Employment Law Compliance Bill 2008: Second Stage.

I move: "That the Bill be now read a Second Time."

Is Bille tábhachtach á seo chun comhlíonadh feabhsaithe na reachtaíochta fostaíochta a áirithiú, mar atá aontaithe ag na pairtithe sa Chomhaontú Comhpháirtíochta Sóisíalta Deich mBliana i dTreo 2016. I mease foralachta an Bhille — ta Stiúrthóir an Údaráis Náisiúnta um Chearta Fostaíochta a chur ar bhonn reachtúil; tá socrúá dhéanamh maidir le bord comhairleach don Stiúrthóir agus do mhíniú a fheidhmeanna; agus tá socrú breise á dhéanamh maidir le reachtaíocht fostaíochta a fhorfheidhmiú lena n-áirítear trí oifigigh údaraithe a cheapadh le chumhachtaí leathna mar is ga, agus mhéadú na bpionís mar gheall ar chionta áirithe faoin reachtaíocht fostaíochta agus faoi achtacháin airithe eile.

The social partnership process has served Ireland exceptionally well for more than two decades by playing a pivotal role in our economic and social development. This has been reflected in the ongoing engagement of Government with the social partners in the development of legislative and regulatory frameworks. In so far as the economy and employment are concerned, a particular focus has been on improving the employability and adaptability of employees, both before and during their working life. The changes in the Irish labour market arising through increased access by workers from new EU member states are also being addressed and we need to ensure social partnership, which has underpinned the economic and social progress we have achieved, continues to play a positive role in meeting the challenges the economy faces.

Employment rights legislation has also played an important role in promoting labour market stability and while Towards 2016 recognises the broad level of compliance with employment rights across the economy generally, it, nevertheless, sets out a significant shared commitment by the parties towards securing better compliance with legal requirements underpinned by adequate enforcement. A fundamental objective of Towards 2016 is to enhance the effectiveness of, and public confidence in, the laws governing employment rights and the Bill delivers on this goal. Furthermore, the National Employment Rights Authority, NERA, which was established on an interim basis with the priority objective of securing increased public confidence in the system of compliance with employment rights legislation, has been making steady and substantial progress.

As the Bill was published with a detailed explanatory and financial memorandum, it is not necessary to explain every section in detail. Its main provisions include the establishment of NERA on a statutory basis with a tripartite advisory board; the strengthening of the inspection and enforcement powers of NERA together with provisions designed to secure compliance, including the protection of employees against penalisation for claiming their entitlements or "whistleblowing", such as reporting breaches of employment legislation to NERA; specifying the statutory employment records to be kept by employers for all employees and the high penalties for failure to keep these records as well as for other breaches of employment legislation; the fostering of increased co-operation at workplace level so as to safeguard employment rights; provision for exchanges of information between statutory enforcement authorities to facilitate joint investigations where breaches of the law are suspected; strengthening of the powers of the Minister for Enterprise, Trade and Employment to initiate investigations such as happened in the Gama case and to publish the outcomes in cases of public interest; and the involvement of labour inspectors, for the first time, in the enforcement of provisions of the Employment Permits Acts and the strengthening of those Acts as regards records and other obligations of employers.

The agreement reached by the social partners to establish NERA on a statutory footing follows the successful establishment of the Office of the Director of Corporate Enforcement, ODCE, in 2001. The mission of the ODCE is "to improve the compliance environment for corporate activity in the Irish economy". The Bill is similarly focused on securing a culture of compliance. At its heart is the intention that all employees, but particularly low paid and other vulnerable groups, can have their rights and entitlements pursued and vindicated by a dedicated State labour inspectorate. Equally, the Bill is intended to ensure responsible employers, the vast majority of whom proactively give their employees their full entitlements, will not be faced with unfair competition from less scrupulous competitors who are willing to gain competitive advantage by short-changing employees. The distortion of competition in the market through non-compliance with employment law is an issue that is often overlooked.

I fully appreciate the economic climate has changed dramatically since the inception of this Bill with economy and value for money considerations now to the forefront. Ireland faces significant economic and fiscal challenges, which were not foreseen at the outset of Towards 2016. However, arising from the Government's recovery plan, the economy can be strong and dynamic again provided we take the right decisions during this difficult period. In this regard, it is important to remember that NERA does not make the law but simply enforces it, just as An Garda Síochána enforces the criminal code and Revenue inspectors invigilate tax laws. I do not expect that the Bill will generate significant costs for employers who comply with employment legislation. In fact, the Bill's provision for exchange of employment information between statutory enforcement authorities will reduce the need for separate and time-consuming approaches to employers by those authorities. The Government is also committed, in the smart economy action plan, to a consolidated inspection programme whereby there would be a streamlined approach by the different inspectorates that visit workplaces, including health and safety, social welfare, etc.

Before dealing with the Bill's provisions in more detail, I will update the House on the activities of NERA since operations began in February 2007. The authority was established on an interim basis following the social partnership agreement, Towards 2016, and against a backdrop of much disquiet about the inadequacy of enforcement of employment law standards. Deputies will recall the many parliamentary questions and debates at that time where the Government was condemned for having "more dog wardens than labour inspectors". That has now changed. Since its establishment, NERA has been active in organising information and awareness campaigns aimed at employers and employees and designed to bring about a stronger culture of employment compliance. The information and awareness role played by NERA is important in that this is a necessary precursor to the function of inspection and, ultimately, enforcement to give the necessary time and space for employers to come into compliance. The organisation has delivered on providing regional cover with offices in Carlow, Dublin, Cork, Sligo and Shannon, which has enabled it to operate throughout the country using the existing powers available under existing employment law compliance legislation. The authority is well equipped to perform all of the functions and exercise the strengthened powers provided for in the legislation, when enacted. I am particularly anxious that, upon enactment of the Bill, NERA will become more involved in the enforcement role provided for under employment permits legislation. I recently wrote to the authority asking it to put in place a focused campaign to ensure that the arrangements prohibiting employment of Bulgarian and Romanian nationals are being adhered to.

The legislation will come into operation one month after the President signs it into law. This dispenses with the need for a commencement order to be made by the Minister. One month's grace is the minimum needed to allow employers and their advisers to gear themselves up so as not to commit any of the new criminal offences created by the Bill, for example, the new requirements related to keeping employment records or the non-supply of information requested by authorised officers. However, I am open to the views of Members as to whether this grace period should be extended to allow adequate time to adjust to new arrangements and responsibilities.

Provisions for the establishment, on a statutory basis, of NERA and a tripartite advisory board are set out in Part 2. The terms and conditions of appointment of the director are detailed and a limit of ten years is placed on such an appointment. Provision is also made to guard against any conflict of interests arising in the 12 months following the cessation of the director's appointment and for the resignation, suspension, removal and disqualification of the director. The director's functions are comprehensively set out, as are provisions for the delegation of functions to the director's staff. These provisions follow standard practice for such appointments.

Section 28 permits extensive co-operation between NERA and other statutory enforcement authorities so as to enable the director to detect and deal effectively with breaches of employment legislation. Section 29 enables the director and other statutory enforcement authorities to advise each other of suspected offences under their respective remits which come to their notice.

The core issue of compliance is addressed at Part 3. Employers will be required to display notices in or at their workplaces advising employees of their entitlements under employment legislation and how to seek redress for the denial of such entitlements. Contact information for NERA must also be displayed. I propose to amend the Bill to require NERA to supply these notices in appropriate languages and to make it clear that the notices may be displayed by electronic or other means, or both.

