National Minimum Wage Bill, 2000: Report Stage.

I move amendment No. 1:

In page 6, line 8, after "employment" to insert "and who may or may not have one year's continuous service".

This relates to the definition of an employee. An employee is currently defined as a person of any age who has entered into or works or has worked under a contract of employment. On Committee Stage, we queried what a period of employment might be and we wanted it narrowly defined. Must a person have one year's continuous employment or less than that? Will students who work during the summer be covered by the definition of employee? If they worked for four weeks and moved on would that be accepted as one year's employment? Will those who participate in the student summer jobs scheme be covered under the Bill?

I support the amendment, the principle of which was conceded on Committee Stage in regard to another part of the Bill. The Tánaiste accepted an amendment which I tabled, the essential purpose of which was to prevent an employer evading or avoiding the terms of the legislation by resorting to the 12 month continuous employment requirement before the Unfair Dismissals Act took effect. I presume she will confirm that the essence of that has been taken on board.

I confirm that that is the case. From 1 April everybody will be entitled to £4.40 per hour, regardless of whether they have a year's continuous service.

Does that include participants in the students summer jobs scheme? It is an issue that should be addressed in the context of the amendment.

If they are employees of an organisation and there is a contract of employment, the legislation will apply.

Does that mean that the Department of Social, Community and Family Affairs will be bound by this legislation in that context and students participating in the scheme will be paid the minimum wage?

I do not know into which category they fall. They probably are employees and if that is the case they will be paid the minimum wage.

Is the amendment being pressed?

I do not know whether the Tánaiste accepts the amendment.

There is no need for the amendment as it is covered in the legislation. All employees must be paid £4.40 per hour from next Saturday unless they are in training or on apprenticeship.

Irrespective of whether they have one year's continuous service?

Amendment, by leave, withdrawn.
Amendment No. 2 not moved.

Amendment No. 4 is an alternative to amendment No. 3 and they may be taken together by agreement.

I move amendment No. 3:

In page 6, to delete lines 20 to 22 and substitute the following:

"‘pay' means all amounts of payment, and any benefit-in-kind specified in Part 1 of the Schedule, made or allowed by an employer to an employee in respect of the employee's employment;”.

On Committee Stage, Members argued that the definition of pay was all embracing in respect of benefits-in-kind and should be narrowed by reference to the reckonable pay components listed in Part 1 of the Schedule, which only permits board and lodgings, board only and lodgings only to be reckonable. This amendment addresses the issue raised by Opposition Deputies. In view of this change to the definition of pay, it is considered necessary to make consequential amendments to sections 19 and 23 of the Bill, and amendments Nos. 22 and 28, respectively, do that.

On the section—

(Dublin West): My amendment No. 4 was to delete lines 20 to 22. I suppose the Minister has realised this measure was so broad as to be open to enormous abuse by unscrupulous employers where “pay” could have included the value of any benefit not in the form of money. That would have been carte blanche for the unscrupulous employer to include anything in the form of payment and have that reckoned as forming the minimum wage. The Minister has realised that and has asked for the deletion of those lines in favour of a tighter proposal. That is welcome in so far as it goes but, unfortunately, under “pay” the Minister is introducing the sections in Part 1 of the Schedule, which I and other Opposition Deputies found to be quite objectionable. She is reinforcing the fact that the shift premia and the service charge distributed to the employee through the payroll is to be part of the reckoning for the national minimum wage. I therefore oppose the Minister's proposal.

Amendment put and declared carried.
Amendment No. 4 not moved.

(Dublin West): On a point of order, a Leas-Cheann Comhairle, it would be useful to us if you could state the amendments that have been ruled out of order. Is it possible to do that?

There are none in the next ten amendments or so that are ruled out of order but some of them may not be moved if a previous amendment is carried.

(Dublin West): I have a note from the Ceann Comhairle that amendments Nos. 18 and 21—

We are not near those amendments as yet but amendment No. 18 is out of order. Amendments Nos. 20, 21, 43 and 46 are out of order.

Is amendment No. 49 out of order?

No, amendment No. 49 is not out of order. It depends on the decision made in respect of No. 48. Amendments Nos. 55 and 57 are out of order. We now move on to amendment No. 5.

I had indicated that I wanted to speak on the section.

As this is Report Stage we discuss amendments only. We do not discuss the section. That has already been done on Committee Stage.

I am surprised at that ruling. My memory is obviously beginning to go. I thought one could comment on the section on Report Stage.

On Committee Stage, yes. Only amendments can be discussed on Report Stage.

(Dublin West): I move amendment No. 5:

In page 7, to delete lines 29 to 33.

I wish to have deleted from the Bill the fact that the Act would not apply to the remuneration of a person who is the spouse, father, mother, grandfather, grandmother, stepfather, stepmother and other relatives of the employer. After the discussion on Committee Stage I am sorry the Government is continuing with this provision which is unjust with regard to many categories of people included in the Bill. The implication of the Government's position is that everybody in the family is intimately involved in every way with an enterprise, that they benefit to the same extent from that enterprise and are happy to be tied up in that enterprise as partners. That can be far from the case in regard to brothers or sisters, half brothers or half sisters or other relatives of an employer. The Government is saying we have to turn a blind eye to exploitation within the wider family. If everybody in the family is happy working in a partnership – understanding "partnership" in a wide context – the question does not arise as to the rate of pay. However, in many cases people who come under the designation of relatives of various kinds could find themselves being exploited by an employer, and they should have the protection of the minimum wage Act. As I said on Committee Stage, one almost felt that this was all encompassing, the next door neighbour and the person with blue eyes should be included as well. At this late stage the Government should agree to withdraw that proposal.

As I said on Committee Stage, the principle of excluding an employee who is a close relative of an employer from employment rights legislation or modifying the entitlements of such employees is well established in legislation, including the redundancy payments legislation, the Unfair Dismissals Acts, the protection of young persons and the organisation of working time legislation. It was further recommended by the interdepartmental committee that we would maintain this exclusion. In terms of close relatives who assist at critical times and the idea of making that a criminal offence, first, it would be difficult to police and, second, it would be an undesirable intervention in what is essentially a family relationship. The person is an employee but an employee in a family situation and it would be extremely difficult to implement and police this legislation in that area. That is the reason employment rights legislation generally does not apply to relatives of this kind. I am not in a position to accept the amendment.

(Dublin West): Amendments Nos. 6 to 8, inclusive, are being taken together by agreement. I want to speak briefly on amendment No. 8 because—

We have not reached amendment No. 6 yet, we are dealing with amendment No. 5.

(Dublin West): I will leave it until then.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.

Amendment No. 6 is consequential on amendment No. 7 and amendment No. 8 is an alternative. Amendments Nos. 6 to 8, inclusive, may be taken together by agreement.

I move amendment No. 6:

In page 7, line 33, after "employer," to insert "or".

