I welcome the opportunity to make another brief contribution on this important issue. I am impressed that so many senior colleagues are still here, including the leader of the Labour Party, to hear my contribution. I am always pleased to get such support. I note too the presence of the leader of the Independent Deputies and am pleased by that.
Employment Law Compliance Bill 2008: Second Stage (Resumed).
Question again proposed: "That the Bill be now read a Second Time."
He is not leading too much at the moment.
I remind my colleagues that I will continue to do my job to the best of my ability, keep my head down and do my business representing my community. For those Members who do not remember, I represent Dublin South-West which embraces Tallaght, Firhouse, Templeogue, Greenhills, Brittas and Bohernabreena.
I was interested to hear during the previous debate on this Bill that colleagues have mixed views on the legislation. I made the point then, in the presence of the Minister of State, Deputy Billy Kelleher, that he is, to some extent, damned if he does and damned if he does not legislate. People suggest the Bill was struck in a different time and that times have now changed. Times have changed, but at the same time it is important that employment compliance remains a priority. This Bill may be subject to some tweaking and I was impressed by the Minister of State on another occasion when he said that he was prepared to listen, In fairness to him, he has demonstrated that this is the case. For those who do not know, I am a fan of the work of the Minister of State, Deputy Billy Kelleher, and I will not apologise for it.
It is important that we understand that workers have rights. On other occasions I have stated — I should probably hesitate before stating it in this company — that I bring my life experiences to politics and that in other times I worked in companies. I was made redundant on three separate occasions. I do not know whether it will happen to me again.
The way things are going it could happen fairly quickly.
I know what it is like to go home to tell one's family about the difficulties one is experiencing as far as one's working life is concerned. It is a challenge and it is something about which we should all be concerned. In the times we are in, it is easy to suggest taking the brakes off as far as labour law is concerned, but those of us who have commitments and trade union backgrounds understand that many workers still believe that no matter what the times are or what they bring, we should still protect workers' rights. In fairness to the Minister of State he has made this point.
He also made the point, which I articulated previously, that he was responding as far as he could to representations made to him from many colleagues across the floor on the protection of employees. It is fair that those colleagues on the other side of the House who state that he might do things differently remember where this started and from where the impetus for the legislation came. The Minister of State must make up his mind and decide what is best for the workers of this country. I suspect he will get much support in this regard.
I note that when the Minister of State introduced the Bill, he stated its main provisions included the establishment of NERA on a statutory basis with a tripartite advisory board. He also mentioned 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.
The Minister of State also referred to specifying the statutory employment records. Colleagues across the floor have queried this and I will be interested to hear how the Minister of State reacts. In a very eloquent address to the House, Deputy Seán Barrett made that point that we should be trying to help employers as much as possible. I will not be two-faced about this legislation but I take the point. It is important to understand the need to protect employers. However, at the same time, this should not be to the detriment of workers. It is easy in these changed times — I will state this from the Fianna Fáil benches — to state that we should go easy on employers. I am sure their representative bodies will make these points. Let us not forget that workers have rights and entitlements and let us find a balance as far as the Bill is concerned.
The Minister of State also spoke about fostering increased co-operation at workplace level so as to safeguard employment rights and to make provision for the exchange of information between statutory enforcement authorities to facilitate joint investigations where breaches of the law are suspected. The Minister of State made the point that he was committed to strengthening the powers of the Minister for Enterprise, Trade and Employment to initiate investigations and to publish the outcomes in cases of public interest. He referred, as many colleagues did, to the Gama case which upset everybody and it is important to state this fact. The Minister of State also spoke about 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.
This Bill needs to find a balance. I can speak about my constituency as much as anybody else and I do not wish to be particularly parochial about this legislation, but I live in the third largest population centre in the country. The beginnings of my community endeavours and political career can be traced back to representing workers' rights. Colleagues sitting slightly to my left might be surprised at this but that is where I came from — in 1994, I was a founder member of Get Tallaght Working, which still survives and is doing a tremendous job under the name Partas. It represents the need for jobs and enterprise in my town.
As colleagues know, Tallaght has a record of job losses over the years. In another debate I stated that at present everybody is speaking about the need for jobs in his or her own area. I have no difficulty with this and I heard the case being made for Limerick after the Dell calamity and for Donegal and other regions. Every colleague in the country has my sympathy as he or she makes the case for his or her region. I can certainly do this because Tallaght has more than 7,500 people who are unemployed. We have a young population and we must continue to do what we can to create employment and to shout as loudly as we can, even in these difficult and challenging times, about the job creation needs of our constituencies.
I am old enough to remember other times of recession. I am certainly old enough to remember when conditions for workers were not as good as have been developed in recent years. I am certain the Minister of State will take account of the fact that we should not roll back on progress made in labour legislation over the past decade. I listened very carefully to the debate and to points made by my colleagues, and I respect many of these points of view and hear what is stated about another organisation being established.
However, I am struck by the Minister of State's commitment to respond to what colleagues stated. I recall he had a great line in which he stated that Deputies on all sides of the House had many parliamentary questions and debates when the Government was condemned for having "more dog wardens than labour inspectors". The Minister of State put on record, I am sure in a very accurate way, that this has changed.
It is important that the Minister of State understands that he will have much support. I suspect that even colleagues giving counter views will also understand the need for this legislation and will not oppose him as far as the thrust of the Bill is concerned. It will be interesting to see how various colleagues make different points and what position is formed. I suspect this will be a unique occasion as far as the development of legislation is concerned where it is necessary for the Minister of State to listen very carefully to the various points being made and take account of how the times have changed since the Bill was prepared. I wish the Minister of State well in this regard. He knows he will have my continued support. I will have time on other occasions to press him for more jobs for Tallaght and I am sure he will not mind this.
I welcome the opportunity to speak on this legislation. It has been in the pipeline for a long time and I am glad the Minister of State with responsibility for labour affairs is in the House. As he knows well, I have raised a number of these issues with him over the past 12 or 18 months. Will the Minister of State indicate where we are with the labour inspectorate? Do we have the complement of 90?
We have 81.
We are still short more than 12 months after the agreement in Towards 2016.
There are a number of issues pertaining to migrant workers that I want to raise. I raised a specific issue last September that was highlighted in the Quarterly National Household Survey. It concerned certain sectors in which migrant workers were out-competing Irish workers in respect of particular jobs. These sectors included the financial and business services sector, the wholesale and retail sectors and even the construction sector. When I raised this with the Minister, he stated the underpayment of foreign workers and the large number of foreign students comprised a significant reason for the differential. There is no doubt that part of the differential arises because of migrant workers with third level skills moving here. It must be acknowledged that the vast majority of migrant workers who come here are more skilled than our own population. Some 50% of migrant workers have a third level qualification compared to one third of our own workers. Naturally, as the migrants gain English language skills, they will be able to compete for certain jobs.
The point I was trying to make to the Minister has been lost, that is, that there is obviously a need to ensure Irish members of the labour force are able to compete for some of the jobs. If there are jobs being created in the economy, we must ensure everyone has the skills necessary to compete for them. I do not believe my saying this is racist and I am not trying to be such. The Minister of State at the Department of Justice, Equality and Law Reform, Deputy Conor Lenihan, branded me a racist for making those points but it is crucial that we be perceived to have a level playing pitch in respect of competition for jobs. This works both ways. In regard to some aspects of the economy, it is a question of migrant workers out-competing the Irish while, in regard to other aspects, it is the other way around. If a level playing pitch is not put in place, we are opening up a can of worms or what could be a powder keg. No one wants to see this.
Last summer I raised the need for migrants to have language skills. They have the potential to improve our economic competitiveness if we can tap into their skill base. The language barrier is a problem for some migrants. The decision taken by the Minister for Finance before the summer to cut the funding available for language education for adults was disgraceful, as was the cut on budget day affecting migrant children in schools. The reality is that, over the past two years, we have spent more than €300 million on language training for children in schools, never mind adult language training. While this policy has not worked and while it needs to be reviewed to ensure proper delivery, the cutting of the resources in this area will not help anyone. Having cut the budget for language support, the Minister for Finance is wondering why migrants cannot get jobs. He must get his act together on this issue if we are to deal with it seriously and support the integration of all groups into society. This not only involves the provision of language skills to migrant workers but also the provision of numeracy and literacy skills and speech and language and resource supports to our own unemployed. Our children should also be included in this regard as they, too, are left at the back of the classroom.