In tandem with NERA's mission to achieve a national culture of employment rights compliance, section 33 of the Bill highlights the first principle of compliance, namely, that employers and employees should, themselves, endeavour to resolve disputes or differences at workplace level where possible. This principle is key to good workplace relations and good business and is specifically highlighted in Towards 2016 for that reason. Employees and employers should actively engage in that process in a timely way. This principle will be developed further in amendments to section 33 which I hope to propose on Committee Stage, along with refinements to existing employment legislation which I will be making by way of additions to Schedule 5 to the Bill.

Section 33 also obliges the director of NERA to provide authoritative information on request to employees or employers to enable them, as far as possible, to resolve their disputes or differences at the workplace. In order to be able to do this, and also in the general context of effectively promoting compliance with employment legislation, the director of NERA will need to keep up to date with decisions of rights commissioners and determinations of the Employment Appeals Tribunal and the Labour Court, as well as with rulings of the Irish courts and the European Court of Justice.

The key area of enforcement is addressed at Part 4 of the Bill. It specifically empowers the director of NERA to formally appoint authorised officers, and offences are created where anyone obstructs, impedes, assaults or impersonates an authorised officer. Provision is made for right of entry, inspection, examination and investigation by authorised officers who may seek a court order for the production of evidential material if necessary. I expect, and I am assured through ongoing contacts with the director of NERA, that these powers will be used judiciously and appropriately at all times.

Section 38 empowers the director to require specific persons to give information or produce documents and section 39 makes it an offence for any person to falsify, conceal, destroy or dispose of any relevant record so as to thwart an investigation by the director of a suspected offence. Section 41 provides a necessary power for the Minister for Enterprise, Trade and Employment, in the public interest, to require the director to undertake an investigation of a particular employment or particular classes of employment in which the Minister reasonably believes there is a serious risk of non-compliance with the law.

Section 47 of the Bill is designed to secure prompt payment of moneys owing to employees under employment legislation. It empowers the director of NERA or an authorised officer to issue a compliance notice requiring an employer to pay any moneys believed to be owing to any employee under employment legislation. The employer concerned is entitled to challenge such a compliance notice directly or to appeal against the director's decision to the District Court.

Section 49 provides for enforcement orders which may be needed to deal with urgent and significant cases of non-compliance with employment legislation. It empowers the director to apply to the High Court for an order requiring the employer concerned to comply with the relevant provision. Again, this is a function which NERA will use judiciously and only when absolutely necessary.

Part 5 of the Bill strengthens both the obligations of employers and the rights of employees. In particular, section 50 provides immunity for any persons who in good faith report breaches of employment legislation to NERA, the Minister for Enterprise, Trade and Employment or to the Garda Síochána. As a corollary, it will be a serious offence for anyone to report in bad faith. Section 51, with Schedule 2, provides comprehensive protection for employees against penalisation by their employers for reporting breaches of employment legislation in good faith, whether by their employer or by another employer, or for seeking their entitlements or exercising rights, or for giving evidence in court proceedings relating to such breaches.

Section 52 makes comprehensive provision for statutory employment records to be kept and maintained by employers. Where there is failure to keep such records, the onus will be on the employer or other person concerned to prove in court proceedings that the relevant provision of employment legislation was complied with as regards the employees concerned.

Despite our best efforts at promoting compliance with the law, there may still be some temptation for non-compliance. As a deterrent, the Bill provides considerable penalties both for new offences and existing ones, in line with Towards 2016. For the most serious of the new offences, the maximum penalty on summary conviction will amount to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months, or both. On conviction on indictment, a maximum fine of €250,000 is available and-or three years' imprisonment. These are maximum penalties. It will be for the courts to decide on the penalty to impose on conviction in any specific case.

As Deputies will have noticed, Schedule 5 to the Bill does not yet provide for consequential and other amendments required to more than 30 separate enactments which come within the definition of "employment legislation". Those amendments, together with further refinements needed to the Employment Permits Acts, will be included in the full set of amendments to the Bill which I hope to table for consideration on Committee Stage. I know I will get considerable co-operation from the committee and its chairman, who is present today. Those amendments will include substantial changes to the body of the Bill, to reflect the outcome of detailed consultations with the social partners and stakeholders, and further detailed examination of the Bill with the Parliamentary Counsel and the Office of the Attorney General.

The amendments will include removing some offences from the category of "criminal offences" and deletion of section 61, fixed-payment notices, so as to make enforcement more proportionate on employers; strengthening the role of the tripartite advisory board, by requiring the director of NERA to have regard to advice provided by the advisory board on any issue and, in particular on NERA's work programme and strategy statement; clarifying the workplace notice requirements of employers by requiring them to display notices according to templates provided by NERA; highlighting the need for employees and employers to endeavour to resolve promptly disputes or differences at workplace level, but without prejudice to employees' statutory entitlements or any NERA investigations or other enforcement activity which may be needed; clarifying that persons appearing before the director of NERA can also be accompanied by a trade union representative or an employer's organisation representative, as appropriate, as well as by a legal representative; making clear provision that certain key employment records will be readily available in the State for NERA to examine if necessary; reducing the burden on employers on cessation of employees' employment by limiting their obligation to produce a statement of employment on a request basis only; prohibiting the retention by employers of personal documents or other property of employees; and amending Schedule 5 of the Bill so as to require employers to keep a copy of any employment permit granted to any of their employees, rather than a copy of every employee's passport or other identity document, which would be unnecessarily burdensome. As I understand it, it is already an offence under other legislation to retain anyone's passport unlawfully. The opportunity will also be taken to clarify provisions of the Employment Permits Acts to assist their operation and enforcement.

The Bill does not change current statutory arrangements relating to the roles of the various employment rights adjudication bodies — rights commissioners, the Labour Relations Commission, the Employment Appeals Tribunal and the Labour Court — which have a key role in ensuring that disputes concerning employees' rights are resolved as efficiently and as effectively as possible. While there may be a case for improving and streamlining these bodies, it would be my intention to develop any proposals in this regard separately and in the light of ongoing Government deliberations on agency rationalisation and efficiency reviews.

The Bill does not amend employment law which currently exists in the context of the minimum wage, holiday entitlements, employment regulation orders and registered employment agreements. Employers are obliged to comply with existing laws and the issue of NERA inspections does not impose any additional regulatory burden. This is an important point. The industrial relations framework that has evolved since the foundation of the State is essentially voluntaristic in nature. Many of the mechanisms for regulating industrial relations are tripartite in nature, including the Labour Court and other employment rights bodies. This approach has been strengthened in recent years by the development of strong social partnership structures. In practical terms, this means that the State has been prepared to leave the regulation of many issues to employers and workers, including minimum wages and terms and conditions in certain sectors of the economy.

An example of this approach is the process by which minimum rates of pay are agreed through joint labour committees and made through registered employment agreements and employment regulation orders, for example in the hotel and catering sectors. In these cases, neither the Minister of State nor NERA as the enforcement agency has any role in the setting of the wage rates and other terms. This can only be done by employers and workers themselves and this arrangement has existed since the late 1940s. It is a good arrangement which supports the voluntarist system of industrial relations and does not unnecessarily involve the State in regulating areas of the economy where agreement can be reached by workers and employers alike. As with all powers come accompanying responsibilities. In these challenging times, it is more important than ever that both employers and workers who participate on joint labour committees are responsive to prevailing circumstances and to the impact that appropriate terms and conditions can have on the ongoing viability of businesses and the protection of employment levels.

