Vol. 439 No. 3
I move amendment No. 1:
In page 5, to delete lines 33 and 34 and substitute the following:
"(i) any terms or conditions relating to hours of work (including overtime) and normal starting and finishing time. Where the starting and finishing time may vary from time to time, the statement will confirm that the employees will be given notice, so far as is reasonably practical, of his/her normal daily starting and finishing time at the end of the previous working week,".
As currently drafted, section 3 (1) (i) requires that the statement of employment particulars must include any terms and conditions relating to hours of work, including overtime. The purpose of this amendment is to address a practice that exists in a number of employments, including catering, retail trade and nursing, whereby employees are not notified in advance of the periods they will be required to work. In this amendment the views of a number of Deputies have been adopted as it contains the qualification that the information concerned need only be given where it is reasonably practicable.
Since we discussed this matter on Committee Stage I and my officials have had a long and intensive range of discussions with the draftsman, with IBEC and ICTU to try to find wording which would embrace people's legitimate concerns. I have been advised that the term "reasonably practicable" would be open to many forms of interpretation. Rather than have a beneficial effect it would have the reverse effect, leading to endless need for further clarification, explanation and elucidation. While I accept that the amendment was put forward in good spirit — we had a good debate on this matter on Committee Stage — my advice is that it would not be clear enough and would be open to misinterpretation.
I am disappointed with the Minister's response. I know there was a good debate on this matter on Committee Stage and I do not wish to repeat what was said then. The purpose of the legislation is to provide protection for employees and ensure that the conditions in regard to the working hours of a vulnerable section of employees are set out clearly. In such cases the benefit of the doubt should be given to the employees. In trying to establish what is reasonable, there is inevitably always a degree of doubt about the employment contract but there are plenty of mechanisms to deal with this issue. I am disappointed the Minister's advice is that the benefit of the doubt should be given to people who may well be bad employers who may not adequately spell out for employees their terms of employment.
I move amendment No. 2:
In page 6, between lines 10 and 11, to insert the following:
"(n) any terms or conditions relating to disciplinary procedures pursued by the employer,
(o) any terms or conditions in relation to redundancy situations pursued by the employer.".
When I tabled this amendment on Committee Stage the Minister said it would be better to deal with these issues in the legislation dealing with unfair dismissals and the Bill reforming the redundancy legislation. We did not have a very satisfactory debate on Committee Stage on the nature of the proposed changes in this area. I made the point that if we include in legislation provisions which will reduce stress and the level of misunderstanding in the workplace it might also be useful to include provisions relating to the disciplinary procedures which might be pursued by the employer. I did not have in mind disciplinary procedures which involve dismissal; I was proposing that the procedures on early warnings about unsatisfactory performances by employees, the way in which such warnings are given, etc. should be spelt out in the terms of employment so that all sides know the procedures to be used in cases involving disciplinary action.
The Minister thought this matter could be dealt with more satisfactorily under the unfair dismissals legislation. However, having examined it I do not see any codes of practice on disciplinary action, although if an employee is ultimately dismissed the tribunal will look at the procedures taken, ensure written warnings were given, etc. Will the Minister agree that it would be an improvement if everyone knew at the outset the disciplinary procedures within a company?
Paragraph (o) of my amendment relates to redundancies where, occasionally, disputes arise due to the procedures followed. On reflection, I am willing to accept the Minister's argument that it would be very difficult to, ex ante, set out these procedures in the terms of employment and, therefore, I will not press paragraph (o) of the amendment. Nevertheless, the disciplinary procedures should be set out in the terms of employment handed to employees at the start of their employment or, as proposed in the Bill, in certain subsequent circumstances.
I have considered this matter further and have come back to my argument at the beginning of the debate, that this legislation will implement a directive in a simple manner and will give precise information. The precise type of information in the directive, agreed at Council of Ministers meetings, subsequently agreed with IBEC and ICTU and debated on Committee Stage can be provided for in simple legislation. I undertook on Committee Stage to ensure that the legislation was as simple, open and easily understood as possible. While it would seem admirable to inform employees about the disciplinary procedures of a company in the context of this directive, the inclusion of such a provision in this legislation would merely add to what should be a simple procedure. I have considered the matter further but cannot accept the amendment.