Last September I spoke about the competitiveness of our economy and the potential of migrants to improve it. I referred to three specific barriers to competitiveness but none has been addressed. The first is the issue of language training. The availably of language courses is the issue for many migrants because many ended up joining literacy classes because they could not join language classes through the vocational education committees.
The second issue is that of business permission. If a person from outside the European Union has a good business idea and wants to establish a company here, he cannot do so without going through a very bureaucratic system and obtaining permission from the Department of Justice, Equality and Law Reform. Instead of basing a decision on the applicant's business idea and the potential to create jobs, the Department asks the applicant to prove he has €300,000 available to him and that he will employ two EU citizens. There is not an entrepreneur in the country at present who could provide this. Why are migrants being discriminated against in this regard? The regulations should not be in place and they pertain to a different era. I presume they relate to the sale of passports some years ago but surely we have progressed beyond that.
The third issue concerns tapping into the skilled labour pool. Quite a number of migrants in Ireland have third level qualifications but, because they are not recognised here, they cannot gain employment that reflects their skill level. This is because they may have obtained their third level qualifications outside the European Union. FETAC and HETAC are involved in recognising the qualifications.
I met a young man recently who told me he applied to HETAC to have his third level qualification recognised and was told it was the equivalent of grade 7. He appealed this and received a letter stating his qualification had been upgraded to grade 8. Surely this raises concerns. Why did he not receive a grade 8 in the first instance? The anomalies in the system need to be addressed. In tandem, we need to identify and upskill vulnerable workers, regardless of nationality.
We need to ensure we properly regulate and enforce employment law. It is disappointing we do not yet have the full complement of labour inspectors that we should have. I hope the Minister for Enterprise, Trade and Employment will ensure the full complement is appointed.
The issue of undocumented workers is of fundamental importance. I do not refer to illegal workers but to immigrants from outside the European Union who had residency and work permits and contributed to the Irish economy but who, through no fault of their own, fell out of the system and are now undocumented. Many are in the black economy, which is having an impact on the legal economy in that it is undermining the survival of legitimate businesses that are trying to employ people in an above-board manner. The black economy is facilitating cowboys and ensuring that the undocumented are exploited. The Minister for Justice, Equality and Law Reform made a commitment in the House 12 months ago that he would introduce a bridging visa to allow those who have become undocumented to have a six-month residency visa to allow them to return to a legal form of employment.
I cannot understand the National Employment Rights Authority's double standard regarding the enforcement of employment law. As far as the authority is concerned, an employer who is exploiting an undocumented worker, or worker with no papers who has entered the country illegally, is not in breach of employment law and will not be prosecuted.
As far as NERA is concerned, if one is exploiting an undocumented worker or one who has entered the country illegally and does not have any papers, the employer is not in breach of employment law and will not be prosecuted. The law needs to change in that regard. I hope the Minister will ensure that matter is addressed on Committee Stage. I am aware he received a submission from the Migrant Rights Centre on this issue. The Minister has met that organisation on many occasions. It is an advocate in regard to many practices that should not be tolerated in this country but, sadly, are. It made the point that in the United States undocumented aliens have the exact same rights in regard to labour exploitation as legally resident workers. In effect, we are facilitating employers who wish to exploit employees who do not have proper documentation and that is undercutting legitimate employers and jobs.
I understand the system that operates in the United States also operates in Belgium, the Netherlands, France, Germany and Spain in the sense that workplace rights are not based on the status of the employee. I hope the Minister will address the issue on Committee Stage and ensure that employees' rights are protected, regardless of their status. Otherwise, we are only facilitating the development of a black market sector and undermining legitimate jobs and employers by doing so. The ESRI study of immigrants at work in the Irish labour market found that there have been significant cases of discrimination against them. The work permit system is in need of serious examination. I acknowledge the announcement by the Minister last week during his contribution on Second Stage that he is reviewing the work permit system. However, that should have been done 12 months ago not now that we are discussing the Bill. It is vitally important that we examine the matter.
The non-transferability of work permits is causing problems. I refer to the fact that they are specific to the employer. If an employer lays off an individual that person is, in effect, in limbo. I came across a case recently that relates to section 54 where a person from outside the European Union who was on a work permit was laid off but he could not get his P45 and redundancy letters from his employer in order to get a new work permit. Time was running out for him when he came to me. I pleaded with the employee's accountant to release the documentation. He explained that the difficulty was that the employer did not have the money to pay the redundancy due to the employee. The main concern of the employee was to get his documentation. He could not have cared less about the redundancy payment. He wanted to submit the documentation to the Department to ensure he could be issued with a new employment permit. In effect, he had a guillotine hanging over his head while the employer was concerned about another aspect of the matter.
That case almost resulted in another person becoming part of the undocumented system or requiring a bridging visa. The frustrating aspect of the matter is that the Department of Justice, Equality and Law Reform facilitates individuals who seek a temporary visa to allow them to get work but that has not been put on a formalised structure within the Department. It is 12 months since the commitment by the previous Minister for Justice, Equality and Law Reform, currently Minister for Finance, that such a system would be put in place without further delay. I urge the Minister to speak to his colleague, the Minister for Justice, Equality and Law Reform, and expedite that single issue which would bring about a significant reduction in the vulnerability of some of these workers who, inadvertently, are undermining legitimate employment also.
I hope the review of the work permit system will encompass the transferability of work permits. Photographs and headlines concerning some of the Minister's colleagues appeared in newspapers in recent weeks in connection with the number of new work permits issued in the past 12 months. We must examine how the permits are being issued, who is getting them and whether there are people — either migrants or non-migrants — who could take up some of the vacant positions should they be offered them. I accept documentation must be provided to support requests for work permits but in the current climate it is difficult to accept that we cannot find people for jobs. However, some of the positions are specialised ones in the health or IT sectors and we need those people to keep the economy going.
Another issue that causes problems for migrant workers is the fact that in many cases, especially at the lower end of the spectrum involving non-skilled or domestic work, accommodation is offered with the job so that if such persons lose their jobs or complain about their employers, potentially they could be out on the street also and have questionable legal status.
We need to put in place a fair balance. We should not hound employers who perhaps have not dotted all the i's and crossed all the t's but concentrate on employers who blatantly exploit people, in many cases purely because of their nationality. It is vitally important that we deal with such people quickly and make an example of those involved in such cases.
Other speakers referred to the cases of the Gama workers and Polish workers employed in Moneypoint. Legitimate companies in this country have distanced themselves from that practice by employing subcontractors who employ people from outside the European Union at much lower rates and who may not be in compliance with the law. We need to change the law to ensure the main contractor knows what is going on. It must be as obvious as the nose on one's face if a subcontractor is coming in with a price that no one can match.
An employer recently related an experience to me of where he had tendered for a State contract at cost price. He cut out everything. He said it was not physically possible for someone to comply with the law at a lower price than his, but he did not get the contract as somebody was cheaper. The only way that could be done was through not paying people a fair rate or the going rate.
An issue was raised with me about the bureaucracy associated with this area. I refer to an organisation called EPACE, which is being ring-fenced specifically according to section 45 to carry out policing of the electrical contracting sector. I have a letter dated approximately 12 months ago from EPACE to an employer who was given eight days to provide a huge volume of documentation to it. The organisation was established to monitor and ensure compliance with the registered employment agreement for the electrical contracting industry. I do not know what legislation provided for the establishment of the body. It is my understanding that it is a private company established by a trade union. Surely if NERA is good enough to enforce employment law across every other sector within the economy it has the competency to do it within the electrical contracting industry also. In some way NERA will be accountable to this House through the Minister but it is my understanding that this other organisation will not be accountable to anyone. I hope the Minister will examine the matter prior to Committee Stage.