Some recent encouraging signals include a preliminary agreement between the employer and trade union interests in the catering sector to fix a uniform set of terms and conditions, including minimum pay rates and Sunday premium rates, for application throughout the country. An aversion to responding to changing circumstances is in no one's interest. Social partnership has always proved itself adaptable in the past and, notwithstanding current difficulties at national level, I am confident that it can continue to renew itself and respond to the emerging challenges that face us all as an economy and a society.

In conclusion, this Bill is to provide for employment rights, to protect workers and to ensure they receive their statutory entitlements. I will be happy to expand on any of the foregoing and answer any questions Deputies may have and I commend the Bill to the House.

The Towards 2016 agreement was made more than two years ago and circumstances have changed fundamentally and considerably since then. We are now in the midst of an economic crisis and the social partnership system has not held up in the way others may have expected or hoped, given the decisions made this week.

The Bill was published last March but it is an indication of how flawed it is that it took so long to come before the House. The Minister of State has outlined some amendments which are planned for the most flawed parts of the Bill and I look forward to seeing their details.

As this Bill arose from the Towards 2016 agreement, it is worth noting the most recent statement from IBEC, one of the social partners, that in its view the Bill as drafted goes way beyond what was agreed at the Towards 2016 stage: "We must oppose any measure that makes it more difficult to get a job and keep a job, including any attempts to make the labour market more flexible." It refers in particular to the 23 new criminal offences established in this Bill and also the new powers conferred on NERA. It may be the case that IBEC will be satisfied by the Minister of State's amendments but it may not. I am not sure if Chambers Ireland is a social partner but it represents chambers of commerce all over the country and in my view is therefore a national economic partner. I do not know whether it is a Fianna Fáil social partner but it has issued a statement today condemning and criticising the Bill and saying that its members consider it to be an additional layer of bureaucracy. It has made its opposition clear. The representative body of small and medium-sized enterprises, ISME, is not a social partner of Fianna Fáil's but in my view it is an important social and economic partner representing tens of thousands of businesses across the country. It is strongly opposed to this Bill which it considers to be an attempt to criminalise employers.

I note that 320,000 people are on the live register and 450,000 people will be on the register before the end of the year. We need to be very careful about the type of employment legislation we adopt in order to ensure that by attempting to protect employees we do not end up putting their jobs at risk as an unintended consequence.

The Bill gives statutory footing to NERA. I do not have a problem with a statutory footing for the body but as the Ministers have said on a number of occasions, it is unnecessary. However, I have a problem with the concept of setting up an agency to solve every problem and I will return to that point later.

I refer to the further bureaucratisation of the employment law system and the proliferation of quangos and State agencies. This Bill will establish another board on a statutory footing and create a multiplicity of organisations dealing with labour rights with up to six different organisations in existence which will lead to confusion and cause problems both for employers and employees. I am concerned at the near-extraordinary powers the Bill gives and in many cases it changes the relationship between employers and employees from one that is largely voluntarist and co-operative to one which involves the criminalisation of employers. I will deal with this point in more detail later in my contribution. It gives extraordinary powers to NERA which are like those of the Garda Síochána or of the powers which are abused by the Competition Authority. My party will not stand over giving a State agency those kind of powers.

The Bill will have the greatest impact on small and medium-sized enterprises. Large business, the banks and semi-State companies are represented by IBEC — it does not really represent small business. Big business and large companies have human relations and legal departments to deal with aspects of the Bill but such legislation will be a heavy burden on small business. The Small Firms Association is the division of IBEC representing small firms and it has expressed its concerns about the Bill. I refer to a statement by Pat Crotty, former chairperson, to the Joint Committee on Enterprise, Trade and Employment. He stated that in its current format the Bill has the potential to cease all employment creation in small businesses. He said he was not exaggerating in commenting that from the perspective of the owners and managers of small businesses there is a risk in being subject to 20 new criminal offences just to employ someone and to grow the business. If this is the view among employers and even among those involved in Fianna Fáil social partnership, I cannot understand how this Bill can be anything other than one-sided.

I note the Minister of State has indicated that significant amendments will be tabled but the Bill as published will be opposed by Fine Gael and if it is passed in its current form Fine Gael will repeal it when in Government.

To address the point regarding the establishment of NERA as a separate agency, I do not believe this was necessary. In many ways this was as a result of the Gama scandal but the failure in Gama was not that we did not have a quango but rather that we did not have enough labour inspectors in the Department of Enterprise, Trade and Employment and they were not doing their job properly. The number of labour inspectors has been significantly increased and there are now 80 inspectors, which is to be welcomed. It was not necessary to set up a new State agency at considerable expense and to decentralise it to Carlow or any part of the country just to increase the number of inspectors as this could have been done in any case. Had there been enough labour inspectors and had they and the Department been doing their job properly, it would not have been necessary to set up an agency. In many ways the establishment of NERA was the typical Government response to every problem which is to set up another agency with its own headquarters, its own directors and board and its own website and this is the wrong approach. It is the Government's approach to every problem but has largely failed over the past number of years. I also have a difficulty with the title of the agency, NERA, National Employment Rights Authority. This is an organisation that is supposed to represent a consensus and to promote a culture of compliance but it does not sound like that to me. This is not like the Health and Safety Authority. The title of the National Employment Rights Authority implies that this is a body set up to be one-sided. It will be like a policeman receiving complaints from the victims, the employees, who will then raid the premises and prosecute the employers. The name alone reflects an attitude within the organisation and among those who have drafted the Bill. A more appropriate name would be the labour law authority or something like that rather than the National Employment Rights Authority, which sends all the wrong messages.

I am also concerned about the duplication of roles and further layers of State agencies and bureaucracies being created. In his contribution the Minister of State said that efficiency reviews are ongoing and that the Government is examining this entire area. This Bill was created in the minds of people two years ago. It was published last March. The Minister is obviously not in a hurry to do it because it is two years since it was thought up and almost a year since it was published. The Minister of State has made the case many times that the National Employment Rights Authority can operate without being put on a statutory footing and therefore I do not understand the reason to put forward this flawed Bill now. If the Government is doing efficiency reviews and examining the consolidation of State agencies, why does it not do that first instead of bringing in a Bill we may have to repeal or considerably amend when it completes that review of State agencies and efficiencies?

That is the parliamentary process.

Perhaps the Government is not sincere about doing that. It may be the case that it does not plan to do an efficiency review.

Citizens information centres advise people to whom they should go when they have complaints. They go to NERA when it comes to employment regulation orders, minimum wage, pay slips, protection of young workers and employment permits. They go to the rights commissioner if the issue concerns other minimum wage issues, unfair dismissal, working times, failure to give written terms and conditions, fixed-term work, part-time work and so on. They go to the Employment Appeals Tribunal on different items such as rights having been breached with regard to redundancy, unfair dismissal and minimum notice. They go to the Labour Court on other matters. On employment equality matters they go to the Equality Tribunal. On some issues they go to the Health and Safety Authority and on others they go to the Department of Social and Family Affairs. The Government has an opportunity now to get this right rather than simply set up a new agency, review its efficiency, effectiveness and necessity after a period and then redefine it.

