Dáil Éireann debate -
Wednesday, 17 Oct 2001

Vol. 542 No. 3

Protection of Employees (Part-Time Work) Bill, 2000: Report Stage.

Minister of State at the Department of Enterprise, Trade and Employment (Mr. T. Kitt)

I move amendment No. 1:

In page 3, lines 19 and 20, to delete "OR IS OTHERWISE POSTED" and substitute "OR OTHERWISE HAS AN EMPLOYMENT RELATIONSHIP".

Deputies will recall that at the winding up of the Committee Stage debate the chairman of the select committee, Deputy Callely, read into the record the Long Title of the Bill. In light of this intervention, it became clear to me that it was necessary to amend the Long Title of the Bill to reflect the amendment to section 21 on Committee Stage.

Section 21 as originally drafted only applies to postal workers. However, the definition was broadened on Committee Stage to apply also to a person, irrespective of his or her nationality or place of residence, who has entered into a contract of employment that provides for his or her being employed in the State; works in the State under a contract of employment; or, where the employment has ceased, entered into a contract of employment referred to in subparagraph (1) or worked in the State under a contract of employment. I asked the Office of the Parliamentary Counsel to prepare a suitable amendment to take account of this change which is provided for in the amendment.

Amendment agreed to.

Mr. Rabbitte

I move amendment No. 2;

In page 3, line 31, to delete "and Terms of Employment".

The effect of the amendment would be to take on board the fact that the Minimum Notice and Terms of Employment Act, 1973, as amended, no longer deals with terms of employment and that, therefore, the reference is no longer appropriate. I was unable to attend the Committee Stage debate because of my commitments to the CIE-Esat mini-CTC inquiry and my colleague, Deputy Broughan, kindly took my place. However, the

Minister of State informed him that "it is not legally possible to amend the Title of an Act already in force" and advanced this as the reason for not accepting the amendment. He is correct, but the amendment proposes that terms of employment are no longer encompassed by that Act. The amendment would correct the collective citation and not interfere with the Title of the Act in force. There is a distinction.

I do not suggest this is the most important point in the legislation, but the Minister of State was wrong to put on record on Committee Stage that "it is not legally possible to amend the Title of an Act already in force." The amendment seeks to amend the collective citation, not the Title of an Act already in force.

Mr. T. Kitt

I appreciate that was my position, but my point was that the amendment relates merely to citation. It is not a significant point. I appreciate the Deputy was otherwise engaged in important work when Committee Stage was taken and acknowledge that I said that it is not legally possible to amend the Title of an Act already in force. Section 1(2) merely cites the Minimum Notice and Terms of Employment Act and, together with the Minimum Notice and Terms of Employment Acts, 1973 to 2000, the Bill will improve the position of part-time workers. It is a legal point and my hands are somewhat tied on legal grounds, but I accept the Deputy's point in regard to a layman's interpretation of the wording. I ask him to bear my position in mind in the context of other issues we have discussed and will discuss later. It is not a significant issue on which to have a major difference, but I am tied by legal constraints.

Mr. Rabbitte

I do not wish to hold up the progress of the legislation on a technical point. We have waited a long time. I was completely unaware that so many Members on all sides of the House were interested in ordnance surveying. I listened to my monitor carefully throughout the day and there was little enough reference to such activity. The reasons given by the Minister of State on the record for rejecting the amendment on Committee Stage are not correct.

Mr. T. Kitt

I am reminded of the D'Unbelievables line, "We can't do that".

Mr. Rabbitte

That may be so, but the purpose of the amendment was to tidy up the reference in the collective citation. I do not understand, given what the Minister of State has said, how my argument is wrong, but I do not want to make a meal of it.

Amendment, by leave, withdrawn.

An Leas-Cheann Comhairle

Amendment

No. 6 is cognate to amendment No. 3 and both may discussed together.

Mr. Rabbitte

I move amendment No. 3:

In page 3, line 28, after "Act", to insert ", section 39 (other than subsection (2)) of the Social Welfare Act, 1991".