I wish to share time with Deputy Calleary.
I am delighted to have the opportunity to contribute to the debate on this legislation designed by the Government and the social partners to strengthen worker protection, which we all want, particularly in a recession, with many people unemployed or being made redundant while others are not working in the best environment. We want to make sure employees are treated with respect wherever they work, that they are paid the correct amount and that employers are cognisant of all their duties to their employees. The statutory footing being provided to NERA, which is based in Carlow in my constituency, is an important step in the enforcement of employment legislation and workers' rights. NERA has been, and remains, a success and the increased resources for the authority are vital.
People are concerned about many workers' issues relating to pay slips, working time and the minimum wage and the authority is in place to monitor employers, to persuade at times and enforce at other times and to initiate legal proceedings, where necessary. It is staggering that NERA received an additional 20,000 calls last year compared to 2007 and this is testament to the important point of contact it has become for workers with queries about their employment who want to obtain information about the obligations and responsibilities of employers to them. The new obligations on employers are necessary and welcome, as is the protection provided for whistleblowers. Where unsavoury practices are taking place in an employment, it is important that whistleblowers are given protection.
The punishments outlined for summary offences and convictions are adequate and strong deterrents exist for those considering exploitation of workers. There has been criticism of the lack of convictions against exploitative employers. Some of this is justified but the approach of NERA and labour inspectors to the cases they deal with, which is to give employers the opportunity to comply before rushing to file for prosecution, is reasonable and cognisant of the fact that employment law is so vast that employers will not always know the extent of their obligations. We hope they do not take short cuts but the agency's role is partly to create awareness and to effect change in an approachable manner. The legislation supports this.
One aspect of employment law compliance that must be considered in the context of the Bill is the exploitation of migrant workers and the smuggling of workers into the State without permits. We have all heard ghastly stories of people working in terrible conditions; in some cases, their accommodation is linked to their jobs and they are afraid to highlight their conditions in case they lose their job and the facility to send money home. It must be ensured those stories are not replicated in the press. I hope there will be cross-government cohesion in this area and the Immigration Bill 2008 will, in its final state, complement the spirit of this legislation. I also hope the law will ensure compassion, sensibility and common sense in dealing with the vulnerable in the labour market, whether workers are here legally or illegally.
An important development arising from the new framework is the monitoring of labour market trends, which will be important in assisting the Government to understand changing economic and demographic characteristics in the State. Understanding the trends better will help us plan for the short, medium and long term with greater precision and coherence, particularly in the context of job losses. Last week was dreadful in the context of unemployment.
The Bill provides us with a timely opportunity to conduct a fundamental review of our employment architecture. Many agencies are involved in enforcing employment law and employers should get up to speed with them all, including NERA, rights commissioners, the Labour Court, employment appeals tribunals, the Equality Tribunal, the Health and Safety Authority and the Departments of Enterprise, Trade and Employment and Social and Family Affairs. All these organisations should dovetail with each other to make sure the best work environment is delivered for employees. All agencies have a major role in ensuring we are not bedevilled with red tape and we mean business in dealing with the important issue of employees' rights and ensuring employers are familiar with the role they must play in looking after them.
This may be a good time for the Government to redefine what each agency does if there are overlaps and duplication and to ensure greater efficiency and streamlining can be achieved in the system without undoing the important regulation and enforcement of workers' rights. I am hopeful the Bill will do a great deal for workers and encourage employers to get up to speed because NERA is in place to support employees. Let us create a better work environment, particularly in this deepening recession.
I also welcome the spirit and ethos of the legislation. The fact that it emerged from the social partnership process demonstrates the model can still work, in spite of the difficult circumstances we are experiencing. Nobody could disagree with the need to strengthen inspection of workplaces and enforcement of legislation, particularly in light of the more high profile cases involving Irish Ferries and Gama, which led to this necessary legislation. Equally, however, it is important to recall that 95% of employers operate in a fair manner and in full co-operation with their employees. Trends and practices have developed over the years, which follow the spirit of legislation and partnership, although they may not strictly adhere to legislation. It would be dangerous and unfair if the agencies established under the Bill led to such partnership being thrown out.
I welcome section 36 because, for the first time, the powers of labour inspectors under various employment statutes have been merged and it is positive to consolidate and broaden them in order that NERA's inspectors have all the powers they need. While I welcome this section, I am concerned about section 38 and, in particular, the provision that gives the director of the agency the authority to summon an employer to his or her office for cross-examination in a quasi-court setting with oaths and so on being involved. I appreciate there might be a need to do this but there are ways that can be done in the current judicial system. Is it necessary to introduce another element of hostility into the system when the Employment Appeals Tribunal and so on can be used to address issues?
Many Members, including myself, have received representations about the work of NERA and the way in which a number of inspectors have operated in recent months. The majority of inspectors have done a great job but the legislation provides for no restriction on the time of inspections other than that it should be reasonable in the view of the inspector. "Reasonable" is not 9 p.m. on a Saturday in a busy restaurant in the middle of the tourism season or at peak times when employers are trying to keep their businesses going. Employers with something to hide will do so at any time. The majority of those who have nothing to hide will make their records available at appropriate times and this provision should be re-examined.
Deputy Naughten referred to EPACE. It is important that the role of this organisation be clarified. Who is involved? Is it a private company with shareholdings, as in the unions? If so, why has it such an important role and authority? Could these be subsumed into NERA?
I commend the Minister of State on his work in recent weeks and months on the JLC issue, particularly in the catering sector. That system was allowed to continue for decades but it is completely outdated in a modern economy. This has impacted on the ability of people to work and businesses to employ in recent months. I commend the Minister of State on the speedy action he took and I hope he will bring the issue to a resolution before long.
The Government is committed to reducing the red tape burden on businesses by 25%. This burden is costing jobs. We are not absolving people of their rights. However, there are more efficient ways to proceed. At some point I would like to see a regulatory impact assessment of the Bill. What additional red tape will be involved from the perspectives of both employers and employees? It is often the employees who get hit. The less red tape we have, the better.
One of the Bill's aims is to foster increased co-operation in the workplace. However, we need to be very careful. We often do things in this House with good intentions and then pass the ball to an external agency such as we are creating in this case. Our good intentions tend to be enacted in very different ways. Fostering co-operation in the workplace means protecting jobs. However, it also means protecting good employers. I would say that 95% of employers in the country are good reputable people. We do not need to criminalise them.
With the permission of the House, I wish to share time with Deputy Morgan.
Is that agreed? Agreed.
The Bill is about a principle. I hope this principle would be accepted across all sides of the House and particularly by all spokespersons. The principle is that all workers have an unequivocal right to be free and protected from exploitation. That right should not be conditional on one's status. It should be capable of being vindicated and should not be conditional on economic circumstances. If it is made conditional on one's status, it is not a labour right in the fullest sense. If it is made conditional on conditions in the economy, it is a camouflage.
I intend to speak in support of the Bill, in the full knowledge that the Government side and our side have tabled amendments to improve the legislation, which will happen. I regret that Deputy Varadkar has said he does not intend to support the Bill and suggested in a fit of hubris that in Government he would repeal the legislation, which would require his party having a majority because it would not have the support of my party.
Lest it be mentioned afterwards, I wish to state that one of my sons, who is a human rights graduate, works as an intern for the Migrant Rights Centre Ireland. While my views are my own, my son has worked on providing documentation for a number of cases.
I have listened carefully to the contributions that have been made. This legislation is being introduced to protect labour rights. I have a position that is broader than this. I regularly ask the Government — I believe I have asked five times — when it proposes to ratify the United Nations Convention on Protection of the Rights of All Migrant Workers and Members of Their Families, which was passed by the United Nations General Assembly in December 1990 and which came into being as a legal instrument internationally on 1 July 2003. I am not sure whether any countries in the European Union have yet ratified the convention. The usual answer is that sufficient protections for migrant workers exist within domestic legislation. I disagree with that. It would be in everybody's interest to have the international instrument implemented.