One of the major changes in the Bill is the difference between the rights commissioner system and NERA. If I do not get my holiday pay or my holidays, for example, the current process is that I go to the rights commissioner. The rights commissioner investigates it and sorts out the problem. The rights commissioner system works very well and the Labour Relations Commission, of which it is a part, works very well. That can now change. Instead of going to the rights commissioner I can now go to NERA and instead of NERA sorting out the problem in the way the rights commissioner can do, NERA can then prosecute the employer. Instead of trying to sort out the problem in the way it was always done in the past, the Minister will make a dispute that could have been sorted out in the normal way, and always has been sorted out, a criminal matter for which the employer could be prosecuted, bear the cost of the prosecution and potentially be fined or even imprisoned. That is not the right approach. I realise I will be accused of right wing tendencies for saying that but the logic of the argument is clear.

Regarding the position of the director, we should cap the remuneration of the director in the Bill. We should make it clear in the Bill that no bonuses will be paid to the director. The fact that the director of the National Consumer Agency got a €25,000 bonus today is appalling and is an indictment on the Government. It indicates where it stands on public sector pay, which is to give bonuses to those who are already overpaid and to punish those who earn under €15,000. That is a disgrace. We must set clear provisions in this Bill that bonuses will not be paid or if they are, that there are clear criteria as to the purpose of those bonuses. Rising prices and people crossing the Border to go shopping should not be the reason for getting a bonus.

I have concerns about the advisory board. NERA is already operating; it does not need an advisory board. This appears to be an attempt to create another FÁS type board. It will have three representatives from IBEC, three from ICTU, and three from Fianna Fáil or people known to Fianna Fáil, all of whom will get remuneration. They will be down in Mount Juliet eating foie gras. If they are as shameful as some of the IBEC and ICTU people who have served on FÁS they will fly first class to Florida in contravention of Government guidelines and then refuse to repay that money.

The last thing the country needs is for the Minister of State to create another FÁS board. If we are to have a board it is important that we require that the people appointed to that board are vetted by an Oireachtas committee and that the three independent representatives, and their qualifications, are clearly defined. That is the type of role that should go to, say, a legal expert in employment law and not necessarily to a political appointee. We should also ensure there is no remuneration for the board members and that they do not engage in the type of practices that have become typical of State boards established under this Fianna Fáil partnership structure, which I believe people have lost faith in given what they have seen in FÁS and other boards.

On the new powers being given to NERA, I am happy enough with some aspects of the Bill. The joint investigation unit is a good idea and I support the protection for whistleblowers. I have problems with the provision for the new criminal offences of which there are 23 according to the count of IBEC and the Small Firms Association. I counted 15 but that can be clarified later.

I am against one of the provisions in section 36 and I will not support the Bill if it goes forward. It concerns the power to raid businesses, secure them as if they were a crime scene, and take away any documents NERA wants without any allegation being made, any suspicion or any court order. It is similar to what the Competition Authority has done where it has abused its powers. It can go into a small business and declare it a crime scene, take all the books away, prosecute the people involved and send them to jail. That provision must go. I do not mind the idea of a business being raided or documents removed but there must be aprima facie basis for doing so. There must be an allegation or a suspicion. We cannot treat businesses in this way. There is no way this party, or any party that purports to be in favour of small businesses, could support such a provision.

Section 32(6)(b) denies the right of silence to an employer. Essentially, if an employer does not respond to a question, that can be inferred by the director as an admission of guilt. We do not take away those kind of rights from murderers yet we intend to take them away from an employer. That is unacceptable and I reject a Bill that includes such a provision.

Section 59 includes fines of up to €5,000 and terms of imprisonment of up to three years for potentially minor offences. What would happen in the current labour law context is that an inspection will be carried out, the employer will be told they must rectify the position and, if they do not, a prosecution may follow. This provision could allow a prosecution to occur without any opportunity for the person to rectify the position. For example, the inspectors could seize documents without giving the employer an opportunity to put the documents together. Essentially they become evidence, and that must be examined.

As I mentioned in my statement today, I have a serious problem with section 61, which deals with the fixed payment notices. Again, it involves the inspector going in and behaving like a garda or a clamper by accusing an employer and imposing fines Nos. 1, 2 and 3. The employer ends up being fined several thousand euro.

The approach we should take when it comes to employment law is to give employers an opportunity to comply. For example, if the employer does not have the required notice displayed or if it is not in the correct language, they should be given an opportunity to comply. We should not simply fine them on the spot as if this was a litter offence. That is not the right approach to these issues. I note the Minister proposes to table an amendment to that section, and I look forward to the detail of that.

The fine for not keeping records is €250,000. That is extraordinary. If someone violates a tree protection order the fine is €65. If, like Kimpton Vale Limited or Larry Keegan, one knocks down a convent in south Dublin the fine is €1,000 but the maximum fine for not keeping records is €250,000. We must have some proportion in that regard.

Section 51 deals with the penalisation of workers. Depending on who one believes, the legal advice we have from the people who essentially wrote the book on employment law is that under this system an employer would not be able to transfer an employee from full-time to part-time work as that could be considered penalisation. The obligation would then be on the employer to prove that was not penalisation.

In the context of the current economy where people are moving from full-time to part-time work or working a shorter week because there is not enough work to be done, we should not create a new legal obligation on employers to prove that they have to do that. That is not something that is appropriate to employment legislation.

The Minister of State said there may be an amendment to the section relating to statements of service which I would welcome. As drafted, the Bill would make it a criminal offence if an employer did not give a statement of service to a departing employee, even if he or she did not ask for it. This is an insane provision. It is one matter if an employee asks for a statement of service, another if he or she does not. Statements of service should become a standard feature of people departing employment but should include information, such as attendance and punctuality, which would be of interest to future employers in assessing an employee's work record. I will be introducing amendments on Committee Stage in this regard.

I have a difficulty with the provision of multilingual notices. The official languages of the State are Irish and English. Putting the onus on employers to decide in which languages they have to post notices could lead to difficulties. For example, in an Indian restaurant there may be employees from India or Pakistan who speak six different languages. Will it be incumbent on the employer to publish notices in all six different languages? Is he supposed to know the notice is meant to be in Tagalog and not Telugu, Malayalam instead of Hindi? This provision could create an unfair burden on employers when the official languages of the State are Irish and English. It would be better if NERA could assist employers in this regard. It has already done some good work in producing information on labour rights in six different languages. To impose a criminal sanction on an employer if notices are not produced in the correct languages is both onerous and unfair.

I am glad the Minister of State intends to remove the provision about retaining a copy of an employee's passport. I would love to meet the muppet who wrote this Bill. I cannot understand why this provision was included. Why would an employer want a copy of an employee's passport and retain it for three years? I appreciate this will be amended. Section 54 relates to the return of private property to employees. That is contained in existing legislation and I do not understand why it needs to be included in employment legislation.

To the best of my knowledge no proper regulatory impact assessment has been carried out on this legislation. Those done by the Government are poor and do not contain any figures on costs. I have been informed the reason a full assessment has not been carried out is because the Government believes there will be no costs for business. That is rubbish. This legislation, when enacted, will have a significant cost impact on business. A regulatory assessment must be carried out. It is not good enough for the Government to say it has decided there are no costs. I cannot support this Bill unless a regulatory impact assessment is carried out.