I will deal with amendment No. 7, which is consequential on amendment No. 6. The purpose of amendment No. 7, which we discussed on Committee Stage, is to bring the Defence Forces within the scope of the Bill. They were originally excluded because they were excluded from the Organisation of Working Time Act. The other two amendments are consequential on that.

(Dublin West): I am glad the Minister has acceded to the arguments that were made on Committee Stage. It was quite wrong to exclude ordinary soldiers, who are workers in uniform, from the protection of the minimum wage legislation. While it might not apply to current wage levels, it could apply at some future time, when this or a future Government is compelled to set a far more realistic minimum rate which would allow working people a more reasonable standard of living. It would have been a national scandal, unsustainable and highly discriminatory if we ever had a minimum wage that was greater than that earned by any section of the rank and file of the Army. I am glad the workers in uniform will receive the protection of the Bill.

All Opposition parties tabled an amendment to this effect on Committee Stage. I welcome the fact that the Minister has conceded the point.

Deputy Stanton and I also tabled an amendment on this. I am glad the Minister has removed the Defence Forces from the list of those excluded. I could not understand why they were included on that list in the first place. I know they were excluded from the Organisation of Working Time Act but there seemed to be no logic in excluding them from the minimum wage legislation. I welcome the amendment.

Amendment agreed to.

I move amendment No. 7:

In page 7, lines 35 to 37, to delete all words from and including "1987, or" in line 35, down to and including line 37 and substitute "1987.".

Amendment agreed to.
Amendment No. 8 not moved.

Amendment No. 10 is related to amendment No. 9 and both can be taken together by agreement.

I move amendment No. 9:

In page 9, line 7, after "but" to insert "(subject to the proviso that the exceptions at subparagraphs (i), (ii) and (iii)(II) of this subsection shall apply only to an employee who is remunerated out of public moneys)”.

I considered amendment No. 2, which you, Sir, ruled out of order because it would constitute a charge on the Exchequer, to be important. It is a pity it was ruled out of order. Our difficulty with the Bill from the start has been that, although this is the National Minimum Wage Bill, there is no definition of a national minimum wage at any point.

Now that I have the opportunity to move an amendment which is in order, I cannot, for the life of me, divine its paternity or from where it came. I will have to get help with my memory. I am quite happy to support amendment No. 10 tabled by the Minister until I find out where amendment No. 9 came from.

Deputy Rabbitte suggested this on Committee Stage and was supported by Deputy Owen. The purpose of the amendment is to exclude time spent travelling to a training venue outside an employee's place of employment.

I thank the Minister for taking up this point. You will probably say, Sir, that I am not in order. However, I raised a point in regard to subsection (2) (ii) on Committee Stage which the Minister said she would consider. I wanted the list to include time spent absent from work to care for others, which people will be allowed to do by statute from October. The Minister said she would look at it but she has not tabled an amendment on it. It would be a shame if the payment of carer's allowance was not included in the list, along with maternity leave, adoptive leave and so on. Perhaps the Minister will address that in the Seanad. I am raising this because the Minister said she would table an amendment on it.

I apologise, but will Deputy Owen repeat her question?

I raised with the Minister on Committee Stage the fact that the Bill states that the calculations should not include "time spent absent from work on annual leave, sick leave, protective leave, adoptive leave, parental leave, while laid off, on strike" and so on. From October, people will be able to apply for time off to care for others, which should be included in that list.

They cannot be discriminated against.

That is right but it is not included in the list. Perhaps it does not have to be.

I am told the reason we cannot include it is that the carer's Bill has not been enacted.

Will this Bill have to be amended when that is enacted or can it be done by regulation? I want to make sure that someone will not be discriminated against if they take time off work to care for others.

I am advised we can do it through the carer's Bill.

Amendment, by leave, withdrawn.

I move amendment No. 10:

In page 9, to delete lines 16 to 22 and substitute the following:

"(iii) time spent on travelling between an employee's place of residence and place of work and back.".

Amendment agreed to.

Amendment No. 12 is related to amendment No. 11 and amendment No. 13 is an alternative. Amendments Nos. 11 to 13, inclusive, may be discussed together by agreement.

I move amendment No. 11:

In page 9, line 26, to delete "shall" and substitute "may".

This section deals with employees providing a record of their working hours. The amendment seeks to change the position in the Bill where it is mandatory to require the employee to keep a record, to one where the employee "may" keep such a record.

Whatever my political differences with the Minister, I regard her as a rational person and politician. I cannot understand why she took such a trenchant position on this on Committee Stage. I was not seeking to excise the section concerned but merely to provide for a situation where the employee has the right to keep a record if he or she wants to or is able to. Deputy Stanton made the point that in a number of situations an employee might be unable to keep a record. I am puzzled that the Minister has chosen to stick in her heels on this, of all areas. It does not make much sense. If anyone were to lose by this, although I do not see why anybody would, it would be the worker concerned. However, since the amendment states the employee may keep a written record, he or she is free to do so and to furnish it to the employer in the manner prescribed.

Why should we put this imposition on employees that irrespective of the myriad situations in the work environment that one could contemplate, there is this mandatory obligation on the employee to keep that record and it has certain implications later in the legislation if the record is not kept? Subsection (3) is quite punitive in terms of the employee maintaining a false record or furnishing information to the employer that is false or misleading. I suggested on Committee Stage that the Tánaiste would at least take on board the requirement that the employee should know the information to be false and she has later provided for that situation in the amendments which I welcome.

On this narrow point, I cannot see how it is a matter of principle or ideological dispute or anything else, that instead of the employer mandatorily being required to keep this record that the employer would be free to keep that record.

We discussed this on Committee Stage and Deputy Rabbitte makes an important point. We all know people who are unable to read and quite often they are on or are on less than the minimum wage. I ask the Tánaiste to examine this again. I came across a gentleman recently who has been married for 30 years and his wife is not aware that he is unable to read. These are kinds of people whom this legislation is designed to protect and help. We are considering the terms "shall" and "may" and splitting hairs. Perhaps the Tánaiste would, maybe in the Seanad, take on board other wordings such as "shall if possible" or "shall where possible" to allow for people with major difficulty who are personally embarrassed because in the past the State let them down and they are now unable to read or write. We should not put them into a straitjacket by writing a "shall" into the legislation where "they shall keep a written record". How can they keep a written record when they are unable to read or write? It is an important and practical point and one on which the Tánaiste should be a little flexible. Perhaps the word "may" might be a little too lenient, but there should be ways of doing this. The Tánaiste agreed to look at this on Committee Stage and I am disappointed that she did not come back to us on this. Perhaps if she puts in "shall where possible keep a written record" it would suffice. I ask the Tánaiste to seriously consider this again before it goes to the Seanad and maybe try to come up with some wording to have a little flexibility and allow these people a small measure of freedom.