I wish to say something that is also interesting to me — I have been around for long enough to be able to say it. One of the most successful appointments we made to the position of European Commissioner was that of the late President, Dr. Patrick Hillery. He led the case. It was one of the distinguished contributions he made but is insufficiently noted. He took the first steps at European Union level to establish rights for all workers and all migrants. I remember discussing it and contrasting his contribution in favour of workers with that of the undistinguished current occupant who is in favour of regulation with a light touch.
It is extraordinary that people speak about this legislation as if it is introduced as some form of discomfiture to employers or will somehow be of some disability to them. The opposite is the case. The majority of employers are good employers and have nothing to fear from good legislation. They have nothing to fear from all workers being equally protected. If one wants to go down that road, it is probably one of the great bulwarks of proper competitiveness to be dealing on a level playing field. I cannot understand people riding two horses in this regard.
People have referred to the new circumstances in which we find ourselves. I would be a fool if I did not recognise what is staring me in the face, which is the attempt by many people to use the present economic conditions to introduce a version of competitiveness that would result in a low-wage economy. That would be correctly opposed tooth and nail by anyone in favour of fair working conditions. We can have an opportunity on Committee State to review the Bill in some detail.
Before Christmas we got a presentation from the Migrant Rights Centre Ireland that gave descriptions of people working more than 75 hours and being paid €2 an hour. In addition, even where decisions have been made in favour of the worker, it is often very difficult to get the money from the employer. It is not simply a case of Irish people exploiting migrant workers who come from outside Ireland or the European Union. Many of the migrants are facing oppression from the country from which they came. Some have paid people for their job — paid to be exploited. When they raise the issue with the person who has exploited them, sanctions are sometimes visited on their families, extended families and communities back in their country of origin. We need to realise that what we are doing should form part of an international pattern. A worker's status should not be a condition of recognising his or her fundamental right to be protected as a worker.
I do not agree that it is an unfair imposition on the employer to ask for documentation. I read the section to which speakers have referred. The employer has the right to be accompanied by a solicitor, member of the legal profession or a member of a professional organisation. Equally on the other side the worker has the right to be accompanied by a trade union official and so on. There are ways in which we can refine all of this. I listened with care and read the letters that I received regarding the Employment Permits Acts because it seems that if NERA is to be vindicated, it is hard to argue that the one agency should not work across the board. This is a matter to which we can return on Committee Stage.
I have a difficulty with some other parts of the legislation. I do not believe all 81 inspectors in NERA should be asked to fulfil functions that are aspects of the immigration authority's functions. The GNIB has a number of difficulties in cleaning up its operation. It should do what the GNIB is supposed to do. I am not throwing out any aside about the GNIB, but I believe there is total confusion on the specificity of what it seeks. For example, when it comes to proof of identity, what document is acceptable? It is sometimes suggested that a person should have a document of the status of a passport or equivalent, that they should leave the jurisdiction and renew one that is out of date, and that a utility bill or a driving licence is not acceptable. This is all nonsense and it is only a matter of time until the courts make a strong ruling on that matter.
At the moment there is a vigilante interpretation of that rule. I would like to see the labour inspectorate with statutory powers under the legislation. I am willing to take a benign view. We will see in the fullness of time how successful the legislation has been. The view that everything can be solved in the workplace is a benign version of what takes place. We must wait and see how it works out.
I wish to see certain omissions in the Bill addressed on Committee Stage. I refer to the specific measures that should fall on repeat offenders. I am sure when the full reports come from the inspectorates they will show a considerable amount of recidivism on the part of those who are offenders in this regard. With regard to the documentation sought, we should ask for more specificity on Committee Stage, particularly with regard to the information sought. I refer to dates, hours worked, specific rates, access to overtime and so forth. This would all help.
I welcome the introduction of legislation which is not aimed at making anything more difficult in economic terms or anything more discomfiting for employers but creates a framework of labour rights and compliance. It is a commitment in Towards 2016 which may need amendment but I am happy to support it.
I welcome the Bill. It is unfortunate that it took two and a half years to come before the House from the time of the Gama and Irish Ferries debacles. I welcome the stated intention of the Minister of State, Deputy Billy Kelleher, to have an open attitude and that he will consider carefully constructive amendments from this side of the House. I welcome his attitude. I hope other Ministers follow suit.
I should declare to the House that I am an employer but I am also my party's spokesperson on workers' rights so I am wearing a couple of hats in this debate. In our operation at home, we do not regard it as a case of worker versus employer or the other way round. In our view, the development of a culture of teamwork is important and this is also important in Leinster House or in any place where there is work to be done. It is much better to achieve teamwork and harmony and a good working relationship as this results in a more constructive approach and better productivity. I echo the words of the two previous speakers in that I believe the vast majority of employers are fairly decent people who are trying to achieve a reasonable objective and have no intention of exploiting workers.
Unfortunately, confrontational attitudes exist. These attitudes go back centuries but some of them can be traced back to Thatcher and Reagan and the tone that was set internationally when those two monsters were in office on either side of the Atlantic. It is unfortunate that this attitude took hold and became currency and we can see the fruits of it now in our banking system.
This legislation will protect good employers. In the absence of this type of legislation, people will undercut and will breach the minimum wage rates and breach all sorts of employee rights in order to become more competitive but on an uneven playing field. The National Employment Rights Authority, NERA, has made substantial moves to bring about a level playing pitch. I hope that a culture of compliance can be achieved because such a culture is crucial to developing the harmony we all want to see in the workplace.
I refer to the lack of prosecutions. NERA has recorded a total of 2,334 breaches of employment law with one prosecution in 2007. In 2008, some 4,629 breaches were detected. Despite the number of prosecutions increasing to 80, this is still a tiny proportion of what was found, at less than 0.2% of the violations of employment legislation. This is a concern. It may be that NERA is adopting a softly-softly approach in its early days in order to become established. If this is the case, I hope it will have a step change fairly quickly and up the ante to try and deal with these wayward employers who are clearly in breach.
We all know that proceeding to prosecution is a very bureaucratic and costly endeavour. I will be tabling an amendment on Committee Stage to deal with this. I suggest a scheme of on-the-spot fines for some of the minor breaches. It would not be too difficult to work out the minutiae of such a scheme. It could be a scheme to ensure there are proper wages slips or proper documentation on display within the work premises. Such a scheme would ensure the inspectors could work more speedily and effectively in those minor cases. If an employer were found to be in breach of more serious matters and ended up in court, the judge could take cognisance of the earlier breaches which had been dealt with by way of on-the-spot fines. It is important to facilitate the inspectors by allowing them deal with these breaches in that way.
Other speakers referred to undocumented workers and this issue is also of great concern to me. While the issue has been elaborated by others, I will not develop it substantially but suffice to say I am concerned that undocumented workers have no rights at all. This is an area which needs to be dealt with in this legislation and we must provide for those people.
Another section of workers of concern to me are the domestic workers. While this issue has been discussed in previous debates, it is very difficult to reach these people because they tend to be isolated. They are like the servants of old in that they are ensconced in a private house and are hidden away and may not have access to the information they require in order to be able to substantiate their rights and entitlements.
A number of other areas are also of concern. At the recent launch of NERA's campaign, one employer said she did not know the proper rates nor had she proper information about employment rights. There is need for a publicity campaign in order to make employers and employees aware of the information at hand. This could be carried out by the Revenue Commissioners or some such avenue. This might be more cost-effective than a big media campaign. A publicity campaign is required to make people more aware of their responsibilities. I took that employer at face value on the day and she sounded genuine. People who are new to enterprise and new to employment situations require some enhanced information.
Will the Minister of State consider having NERA publish in multiple languages a series of the various documents required in the workplace and making them available to employers at cost price? This would enhance people's knowledge of their responsibilities.
While I welcome section 26, which requires that a report shall be sent to the Minister annually, could the report be laid before both Houses? This would be a useful addition to the Bill. I have dealt with the notices on domestic workers, a matter that I hope the Minister of State will consider.