An article I read suggested the role of the trade unions could be undermined by this Bill. Due to the relationship of the employee and employer becoming more one of a victim and a criminal, the employee will go to NERA to enforce his or her rights instead of going through the normal process of industrial relations with a union representative. One section creates the primacy of the latter approach. However, the rest of the Bill does the opposite.

I do not believe that is the only motivation behind the Deputy's opposition to the Bill.

It is not but it is a relevant point. I do not have an objection to people being members of trade unions. I was a member of one in the past. Where disputes arise and unions are recognised by the employer, resolution through it is a logical course to follow. In many ways, NERA will supersede that. Employees will go straight to NERA to have the employment policeman sort out their criminal complaint against an employer instead of resolving it through the normal industrial relations processes in existence.

Dr. Tony Dobbins, in an article on compliance in employment law, states there are two approaches, the Anglo-Saxon and the Latin. This Bill, he argues, adopts an Anglo-Saxon model where six separate agencies behave like policemen in enforcing the law in businesses. The Latin model, on the other hand, which is used in most of Europe, is more holistic, giving most functions to the one authority and a real degree of discretion to the labour inspectors to work with employers and employees to deliver a desired outcome.

I accept NERA is just doing its job in enforcing the employment regulation orders in the catering and hotel sector. It has been established as a policeman to prosecute employers who are criminals and deal with them in the way it has. I believe that is not the right approach. NERA should be able to have a more holistic approach in dealing with labour inspections and to show some degree of discretion and leniency where appropriate. I regret the Government has not opted for that approach.

I have no objection to the joint investigations units. The IBEC submission on the legislation stated:

The Bill is supposed to recognise the central obligation on employers and employees to attempt to resolve workplace disputes. This is to be welcomed and enforcement is always to be a last resort. However, the Bill does not effectively enshrine that obligation in statute.

The Minister of State did not refer to any amendments that would ensure enforcement is a last resort and not the first action to be taken.

The director of NERA will have the power to issue compliance notices without having to go to a court which allows him to decide what is the law. Essentially, the policeman is being given the powers of the court. I accept that is how the planning system worked but I am not sure that is appropriate to employment law.

At a recent conference, Tom Mallon, a barrister who specialises in employment law, pointed out that a situation could arise from this legislation that if an employer dismissed an employee because the employee refused to transfer from full-time work to part-time work, then the employer would be guilty of a criminal offence. Can the Minister imagine how many employers are now criminals because of such requests with the recent economic downturn?

This is a flawed Bill. NERA, as an agency, did not have to be established separately to the labour inspectorate. It is a typical Government response to establish an agency for every problem that emerges. The labour inspectorate could have easily been properly resourced. This legislation will create new layers of bureaucracy and duplication with a new board similar to that of FÁS being established. It also gives extraordinary powers to NERA to raid businesses, take away documents and criminalise and prosecute employers. The fourth issue is the absence of a proper impact analysis.

This Bill is disproportionate and heavy-handed. It will fundamentally change the relationship between employees and employers and will potentially criminalise people just for taking staff on and giving them a job. We do not need this in the current economic context.

On behalf of the Labour Party I welcome the fact that the Employment Law Compliance Bill 2008 has eventually reached the floor of the Dáil, as it had a considerable length of time in gestation. We now have an opportunity to allow for a comprehensive debate on these important issues. The Bill is being introduced in different circumstances from that in which it was negotiated with the trade union movement and social partners.

The Bill is designed to give effect to commitments set out in the social partnership agreement Towards 2016 and considerably strengthen the law and enforcement effort to ensure employee statutory entitlements and protections would apply and are honoured. Deputy Varadkar has indicated he is opposed some aspects of the Bill and some of it clearly needs amendment. I interpreted some of Deputy Varadkar's views as being opposed to the concept of rights. One cannot blind oneself to the fact that even gathering information can be very problematic in the context of employers. I have experience of trying to get a P45 from an employer for an employee. This is a statutory document without which rights to jobseeker's or other benefits cannot be determined. Nevertheless, employers can sit on their hands and not furnish such documents. That is a simple matter but it involves a statutory document to which the employee is duly entitled.

We cannot blind ourselves to these realities. I am against the strangulation of small business through bureaucracy and I support efforts against this — I am on the record of the Dáil in this respect — but I cannot in conscience allow an unscrupulous employer to do what they wish with an employee. It is like the old master-servant relationship, where there is no control on how far a person can be pushed. In that situation there would have been no regulation determining the time worked and people would hardly have time for lunch break before being called into service. They would be kept working until 8 p.m. or 9 p.m. without any regard to overtime. These rights were hard fought for by union members and some of our forefathers. I want to see them protected rather than lost.

For the employer who adheres to regulations there is nothing to fear. The Minister of State present is responsible for labour and he is quite capable. I do not say this condescendingly. Setting up NERA as a separate body must be re-examined. The old Department of Labour has enough expertise within it to deal with those issues, receive complaints and pursue them and ensure rights are enforced. These are rights that people are entitled to and obligations should be fulfilled in that regard. We do not need another quango to achieve that, which will have a structure of chief executive, deputy chief executive, a plethora of advisers, advisory boards, etc. This is where I have a problem as in the current climate we must cut down on these.

This legislation was negotiated and I am completely in agreement with the thrusts and objectives of the Bill, subject to amendment. Some of these have already been included or were pre-empted.

The Deputy has been accommodated.

That is fair enough. I am sure there will be more accommodation when we get down to business. One of the big problems was the lack of inspectors. There were only 30 or 35. Like the acorn seed becoming an oak, it took a long time to increase the number of inspectors to 90. We now have an inspectorate but it should be under the umbrella of the Department of Enterprise, Trade and Employment. That is important.

This is the second in a suite of employment rights and compliance measures which were negotiated during the partnership agreements. When enacted the Bill will modernise the labour inspectorate and establish a national employment rights authority, NERA, which has a long-winded name. It will strengthen the inspection and enforcement powers of NERA, which will include the power to issue compliance notices and the ability to prosecute summary offences.

The Bill strengthens the obligations of employers with regard to statutory record keeping and introduces whistleblower protection for employees who report breaches of employment law. There is also protection from penalty when claiming employment rights. It increases the penalties for breach of employment law up to €5,000 and-or 12 months in prison for summary offences, or up to €250,000 and-or three years in prison for indictable offences, along with the use of name and shame provisions.

This could be done without setting up another structure. One other problem is that we have too many structures. We have very fine labour dispute resolution mechanisms, including the Employment Appeals Tribunal and the Equality Authority. That has been subsumed and is now gone. There is also the Labour Court in Tom Johnson House. We have fine structures in place.

NERA has already had an impact and the report of proceedings during 2008 will be available next week at a briefing by the Minister of State. It is noticeable from perusal of the Bill that there is a failure to set out a role for trade unions within the compliance framework. It does not provide for the conclusion of a memorandum of understanding between NERA — assuming the Government goes ahead with it and ignores our advice to keep it as part of the Department of Enterprise, Trade and Employment. The concept is very important and I should underline our support for this. It is to ensure people's rights are protected and underpinned, although we believe it could be done within that Department.