On this section, I am concerned that most of the sections that have any kind of controlling elements to them are controlling the employee. I would have liked this section to put the onus on the employer. I realise the Tánaiste is concerned to have some way in which the employee keeps a note of the work done if he is sent off to work without supervision. Surely it was possible to put the onus on the employer to say to the employee that a certain job should take two or three hours? Keeping this note could be a problem for someone who is not good at reading and writing but it also might be a problem for someone who gets caught up in the work and forgets to look at the clock when starting work in a place which is not normally controlled by his employer. The whole emphasis of the legislation puts these onuses on the employee. There is some onus on the employer but not as much as I would like.

Since Committee Stage I have considered these matters. Deputy Owen suggested it should not be specific to 72 hours, it should be "as far as is practical", which I have taken on board. Deputy Rabbitte, Deputy Owen, Deputy Stanton and others referred to the case where an employee knowingly made a false declaration and the same leeway was not given to the employee as to an employer. I saw that difficulty and changed that. If we were to remove "shall" and replace it with "may" we would remove the mandatory nature of it and we put it into the voluntary category. To a large extent then we would make the whole section meaningless. The section is to cover that category of employees who do not work in a controlled environment, such as teleworkers or workers of that kind. Even in the public service, those below a certain grade either sign in or clock in, or verify their attendance, when they come in, leave for lunch and come back and go again in the evening. This is the only mechanism we can think of whereby an employee can verify the hours they work and where the employer has some way of knowing what hours were worked within a reasonable period. If we make it a voluntary declaration, we would make the whole section meaningless.

The Tánaiste has to address the practical point that people may not be able to read or write.

For example, if it is voluntary and it may be done and it is not done, somebody might claim he has worked 40 hours subsequent to the period, one, two or six months on. Surely it is not unreasonable to put some onus on the employee. In a controlled working environment, generally people do this on a daily basis. It is not an excessive requirement to place on people who work in a certain environment.

A question arises about the many people who cannot read or write. How can the Tánaiste expect those people to prepare a written record of everything they do and everywhere they go? This is not practical. Has the Tánaiste any way of helping those people and would she not agree that these are the very people who in many instances will find themselves at this wage level? I accept the Tanaiste's point about the problem with keeping records and taking someone's word maybe a week, ten days or a month later. However, I make the case for the considerable number of people who cannot read and have problems with written records and who may not be able to take up employment and will shy away from it for this very reason. Can the Tánaiste be flexible and give the House some assurance that these people will not be frightened off employment because of this requirement?

I put down the amendment for the reasons argued by Deputy Stanton but unfortunately the Tánaiste would appear to have set her face against conceding it and I am somewhat puzzled as to why it is that important to change it from a mandatory position to leaving it as a framework to be complied with if the employee is in a position to do so. I greatly doubt whether there are many employers who will find themselves confronted with a claim some six months after the work in question was performed. That does not happen in the real world. In the real world, the problems to which Deputy Stanton alluded are real problems which are likely to cause further problems for workers in this situation.

I accept that unfortunately there are too many people who cannot read or write. There are different mechanisms and tools we need to use to address that issue, and I hope something is being done. However, one could argue that someone in that position might not even know if he received a cheque, whether he had received the minimum hourly rate. That is an argument one could bring to a stage where the situation becomes meaningless. This provision is being introduced as a simple way for an employee who is not under the direct control of his employer, or in a supervised workplace, to be able to verify the hours he has worked as soon as is practicable – and that may mean different things to different people. It is not too onerous a task and it is a mechanism necessary to make the legislation meaningful.

Is amendment No. 11 being pressed?

Yes. There are many people who are illiterate but who can play darts and calculate complex mathematical formula.

Surely they can write forty-four?

They can put a treble on a horse on Saturday and so on. I know we can reduce this to the ridiculous stage but the purpose of the amendment is simple, although obviously it was not taken on board. I am pressing the amendment.

Question, "That the word proposed to be deleted stand", put and declared carried.
Amendment declared lost.

I move amendment No. 12:

In page 9, to delete lines 29 to 33 and substitute the following:

"(b) the employee shall give the record to his or her employer as soon as reasonably practicable after the end of the pay reference period;”.

Amendment agreed to.
Amendment No. 13 not moved.

Amendments Nos. 14, 15 and 16 are related and may be discussed together.

(Dublin West): I move amendment No. 14:

In page 9, to delete lines 45 to 48.

I wish to remove from the Bill a provision that a worker could be fined up to £1,500 for information that might not be correct. The Minister has gone some way towards meeting my reservations in that she is amending the section to deal with hours that would be given up by the employee which the employee knows to be false. One of my difficulties is that a mistake could have been made and somebody could be found guilty. I still have a reservation and I oppose that section.

I raised this point on Committee Stage. It may well be that the Minister's construction is superior to mine. In any event, I am happy that the thrust of the proposal has been taken into consideration.

Is amendment No. 14 being pressed?

(Dublin West): Yes.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.

I move amendment No. 15:

In page 9, line 46, to delete "that is false" and substitute "that the employee knows to be false".

Amendment agreed to.
Amendment No. 16 not moved.

Amendments Nos. 17, 63 and 64 are related and may be discussed together.

(Dublin West): I move amendment No. 17:

In page 10, to delete lines 6 to 10 and substitute the following:

"(1) The Minister shall, by order, declare a national minimum hourly rate of pay in the Private Sector for the purposes of this Act in accordance with the rates laid down in Part 3 of the Schedule.”.

In many ways this amendment is at the heart of the Bill because it comes down to how much better off low paid workers will be when the legislation is enacted. The minimum wage of £4.40 per hour which the Government says it will introduce in April is totally inadequate from the point of view of providing some kind of reasonable living standard for low paid workers. That figure was first mooted a full two years ago and in the interim the cost of living has increased in many respects. This is particularly so in the case of housing. Low paid workers are highly dependent on private rented accommodation, yet they are expected to survive on £4.40 per hour which, at a little over £170 per week, is utterly inadequate. My proposal is that the rate should be £5 per hour with immediate effect and that a provision should be built into the Bill that the rate would rise to £6 per hour next year, £7 the year after, and £8 the year after that. That would give a reasonable base pay to low paid workers.

There is no question but that established employers, many of whom are profitable companies, can afford to pay that level of remuneration. It would not mean that they would go out of business. That is alarmist. All it would mean is that they would take a hit on their levels of profit. On Committee Stage I cited the example of the Jurys-Doyle hotel group which last year made retail profits of just over £14 million. I do not know the specific level of wages in that group, but low wages are endemic in the hotel and catering industry generally. If a company such as that, which has almost 2,000 employees, granted wage increases of £2,000 per year per employee, it would simply mean that its profits would drop to about £10 million. That is still a handsome profit for any company and the workers would have their standard of living increased by a reasonably substantial amount.

The £5 per hour national minimum wage I am seeking should be tax free. It is quite ludicrous that workers at the very lowest level on the scale should come under the income tax regime. The Government should have used the occasion of introducing this legislation to declare that any worker on the minimum wage would not be taxed. Deputy Stanton elicited the information that £77 million extra would be collected by the State from low paid workers as a result of their being brought up to £4.40 per hour.