Compliance with registered employment agreements, REAs, is another issue, but I do not know why it is such a concern for some employers. REAs are arrived at by consensus between workers' representatives and employers.
The Deputy's time has almost concluded.
Go raibh maith agat. People should stop whingeing about something that has already been agreed.
Some people are making the case that the Bill is an additional burden on employers, but I do not believe that for one moment. Why would employers not have proper documentation for workers? Since there is no excuse for not having any, it is not an extra burden. There is no reason for employers being unable to display the notices required under the Bill. I hope that we can move to a situation in which employers would accept their responsibilities and get on with them, thus providing a level playing field for everyone in the sector.
May I share time with Deputy O'Rourke?
As a matter of information, am I sharing the ten minutes?
Is that agreed? Agreed.
While I know where the Bill's spirit comes from, I have a number of fundamental issues with it. Not only is it being introduced at the worst possible time, it contradicts everything that we as a Government should be doing for the honest, decent and hard-working business people in this time of economic crisis.
I will attempt to outline just a few of my issues with the Bill and begin with the most obvious, namely, the setting up of a board called the National Employment Rights Authority, NERA, on a statutory basis. At a time when we are attempting to reduce the number of quangos, the Bill will introduce a new one. When we should be reducing the number of directors, we will put a new one in place.
In its short existence since its establishment on a non-statutory basis, NERA has earned itself a reputation for using strong, bully boy tactics, barging in on hard-working business people late in the evening and during their busiest periods, often as late as 10 p.m., and demanding to see their books in the middle of busy functions when their secretarial staff might not be available. Often, the owner-manager is the secretary. We need to support our small indigenous firms, not allow them to be treated like criminals by officials who do not know what it is like to run a small business while trying to make ends meet. I know what it is like to run a small business and to work through all of the extra worries and pressures that come with it. Many of the businesses in question are run by families.
The Bill will add more worries to those already struggling businesses and put an end to small businesses, entrepreneurs and any hope of job creation. It will create 23 new criminal offences with a maximum fine not exceeding €250,000 or imprisonment for a term of up to three years. Why would a business owner or manager in his or her right mind want to become subject to 23 new criminal offences? As Deputies have commented, most business people and employers are honest and hard-working and abide by current legislation. While we will always have a minority of rogue employers who exploit workers, we are using a sledgehammer to crack a nut.
As a Government, we should be focusing more on encouraging business owners and helping them with their struggles without punishing them and putting them under unnecessary extra burdens. We need our business people to focus not only on surviving, but on becoming more competitive instead of worrying about paying their employees untenable wages on a Sunday to satisfy an employment regulation order. Regarding the order, I compliment the Minister of State on his efforts in negotiating with many people and on his work in trying to level the playing field between Dublin and the rest of the country.
We all acknowledge employees' rights and the need for legislation in this area, but that legislation is already in place under the provisions of a number of different Acts and has served the State and employees well by being strong during times of need. Under the legislation, officials are empowered to visit businesses and many people who were doing wrong or exploiting others rightly ended up in court. There must be a balance between employee and employer rights, but the Bill is out of balance. We should encourage employers and employees to work together to survive these rough times, not drive a wedge between them, which I believe the Bill will do.
I appeal to the Minister of State to refrain from introducing the Bill. We are putting ourselves more and more at risk of over-regulating and scaring away any foreign industries that may want to consider Ireland as a place in which to invest or any indigenous entrepreneurs who want to go into business. The Bill, which is aimed at protecting employees, will do the complete opposite. It will put them out of work because businesses will not be able to afford the new costs and will not want to risk taking on new employees. Too often, we only realise that we have got something wrong when it is too late. It is not yet too late to re-examine what we are doing.
NERA has existed on an interim basis since 2007 and we can already see the damage and trauma that it is causing. We have witnessed many hotels and other catering outlets cease Sunday trading as a result of their strict enforcement of the hotel employment regulation orders. It is not too late to put an end to this, but it will be much more difficult to stop NERA after it has been put on a statutory basis.
The Bill has got it wrong and it is not the time to focus on these matters. I call on the Minister for Enterprise, Trade and Employment to park it and to stop wasting our time focusing on legislating small businesses out of business. Instead, we should focus on supporting those businesses and getting ourselves out of our current situation.
I am happy to speak on this Bill. While I will table my concerns, I am in favour of the legislation's total cast and its intention.
Over the years, the trade union movement, which we delightfully like to call our social partners, has sought the codification and rationalisation of all of the measures accruing to it. We do not hear anything afterwards. The unions demand and get the measures, but when those measures are run to excess, it is left to us to pick up the pieces.
In this Bill and during the launch of a report, the Minister of State played up the role of an organisation called NERA. With tongue in cheek, I praise NERA's utter zeal in descending upon people at 10 p.m. or 11 p.m. and demanding to see their books, demanding to know who they are employing, demanding and demanding and demanding while the proprietors and their staff try to keep their businesses open and to make some money. I am in favour of people being zealous and committed to their jobs. In this case, however — not even tongue in cheek — I cannot commend the type of zeal that leads to the complete harassment of people.
I wish to recount a story that I have already related to the Minister of State. I also have been in correspondence with him but have got nowhere. Perhaps I will, but this issue has been dragged out for a long time. A small rural restaurant, of the type with which the Acting Chairman will be familiar, was set up in south County Westmeath. It is adjacent to, but not part of, a pub, which is run by the pub's owners. I expect the operators of the restaurant part of the building took out a kind of franchise or whatever. In any event, they run a lovely and highly interesting rural restaurant that is beautifully appointed, with good cuisine of good quality. However, people from NERA descended upon them. As the restaurant only opens five days a week, the owners fondly understood that Sunday would be one of their five days, in which case they would operate on Sundays in the same fashion on their other open days, namely, from Wednesday to Saturday. The restaurant did not open on Monday or Tuesday. The restaurant is located five miles from both Athlone and Moate and, therefore, those who wish to have a nice time and a treat there must either take taxis or nominate some poor outsider to be their driver for the night.
The restaurant owners were told they were obliged to pay double time on Sundays, which is extraordinary. The staff who worked in the restaurant told the proprietor that while they did not want double time, they did want their jobs. I do not know what the Minister of State intends to do in this regard. It is quite the most ridiculous situation I have ever heard of. The workers emphasised that they wanted their jobs, which they loved. They were earning some money, were getting a few decent tips and wished to keep their jobs. However, they were informed that they must get and take double time. Consequently, the restaurant, which was not going to keep that up, closed. If it has not closed, such extraordinary carry-on has brought it close to closure. Equally, no hotel in Athlone now offers Sunday lunch because of double time. However, I understand that in the city of Dublin, and perhaps in Cork, the rate for Sunday trading is time and one third. The Minister of State has assured me this is correct.
I had the Minister of State's job for three years and never came across anything as extraordinarily stupid as this. I do not understand the reason some outdated joint labour committees, JLCs, which were set up in 1931 or some extraordinarily long time ago, are still sitting. Moreover, there has been no change to their operations or functions. I fault the representatives of both employers and employees who have allowed matters to continue in this ridiculous fashion. Why should time and one third apply in the city of Dublin while double time applies in rural Westmeath and elsewhere, as well as urban Athlone and Mullingar? There is no longer a raison d’être for such carry-on, because of the many subsequent innovations, such as rights commissioners, various tribunals, labour services and so on ad nauseam. Then, plunged into the middle of this, came the prima donnas from NERA. These men and women decided they would come in the dead of night to scare the bejasus out of both the employers and the employees, to force double time down their necks and tell the former that if they do not give it, NERA will close them.
As I said at the outset, I am all for this legislation. It contains many good things and I am in favour of a good spirit between employers and employees. That is the way I have lived my life. Although I really enjoyed having responsibility for labour affairs, on completion of this Bill, unless the Minister of State succeeds in fixing this issue, he will have been a failure in his job. I am making this point plainly because why should the people put up with such nonsense? This is a total nonsense. Is NERA only able to go around the country with jackboots and an overbearing attitude to people? While I am sure that in ordinary life each man and woman in NERA is a decent bloke or woman, they are not when they are exercising this stupid regulation. The Minister of State simply should get rid of the outdated JLCs, which bear no relation to everyday life or to what now passes for decent living in Ireland.