The Bill does not provide for this memorandum of understanding between NERA — or whatever concept we have — and unions such as ICTU. The employment regulation order referred to is one area where we can see this working, particularly with difficulties bedevilling the hotel and restaurant industry. People who wanted to can have a JLC. They came into place in the 1940s, when it was important to have them, particularly in the agricultural area. They were very important but now we have partnership agreements, wage agreements and a plethora of employment law. In that context it is important to note employer and trade union interests are working together in the catering sector to deal with a set of uniform terms and conditions. There was one for Dublin and one for outside the Dublin area. They dealt with minimum pay rates, which is very important, and the Sunday pay rates.

This led to division and the trade has almost collapsed, from what I hear on the ground. It is important that unions understand the position and that is the reason it is important to include such considerations in the legislation. The Minister of State will move to accommodate this position.

I have also noted an employment regulation order relevant to the security industry. It came into effect on 1 January 2009 and allows increases of approximately 10% to 13%. The association involved is part of the security industry's joint labour committee that agreed the package in 2006. In light of the current economic turmoil, however, things have changed. There will be little receptivity among customers in respect of being asked to pay up and cover the costs. Many customers, including State and semi-State organisation, gave a commitment in respect of this matter but then flatly refused to allow the fees to be passed on to them. The HSE was one of the customers mentioned in this regard.

If State and semi-State bodies must, in conjunction with the unions, given consideration to this matter. NERA will be involved and will be carrying out inspections of companies. It will be subjected to a blank response from customers. When the package was negotiated in 2006, the economy was in a different state.

It is important the rights of workers be respected. However, I am concerned there is an insistence that the provisions in the package be honoured. It will further exacerbate the position with regard to unemployment in an industry which is now regulated and within which proper structures are in place. There should be a consultation process and a memorandum of understanding should be in place to allow matters of this nature to be thrashed out. No one can be indifferent to the conditions in which people are obliged to operate.

In the Labour Party's view, it is important the solutions to issues that arise be provided in the first instance at the level of the workplace. However, this does not appear to be affecting the agreement and I note the Minister of State is to correct the position. I am of the opinion that employers and employees would be very eager to see a provision in this regard being included. If the Bill is not amended in respect of this matter, then NERA will be obliged to operate in a vacuum. The question of how NERA will interact with unions, employers and those in the workplace must be addressed. I believe the Minister of State has accepted that if the position is not changed, the results could be disastrous. If the Bill, as it stands, is enacted, will NERA be obliged to have due regard to the agreed disciplinary procedures to which employers and employees already subscribe?

A core principle of Towards 2016 is that initiation and ownership of cases will rest with the complainant in so far as is possible. This is important because it will allow complainants to consult their union and ascertain their statutory and contractual rights. It will also allow for workplace solutions to be achieved. Trade unions and employers or their representatives have extremely important roles to play in this regard. As the Bill is currently drafted, employees will have no role whatever in decisions affecting them which are taken by NERA. There is a lacuna in the legislation in this regard which must be addressed.

A commitment was given in Towards 2016 to the effect that every employee must have an identifiable employer in the State who is legally responsible for compliance with all aspects of the applicable employment rights legislation. Section 46 of the Bill allows for co-operation with other member states but it does not require that statutory records must be kept in this State. As a result, a sizeable number of employees will remain outside the protection of the legislation. ICTU has made the point that such an approach would be inconsistent with the posting of Workers Directive 96/71/EC, which places a duty on member states to guarantee to all EU workers posted in their territories the same protection under labour law as applies to local workers. In the absence of such a provision, a question arises as to how such a posted worker might recover moneys owed to him or her. Perhaps the Bill can be amended in order to ensure records identifying legally responsible employers are kept. If the Government does not move an amendment in respect of this matter on Committee Stage, my party will do so.

Section 47 of the Bill confers on inspectors the power to impose penalties when they issue compliance notices. Deputy Michael D. Higgins has been very much to the fore in respect of this matter. He inquired on the Order of Business last week as to when the Bill would be introduced because he is particularly concerned with regard to migrant workers.

The definition of an "employee" appears to be restrictive. The body might find itself restricted from investigating and enforcing employment rights and some workers might well be effectively excluded from existing rights because they will be unable or will find it difficult to have themselves included under this definition. In the Industrial Relations Act 1946, the term used is "worker". Under that legislation, a worker is "any person of the age of fourteen years or upwards who has entered into or works under a contract with an employer whether the contract be for manual labour, clerical work, or otherwise, be expressed or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or a contract personally to execute any work or labour". That is a far more wide-ranging definition.

The status is not a limitation on the right.

Exactly. The Labour Party brought forward legislation to try to bring Ireland into compliance with the temporary agency workers directive. I accept that matters in respect of this may be ongoing. However, I must draw attention to the absence of any provision in the definition of "employer" in the context of who NERA will treat as the employer of an agency worker. My party wants the Bill to be amended in this regard in order that sufficient cover will be provided.

The definition relating to employment legislation means that only the legislation listed in Schedule 1 of the Bill will apply. However, certain items of legislation are missing from that Schedule. In that context, the Adoptive Leave Acts 1995 to 2005, the Maternity Protection Acts 1994 to 2004 and the Parental Leave Acts 1998 to 2006 must be included. The Minister of State might say that a plethora of Acts is included and ask why we should insert more. If a worker returns from sick leave but is refused annual leave, NERA can examine complaints relating to annual leave because provision is made in respect of rights thereto under the Organisation of Working Time Act. However, it is not in a position to consider people's rights that arise under the maternity legislation. By leaving the legislation to which I refer out of the Schedule, the potential for the creation of unnecessary difficulties or loopholes will be created. People would also enjoy less protection than exists under the other employment rights legislation.

Consideration should also be given to including the relevant section of the Data Protection Acts 1999 to 2003, at the very least for investigation purposes.

Section 6 states: "The objective of the National Employment Rights Authority shall be to promote, encourage and secure compliance with employment legislation." As I indicated, I would prefer if this function was performed by the labour section of the Department. Given the importance of encouraging compliance with employment rights, the promotion of rights must be given a prime position in legislation. In fairness, the Minister of State noted that considerable public awareness work has been done through television and radio advertisements and so forth.

While I accept the need to avoid strangling companies with bureaucracy, maintaining employment records of staff is not an earth-shattering requirement. Incidentally, I support the inclusion of ISME in the partnership process. Given that one cannot abrogate statutory employment rights, how would it be possible to kick them to touch? Nevertheless, I accept the necessity to provide employers with a single, uniform and simplified form. Mr. Mark Fielding of ISME and Ms Patricia Callan of the Small Firms Association stated before the Joint Committee on Enterprise, Trade and Employment that companies receive a plethora of forms, all of which seek similar information. This excessive bureaucracy is smothering small companies. Mr. Fielding and Ms Callan called for a single form to be introduced, which could be filled in on-line. The information provided could then be accessed by agencies such as the Central Statistics Office, Revenue Commissioners and NERA and the Departments of Enterprise, Trade and Employment, Social and Family Affairs, the Environment, Heritage and Local Government and others.

We cannot abrogate workers' rights because they do not suit employers. I say this as one whose wife must maintain employee records and documentation such as P35 forms. The National Employment Rights Authority may secure compliance through a number of means. I hope the first port of call will be encouragement and awareness and NERA will not use a sledgehammer to crack a nut. However, in the case of recalcitrant employers, the director of NERA may initiate prosecutions of offences by way of summary proceedings or refer cases to the Director of Public Prosecutions where the director has reasonable grounds for believing that an indictable offence under employment legislation has been committed.