(Dublin West): That is based on the figure of 163,000 workers who, the Minister says, will be affected by this Bill. That is shameful. Even at this late hour I am sorry the Irish Congress of Trade Unions agreed to the £4.40 level for a national minimum wage. It should have insisted on a minimum of £5 per hour with a provision that it would increase annually to give people hope that in future they would not have to struggle to make ends meet.

Young low paid workers are often dependent on private landlords for accommodation. What is happening in the rental sector in Dublin and around the country is a disgrace. Rents are being put up with no control whatsoever. Many workers on the minimum wage will need a substantially higher rate in order to meet extra accommodation costs and provide a reasonable living standard for themselves.

At this stage I will move amendments Nos. 63 and 64.

It is not necessary to move those amendments until we reach them.

The Deputy will have an opportunity, if it is in order, to do so at that stage.

(Dublin West): If amendment No. 17 were defeated—

We do not know that yet, but amendments Nos. 63 and 64 cannot be moved in the event of amendment No. 17 being defeated.

The National Minimum Wage Commission recommended that the minimum wage should be two thirds of the median industrial wage, which would now be £4.70. I am not in favour of this amendment, not necessarily because of the figure but because the principle of putting figures in legislation is not a good idea. What would happen if the hands of the Minister in April 2003 were tied at £8 per hour when he or she felt the wage should be £8.30 or £9 per hour because the economy had continued to grow? The principle of putting the figure in legislation is not a good one and for that reason I feel this amendment is unwise.

Also, Deputy Higgins alluded to the fact that in the PPF talks the social partners – rather surprisingly – agreed to £4.40 and worked out that they would want to see it going to £4.70 and £5 by the end of the life of the partnership. I was surprised they did so as I felt they would go for the recommendation of two thirds of the median wage and for a starting figure of £4.70 which would be added to twice more before the end of the partnership. However, they did not do so. Other sections of the legislation allow for more flexibility in deciding the rate if a change was needed. I hope the rate will always move upwards and that a future Minister would not use the Bill to lower the rate, but that is highly unlikely. For that reason Deputy Higgins should not try to build figures such as £6, £7 or £8 per hour into the legislation. Given that the social partners have agreed a figure, it would be unwise of us to second guess what they have agreed. For those reasons we will not vote for this amendment.

The Labour Party supports amendment No. 17. If our hard pressed media colleagues had followed the many hours of Committee Stage debate on this Bill and relayed the discussions to the public, many of those who anticipate benefiting from the minimum wage would be extremely disappointed that the Tánaiste has not managed to introduce the rate at £5 per hour.

The arguments have been well advanced, but one that has not been advanced is that the marketplace has overtaken £5 per hour, certainly in greater Dublin. It is now not possible to get labour for less than £5 per hour and schoolchildren are being induced out of school for pay that exceeds that rate per hour; £5 per hour is a reasonable minimum rate. When Deputy Owen says the social partners have agreed, that is technically true, but a trade union like MANDATE, which has a large number of low paid members, is very disappointed with the rate. It is noticeable that its members voted against the Programme for Prosperity and Fairness and this was a substantial factor in their doing so. If one looks at the Tánaiste's guidelines, she agreed with and took on board the National Minimum Wage Commission. The commission, as has been said, took up the concept of median earnings of all employees and stated in its report that it did so to better reflect the real level of earnings in the economy and not just the earnings in one sector. That report is two years old and its conclusion specifically recommended a start date of 1 April 2000 should be set to implement the national minimum wage, which should be set at around two thirds of median earnings.

My union, SIPTU, sought a rate of £5 per hour and its economic unit calculated that in the intervening two years, the April 2000 equivalent of the commission's £4.40 per hour would be £4.90 per hour. I suspect that in the real economy it has progressed faster than that. Some members of MANDATE told me of certain retail outlets closing down over the weekend while prices were adjusted 10% upwards because of alleged movements in sterling. I have not followed the movement in sterling that closely over the weekend, but I suspect that was just a line to the employees. No wonder we are seeing inflation in the economy if that is going on.

In the real world £5 per hour has been overtaken in the marketplace and to use that rate as our starting point from 1 April would be reasonable. I will therefore support this amendment, as £5 per hour reflects circumstances in the real world. It is what I intended with amendment No. 2, which sought to ensure the national minimum wage as being the equivalent of two thirds of median earnings. Today that is £4.90, which is as close to £5 as makes very little difference. I hope the Tánaiste accepts this amendment.

In support of Deputy Rabbitte, the point of £4.40 being calculated as net or gross wage is another issue. The fact that it is being calculated as gross is very much the problem, as it is far from a £4.40 per hour net rate. Deputy Rabbitte mentioned a rate of £5 per hour. One would be far better off with £4.40 net per hour than £5 gross per hour. It is regrettable that so many people on low incomes are paying tax. The Revenue Commissioners will collect £77 million, not alone from employees, but from employers also. A balance must be struck between employers and employees. People are paying a considerable amount of tax on wages of £176 per week. The minimum wage will not be a minimum to those receiving it; it is a gross amount. That figure will be considerably less than £4.40 per hour. That point should be made clearly. Many employees are expecting £4.40 per hour after tax. From my own experience in the services sector, I am aware that the majority of employees do not worry unduly about what is paid in tax, once it is paid by the employer, but they are concerned with what is in their envelopes at the end of the week. There is a danger that many people will assume they will receive £4.40 net per hour. The Minister must ensure people are aware that we are talking about a gross rather than a net minimum wage as there is a big difference between the two.

The Government's decision to tax the minimum wage is inexplicable. The problem would be solved if the minimum wage were not taxed. In reply to a recent parliamentary question, the Minister for Finance estimated that the Revenue Commissioners would take in at least £70 million in direct taxation, not to mention indirect taxation, as a result of the introduction of the minimum wage. I am aware of the Minister's view that the minimum wage should not be taxed but I urge her to impress that view on her colleague, the Minister for Finance. People are being hoodwinked and employers will end up indirectly subventing the Government to the tune of more than £70 million, according to the figures outlined by the Minister for Finance. The minimum wage should not be taxed even if that necessitates the introduction of an amendment to the Finance Bill at this stage.

I agree that we should move rapidly towards a situation where the minimum wage would not be taxed.

That could be done now.

When this Government took office two and a half years ago, single people began to pay tax on income over £70 per week; that figure has been increased to £110 but we must go further. If £4.40 per hour is the minimum hourly figure we believe people should earn, it does not make sense to tax it.

There are two issues here, namely, whether the rate should be written into legislation and what the rate is. I agree with Deputy Owen that the rate should not be written into legislation. It would be undesirable to amend primary legislation each time the rate is increased following a national pay agreement, a Labour Court recommendation or a Government decision. I do not envisage any reduction in the rate. In my view, any changes in the rate can most appropriately be dealt with by way of regulation.