There is no incentive for anyone to set up a business or restaurant when the rates one must pay are stuffed down one's neck on pain of closure. Moreover, the manner in which NERA conducts its business is highly ominous. While I took the opportunity to speak in the Chamber today simply to discuss this issue, I am tired of doing so. I raised it at a Fianna Fáil Parliamentary Party meeting approximately six months ago but nothing has happened. While I received several letters, and I thank the Minister of State for his courtesy, nothing came out of the letters and the same carry-on continues. Perhaps NERA will take on more duties that will make it somewhat busier and it would make a great change were it to pester someone else for a while. However, the next thing I wish to hear from the Minister of State is an end to time and one third in Dublin and double time in County Westmeath.
The Minister of State should outline exactly what he intends to do about this issue in his response. Members of the parliamentary party have been driven daft with it. It is a topic that keeps arising and about which Members continue to hear. I understand exactly the points made by Deputy Mattie McGrath. Lest Opposition Members lose the run of themselves, this does not betoken opposition to trade unions or decent wages on the part of Fianna Fáil Members, or that they are in favour of exploitation — far from it. How could one be in favour of exploitation when those who are receiving the wages have stated that they do not want double time but do want their jobs? It is called common sense in the year 2009 and I hope someone is listening.
In our current situation of economic meltdown, this legislation is daft. I use the word "daft"——
Hear, hear.
I am glad to have support from Deputy O'Rourke in this regard and Deputy Mattie McGrath's previous remarks were along similar lines. I have been in this House for a long time and have always tried to be moderate in my approach to legislation and to affairs in the House. However, I feel like raising the flag of revolution about legislation of this nature. Are Members living in the real world? Has the Government lost touch with reality?
The House is now in the process of pushing through legislation to establish 23 criminal offences to both persecute and prosecute employers. Members do so against a backdrop of an unemployment level that, according to the Taoiseach the other day, is heading towards 400,000 people, although that may be an underestimate. Are Members out of their minds? They are on course to establish a situation in which employers will become an endangered species. We should treasure the employers we have and should encourage new ones. We will never get out of the economic travails we face unless we adopt such an approach. As for this ridiculous approach of introducing legislation to hit employers on the head with a sledgehammer for not putting up notices and so on, are Members out of their minds?
I wish to address, in the strongest possible terms, a plea to the Government to get real. While Members wish to ensure that workers are not exploited, a raft of agencies already exists to ensure this does not happen. I refer to the Labour Court, the Labour Relations Commission, rights commissioners, the Equality Tribunal and other tribunals, the Health and Safety Authority and the Departments of Social and Family Affairs and Enterprise, Trade and Employment, all of which have a role to play in ensuring that workers are not exploited. We have a multitude of agencies and what we should combine their functions under a single agency.
The inspectors should operate under the aegis of the Department of Enterprise, Trade and Employment and should be allowed to deal with complaints as they arise. As for setting up a formal agency, I was about to call it Nero's agency but it is called NERA. Its sole purpose, as far as I can see, is to eliminate employers. It simply does not make sense. I have been a member of the Committee of Public Accounts for some time. Recent meetings of that committee have opened our eyes to what goes on in some State boards. I hope the report we publish tomorrow on events at FÁS will open many more people's eyes.
The interim board of the National Employment Rights Authority has been established and already there is evidence of empire-building. The headquarters are in Carlow and I have no particular objection to that location. However, I see from the report that the Minister launched some days ago that the authority has already spread its tentacles throughout the State, with regional offices established in Dublin, Cork, Sligo and Shannon. Each of these five facilities supports separate staffs.
Another proud boast of the Government is that the labour inspectorate has been increased from 50 to 80. Is the Government living in the real world?
Some of Deputy O'Keeffe's party colleagues have criticised me for not appointing an even greater number of inspectors.
I am giving the Minister of State my view. I am long enough in this House to feel entitled to do so.
The Deputy should convey that view to his colleagues.
I am concerned at the attitude of a Government that proudly trots out yet another agency of this type. I read the review the Minister launched with great fanfare some weeks ago. It included no balance sheets or costings and no indication of staff numbers. I discovered in the explanatory memorandum to the Bill that we are talking about a figure in the order of €14 million or €15 million. However, there is no exact figure. I will pursue this matter through the Committee of Public Accounts and otherwise. Spending €14 million or €15 million on setting up this agency is unacceptable when all that is required is the appointment of additional inspectors to the Department. That would have done the job in a manner that is reasonable to those who are trying to maintain their businesses. That is far preferable to descending on such persons in the darkness of night to persecute them.
What a worker needs above all is work. However, we are in the process of introducing legislation that may curtail the availability of employment. Our entire approach in this crisis should be to find incentives to work and to encourage employers, that endangered species, to take on more employees. We should not be imposing a cost on the public purse in introducing measures that will persecute employers.
We do not need another statutory agency, nor do we need the interim agency. It is entirely unnecessary and out of kilter with the needs of our time. Moreover, the Bill provides for the establishment of an advisory board with representatives of employers, employees and the Minister. This resonates with the situation at FÁS. We certainly should not look to that particular board as an example of how a State body should be run.
Holding out to employers the prospect of a fine of up to €250,000 and imprisonment for three years as a consequence of breaking employment law is not the way we should proceed in the current climate. The message from this House, if not from the Government, should be to encourage employment. We must offer assurances that we want to see people working and that we will ensure in a sensible, moderate and reasoned way that there will be sufficient departmental inspectors to ensure workers are not exploited. The message should be that we will take whatever steps are necessary to ensure that but we will not set up this new empire which represents a waste of taxpayers' money and may ultimately serve only to squash employment.
The Minister of State, Deputy Kelleher, is a genuine, decent Cork man. I urge him to focus on the actions he can take to encourage employment. Will he ask his Government colleagues to face reality instead of pushing for the establishment of another unnecessary quango? Will he seek to rectify the ridiculous situation of pubs, restaurants and hotels being obliged to close on Sundays, as eloquently highlighted by Deputy O'Rourke? Why is there not urgent action to remedy this situation? I have spoken to employers who are pleading to open for business on Sundays and whose employees are eager to work. It is absurd that they cannot do so.
There are other areas in which we can encourage development. The word "developer" is a dirty word these days. I am of the view that developers who properly develop do a good job for the State. However, there is a difficulty with our planning laws. For example, An Bord Pleanála is supposed to complete planning appeals within 18 weeks but a recent report indicates that only 25% are disposed of within that timeframe. We should remove the obstacles to development and employment. This is not to argue for lower planning standards, but to encourage those involved in the process to do the job as prescribed for them by this House.
We should not prescribe this type of legislation. If there is €15 million to spare, it should be allocated to a more worthy cause. The Minister of State is aware of efforts to get the Cork-Swansea ferry up and running. An allocation of €2 million would allow it to commence operation, thus providing employment and helping to win back some of the tourists we have lost. That is the type of project that should be prioritised rather than wasting money on operations of the type proposed in this Bill.
I urge the Minister of State and his colleagues to stand back for a moment. They must make a realistic assessment of the situation throughout the State. If they come out of their ivory towers for a moment, they will see the wreckage and devastation wrought by the collapse of the economy. The first step in the Government's efforts to encourage employment should be to put this Bill in cold storage. Second, the National Employment Rights Authority should be given a long holiday.
Absolutely.
If additional inspectors are required, they should be appointed within the Department and instructed by the Minister on how the job should be done. This quango must be eliminated. It is entirely unnecessary and a total waste of taxpayers' money.
I speak not from a party political perspective but as a Member of long standing who wishes genuinely to advise the Government in this matter. I urge the Minister of State to pause, stand back and talk to his colleagues about the need for incentives to employment, that is, incentives to employers to employ people. The Government should abandon this Bill because it does precisely the opposite.