This is a technical matter about which I do not feel strongly, but I am advised that the amendment would correct an error because there is already a reference to the Redundancy Payments Acts, 1967 to 1991, in the Social Welfare Act, 1991. Again, the purpose of the amendment is to tidy up this reference. The Minister of State said on Committee Stage it was not necessary. The Chairman was in an awful hurry on Committee Stage and, therefore, the Minister of State never got around to explaining the reason that was so. It is necessary.

Mr. T. Kitt

I am advised these amendments, which relate to the amendment of the Redundancy Payments Acts, 1967 to 1991, are provided for in the Social Welfare Act, 1991, and unnecessary. The amendments referred to remain secure and do not require to be repeated. Accordingly, I do not propose to accept the amendments.

Amendment, by leave, withdrawn.

Mr. Rabbitte

I move amendment No. 4:

In page 4, line 17, after "provisions", to insert ", and in particular an order bringing into operation a provision which gives effect to a provision of the Directive giving effect to the Framework Agreement which may have effect from the date on which the latter provision comes into effect".

The amendment attempts to address in a different fashion the debate on the commencement of the legislation. The issue arises because the principle of direct effect has not been adhered to by the Minister of State. In this case the legislation would be enacted from 20 January 2001. The amendment is another way of trying to provide for retrospective commencement. The Minister of State went to considerable pains on Committee Stage to explain the background as to how the directive was delayed, the reason it was delayed and so on. He said Protocol 14 on social policy constitutes the legal basis for the directive, clearly does not apply to pay and, therefore, by extension to pensions. He also said he sought the advice of the Attorney General's office to that effect. What he eventually resolved on was since pay and pensions are not encompassed by the legislation, but rather by the terms of the negotiations arising out of the PPF, that, therefore, the principle of direct effect is not applicable in this regard. If I understand it, that is the Minister of State's argument in summary. I am trying to allow retrospective commencement for sections of the Bill since the directive was supposed to come into force with effect from 20 January this year.

The Irish Congress of Trade Unions takes vehement exception to the Minister of State's position and argues that his position is wrong and that the advice of the Attorney General, if it is correct, means there is no point in negotiating non-discrimination clauses or any other framework agreement which prohibits discrimination in relation to pay and pensions. The Irish Congress of Trade Unions points out that the European Commission was represented at all the meetings and the joint negotiations between the employers and the trade unions which led to this directive. Since that is the case, one would think this aspect would have been raised. I will put on the record one paragraph which probably summarises the position of the Irish Congress of Trade Unions. Congress refers to the minutes of the Council meeting which adopted the part-time work directive. In those minutes the Commission:

pointed out that the scope of Article 2(6) of the protocol on social policy excludes remuneration, particularly the determination of salaries, including contributions to supplementary social security schemes. However, the principle of non-discrimination in earnings applied in the same way as a principle covering employment conditions. Indeed the principle of non-discrimination in earnings would most often be covered by Article 119 of the Treaty – equal pay for men and women.

I seem to recall on Second or Committee Stage the Minister of State gave figures which show that three quarters of the workforce affected by the Bill are women. Atypical working facilitates many women for a variety of reasons which we will not go into here.

This is an attempt to construct a different type of amendment which would take into account the fact that this directive was supposed to have applied from 20 January this year. It is contended by the Irish Congress of Trade Unions that the manner in which the Minister of State proposes to do it has serious implications for this type of directive.

Mr. Perry

I support Deputy Rabbitte. Section 2 provides that the Bill will come into operation on a day or days to be prescribed. What date has the Minister of State in mind if it is not 20 January? The retrospective aspect raised by Deputy Rabbitte is important. The Deputy made the point better than I did. There is an anomaly in this area. This matter was discussed on Committee Stage under the chairmanship of Deputy Callely, but was guillotined. The Minister of State indicated he would come back to us on this point. Perhaps he could clarify the reason the opinion given at that time has changed.

Mr. T. Kitt

We are dealing with an important subject. I agree with Deputies that this is important legislation and thank them for facilitating its relatively speedy passage through Commit tee Stage. There has been much discussion on this issue. I will recall the Government's position on the points raised by Deputies Rabbitte and Perry.