We should not religiously follow all EU directives if there is merit in developing them in some way. The Minister seems to be saying that because the directive did not refer to an employer's disciplinary procedures we should not include such a provision in our legislation. If the inclusion of such a provision in the legislation would be of benefit then we should look at it on its own merits. If possible, I wish to press paragraph (n) of my amendment and to delete paragraph (o).
We are dealing with the entire amendment at this stage.
Do I not have the liberty to delete part of my amendment?
Not at this stage.
In that case I will not press the amendment.
I move amendment No. 3:
In page 7, between lines 29 and 30, to insert the following:
"(3) Where there is a substantial change in the ownership of the company the employer shall furnish to the employee a statement under section 3 within two months of that change.".
In view of the Minister's assurances that this matter will be dealt with through other regulations governing a change of ownership, I will not press the amendment.
Amendment No. 5. Amendment No. 6 is related. It is proposed to take amendments No. 5 and 6 together.
I move amendment No. 5:
In page 8, lines 6 to 9, to delete all words after "circumstances" in line 6 down to and including "1977" in line 9.
I wish to hear the Minister's point on amendment No. 6.
During Committee Stage debate on this amendment Deputy Bruton queried the grounds for capping an award if an employee had shown that he or she had suffered financial loss in excess of the award. Deputy Rabbitte argued also that circumstances could arise where failure to provide a statement of employment particulars, or failure to provide notification of changes in particulars could result in a significant financial loss for the employee and that compensation of four weeks pay would not be sufficient to make good the loss in some instances. I agreed to consider the matter further.
On Committee Stage I stated that it is the normal practice to place a ceiling on the level of compensation which may be awarded under protective labour legislation by the rights commissioner or by the Employment Appeals Tribunal. To allow the rights commissioner or the tribunal to award unlimited amounts of compensation could be open to challenge on the basis that it would be unconstitutional. The question to be addressed, therefore, is what is the appropriate ceiling for the purposes of the Terms of Employment (Information) Bill which we are now debating? Two issues are particuarly relevant in this regard. First, what financial loss, if any, would be likely to be suffered by an employee and, second, what level of compensation would be consistent with other labour legislation.
People might say this is a minor Bill but we have had a great deal of discussion within the Department and, in regard to the earlier amendment, with the draftsman's office and the Attorney General. The Department has difficulty in identifying any situation in which an employee would suffer significant financial loss. Deputy Rabbitte argued that an employee could lose out if his or her job was wrongly described or because they did not have a job description. The employer could oblige them to do other work or could move them within the employment. In response to Deputy Rabbitte's argument, it could be pointed out that the Bill does not require that a job description be provided, only the nature and title of the job.
In the circumstances described by Deputy Rabbitte, it is difficult to see how a failure to provide information would result in a reduction in pay. The purpose of the Bill is to give information in a simple form. It gives legislative underpinning to any changes that would arise if employment was outside the State. We discussed the Payment of Wages Bill on Committee Stage and how it provided for circumstances such as those referred to by Deputy Rabbitte. It is open to an individual to refer a complaint to the rights commissioner who may uphold the complaint. The unfair dismissals legislation also places a ceiling on the amount of compensation which may be awarded; the Payment of Wages Bill has a similar provision.
Under this Bill the primary remedy is that one gets a statement of one's right as a citizen and as an employee of a firm. The first right conferred in the Bill, and it is a proper one, is that a person is entitled to this information. Compensation would be regarded as an additional remedy and for that reason we have provided for a ceiling of four weeks. From what I understand, Deputy Bruton's amendment was that there would be no ceiling.
That is correct.
If there was a need in the future we would bring in regulations. As the Bill comes into force and is utilised — which I hope it will be because proper utilisation of any such legislation means that both employer and employee have a more harmonious relationship — and if it is proven that there is a need in this regard, the Minister of the day could, by regulation, raise the amount of compensation. That is the purpose of my amendment.
I agree with the Minister that it was difficult to think of circumstances where the damage would be substantial. The only misgiving I would have about this amendment is that it seems the Minister is giving herself power to shut the door after the horse has bolted in that it is only if a case of manifest injustice emerges she would subsequently table regulations before the House to deal with the matter in that way. She would not, of course, be able to deal with the specific case of injustice that had given rise to the need for regulations.