I welcome the opportunity to speak on the employment law compliance Bill. Like every Member of the House, I have mixed views on this legislation. I am taken by the last paragraph in the explanatory memorandum: "In summary, the Bill is intended to benefit low-paid and other vulnerable employees in particular, by securing vindication of their employment-related rights: this should have clear benefits in terms of alleviating poverty and preventing exploitation and distortion of competition from non-compliance with employment legislation, and generally improving relations in the workplace." This is all very noble but it is a total contradiction of the contents of the Bill. I support the reading of this Bill on Second Stage on the basis of two reasons. One, that it will be totally emasculated on Committee Stage——
Hear, hear.
——before it returns to the House or sent on a sojourn so that we do not see it again or,——
We will get cross-party consensus on this matter yet.
——two, if the legislation makes it out of the House in a reasonable period, any commencement orders for the majority of sections should be held off for as long as possible until economic reality prevails.
We all know why this employment rights organisation was set up. We heard about Gama and about people not being paid properly and the various investigations under way. When the Irish economy was booming, there was certainly abuse. Many Irish and non-Irish workers were not paid what they were entitled to. I do not refer to the minimum wage but rates that prevailed in the construction industry at the time. People did not receive these rates and there was abuse. These matters were investigated and people are much wiser. There are many statutory bodies, agencies and resources of the Department to investigate these matters. The idea was to set up an agency, and this was done with a budget of some €14 million. Then it was decided to put the agency on a statutory footing. This occurred a few years ago but times have changed. The reality of the economic situation has changed. I do not refer only to the downturn in the national finances but to the whole perspective of Irish people.
I have never seen such a negative item of legislation. Almost every sentence in the explanatory memorandum is out to do an employer or someone. If the Department is producing legislation, it should be about promoting employment, but this is guaranteed to lose employment. The activities of NERA have cost more people their jobs than assisted people in getting their rights in recent months. I speak from practical experience of cases I have heard about. We all know of hotels and restaurants which have stopped serving lunches on Sundays. This is a mishmash.
JLCs are part of the core problem. I accept that NERA has a job to do, that it was given a brief by the Oireachtas and this is the statutory legislation for the agency. I have never spoken directly to the agency but I know people involved in it. It is close to my constituency as I live quite close to Carlow. I have refrained from raising this matter because the obvious answer is that the agency is only implementing what it was told to do by the Government. This is the case, but much of what we are dealing with is so minute and detailed that we need perspective. Having been a member of the Committee of Public Accounts, one must see the introduction of this legislation, setting up the agency on an interim basis and then passing the legislation for the statutory existence of the agency as a project. When a project takes a number of years, the first thing one must do is to have a built-in review mechanism and ask whether the objective on the first day is still valid. Times change and I do not believe this legislation will pass that test if there is a review. It was initiated with good intentions and was needed when it was introduced, but it is not needed now.
I listened to a taxi driver on national radio during the week. There may be all sorts of innuendo behind this. He had a matchbox-sized Irish flag on the taxi sign on his roof. An inspector from the taxi regulator told him he would be prosecuted if he did not take down the matchbox-sized flag. He said that he was Irish and asked what was wrong with it. If we have regulatory authorities, such as the taxi regulator, with staff to do this, then we have lost the plot. I would prefer to see resources in such a Department made available for training those who are stranded someway through an apprentice programme rather than in situations as I have outlined. This concept must be reconsidered.
We have had good discussions with the Minister of State, Deputy Kelleher, who inherited this legislation. The agency was part of the Department before he was appointed. People referred to new legislation and new quangos. An authority has been set up by statute, a director is being set up by statute and advisory boards are set up by statute. I question why these cannot be done by the main Department.
I have a bee in my bonnet about JLCs. They should all be dissolved for the following reason. Somebody somewhere meets intermittently in order to set a rate, which goes to the Labour Court, which has a mechanism for dealing with it. I was contacted by employers at several hotels and restaurants in my constituency in south Leinster. Perhaps we are unfortunate to be within driving distance of the NERA headquarters in Carlow. None of these employers had heard of the JLCs and none of them knew they had a representative on it. I do not believe the employers who participate in JLCs are representative of the people they purport to represent. They are a fraud. They are not operating in a democratic manner.
I am equally critical on the other side of the equation. I do not want to single out any trade union. The ballpark figure for the Irish workforce is 2 million, of which 300,000 people are in the public sector. All of these are unionised and the total number of unionised staff in Ireland is 600,000. Over 1.7 million people are in the private sector and some 300,000 of them are in a union. This means that over 80% of the workforce in the private sector are not in a union. Unions do not have any mandate to represent an organisation where the majority have little or no membership. The employer side of the JLCs is unrepresentative of who they purport to represent and the union representatives are equally unrepresentative because they are not their members. The JLCs process is a fraud and should be declared null and void.
I refer to the idea of these groups of people making recommendations to the Labour Court. It would be different if employers in hotels and restaurants had been in contact with representatives and had attended regional or national executive meetings. None of the hotel and restaurant employers knew who was the regional representative on the JLCs. People have got into positions, are sitting there and they are getting rights. There are remnants of FÁS attached to this, where there are tripartite advisory boards, soft handed jobs for IBEC, ICTU and a few people in the Departments. These people sit in the quango but they are not elected or representative. We must be careful about new tripartite bodies because they are not as representative as they purport to be.
I would prefer to see more accountability of this organisation to the Oireachtas. As a member of the Committee of Public Accounts, section 25 is hopelessly insufficient. This section is the standard section written by those setting up bodies by Departments to ensure there is no accountability to the House.
Section 25(1) states:
The Director shall, whenever required to do so by—
(a) a committee appointed by either House of the Oireachtas, or
(b) a committee appointed jointly by both Houses of the Oireachtas,
the business of which committee includes examination of policy relating to employment legislation, attend before such committee to discuss his or her general activities.
The word "accountability" does not appear in that. If we are setting up bodies such as this, the director of such organisations must be made in law what we all understand a Secretary General to be — the Accounting Officer. The buck should stop with him or her, but it does not as this stands. He or she is only required to attend to "discuss general activities". That is not reporting; it is a con job that makes little of this House if that is all a committee can do.
Section 25(2) indicates that the director should not discuss any information relating to a specific inquiry or do anything to express a comment on the policies of the Government or Minister of the day. The attendance of the director will not even amount to a talking shop and there will be no accountability. With FÁS, the Committee of Public Accounts found it could not name an individual because there was no Accounting Officer. There is a beautiful term out there where a public servant is called an "accountable officer" rather than the Accounting Officer. It is a new phrase heard in this building recently. I do not know what it means but I know it means nothing, as it does not amount to an Accounting Officer.
There is no accountability to this House by the director, so the person will be able to act unilaterally and come here to discuss general issues. I am not satisfied because there is no accountability in that. We should not set this up but if we must set up some of these bodies, the accountable officer should be made accountable and personally responsible to the House not just for doing his or her duties, but in the case where he or she does not carry out his or her duties.
If we have learned anything in public life in the past few months, it is that people can walk out of the public service with grand payments that are driving the country mad. Such people may not have done anything wrong or illegal, but they may not have done their job either. There should be a requirement in the legislation that the director do the required job. I consider not doing one's job — malfeasance or whatever — as serious as doing a job badly. There is no requirement in the legislation for the director to do the job to an acceptable standard but we should learn a lesson from recent times.
There will be different views on this legislation but all new bodies should be subject to freedom of information provisions from the start. It puts in place a proper culture of accountability for actions. Those in the organisation should know from the first day that they will be made account for their actions under the Freedom of Information Act. There is no suggestion in the legislation that it will happen in this case and that seems to be the format. Perhaps people do not like freedom of information and it may suit the system, but it would help make an organisation a little more open in its work if the people in it knew they would be subject to the Freedom of Information Act as well.
I am here after months of frustration hearing about this National Employment Rights Authority, NERA, in Carlow. I had not paid much heed to it until I started getting phone calls from various hotels and restaurants. These businesses wanted to operate on Sundays with employees who wanted to work on the weekends. They may have been students who wanted work for Saturdays and Sundays and were happy to work for €10 or €12 per hour. Some JLC, which neither the employer nor the employee knew about, dictated that certain persons cannot be employed at certain times. NERA's job is to enforce that legislation, which has caused enormous difficulty.