The application of dissuasive sanctions is crucial in this area, as it is in all other areas of law. It is no use burying our heads in the sand or denying that we have unscrupulous employers. I have stood on picket lines with workers employed by such companies. In doing so, I was following in the footsteps of my forefathers and I would do so again. My party goes back as far as 1913 and we have not forgotten that rights are trampled on.

I would be inclined to limit the role of advisory boards, whereas trade unions may wish to have the role of these boards strengthened. Why is advice needed when the law is available?

It is a case of jobs for the boys.

It is not necessary to establish a large quango.

We should not pass legislation and lay it off to someone else. When Deputies ask a question about the National Roads Authority, not to speak of the Health Service Executive, we cannot obtain answers. I discovered recently that all medical card applications made by people aged over 70 years will be processed in Finglas. Deputies will be shocked to learn that virtually no medical cards for people aged 70 years and over are being processed. This is being done under our noses but I have a way of ferreting out information. I may not seek it but it comes to me. This type of practice is taking place but no one will answer a question about it.

The reply I received to a question to the Minister for Health and Children the other day reminded me of Pudsy Ryan. It repeated the information I provided in the question. This practice is a denial of democracy. When I am alerted to a fact, I am entitled to obtain information on it. I do not want to deal with an advisory board or other body. The Oireachtas enacts primary legislation. Irrespective of our views, Deputies Higgins, Barrett, Varadkar and I are democratically elected and our role is to seek to amend the legislation. If our amendments our defeated on Committee Stage by a majority vote, that is democracy. The Minister will be held accountable for the actions of NERA. I do not want responsibility to devolved to another body from which I will be unable to obtain information.

Under section 27, named official agencies may share certain information. The list of such agencies, as set out in section 27(4), should be amended to include the Equality Authority, Labour Court and Data Protection Commissioner. The Labour Party is concerned that this section may give rise to some unintended consequences. In particular, my party is concerned about the sharing of information on trade union membership, even among official agencies. For example, one such agency, the Competition Authority interfered inappropriately, as Deputy Varadkar noted, in workers' freedoms of association and the rights of trade unions to organise their own affairs. Deputy Michael D. Higgins proposed amending legislation to change the current statutory position in this regard but his worthwhile Bill was shot down by the Government. The Competition Authority believes itself to be omnipotent and wishes to be the surveyors of all things. It has also made some interesting proposals to the Joint Committee on Enterprise, Trade and Employment which I chair. It has, however, interfered in the right of the Irish Pharmaceutical Union, Equity, which represents actors, and the musicians union to organise their own affairs.

An amendment will be required to protect against inappropriate disclosure of trade union membership. This may be provided in section 30 by developing a protocol under the co-operation agreements and inserting amendments to ensure that individual trade union membership is defined as confidential information under the legislation and its disclosure to official agencies prohibited. Such a protocol would require careful drafting to ensure it does not preclude the consideration of wages records which involve a deduction for trade union membership subscriptions, nor should it prohibit an investigation of whether such deductions had been paid to the union in question. Such a provision will be important.

Section 32, which relates to the display of notices, is important. Under section 47, NERA inspectors will enforce regulations and recover moneys to employees by serving compliance orders on employers. NERA already serves notice on employers that they must pay workers moneys owed or they will be taken to court. Effectively, employers must only pay what they owe and are not subject to added deterrents.

They are not necessarily required to pay all the moneys owed.

Nothing is mentioned on the handling of repeat offenders or employers who are served with future compliance notice of breaches. A potential deterrent to repeat offenders could be added. In addition, section 47(1) should be changed from "any amount of money" to "the full amount of money" owing to the person. It is important.

It is important that the employment rights of undocumented workers are upheld in the Bill and that inspectors and legal representatives follow this through. To date, the inspectorate has indicated it cannot or will not seek moneys owed to undocumented workers. Any bar on the recovery of lost wages by an undocumented worker would lessen the liability of unscrupulous employers and make it more financially attractive to them to hire undocumented workers.

The Supreme Court in the US held that a National Labour Relations Act definition of employees included undocumented aliens and concluded that the abdication of the Act to illegal aliens helps to ensure the wages and employment conditions of lawful residents are not adversely affected by the competition of illegal alien employees who are not subject to standard terms of employment. It also stated that if an employer realises there would be no advantage under the Act to preferring illegal aliens to legal resident workers, any incentive to hire such illegal aliens is correspondingly lessened.

In Belgium, the Netherlands, France, Germany and Spain workplace rights are not status based. In Belgium, several laws state that the fact a contract is not valid does not relieve the employer from the duty to employ the rules on minimum wages, industrial action and working hours. This means workers can seek redress and this is confirmed by several judgments.

I know my colleague, Deputy Higgins, is very hot on this issue and will refer to it later on. We will broadly support the Bill, subject to a number amendments we will table.

I wish to share time with Deputy Fitzpatrick, ten minutes each.

I welcome the opportunity to speak on this Bill. For many years we have heard, at various intervals, strong calls for workers' rights to be protected. It appears to me this only happened when issues arose which came to public attention, such as the case of the Turkish workers and a number of similar cases where exploitation was taking place.

The purpose of this Bill is to secure better compliance with employment legislation in accordance with provisions in Part 2, sections 11 to 16 of Towards 2016, the ten year framework social partnership agreement which we have in place. As we know, over recent days and weeks social partnership has come under the spotlight to a great extent. We must remember that social partnership has served us extremely well over the past 20 years. It has given us 20 years of stability, growth and improvements in rights, conditions and remuneration for workers.

As a country, over the years we have had a strong reputation and history of protecting workers. As Deputy Penrose mentioned, this probably comes from our culture and history. We have one of the highest minimum wages in Europe and a raft of legislation in place to protect workers in all sectors of our society. We were one of the first countries to bring in equal recognition of the rights of women. We have been very strong on protecting workers' rights to affiliate themselves and be members of unions. We have continued to do this consistently over the past 20 or 30 years.

As all speakers here have said we are now in a changed time and a different set of circumstances and are all aware of the pressures our economy is under. People do not want to listen to rhetoric about where we are going and how to get out of this situation. They want co-operation and an open-minded approach on all sides, whether from inside or outside the House. They do not want employers and employees to fight with each other. Rights on both sides, be they for the employer or the employee, bring with them responsibilities.

The Minister said it is intended to table amendments to this Bill. As public representatives we have all had representations and examples of how, in the current climate, small and medium-sized businesses which have provided employment over the years are suffering. In my constituency, many of the small and medium-sized shops, hotels and restaurants are under severe pressure and do not need extra pressure. I am confident any amendments tabled to this Bill will ensure legislation will not be introduced which will jeopardise the livelihood of entrepreneurs who have set up businesses or the people they employ.

Over recent years we have seen, in a relatively short space of time, many workers coming here from other countries. They came here for a reason and it is not the weather. They came here because we have good conditions in pay, work, protection and rights. For many years Irish people emigrated to other countries, specifically for economic reasons.

In the past ten or 15 years we have managed to turn that around and many people returned to Ireland from all parts of the world to work. One reason they came back is that they knew the legislation and protections we had in place would ensure that, as workers or employers, they would be protected. That is one of the attractions we have and it would be a huge shame for us to lose that.

