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.".
The non-discrimination clause of the EU part-time work directive is the key provision aimed at ensuring that part-time workers are not discriminated against by virtue of being that. The need for equal treatment for agency workers employed on a part-time basis is extremely important. Section 7 as proposed could result in an agency worker never having another comparator worker in the enterprise where he or she is performing like work.
I was unable to attend Committee Stage, as I explained, but looking at the report, it is not apparent that this matter was teased out yet it goes to the heart of this Bill. If agency workers are effectively excluded from the Bill's benefits then it is a major loophole that must be addressed. This amendment seeks to address a serious injustice and to close off this loophole, which will be exploited by a certain kind of employer. Agency workers are excluded because the full-time comparator is another agency worker, rather than full-time colleagues in the enterprise where he or she works. A person placed by an agency to carry out secretarial functions will be compared with another agency worker and not one in the same enterprise. There is nothing to prevent an arrangement between an agency and an enterprise whereby many of those working there would avoid the benefits of the Bill. This section means that an agency worker would not ever have another worker to compare with in the factory or enterprise where he or she earns a livelihood. What protection will a part-time agency worker have when working in an enterprise other than an agency?
On Committee Stage, the Minister held out the prospect of an EU directive in preparation which would address this question. That is a remote prospect, and even if it materialises, it will be at least three or four years away. At the rate that we translate European legislation into law, it will be much longer in coming. In the interim we are stuck with the current situation with no guarantee that the problem identified here will be addressed. A difficulty with this Bill is that it departs from the definitions of the directive which it seeks to implement. I cannot see how section 7(4) can be read in any fashion other than that an agency worker is excluded. If the relevant part-time employee is an agency worker then the application of subsection (3) shall not result in any employee, other than another agency worker, being regarded for the purposes of this Part as a comparable employee. In other words, in simple English, what this means is that the comparison for the agency worker is another agency worker. It is a worker doing like or similar work in the enterprise and, therefore, I cannot see the benefit in this Bill for an agency worker. The Minister gave figures on Second Stage suggesting there are more than 300,000 designated part-time workers. It would be interesting to know what proportion of that number are agency workers. I suspect quite a few are agency workers.
I draw attention to the Tánaiste who referred to the manner in which agency workers are coming to Ireland to work in various jobs and professions. Their rights are not protected. We have actively gone out to bring in agency workers to certain areas where there is a skills or a labour shortage and they are refused cover by this Bill. I cannot see how whatever discussion took place on Committee Stage addresses this problem. Clause 3 of the EU directive on part-time work defines the term "part-time worker" as an employee whose normal hours of work are less than the normal hours of work of a comparable full-time worker. The Minister of State has insisted on putting a far more convoluted definition into the Bill. This is a phenomenon that is growing in our society. There has been a phenomenal increase in atypical working and part-time working in recent years, on which the Minister provided figures on Second Stage. In the past three or four years those figures have dramatically increased. That, I suspect, is partly because of the greater uptake in the work force of women workers who also have domestic responsibilities and to whom part-time work is suited. Therefore, a high proportion of these employees are women. This Bill as it stands discriminates against female workers.
I feel very strongly about this amendment. I do not understand why in section 7 the Minister moved explicitly to include subsection (4), given that he knows the effect of it. Why go out of his way to exclude agency workers? This is a category of worker who has few rights as matters stand. As an economy we have gone out of our way to search for agency workers and we now explicitly put into legislation something that excludes them from the rather limited and modest benefits of the Bill. I do not understand why it is so important to the Minister that this subsection should remain in the Bill. Why can it not be excised and my amendment No. 7 taken on board? Amendment No. 7 is straightforward. Instead of the Minister's subsection (4) it would put in a new subsection (4) which would read:
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.
In other words wherever that person is carrying out his or her daily work he or she is allowed to make comparisons with the full-time worker in that enterprise and is not restricted to comparing with the agency because that may have no significance, good, bad or indifferent, for the enterprise where work is being carried out.