The Minimum Wage Commission recommended that the rate should be set at approximately two thirds but that the effect on employment and competitiveness should also be taken into account. Some Deputies made the point, with which I agree to a large extent, that it would be very difficult to find people who would be prepared to work for less than the minimum wage – with the exception perhaps of home helps – in the greater Dublin area. The market is buoyant and the position in Dublin is not typical. Some people suggested that the minimum wage should be introduced on a sectoral or regional basis but we resisted that because it is desirable to have a single national hourly rate.

The ESRI forecast that 163,000 workers will benefit from the introduction of the national minimum wage from Saturday next. It also forecast that the introduction of the minimum wage would have adverse effects on employment. The interdepartmental report, which takes on board the ESRI recommendations, shows the location of those workers. In all, 13.6% of the workforce across a number of sectors will be affected by the introduction of the minimum wage.

Through the Programme for Prosperity and Fairness, the social partners have agreed that an hourly rate of £4.40 should be paid from 1 April this year, that the figure should be increased to £4.70 next year and £5 in two years' time. The Government is a party to that agreement which has been endorsed by employers, the voluntary sector and the trade union movement. I am not in a position, for the reasons I outlined on Committee Stage, to accept this amendment.

There will be widespread dissatisfaction about this issue. A rate of £5 per hour has been overtaken by the marketplace and the payment of a rate of £4.40 per hour is less than most moderate-minded people would expect. I do not believe 163,000 people will benefit from the introduction of the minimum wage. That calculation was made an aeon ago in economic terms and events have been overtaken by the marketplace. Neither do I believe the new agreement for prosperity and happiness would be rent asunder were the Minister to set the rate at £5 per hour. The trade unions were disappointed that the £5 per hour target did not prove feasible and I regret the Minister cannot set the rate at £5 per hour.

Question put: "That the words proposed to be deleted stand."

Ahern, Bertie.Ahern, Dermot.Ahern, Michael.Ahern, Noel.Andrews, David.Ardagh, Seán.Aylward, Liam.Brady, Johnny.Brady, Martin.Brennan, Matt.Brennan, Séamus.Briscoe, Ben.Browne, John (Wexford).Byrne, Hugh.Callely, Ivor.Carey, Pat.Collins, Michael.Cooper-Flynn, Beverley.Coughlan, Mary.

Cowen, Brian.Daly, Brendan.Davern, Noel.de Valera, Síle.Dempsey, Noel.Dennehy, John.Doherty, Seán.Ellis, John.Flood, Chris.Foley, Denis.Fox, Mildred.Gildea, Thomas.Hanafin, Mary.Harney, Mary.Haughey, Seán.Healy-Rae, Jackie.Jacob, Joe.Keaveney, Cecilia.Kelleher, Billy. Tá–continued

Kenneally, Brendan.Killeen, Tony.Kirk, Séamus.Kitt, Michael.Kitt, Tom.Lawlor, Liam.Lenihan, Brian.Lenihan, Conor.McCreevy, Charlie.McDaid, James.McGennis, Marian.Martin, Micheál.Moffatt, Thomas.Molloy, Robert.Moloney, John.Moynihan, Donal.Moynihan, Michael.Ó Cuív, Éamon.

O'Dea, Willie.O'Donnell, Liz.O'Donoghue, John.O'Hanlon, Rory.O'Keeffe, Batt.O'Keeffe, Ned.O'Kennedy, Michael.O'Malley, Desmond.Reynolds, Albert.Roche, Dick.Ryan, Eoin.Smith, Brendan.Smith, Michael.Treacy, Noel.Wade, Eddie.Wallace, Dan.Wallace, Mary.Walsh, Joe.Woods, Michael.

Níl

Bell, Michael.Broughan, Thomas.Gilmore, Éamon.Gormley, John.Higgins, Joe.Higgins, Michael.Howlin, Brendan.McDowell, Derek.McManus, Liz.

Moynihan-Cronin, Breeda.O'Shea, Brian.O'Sullivan, Jan.Quinn, Ruairí.Rabbitte, Pat.Ryan, Seán.Spring, Dick.Stagg, Emmet.Upton, Mary.Wall, Jack.

Tellers: Tá, Deputies S. Brennan and Kenneally; Níl, Deputies Gormley and Stagg.
Question declared carried.
Amendment declared lost.
Amendments Nos. 18 to 21, inclusive, not moved.

Amendment No. 23 is an alternative to amendment No. 22. Amendment No. 28 is consequential on amendment No. 22. Amendments Nos. 44, 45, 47, 48, 49, 51, 52, 53, 54, 56, 58, 59 and 61 are related to amendment No. 23 and will be discussed together.

I move amendment No. 22:

In page 14, to delete lines 15 to 28 and substitute the following:

"(1) Subject to section 18, all the pay of an employee in a specific pay reference period shall be included in calculating the employee's average hourly rate of pay in that period for the purposes of determining under this Act whether an employee is being paid not less than the minimum hourly rate of pay to which he or she is entitled in that period.

(2) Any payments or benefits-in-kind listed in Part 2 of the Schedule are not included as pay of an employee for the purposes of subsection (1).”.

As a consequence of amendment No. 3, which relates to the definition of pay, and the need to clarify the existing subsections (1) and (2), it is considered appropriate to amend these subsections to improve their clarity.

The primary difference in the new subsection (1) is the wording "all the pay of an employee", which must be read in conjunction with the new definition of pay in section 2 which reads "all amounts of payment and any benefit-in-kind specified in Part 1 of the Schedule". In effect, subsection (1) refers only to the payments in Part 1 of the Schedule in calculating an employee's average hourly rate of pay in a pay reference period, which must be not less than the employee's minimum hourly rate of pay entitlement under this Bill. The existing subsection (2) was broader in scope. The effect of the new subsection is that the payments listed in Part 2 of the Schedule are non-reckonable when calculating an employee's average hourly rate of pay.

Amendment No. 23, which is related, goes to the heart of the Bill in that it deals with the elements that are reckonable in terms of calculating the minimum rate of pay. Considerable progress was made on Committee Stage when the Minister agreed to excise certain matters included prior to that in Part 1 of the Schedule and which are now allocated to Part 2. The net point has now been reduced to two matters that give offence in terms of calculating a minimum wage. No. 3 of the Schedule relates to shift premium and No. 9 relates to service charge. In other words, what is proposed here is that in terms of the employer calculating the minimum rate of pay, he or she may take into account shift premium as a reckonable component. I submit on behalf of the Labour Party that shift premium cannot be used for the purposes of calculating a basic rate of pay because it has nothing to do with it. Shift premium is by definition something in excess of a basic rate of pay. Shift premium is like any other premium, such as unsocial hours premium. Why has the Minister agreed to excise – I welcome the fact that she has so agreed – unsocial hours premium when she is not prepared to excise shift premium?