Perhaps I misunderstand the position, but since the Minister is not proposing to alter the four week rule — she is proposing to leave that intact — she is only giving herself an escape clause if things go wrong for some poor individual but that individual's problem will not be addressed. If the Minister accepts some validity in the argument — there is some validity in it and we should create legislation that can accommodate the unforeseen — she should go the whole way on this issue or tell us now the nature of the regulations she will put in place at this stage. We will then know that when we pass this Bill we will be also passing a certain regulation that will accommodate the hardship case we might not yet have foreseen.
On a point of information, the unfair dismissals legislation has the same type of regulation built into it allowing the Minister of the day to vary the amount if experience shows it to be necessary.
I move amendment No. 6:
In page 8, to delete lines 31 to 33 and substitute the following:
"(7) The Minister may by regulations—
(a) provide for any matters relating to proceedings under this section that the Minister considers appropriate, and
(b) amend paragraph (d) of subsection (2) so as to vary the maximum amount of the compensation provided for in that paragraph, and this section shall have effect in accordance with the provisions of any regulations under this paragraph for the time being in force.".
I move amendment No. 7:
In page 11, between lines 7 and 8, to insert the following:
"(2) Before any order or regulation is made under this Act, the Minister shall publish a statement outlining the likely costs to both an employer and an employee of complying with any requirements specified by the regulation, and the Minister shall cause to have this statement laid before the Oireachtas at the same time as the order is laid.".
This amendment should be part of any legislation we pass in this House. We should be conscious of the possible costs to an employer and to an employee of exercising their rights under this Bill. There was much discussion on Committee Stage about the way in which labour law, which was expected to be simple, had escalated. Employers were represented by counsel and it had become quite difficult for employees to exercise their rights in this whole area. We should, therefore, make some effort when passing legislation to predict the future and decide whether the legislation will create significant cost factors for employers that might be a burden on the task of creating employment. The Minister has argued that this Bill is not likely to impose significant costs but we should be looking ahead also at whether the mechanism for redress may impose burdens on those who seek to exercise their right of redress.
As a general principle we should accept an amendment of this nature and build it into legislation so that when we make decisions about labour law, health and safety regulations and so on, we commit ourselves also to some sort of auditive cost. It is becoming fashionable to talk about equality proofing and environmental or green proofing of legislation but in a country like this, where the biggest single issues are the cost of creating employment and the lack of employment, we should be conscious of the need to employment-proof legislation. We should look ahead at any action we take to examine the possibility of hidden pitfalls in what is clearly desirable legislation.
Perhaps this amendment would be more relevant to other Bills where it would be more obvious that there would be cost burdens involved. However, there is a reasonable case to be made that the existing legislation, apart from the exclusion of casual workers, has not proven to be defective in any way. We are discussing a new Bill that is not all that different from what had obtained heretofore. There is an onus on the Government to show the public that what it is doing in this Bill will not have hidden costs for employers in recruiting people or for employees seeking to exercise their rights. This is not an unreasonable type of amendment. Indeed, it would have merit if the Government took on board that type of approach to its legislation in general.
Some years ago there was a special competitiveness and costs committee under the Minister's Department which did nothing but review different types of costs, insurance and so on involved in creating employment. That committee had been producing valuable work, indicating cost burdens and obstacles to employment. The principle involved in the establishment of that type of committee — to vet activity — would equally apply to legislation.
I should like to see the Minister accept this amendment, regarding it as a precedent for use in the case of other Bills whose provisions might be even more far-reaching in their cost implications for either side of industry.
Thankfully, most employers and employees have a decent relationship. They have a consensual approach to such matters, which is refreshing and in many cases has led to the type of economic growth we have experienced. The provisions of this Bill will simply provide a citizen with information about his or her employment; it is not a convoluted statement.
Deputy Richard Bruton's amendment calls on the Minister to publish a statement outlining the likely costs to both an employer and an employee of complying with any requirements specified by the regulation. As I have said, it is a simple sheet of paper on which is listed the name and address of each, the job description and some other small details. There is not available to us an itemised costing of that. Rather, I would regard it as being an everyday relationship between an employer and employee in the same way as he or she would complete any other form in the daily business of hiring an employee and of maintaining employment.