I was in a restaurant last Saturday night — St. Valentine's night — for a quiet meal with my wife but the restaurateur rightly took advantage of me being on the premises to give me a lecture about NERA. Only a few weeks earlier some of its representatives had arrived on the premises at approximately 8.45 p.m on a Saturday when the entire restaurant was full. The inspector told the head chef and proprietor that food could not be served until she had finished her paperwork. For 45 minutes the manager had to go around plying people with drink trying to ameliorate them. He explained there were inspectors on the premises and assured customers there was nothing wrong and the food was safe. He was not allowed budge until the paperwork was cleared. That was on the busiest night of the week.
Another hotel in Laois specialises in Saturday weddings, with some dragging on until 1 a.m. or 2 a.m. on the Sunday morning. The NERA inspectors came and although no staff would be brought in on a Sunday — the hotel does not do Sunday lunches — they wanted to check the Saturday records to see who came in for the wedding on a Saturday afternoon but had not left the premises by midnight. They wanted to see the records of those people on the premises at 1 a.m. or 2 a.m. on Sunday, although there was no further work. The employer had no option but to pay up and staff who had left long before had to be contacted and told they were due a refund.
In another restaurant in Portlaoise, the lady who runs it has a great interest in people with disabilities, if I can put it that way. As she was friendly with two people who were on a disability allowance, she employed them on a part-time basis for rehabilitative purposes. These people have Down's syndrome and were able to clean tables — I have a sister with Down's syndrome and there is nothing wrong with that. The people in question worked to their ability and were not allowed handle hot water, tea or saucepans because they were incapable of doing so. NERA instructed her to pay these people the full rate or they had to leave her employment; the lady in question was almost obliging the people by giving them whatever payment they were getting.
Those two people with Down's syndrome had outlets for a couple of hours for two or three days in the week, doing a bit of work which made them feel worthwhile in their lives. They were deprived of this by NERA, which does not care about such issues. Perhaps it is the job of the organisation not to care. Our job as legislators is to ensure that we do not create legislation which facilitates this, as the body only implements legislation.
I do not normally criticise Government legislation to this extent but times have changed. I do not want people to think I am not in favour of employees getting a fair rate — I am all in favour of that. However, in the current climate, I would like to see the emphasis of everybody involved in setting up NERA working towards the creation of employment rather than over-regulating compliance.
There are a number of other aspects of the legislation that I will mention. I know it is standard practice in legislation that when a director leaves a public sector office, they cannot take up a position in the private sector for 12 months following cessation of appointment in case of conflict of interest. There are mixed views on this, but such a provision enshrines in legislation that the public sector is one thing and the private sector is another, and we dare not have proper cross-over and cross-fertilisation of good practices in both sides. Having legislation which dictates that when a director leaves a public sector job, he or she cannot contemplate taking a job in the private sector in the foreseeable future almost indicates that those in the public sector are above working in the private sector.
I know there can be conflicts of interest but part of the problem is there is too much demarcation between the public and private sectors. Most families in Ireland have public and private sector workers and they get on, yet we continue to enshrine this demarcation line in legislation. It is unnecessary and perpetuates a difference in opinion between public and private sector.
I mentioned earlier the question of advisory boards for Ministers but I do not know why we need such an advisory board if we are to have a board of the agency. It is a duplication to which I cannot see a benefit.
Part 5 of the legislation has a provision for legal protection of those people who make a complaint in good faith. It is indicated that is an offence for anybody to report in bad faith. Perhaps there is a shortcut in the explanatory note but there appears to be details of penalties for the protection of people but I do not see any penalties for people reporting in bad faith. Will NERA be as diligent in prosecuting employees with bad-faith reports to the agency as it is with employers?
That provision exists.
It is a useful debate but we should think long and carefully before it is finalised in the Oireachtas.
The purpose of this Bill is to establish NERA on a statutory footing and the Minister has consistently stated that it does not need a statutory basis to carry out its full functions. Studying this Bill, I would equate the National Employment Regulatory Authority with another body that was recently established, the Sea Fisheries Protection Authority. I have a pet name for the employees of this body, ninjas, and this is another body that will employ more ninjas.
They do not have to announce any visit. I do not eat out as often as Deputy Fleming but, as he pointed out, when he was in a restaurant, they came in and demanded paperwork, leading customers to think there was something wrong with the food. These people have enough powers. When the authority was initially established, there were 13 employees but that rose to 90. Those are probably the only jobs this Government has created since it came into office. In doing so, it is making life miserable for employers.
There have been calls here for the Government to do something about the property market, but the Taoiseach has told us consistently that the property market will find its own floor. At present, there are more than 300,000 people unemployed, a figure that is expected to rise to 500,000 by the end of the year. Employment will find its own floor. I have seen the businesses in my constituency that are closed on Sundays or have closed completely because of regulation and red tape that makes employers feel like criminals. They are made criminals by NERA.
I have always believed that one should be paid what one is worth and I believe the minimum wage should be looked at. I cannot understand how someone can buy a cup of coffee for 70 cent in Portugal or Spain but it is €2.50 here. Why? The answer is regulation. I spoke to a shop owner recently who told me that on a bank holiday, any staff working must get double time and the permanent staff who will not work that day get a paid day off. Effectively, a nine hour day costs him 27 hours pay.
I am very pro-business and we need to look at circumstances now. It was a different story two years ago and we must get back to basics. We must have room not only to create jobs, but to hold and consolidate those jobs that exist at the moment. We must be more realistic. I spoke to a public servant who said to me, in response to a question about the pension levy, that he had looked out at his neighbour who had spent €320,000 on a house a year ago and he thought to himself that at least he had a job to go to.
We must stop putting so much regulation in front of employers; they are sick of it. The finest restaurant in Killarney now closes on Sunday. It would have served 300 plates on a Sunday but it is now closed. Deputy Fleming made a good point about the restaurant owner with a disabled member of staff, who was doing the right thing by giving the individual some self-worth with the permission of the disabled person's parents. I employed 22 people before I entered the Dáil and regularly the parent of a disabled person would ask me to give that person a few hours. I told them I would but I would not be able to pay him or her the full whack. Some of them did not even want payment; they just wanted to give their children an outlet, somewhere to be rather than stuck at home in front of the television all day, every day. Some were better than others but it was the right thing to do and I did it regularly.
There is no due process with NERA. They come in the door and they will nail the business owner. That is why I call them ninjas; they come in with the intention of nailing him or her. It is like Revenue coming in to do an audit, telling a person things about himself or herself they had forgotten years ago. The owner of the restaurant Deputy Fleming was in had to provide all this paperwork on the spot. It has been stated that NERA does not need statutory footing but it could become too powerful and, in the current climate, we must be pro-active and pro-business.
During the month of January alone, 1,000 people a day lost their jobs, many in high-tech industries and others in service industries. Those people would be glad to go to work at a decent workplace for a decent wage because they are worried about their houses, their children's education, their bills and that they are now dependent on social welfare. Those who were self-employed and are now out of work, having paid PAYE and PRSI for ten or 20 staff for ten years, will get nothing for 12 months. We must be pro-business and pro-job and this is the wrong way to go about it.
I have a 14 year old daughter and she said last night that she wanted to work for the summer. I asked her what she wanted to do and she said she would work in her uncle's hotel four or five hours a day for four days a week because she wants to start saving for college. Under this regulation, even if I give her permission and my brother employs her, it is not enough. Under this regulation, he could be fined up to €250,000 for failure to keep adequate records, €5,000 for offences or receive a prison sentence of up to five years.
This Bill gives NERA extraordinary new powers similar to those of the gardaí, the customs authorities and the Competition Authority. The authority will be able to enter and inspect a work place, seal it off and remove documents from it. It does not need any basis for doing so and does not need to be acting on a complaint. This legislation is anti-business and anti-employment and should be reconsidered.
Debate adjourned.