Shift premium is an add on, an additional payment, compensation for working unsocial hours and for being involved in shift cycle working, whether night time working or odd hours. It is a payment above and beyond the basic pay and I contend that what we are agreeing here is a national basic minimum wage, admittedly calculated on an hourly basis. It is basic pay and it ought not include shift premium. It is wrong that the Minister is still including shift premium in the Bill and I ask her, even at this late stage, to remove it. As was established on Committee Stage, an employer could pay £3.30 per hour and because of the requirement to pay shift premium at a continued cycle shift, he or she would be able to comply with the terms of the Bill, that is payment of £4.40 per hour. Thirty three per cent of £3.30 is £1.10, giving a rate of £4.40 per hour. This means that with a basic rate of £3.30 per hour, the employer would comply with the terms of the Bill. I appeal to the Minister to remove the provision that relates to shift premium.

I am pleased the Minister has removed five components from the Schedule. I now understand why they found their way into it. The Minister seemed to be able to remove the components without much pain to herself and the people who drafted the legislation. If the Opposition did not have to table the amendments to remove the components from the Schedule, we could have short circuited Committee Stage. Nonetheless, I will not look a gift horse in the mouth and I am pleased the five reckonable components have been removed.

Like Deputy Rabbitte, I am surprised the Minister has included the shift premium. My understanding is that she wanted to include as reckonable components elements that were consolidated into pay rates and and for that reason I have done a little more research on the issue of the service charge. It appears that service charge, No. 9, is consolidated into the pay rate as PRSI and tax is paid on it and it is built into an employee's earnings. I do not profess to understand it fully, but a points system is also built into the hotel industry where the service charge collected on every bill is distributed among the employees and they all know what they will get. While in receipt of less than the minimum wage, none go home with less than the minimum wage when they get their part of the service charge. It is clear from the ICTU submission that service pay, shift premium, unsocial hours premium, public holiday premium, Saturday premium and Sunday premium are normally not consolidated into pay rates for the purposes of calculating overtime rates and other pay-related matters. Therefore, the case is being made that they should not be taken into account when calculating the minimum hourly pay.

The Minister has removed service pay, unsocial hours and the public holiday premium, Saturday premium and Sunday premium to non-reckonable components, but for some reason is leaving shift premium in reckonable components. I would like to hear the argument for retaining it in reckonable components when she so easily gave way to the Opposition's request to remove the other elements. If, as ICTU said, shift premium is not consolidated into pay rates I would like to hear the Minister's response.

Given that we will not have the regulations before 1 April will the Tánaiste give us the values for board and lodgings and board only. I want to be absolutely sure of the rates because I have a letter from a person working in a hostel whose employer says he does not have to pay her the full minimum wage because he is giving her accommodation. Will au pairs and nannies be covered by the minimum wage? Often they get more than board and accommodation, they become part of the family. A case is being made that it will be penal. Where people have a good working arrangement already in place they may have to let them go. Given that child carers and child care places are already in short supply I would like to hear the Minister's response or, perhaps, she would send me a note on it.

This Bill has been improved dramatically since publication and major changes have been made to the Schedules. There is one element, the shift premium, about which we have reservations and we ask the Minister to consider moving it into the non-reckonable components. I compliment the parliamentary draftsman who has made the language more user friendly. This is happening in many Bills. The language used in the past was so convoluted that it was difficult for ordinary people to understand it. I ask that it become the norm to use language that is easier to understand and to avoid any unnecessary verbiage. Given that we shall shortly be dealing with the Copyright and Related Rights Bill this is something the Minister of State could look at.

Do not mention that.

Perhaps I could respond to Deputy Owens's queries first. Board and lodgings is £6.09 per day or £42.63 per week – seven day week; £25.31 for board only per week or £3.62 per day and £17.32 per week for lodgings only or £2.47 per day. The hostel worker qualifies for £4.40 per hour for every hour worked. These rates can be deducted if she gets board and lodgings or board only. The same applies in relation to domestic services. As I understand it au pairs are not gen erally classified as employees. This applies only where somebody is an employee. Sometimes au pairs come to study and do some part-time work in return for board and lodgings. That is a different situation. My Department has refused work permits in a host of areas where we believe somebody was being exploited and would not get what we regard as reasonable pay. From now on we will look at the minimum rate per hour as the rate we expect to be paid and we will subtract if board and lodgings or board only is being given.

Some of the changes made were agreed with the Irish Congress of Trade Unions and the social partners before the legislation was published. I still consider it was important for the Oireachtas members that the Dáil debate would be meaningful. The Bill could have been amended before publication. We agreed a number of amendments that were not agreed prior to publication. While I believe in the power of parliamentary democracy I do not believe this House should be a rubber stamp.

Maybe we should meet in Raglan Road?

The Deputy was in Raglan Road for a long time. Did they let him into Raglan Road? In any event he is doing much better.

Like Patrick Kavanagh.

I am sure the Deputy is back with his friends in Raglan Road. I have conceded a number of items and the Bill is all the better for that but I am not in a position to agree to the suggestions made on shift premium or service pay where it is part of the services charged mainly in the hotel and catering industry. I am not aware it is charged in other industries. That service pay is then distributed to employees. I am not in a position to exclude those items.

Amendment agreed to.
Amendment No. 23 not moved.

Amendment No. 25 is an alternative to amendment No. 24 and amendment No. 24a is consequential on amendment No. 25. Amendments Nos. 24, 24a and 25 may be discussed together by agreement.

I move amendment No. 24:

In page 14, to delete lines 29 to 39.

I would like to hear the Minister on amendment No. 24a. I do not recall this amendment from Committee Stage and I am not sure of its import. It would seem to remove the qualification subject to subsection (4) and baldly states the Minister may, by regulation, make all the alterations, rejections, additions or whatever else listed in subsection (3).

The Minister could not understand subsection (4) on Committee Stage.

Shortly afterwards I came to a conclusion in relation to the subsection.

Is that all that is involved? Is it purely a question of clarity or does the excision of the phrase, "subject to subsection (4)" have any meaning in terms of the operation of subsection (3)?

No. In section 19(3), line 29, we are deleting, "Subject to subsection (4)”. It will now read, “The Minister may, by regulation, add an item to, delete an item from or otherwise amend the schedule but only after consultation with such representatives of employers and employees in the State as the Minister considers appropriate”.

The Minister has obviously reflected on the utter confusion that subsection (4) had caused. Did she see any light or did she simply decide it was so complex that the only solution was to get rid of it? It would be interesting to know if the work of the Opposition has any effect.

I could almost move amendment No. 25 at this point because it is relevant to what we are discussing. It will substitute the following new subsection: "An employer shall not, for the purposes of this Act, change a payment or benefit-in-kind listed as a non-reckonable component of pay as set out in Part 2 of the Schedule so that its status becomes that of a reckonable component of pay as set out in Part 1 of the Schedule."

That is clearer English.

The Minister's powers were being restricted. It was not possible substantially to change the legislation by making items in Part 2 reckonable. The new wording is clearer.

Amendment, by leave, withdrawn.

I move amendment No. 24a:

In page 14, line 29, to delete "Subject to subsection (4), the” and substitute “The”.

Amendment agreed to.