I appreciate that Deputy Bruton has tabled his amendment in a straightforward fashion. The idea of some employers that it is burdensome when they have to comply with legislative provisions is not justified. What makes for proper relationships between employers and employees is mutual trust. This leads to a sense of stability and motivation on the basis that each understands the other and that the terms of employment are clearly stipulated. This is what the provision of this Bill are all about. In my view, there is not a cost implied; it is part and parcel of the daily running of a business, hiring employees and establishing business relationships. Therefore, I would not advocate costing something that does not have an inherent cost but rather comprises part of the daily interaction in business. There will be no need to update these provisions unless some changes take place which must be conveyed to employees, since this will not be a weekly, monthly or three monthly occurrence.
On Committee Stage we had a wider debate about how the Employment Appeals Tribunal has enlarged itself and on occasion would appear to have become rather burdensome. That is an issue for another day. It would be our hope that if there are transgressions of the provisions of this Bill, the rights commissioner would be able to deal with them himself in a simple manner. Though we have allowed for a further appeals procedure, it would be our wish that not many cases would arise and that if they did, they would not have to go beyond the remit of the rights commissioner.
I can see some merit in Deputy Richard Bruton's amendment because a great deal is made from time to time about the imposition and costs associated with various pieces of labour legislation. We had some discussion on Committee Stage about the recent tendency for the Employment Appeals Tribunal to become the preserve of lawyers in circumstances in which such is not necessary. In this part of Ireland anyway the convention has always been to rely on the collective mechanisms that have obtained between the large employer organisations and trade unions and to keep the intrusion of lawyers to a minimum. Certainly, that has not happened in recent times, especially before the Employment Appeals Tribunal.
Deputy Richard Bruton is advancing that further here in terms of making explicit what the cost would be. Obviously, the Minister of State is right that the provisions of this Bill will not impose any additional cost worth talking about. Nonetheless, Deputy Richard Bruton's point is an interesting one. I do not know whether the time has come for us to codify some of the existing labour legislation. It is now quite diverse, following on a number of instruments that have emanated from Europe and so on. It is quite a complex area. It might be helpful to employers and unions if some progress were made towards that end.
The Bill is the weaker for the decision the Minister has taken not to accept my amendment No. 1. I predict there will be much joy in the Employers' Federation and great heartache amongst the trade unions that, contrary to what they were led to believe, the matter has been rejected out of hand. The most vulnerable section of workers requiring the protection of this Bill will not have such protection as a result of the exclusion of that amendment. I altered the amendment to meet what I thought was the spirit of our discussion on Committee Stage.
I spoke on that. I did deal with that point.
I know the Minister of State did, but the important thing at the end of the day is that she refused it. This concerned an important section of vulnerable workers who sought no more than to be advised in advance, where practicable, of the hours during which they would be required the following day. Having regard to the exploitation that takes place in some of the distributive trades in particular, I would seek the indulgence of the Leas-Cheann Comhairle — to an extent that is completely unjustified, since I have come into the House late — to plead with the Minister of State to reconsider that. I think the trade unions really thought they had won the Minister of State over on this argument. I predict they will be very disappointed, because the manner in which the amendment is worded would not impose any unreasonable pressure on an employer. It admits of the needs for flexibility. It merely requires that, where it is practicable to do so, employees be given notice the previous week of when they will be required, for how long, that kind of thing. It is a minimum amendment in every sense of the word. I am sorry the Minister could not find her way to accept it. I thank the Leas-Cheann Comhairle for having been extremely indulgent.
I agree with the Minister that there is a lot of false talk about the burdens of legislation which, when one really scrutinises them, are not that burdensome at all; it is just good common sense. On the other hand, the Minister and her Department have absolutely nothing to fear from setting out the facts fairly for all the public to see. The more we inform the public about labour law and costs the better. We should not allow outlandish claims to be made about certain legislation being a burden if such claims do not stand up to scrutiny. My amendment seeks that the Government set out a statement of the likely costs involved, to which people could refer when such claims are made.
