perceived, prior to publication, as a primarily technical Bill geared to tidying up and enhancing already sound legislation. Discussion on the Bill in this House is a reflection of the broad interest in and public profile accorded to this legislation since its enactment in 1977. It is heartening to note that all contributors welcomed the Bill and overall the only criticism was concerned with further enhancing the legislation rather than any retrenchment. Many of these matters will be raised on Committee Stage by way of amendment.

Deputy Flaherty raised the question of agency workers which is dealt with in section 13 of the Bill. There is no clear statistical information about the number of agency workers who are employed with a user organisation. It is not unusual, however, that some agency workers are called upon to work for significant periods of time in a single organisation. In these circumstances, there is validity in broadening the scope of the legislation to take account of the position of such workers. Indeed, two particular cases that involved agency workers with more than the one year's service requirement are the basis for the present amendment to the 1977 Act at section 13 of the Bill. These cases clarified, unfortunately, that agency workers were outside the scope of the legislation. The amendment seeks to address this issue. The reason the user organisation is identified in the Bill as the employer rather than the agency is that the action to dismiss is almost invariably attributable to the user organisation and not the agency.

Deputies Cullen and Gilmore referred to the broadening of the legislation to include certain unusual contracts. I note with interest the concern of the Deputy about changes in the patterns of employment arrangements. Unfair dismissals legislation covers all employees who work at least eight hours a week, subject to the one year service requirement, for an employer, so I am satisfied that part-time workers who are employed, even to quite an inconsiderable extent, come within the scope of the legislation. Certain employment contracts of a short term duration are for the first time brought within the scope of the Act. There are, of course, distinctions between a "contract for services" and a "contract of service". The latter kind of contract is the kind of contract covered to date by all employment legislation. If Deputy Gilmore is correct and some "contracts for services" are, indeed, really "contracts of service" then the individuals involved would be eligible under labour legislation and an approach to the tribunal in the matter should ensure a finding in favour of the employee in relation to coverage, thus allowing the case to be considered by the tribunal on its merits.

Deputy Gilmore expressed concern about dismissal on political grounds. Section 6 (b) of the Unfair Dismissals Act, 1977, provides protection against dismissal on grounds of "political opinion". The issue of dismissal because of an employee's unavailability for work owing to membership of either House of the Oireachtas is quite a separate issue.

The Deputy's own case could well have been heard at the tribunal. I understand, however, that the Deputy sought and obtained redress in the courts under common law as an alternative. What I think most Deputies are seeking in this regard is redress for dismissal but leave of absence from their employment in the public interest. Such leave of absence, connected as it is with election to the Oireachtas, may be more appropriate for consideration.

Deputy Bruton inquired about the costs of implementation of the proposals before us. When the Bill was published the Minister presented with it an explanatory and financial memorandum which stated: "No significant costs are anticipated in connection with this legislation either in relation to its administration or in relation to compliance with its terms by individual employers and employees." Deputy Bruton and Deputy Callely, in particular, also raised the issue of an employee's entitlement to compensation where a company is insolvent or being wound up.

The position is that section 11 of the Bill, and formerly section 10 of the Act, allows the Minister for Labour to pursue the enforcement of a case on behalf of an employee. The volume of cases pursued by the Minister on this basis is high. The maximum level of available resources in the Department is assigned to this work. The central issue in relation to the delays complained of by the Deputy are not administrative but arise from the obvious difficulty of legally securing payment from a party who is either unwilling or unable to pay. Pursuing such unwilling employers is a thankless and tedious job which is undertaken in the Department — sometimes indeed, without success. There is no evidence that similar action undertaken by private parties on behalf of the employee would be any more effective in securing a positive result. Enforcement statistics have been published annually in the annual report of the former Department of Labour. These statistics show overall a high degree of success.

Some Deputies referred to the Maternity (Protection of Employees) Act which obliges an employee to inform her employer of her intention to return to work at least four weeks before the date of resumption. This is a reasonable requirement on an employee and necessary to the employer in the organisation of his business. It also has regard to the interests of the employee who may have replaced the employee who is on maternity leave. She or he is entitled to adequate notice of termination of employment. In all these circumstances, therefore, the four week period of notice of intention to return is a reasonable requirement to place on the worker on maternity leave.

I would have some sympathy with the case made by the Deputy, if the four week notice requirement was strictly interpreted by the Employment Appeals Tribunal. This is not the case. The case law in this area has proved quite flexible. As a result, cases do not arise in practice where a worker on maternity leave is denied the right to return to work merely because she has failed to comply with the letter of the law in regard to notice. In general, therefore, the four week requirement works in a manner necessary to ensure the smooth operation of business and to provide leeway to employees whose circumstances are outside the normal run of things.

Several Deputies questioned the effect on the Unfair Dismissals Act, 1977 of the implementation of the EC Pregnant Workers Directive. Responsibility for the implementation into Irish law of this directive by October 1994 rests with the Minister for Equality and Law Reform. One of the areas of the directive involves an amendment of substance to the Maternity (Protection of Employees) Act, 1981.

The EC Pregnant Workers Directive raises a series of new and complex issues relating to risk assessment, transfer to other jobs and entitlements to leave and pay which could involve substantial costs to employers or the State. Consequently, it is essential that these issues are adequately resolved and that the necessary implementing measures are included in comprehensive legislation, which I have no doubt will be introduced by the Minister for Equality and Law Reform by the due date in 1994. Meanwhile, it should be remembered that pregnant workers are not precluded from protection under the Act simply by amendments not being taken on board. It will be possible under the amending legislation which will give effect to the Pregnant Workers Directive to strengthen as necessary the provisions of the Unfair Dismissals Act.

In conclusion, I repeat my conviction that fair practices and procedures in the workplace, particularly in relation to dismissal, are an essential part of any civilised economic system. Unfair dismissals legislation penalises employers who deal with an employee in an unfair way in relation to dismissal. It is not intended to impinge at all on an employer who is just and evenhanded when it comes to discharging from employment someone who has been with the employer for a year or more. This is the balance sought in the legislation and the indications are that it has been achieved.

I am confident that the legislation as drafted, together with the amendments in the present Bill, will ensure the balance necessary to guarantee that the unfair dismissals legislation continues to make a relevant and effective contribution to the framework of our existing industrial relations and labour protection laws.

Question put and agreed to.

An Leas-Cheann Comhairle

When is it proposed to take Committee Stage?

Mr. O'Shea

Next Tuesday, subject to agreement with the Whips.

Committee Stage ordered for Tuesday, 1 June 1993.

Sitting suspended at 2.05 p.m. and resumed at 2.30 p.m.

Dáil Éireann debate - Thursday, 27 May 1993