I move amendment No. 25:

In page 14, to delete lines 33 to 39 and substitute the following:

"(4) An employer shall not, for the purposes of this Act, change a payment or benefit-in-kind listed as a non-reckonable component of pay as set out in Part 2 of the Schedule so that its status becomes that of a reckonable component of pay as set out in Part 1 of the Schedule.”.

Amendment agreed to.

I move amendment No. 26:

In page 15, to delete lines 33 to 38.

I would like to hear the Minister of State's response on this amendment.

The amendment seeks to delete section 23(2). The purpose of subsection (2) is to avoid imposing on an employer who pays an employee well in excess of the national minimum hourly rate of pay an obligation to undertake an unnecessary regulatory burden. There is a reasonable cut-off point in the subsection whereby employees who are being paid up to 150% of the national minimum hourly rate of pay may not request a written statement from their employers.

If the amendment were accepted employers who pay well above the national minimum hourly rate of pay would have to provide the written statement on request from workers who were being paid well in excess of the national minimum hourly rate of pay. The purpose of such a wide ranging obligation on all employers, nearly 87% of whom are paying well above the national minimum wage, would not be consistent with the other provisions of the Bill, that is, the enforcement provisions.

Amendment, by leave, withdrawn.

I move amendment No. 27:

In page 15, line 41, after "weeks" to insert "or such later time as may be agreed between the employee and the employer".

When this amendment was discussed on Committee Stage the Minister felt it had merit. It allows a certain amount of flexibility between the employer and employee by not fixing the time at which the Act will be invoked. If there is an agreement between the employer and employee some flexibility is allowed. I ask the Minster of State to consider accepting this amendment.

I remind the Minister of State that the Minister undertook to consider the point made by Deputy Stanton on Committee Stage. It was for that reason that the amendment was not pressed. I assume the Minister of State will give the House a positive answer.

The amendment is opposed. The purpose of the amendment is to allow a longer period to an employer to supply the written statement containing details of the employee's reckonable pay earnings in a pay reference period to that employee. The subsection already provides that the employer must do so within four weeks. This time limit is considered a reasonable period for the employer to supply such information. If the amendment were accepted employees could be put under undue influence to allow the employer to postpone giving the information. This would be unacceptable in relation to the operation of the later sections of the Bill, that is, referral of a dispute to a rights commissioner by the employee after obtaining the written statement from the employer or waiting for the four weeks to elapse should the employer fail to supply the written statement. The amendment accordingly is rejected. I have concerns about the employee's position.

I accept what the Minister of State has said. I ask him to ensure that this aspect of the Bill is monitored closely in case employers are put under undue pressure to provide written statements during the early implementation of the Bill, which might be a difficult time. For example, if a small employer was sick or was not physically able to supply the written statement, he or she could be liable for heavy penalties. The amendment seeks to allow a certain amount of flexibility in extreme circumstances. Perhaps the Minister may look at this point again during the debate in the Seanad.

Amendment, by leave, withdrawn.

I move amendment No. 28:

In page 15, line 46, to delete "section 19” and substitute “Part 1 of the Schedule”.

Amendment agreed to.

Amendments Nos. 29, 30 and 31 are related and may be discussed together by agreement.

I move amendment No. 29:

In page 16, between lines 19 and 20, to insert the following:

"24.–Any step taken by an employer with the primary aim of avoiding this Act shall be void and any dispute to any such step or the redress to be given to an employee if such a step is taken may be referred to a Rights Commissioner under this Act.".

My understanding is that the Minister accepted this point on Committee Stage. I am puzzled that I do not see it among her amendments.

It is in amendment No. 31.

Yes. It is in the body of amendment No. 31 in a different fashion. I am happy if that is the case. There was no anti-avoidance mechanism in the Bill as published. My amendment seeks to insert such a mechanism. If the Minister's amendment has improved on mine I accept that. The purpose of my amendment is to ensure that the terms of the Bill cannot be evaded without some redress being available to the employee.

I am glad the Minister has accepted a number of Committee Stage amendments. On Committee Stage I pointed out that some of the newer labour legislation which has been introduced in the past four or five years recognises the possibility of exploitative employers who might try to catch employees out. I am glad this measure is included in the Bill.

I worry a little about subsection (2) which says that "A dispute cannot be referred to a rights commissioner under subsection (1) if a period of 6 months (or such longer period not exceeding 12 months, as the rights commissioner may allow) has elapsed since the employee's hours of work were reduced or alleged to be reduced.” Can the Minister of State tell us why it is necessary for six months to elapse before a person can challenge an employer whom he feels is reducing his hours with no concomitant reduction in duties?

The Government has introduced four protections for employees against some employers who might attempt to circumvent the legislation. These are prohibition on the victimisation of employees for exercising or for proposing to exercise their rights under this legislation; if dismissed for exercising his or her rights under the legislation, an employee may bring an unfair dismissal case against his or her employer and the general requirement to have one year's continuous service under the Unfair Dismissals Acts, 1977 to 1993, is set aside; prohibition on the reduction in the hours of work of an employee without a corresponding reduction in the duties or amount of work of the employee – this is covered by amendment No. 31; prohibition on employers changing the status of non-reckonable components to reckonable status – this is covered by amendment No. 25.

It is considered that these protections for an employee address any concern that the legislation does not adequately protect employees. I will revert to Deputy Owen with details of the other issue.

Amendment, by leave, withdrawn.
Amendment No. 30 not moved.

I move amendment No. 31:

In page 17 between lines 16 and 17, to insert the following:

"25.–(1) Where an employee alleges that he or she is being prejudiced by a reduction in his or her hours of work without a concomitant reduction in duties or amount of work, because of an increased liability of the employer resulting from the passing of this Act or the declaration of a national minimum hourly rate of pay, and the employer, within 2 weeks of being so requested by the employee or the employee's representative with the employee's consent, does not restore the employee's working hours to those obtaining immediately before the reduction, the employer and employee shall, for the purposes of section 24(1), be deemed not to be able to agree on the appropriate entitlement of the employee to pay in accordance with this Act resulting in an alleged under-payment to the employee, and sections 24 to 31 (except section 24(2)), with the necessary modifications, shall apply accordingly.

(2) A dispute cannot be referred to a rights commissioner under subsection (1) if a period of 6 months (or such longer period not exceeding 12 months, as the rights commissioner may allow) has elapsed since the employee's hours of work were reduced or alleged to be reduced.

(3) In proceedings under this section in respect of an allegation under subsection (1), the onus lies with the employer to prove that any reduction in hours of work was not for the purpose of avoiding the alleged increased liability referred to in subsection (1).”.

Amendment agreed to.

I move amendment No. 32:

In page 17, line 31, after "specified time" to insert "(not being later than 6 weeks after the date the decision was communicated to the employer)".

Amendment agreed to.

I move amendment No. 33:

In page 18, to delete lines 27 to 39.

This matter was discussed at some length on Committee Stage.