The Deputies will recall that the issue of remuneration and pensions was discussed on Second and Committee Stages. I outlined on Committee Stage that following representations from the ICTU I had the issue examined in detail by the Office of the Chief Parliamentary Counsel to the Government. The Government amendment to section 3, which was approved on Committee Stage, clarified for avoidance of doubt that the terms and conditions of employment included pension schemes. That was an important amendment and it met the ICTU's genuine concerns in that regard. However, the amendment now proposed by Deputies Broughan and Rabbitte attempts to backdate entitlements under the Bill to 20 January 2001, the date the directive was due to come into effect, particularly in relation to pay and pensions.

As I said on Committee Stage, during discussions with the Department's legal advisers the question as to the propriety of interpreting the directive as covering remuneration and pensions arose. A view emerged that Protocol 14 on social policy, to which the Deputy referred, which is annexed to the treaty establishing the European Union and which constitutes the legal basis of the directive, is clearly expressed as not applying to pay and, by extension, to pensions. Accordingly, the Department sought from the Office of the Attorney General a formal legal opinion on the matter. A response from that office was recently received to the effect that in its view the wording of Protocol 14 precludes the application of the part-time work directive to remuneration and pensions. Accordingly, while the Bill applies to remuneration and pensions, it does so because of the Government's commitment to this effect, as Deputy Rabbitte acknowledged, in the Programme for Prosperity and Fairness, not as a requirement of the directive. The important implication of this advice is that as regards remuneration and pensions, any benefits accruing to part-time employees arising from the enactment of the Bill will apply from a future date only. That is the legal position.

As someone who has had ministerial responsibility, Deputy Rabbitte knows there is a huge constitutional difficulty with retrospective legislation. Backdating will not arise in these areas in respect of the period since 20 January last when the directive was due for transposition into Irish law. I accept the Deputy's right to question this issue now. In the light of this legal advice I do not propose to accept the amendment. I accept the right of Deputies to raise the issue. I am conscious that many part-time workers are watching this debate closely. Deputy Rabbitte mentioned some part-time workers, but there are others in the teaching area, for example, who are anxious to see the legislation passed. We have had discussions with the Department of Education and Science which is monitoring developments in relation to the passage of this Bill in so far as they may affect the terms and conditions of teachers' employment and issues relating to conditions which, as Deputies will appreciate, are normally dealt with through the teachers' conciliation council which is chaired by the Department of Education and Science and meets on a regular basis.

As Minister of State, it is my responsibility to steer this legislation through the Houses as quickly as possible. If there are issues to be dealt with by other Departments and Ministers, they will be dealt with in a different environment. It is important for me to spell out the legal position as we see it. The Deputy mentioned the Council meeting in 1997. Our legal advisers would have taken the points the Deputy made into account when deciding their position. We have gone as far as possible under our legal authority, particularly in terms of commitments in the Programme for Prosperity and Fairness. There is a constitutional problem with retrospective legislation. There may be other fora in which certain part-time workers will be able to deal with their cases.

Mr. Rabbitte

It is somewhat unsatisfactory, to put it mildly, because the Minister of State is right that many part-time workers or their trade unions are watching this Bill progress through the House. The prospect of it becoming law has been held out to them for a long time. I do not want to reiterate the reasons we initially sought a derogation for one year, but having obtained it we did not manage to make that deadline. Now we are almost on our way to one year after the derogation and the phenomenon of atypical working and part-time working is growing all the time. We find ourselves confronted with the Minister of State who says his hands are tied by the advice from the Office of the Attorney General to the effect that, for different reasons, the legislation cannot be made to have retrospective effect. That will be a source of considerable disappointment to many workers who thought that the Bill might have become law last year, certainly not later than 20 January this year.

Mr. Perry

The Bill provides for the removal of discrimination against part-time workers. I am amazed that there is such difficulty with making legislation retrospective due to the fact that so much legislation is being introduced. Certain retrospective legislation has benefited aspects of development in the State. I am disappointed that there is such a difficulty and wonder why it has arisen concerning retrospective legislation. That question should be clearly answered.