We have listened to various arguments over the years. I understand that the position of Labour Party on this issue and that it is caught between a rock and a hard place. It is affiliated to the unions and over the years it has protected workers' rights, but we must ensure we get the balance right between protecting the rights of worker while not stymying or burying those who are brave enough to take a chance and set up their own business, be it small or medium-sized or in a rural or urban area.

We must not prevent such people taking a leap and making the step to opening a business and creating employment. That is the balance we must strike. I have every confidence that this Government, despite the difficulties and everything else that has been going on, will continue to balance rights on both sides of the situation.

Some of points of the Bill have already been discussed. One which struck me in particular was Part 5, which includes strengthening the obligations of employers and the rights of employees. The whole point of this Bill is to ensure that employees are not discriminated against or used for illegal or unscrupulous purposes and to protect employee rights. Some sections in the Bill, particularly section 50, provide immunity for any person who makes a bona fide report on breaches of employment legislation to the director of NERA or an officer of the director, the Minister or the gardaí.

As a corollary, subsection (3) makes it an offence for anyone to report in bad faith to any of those persons. It is getting the balance right and ensuring we do not have people making false accusations against employers, putting employers in a position where not only is their reputation but their functioning is jeopardised. That balance is something we have to protect and have managed to protect over the years.

We need a fair and even-handed implementation of all regulations. There is no point in imposing extra burdens on employers which result in workers losing out. Coming back to the detail of the Bill, many of its aspects manage to get the balance right. There are other sections which will have to be amended, particularly in the current climate.

We have all had approaches from people who find themselves in a position where they may be employing two, three or four people or more. Now, however, they feel that in the current climate, including confusion and uncertainty, they must rationalise their businesses. They end up being self-employed as a one-man operation. We are going back to the situation we had in the 1970s, 1980s and 1990s when people managed to function outside the cover of statutory regulations, for whatever reason. In recessionary times there is pressure on people to change they way they operate, and while they may not wish to do so, they may feel they have no choice. The Government must ensure that every opportunity is made available so that employers can continue in business. In addition, when businesses are under pressure the Government must ensure that unscrupulous employers do not take advantage of indigenous workers or those from other countries.

Parts of the Bill will have to be amended but the thrust of it is correct. For many years we have led the way in providing protection both for employers and employees. If we continue to do that it will only stand to us in the future.

I welcome the opportunity to speak on the Bill, which will overhaul the State's employment rights framework. It will modernise the labour inspectorate, strengthen enforcement of employment rights and work permits, promote greater compliance in the workplace and increase penalties for employers who seek to gain advantage by denying employees their entitlements under the law.

The main measures proposed in the Bill include the establishment of the national employment rights authority, NERA, on a statutory basis, including appointment by the Minister of the director and a tripartite advisory board. I agree with those who have asked if we need this additional inspectorate. Nevertheless, the Bill will also seek to strengthen powers in the area of labour inspection including allowing the director to take evidence on oath, ensuring labour inspectors have greater access to premises, personnel and data, and empowering NERA to prosecute summary offences.

The Bill will also empower labour inspectors in NERA to examine employment permits and prosecute offences. The inspectors will also be able to conduct investigations jointly with other agencies including the Revenue Commissioners, social welfare inspectors and An Garda Síochána.

There will be provision for greater penalties for offences arising under employment law. Protection of whistleblowers in the event of breaches of employment law being reported in good faith will also be an element of the Bill. The Minister should examine the penalties for first-time offences, while perhaps considering greater penalties for second offences. Most employers respect their employees and do not intend to do them any injustice.

Documents must be kept by the employer in respect of the most recent three-year employment period and must be retained by employers for a further two years after the employment relationship ends. The inclusion of this provision in the Bill is a good step. This is significant legislation and will have a significant impact in the area of employment rights. It is a comprehensive package and is an indication of the Government's commitment to the principles of social partnership.

In the drive for greater competitiveness, there is a need to ensure that responsible employers who meet their obligations to employees will have a level playing field. It is crucial to have fairness on all sides, both for employers and employees.

Public representatives get complaints because inspectors appear to turn up at employers' premises at most unusual hours and sometimes when both the employers and their staff are extremely busy. From my little knowledge of the Garda Síochána, when some gardaí don their uniforms or someone has the title of inspector, some of them become over zealous. That would, however, be unfair to our good employers.

I welcome the fact that recently, the employer and trade union interests in the catering sector came to an agreement to fix a set of terms and conditions. These included minimum pay rates and Sunday premium rates that will apply throughout the country. Under the new arrangements, employment regulations orders would be made, establishing identical terms and conditions for application throughout the country. The thinking behind this is that it will remove the disparity between the minimum statutory terms and conditions that currently apply in catering establishments in the greater Dublin area and those that apply elsewhere.

The agreement would also provide for the extension of a sick pay scheme to cater for workers countrywide. Workers in the Dublin area are currently paid a minimum rate of at least time plus one third for Sunday work, while for the rest of the country work performed on a Sunday is paid at the rate of double time. It is important to have equality on this issue. Fairness should be the buzz word on both sides. In this time of economic difficulty, all sides must realise that compromise is needed, that we must all work together and play our part in doing so.

The preliminary agreement between IBEC and SIPTU is a pragmatic and practical solution. It shows that through partnership we can make progress. From a broader viewpoint, taking our economy as a whole, I would urge all social partners to work together as we seek to make readjustments in line with changing times. The fact that talks with the social partners concluded the way they did earlier this week does not sound the death knell for social partnership. We should look at the positives — the fact that all sides agreed on what had to be achieved — and continue to seek a joint solution to the current financial situation.

Employers and employees have a role to play at this time. Both sides need to be flexible and realise that compromises have to be made. We must be realistic and understand that our country is going through a time of severe economic change. Now is not a time for extremism on either side. Employment has always been something that should be cherished and respected, and in these times even more so. It not only benefits individuals but also families and communities generally. All of us who are lucky enough to be working should appreciate that fact. We should never forget that there are people behind those unemployment statistics. We have always been known as a caring and practical nation, and long may that continue.

I have always believed that extremism of any kind is a dangerous thing. A measured approach in life usually goes a long way. At this time, flexibility is required from everybody as we seek to stabilise and ultimately return our country to a position of growth.

The Migrant Rights Centre is a national, non-governmental organisation that works with migrant workers. They are in a vulnerable situation, particularly those who are experiencing exploitation in the workplace, trafficking for forced labour and those who are undocumented. I am told by the centre that the exploitation of migrant workers in Ireland, particularly those in low paid, non-unionised jobs, is widespread. Workplace exploitation constitutes a wide variety of situations, ranging from discriminatory practices in pay and conditions to forced labour. This exploitation is particularly prominent in sectors that are poorly regulated.

The Bill will have a significant impact on the lives of migrant workers. We all welcome the Government's initiative to strengthen the enforcement of employment rights and promote greater compliance in the workplace, which adequately addresses the protection of all workers from exploitation. It is important to protect the employment rights of undocumented workers, and the inspectorate and legal redress mechanisms must follow through on this. This could be ensured through the Employment Law Compliance Bill. To date, however, the inspectorate has indicated that it cannot and will not seek moneys owed to the undocumented workers. Any bar on the recovery of lost wages by the undocumented workers would lessen the liability of unscrupulous employers and make it financially attractive to them to hire undocumented workers.

Debate adjourned.