The amendment, which is opposed, seeks to delete section 27(5), the purpose of which is to avoid the necessity of an officer of the Labour Court attending a court hearing to confirm factual information which instead can be provided by a written statement signed by the chairperson of the Labour Court. A similar provision is included in section 30 of the Organisation of Working Time Act, 1997, and section 12 of the Unfair Dismissals (Amendment) Act, 1993. Legal advice has been sought and confirms that the provision is constitutional. The Supreme Court judgment on the Employment Equality Bill, 1996, does not reflect on this type of evidence which is of a factual nature, that is, that a person was required to attend a Labour Court hearing on a certain date, that a Labour Court hearing was held on that date and the person did not attend or, having attended, refused to give evidence.

The net point was, rather than subject a witness to cross-examination, whether certification evidence ought to be acceptable or sufficient in a case such as this. On Committee Stage I referred to two Bills in which the Supreme Court struck down what seemed to be a similar provision, the Employment Equality Bill and the Equal Status Bill, Irish Law Reports, 1997, and raised the question of whether there was a constitutional infirmity in this section as it stands. I understand from the Minister that, having taken advice on the matter, that is not the case.

Amendment, by leave, withdrawn.

I move amendment No. 34:

In page 22, between lines 39 and 40, to insert the following:

"(3) The Labour Inspectorate in the Department of Enterprise, Trade and Employment shall establish a register of names, open to the public, of those employers found guilty of an offence under this section and such names shall be maintained for 3 years after the offence, after which time they shall be removed unless an employer has been found guilty of a further offence.".

Has the Minister of State taken advice since this amendment was discussed on Committee Stage? Where an employer is renegade in implementing the Bill and found guilty of an offence, it should be possible for someone to find out if they are walking into a hornet's nest, that the employer concerned will try to exploit them and seek to use the small print to calculate the minimum wage in an unfair way. On Committee Stage the Minister mentioned that this was a bit like the register of sexual offenders but the request I am making which relates to labour law is reasonable.

The establishment and maintenance of a register of employers found guilty of an offence under this section would not be appropriate to the labour inspectorate, the resources of which should be focused on its primary task, enforcing employment law. If such a register were to be kept it would require the diversion of resources to ensure its contents were completely accurate. This would involve not only tracking initial cases but, more importantly, ensuring appeals were tracked and recorded accurately given that any error would leave the State open to litigation. The costs to the inspectorate, therefore, of operating such a register would outweigh any perceived benefits.

The Minister of State is not arguing against the principle, he is arguing that the inspectorate would be unable to maintain such a register as they will be busy doing other work. He is agreeing, therefore, that the concept is not a bad one. I will discuss the matter with Fine Gael Senators to ascertain if there is somebody else who could maintain such a register.

I am conscious of this issue which is the subject of a lively debate in the context of the Protection of Young Persons Bill and on which a report will be published by the ICTU tomorrow. It is an issue which can be constantly reviewed and one we may pursue in the future.

Amendment, by leave, withdrawn.

Amendments Nos. 35 and 36 are consequential on amendment No. 37 and they may be discussed together.

I move amendment No. 35:

In page 22, line 47, to delete "or".

Amendment agreed to.

I move amendment No. 36:

In page 23, line 2, to delete "this Act." and substitute "this Act, or".

Amendment agreed to.

I move amendment No. 37:

In page 23, between lines 2 and 3, to insert the following:

"(c) become, or in future will or might become, entitled in accordance with this Act to remuneration at an hourly rate of pay that on average is not less than the national minimum rate of pay, or a particular percentage of that rate of pay.”.

This amendment is in line with Deputy Stanton's amendment on Committee Stage which the Minister undertook to propose on Report Stage subject to making the wording more consistent with that used in the Bill. The amendment provides that an employee shall not be victimised if he or she becomes or in the future might become entitled to the national minimum hourly wage or a particular percentage of that rate of pay. This is a good example of how the Bill is better as a result of the process in which we are engaged.

Amendment agreed to.

I move amendment No. 38:

In page 24, line 27, to delete ", in his or her absolute discretion,".

I do not like anybody having absolute discretion over me.

The point of this section is to ensure the Minister has the choice to institute civil legal proceedings in the name of an employee for the recovery of an underpayment. In agreeing the clause "the Minister may institute" Deputy Rabbitte seems to accept this point. The parliamentary draftsman has stated that to avoid any legal doubt it is proper to include the phrase "in his or her absolute discretion". The Deputy and I are not too far apart.

Amendment, by leave, withdrawn.

I move amendment No. 39:

In page 25, before line 1, to insert the following:

40.–A tripartite monitoring committee, to be established by the Minister, will monitor and review the effectiveness and enforcement of this Act and make recommendations where appropriate for improving the level of compliance by employers.".

Has the Minister of State taken another look at this matter to ensure the Bill is properly monitored?

It is intended to establish a tripartite monitoring committee to review the effectiveness and enforcement of the Bill and recommend improvements. It is not necessary to establish the committee on a statutory basis with its attendant permanent characteristics and other unnecessary rigidities. The intensive tripartite consultation which took place in the preparation of the Bill and which proved effective will be continued in a monitoring guise.

Amendment, by leave, withdrawn.
Amendment No. 40 not moved.

I move amendment No. 41:

In page 27, line 16, to delete "opinion" and substitute "view".

This is a drafting amendment.

Amendment agreed to.

I move amendment No. 42:

In page 27, to delete lines 43 to 48 and substitute the following:

43.–Section 3(1) of the Terms of Employment (Information) Act, 1994, is amended by the substitution of the following for paragraph (g):

(g) the rate or method of calculation of the employee's remuneration and the pay reference period for the purposes of the National Minimum Wage Act, 2000,

(ga) that the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee's average hourly rate of pay for any pay reference period as provided in that section,'.”.

Amendment agreed to.
Amendment Nos. 43 and 44 not moved.

I move amendment No. 45:

In page 30, to delete lines 25 and 26 and substitute the following:

"3. Piece and incentive rates, commission and bonuses, which are productivity related.".

Amendment agreed to.
Amendments Nos. 46 and 47 not moved.

I move amendment No. 48:

In page 30, to delete lines 27 and 28.

Amendment agreed to.
Amendment No. 49 not moved.

Amendment No. 60 is consequential on amendment No. 50 and they may be discussed together.

I move amendment No. 50:

In page 30, to delete lines 29 to 31.

We have debated this amendment several times.

The effect of these amendments would be to include board and lodgings in the non-reckonable pay components. The Government is not willing to do this.

Amendment, by leave, withdrawn.

I move amendment No. 51:

In page 30, to delete lines 32 and 33.

The effect of this amendment, which is opposed, would be to remove "The amount of any service charge distributed to the employee through the payroll" from the reckonable pay components and include it in the non-reckonable pay components.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.

Can we finish the Bill now?

No. According to the order of the House, we must take Private Members' business, that is, No. 90, at 7 o'clock.

Is there not a way in which it can be done?

No. We must comply with the order of the House. The Bill will be resumed at 8.30 p.m.

It is just that it will only take a short time.

Debate adjourned.