Deputy Rabbitte mentioned the 12 month derogation. Clearly, the Bill was aimed at facilitating the development of part-time work on a voluntary basis and contributing to the flexibility and organisation of working time in a manner which takes into account the needs of employers and workers. If they are obliged to do so, employers will make retrospective payments. I am dismayed that in some cases the Government cannot bring in retrospective legislation that would provide entitlements for part-time workers. In some cases legislation can be referred back to the Attorney General for his opinion as to whether it is unworkable, but does anybody question his opinion? Is he the "almighty" on this matter? Is his word final on all legislation?

Mr. T. Kitt

As regards the delays, I published the legislation in December 2000. The history of the Bill will show that much consultation took place, but I am not in the blaming game. The delays were not caused by any want of trying, on my part, to bring the Bill to the House, but by the introduction of other legislation, including the Carer's Leave Bill. Much good legislation has gone through the House in recent times.

Mr. Perry

Sure, yes.

Mr. T. Kitt

The bottom line on the issue of retrospection is that one cannot put a legal obligation on employers retrospectively because a constitutional issue arises. If private sector employers want to pay retrospectively, I would be delighted to see that happen.

Amendment, by leave, withdrawn.

Mr. Rabbitte

I move amendment No. 5:

In page 4, line 46, after "including", to insert "a member of the Defence Forces or the Garda Síochána or".

This is a relatively straightforward amendment which relates to the definition section interpretations. It seeks to have expressly included in the definition of "employee""a member of the Defence Forces or the Garda Síochána." As it stands, and given the normal interpretation put on these matters in labour legislation during the years, it requires that it be explicitly given expression in the legislation that members of the Garda Síochána or Defence Forces would be included.

Mr. T. Kitt

I am satisfied that the Garda Síochána and Defence Forces are included under the provisions of the Bill as drafted. Neither class nor category is explicitly mentioned in the text as being excluded, which implies that they are covered by the provisions of the Bill. Deputies will recall that on 3 October, on Committee Stage, I moved a Government amendment to provide that while members of the Defence Forces are covered in the Bill, in cases of dispute such members should have recourse to their own redress procedures as provided for under the Defence Acts, rather than to the rights commissioner service. This amendment was sought by the Department of Defence. The Department of Justice, Equality and Law Reform, on the other hand, did not specifically express any concerns regarding the inclusion of the Garda Síochána within the remit of the Bill. This is in line with the approach previously adopted in the Parental Leave Act and the Carer's Leave Act. This amendment, which is now incorporated in the new text of the Bill, should clarify the matter for Deputies. Accordingly, I do not propose to accept amendment No. 5 which is unnecessary.

Mr. Rabbitte

I accept the Minister of State's explanation.

Amendment, by leave, withdrawn.

Amendment No. 6 not moved.

Mr. Rabbitte

Before I come to amendment No. 7, may I ask a question? The record of the debate on Committee Stage seems to show that the Minister of State said he would come back on the definition of "remuneration." An issue arises relating to access to any pension scheme or the arrangements governing the payment of employers' contributions, where applicable. Section 3(1) refers to "any amounts the employee will be entitled to receive on foot of any pension scheme or arrangement."

Mr. T. Kitt

Is it in this amendment?

Mr. Rabbitte

No, it is the definition of "remuneration" on page 5. According to the record, the Minister of State said he would examine the matter for Report Stage.

Mr. T. Kitt

In my view, any checks we carried out would show that we are satisfied with what is provided as a definition of "remuneration" in this case. I am told that it includes cash in kind. That might have been the issue at the time.

Mr. Rabbitte

All right. I thank the Minister of State.

I move amendment No. 7:

In page 8, to delete lines 10 to 17, and substitute the following:

"(4) In the case of a part-time employee placed by a temporary work agency at the disposition of a user enterprise, the comparator worker shall be a comparable full-time employee in the user enterprise.".

This is the single largest outstanding defect in the Bill and has not been addressed. My amendment seeks to deal with the prevalent phenomenon whereby agency workers are effectively precluded from the terms of the legislation. This relates to the comparator that may be used in terms of the eligibility of workers encompassed by the Bill. The comparator is not the enterprise or employment in which the agency worker is actually working, but rather another agency worker. Let me give an example. Let us suppose Ryanair wanted to employ a baggage handler from an agency, that baggage handler may not have his or her conditions of employment assessed by reference to other baggage handlers on the job, but only by reference to another agency worker.

Debate adjourned.