The Minister suggested that the way the tribunal operates is a matter for another time but that is not true. In section 8 (a) and (f) the Minister has power to determine representation at and costs of the tribunal. Specific matters are set out in the regulations. She has power to determine, within the confines of this Bill, what shall be representation at an employment appeals tribunal, and, if she saw fit, insist that there would be no legal representation but that the matter is dealt with in an informal way.
The Minister has not dealt adequately with the spirit of what I am trying to put forward. I am sure this kind of amendment will become a feature of legislation for the future. Everyone would benefit as a result and we would have a more reasoned debate about the real or perceived burdens of such legislation.
I will answer some of the points raised, particularly in view of the Chair's most generous indulgence of Deputy Rabbitte — I hope at some stage I will be the recipient of such indulgence — which allowed him to rework his amendment with great gusto. What he said was very important and he had great enthusiasm for his amendment.
As both ICTU and IBEC know, we spent considerable time trying to get an acceptable form of words. We had three formulas of words, including the Deputy's, which had the "reasonably practicable" clause. This was also favoured by ICTU but legal advice was that it would be open to different interpretations. Legislation, by its very nature, seeks to be as precise as possible. The Deputy then spoke about the concern there would be on the trade union side. They put forward their amendment with great sincerity. I took the opportunity today at the launch of MAN-DATE, the joint trade union of IDATU and INUVGATA, to say we will review the Shops Acts, 1938 and 1942. I support the cause of many workers on the fringes of proper working arrangements.
The Department is consulting all parties in relation to the working time directive and that, with the review of the Acts, will lead to a wider debate on legislation on the working time directive. There will be two opportunities in which to discuss the issues.
Deputy Rabbitte also raised the question of consolidating and codifying the legislation. We will examine the matter and see if we can consolidate legislation in relation to conditions of employment.
I thank the party spokespersons for their observations on the Bill. We were able to bring in amendments to deal with some of the points made and the Bill will now go to the Seanad. I thank the Chair and the officials who dealt patiently with everyone.
I thank the Minister for the way in which she dealt with the Bill. Labour law is an area in which I do not feel sure-footed but I was pleased that she took a number of amendments on board. The fact that there should be consultation before certain categories would be excluded is welcome. The removal of the open-ended powers of the Rights Commissioner was a sensible change. Although she did not go all the way in her amendment today, she acknowledges that there may be cases where a ceiling on compensation could be unjust and she is taking power to deal with that.
We have had satisfactory Committee and Report Stages and I hope we have put in place legislation which will be of mutual benefit to both sides of industry. I thank the officials for the manner in which they dealt with the Bill and wish the Minister continued success in codifying labour law.
I commend the Minister for the manner in which she conducted the Bill. The only reservation I had, which I expressed strongly on Committee Stage, was that the additional form-filling would add to what is in reality a binge of form-filling which some small employers are required to comply with. I am satisfied that that will not happen following the passing of this Bill.
I am glad the Minister at all times insisted that the provisions of this Bill be kept clear, simple and straightforward and that we should not seek to harness them to meet other needs or demands which were expressed forcibly on Committee Stage. There is widespread exploitation of workers in certain sectors of the building trade, the services trade — for example in hairdressing — and in the distributive trades. These issues have to be confronted in a different context.
Deputy Rabbitte called for condification of existing labour law. While I am not sufficiently experienced to speak on what is a new area for me, there is no doubt that existing law is not strong enough to meet conditions in the work force. Some workers have little protection under the law. That issue has to be addressed and I hope that will be done sooner rather than later. I suggest a strong case can be made for the codification, upgrading and updating of labour laws in Ireland. I welcome this Bill and thank the Minister, and her officials, for the help they gave me.
I wish to be associated with the expressions of thanks to the Minister for her unfailing courtesy in processing this Bill. It is a minimalist measure by any standard but many workers in certain categories will welcome it. The answer to the Minister's question to Deputy Bruton is that not only Deputy Bruton but many Fine Gael Deputies today had the Bill applied to them in a meaningful way as they all got job titles and directions as to what to do.
What about me in my day?
All of them?
Not all, I understand, but the Deputy will know what I mean. I welcome the Minister's commitment to review the shops Acts, because that requires attention. I would be glad if that could be advanced soon. I do not recall resorting to the Minister's officials for assistance, nonetheless, I am grateful to them.
