To listen to employers' reactions to the Bill when it was published at the end of last year one would think it was a heroic step forward for workers. Organisations such as the Restaurants Association of Ireland expressed its outrage at the Government's decision to re-introduce Joint Labour Committee, JLC, wage setting systems, demanding that the Minister abolish the JLCs and allow employers to recruit without barriers. This point was echoed by the Irish Hotels Federation, claiming the Bill was an impediment to job creation, and the Irish Small and Medium Enterprises Association, ISME, said the issue of pay had not been well enough tackled.
Despite wailings from the rump end of employers' organisations the Bill does not restore previous JLC wage levels. At best there is a partial restoration of the protection that the agreements provided for. It is a bit rich of the Labour Party, in particular, to hide behind the trade unions in accepting this fudge or half-way house as a step forward. It is not a step forward at all.
Let us look at the deal in detail and at the nature of the legislation. The first point one must make about the legislation is that pay will be reduced under it. There are no ifs or buts about that. The setters of the rates must take into account a range of factors, which include the legitimate financial and commercial interests of the employers in the sector in question but also the general level of wages in comparable sectors including comparable sectors in other relevant jurisdictions; the current national minimum hourly rate of pay; and the appropriateness of fixing a higher statutory minimum rate of pay. When one considers all the little caveats and hypothetical arguments, one must ask what other jurisdictions are being talked about. Is the Minister talking about Britain or Northern Ireland, where conditions are not comparable and where the standard of living would be lower than what workers in this country would have to put up with? The vagueness allows employers here to set the rates quite low.
The key issue, which has already been highlighted and which is one of the key weaknesses of the restoration, is the fact that the Sunday rate is gone. The Minister has requested that the LRC devise a code of practice for Sunday working but it is not dependent on consensus between the unions and employers. At best, it is a sort of vague fudge. That the Government keeps saying the organisation of working time legislation gives cover in regard to Sunday work is not good enough because it is a different mechanism of protection and does not establish the necessity of having an extra payment for Sunday. It allows for time off instead or another solution.
That the legislation allows only two higher additional rates of pay is not good. It restricts the scale and manner in which workers can progress. A considerable problem is the fact that the legislation is allowing for sub-minimum rates of pay to be paid in accordance with national minimum wage legislation categories for under-18s in regard to first employment and training. It seems very silent on the sort of training in question. We have all come across very spurious, bogus training schemes that allow employers to escape paying what they are statutorily obliged to pay. Why has a proper, accredited training scheme not been factored in under the National Qualifications Authority of Ireland or other similar organisations? I presume that safeguard must be built into this legislation.
Another major flaw or weakness is in the inability-to-pay sections of the Bill. The legislation is making it possible for employers to plead inability to pay and seek an exemption for between three months and two years. Furthermore, it is stated the Labour Court shall not grant an exemption if the employer has been granted an exemption in respect of the same worker or workers under that subsection within the previous five years. Even the Minister's legislation is telling us that it is anticipated that employers or companies will use the inability-to-pay clause. The Bill allows an employer to plead inability to pay for four out of seven years based on the way it is formulated. It provides for the fact that if workers and the trade unions do not agree, the Labour Court will be able to impose binding arbitration without obtaining the consent of the parties. That is a dangerous clause to include.
It is regressive and regrettable that there is no provision in the legislation to allow workers to examine the books or accounts of employers who are pleading inability to pay. Workers and their representatives should be allowed to see the books where an employer is seeking to evade his obligations under the inability-to-pay clause.
The parts of the legislation that deal with trade union organisation and refer to trade unions being "substantially representative" are dangerous. The unions must prove themselves to be substantially representative. This sounds a little like the circumstances in the United States where union recognition has been whittled away. While I can understand why the Government would include such a clause, it is not as understandable as it might be given that the Labour Party is a partner in Government. The trade union movement, which has been bleating, whinging and gasping for this legislation, is in part shirking responsibility in that it is relying on organs of the State to do the job it was set up to do. If unions spent half as much time organising workers and doing the job they were set up to do as they do running after politicians, workers would achieve far greater protection than they would if they were to rely on legislation alone.
One of the points of misinformation issued by the Government on this subject is that it is claimed that workers currently covered by JLCs will not be affected by the changes in that they are currently covered by their current contracts of employment. That is not a sufficiently good answer. There are, as we know, many workers who, despite the previous JLCs and the existence of NERA, do not have individual contracts of employment. Many employers have questioned the constitutionality of JLCs because of the High Court ruling. If an existing contract refers to an ERO or JLC rate, there is no issue but the figures may not be specified. In that sense, the wages of those already covered by this agreement could be affected.
We have all seen employers using the circumstances that obtain - particularly where there are vulnerable workers, many of whom are of non-Irish origin - to state the law has changed and that the contracts must consequently be changed. Workers sign under duress and there are insufficient safeguards.
Skills, training and higher remuneration for workers need to be examined. The Minister's press release on the legislation referred to having two additional higher rates of pay based on length of service in the sector or enterprise concerned in addition to standards and skills recognised for the sector concerned. Skills are not mentioned at all in paragraph 42A(4)(b), which deals with the higher rates of pay. It provides for a “minimum hourly rate of remuneration and not more than 2 higher hourly rates of remuneration based on length of service in the sector or enterprise concerned, for all or any such workers”. A worker could have a certain period of service, say, ten or 15 years in a particular sector, perhaps in a restaurant, but his new employer could use the ambiguity in the legislation to state he did not have to recognise the employee’s greater skills. The employer could state the employee’s term of service pertains only to his current employment and that he does not, therefore, have to give the employee higher remuneration.
The key point, which is the same one made last week on the new legislation dealing with agency workers, is that although we can keep introducing legislation, we will be wasting our time unless the necessary supports are put in place to ensure enforcement and we will be creating an illusion that workers are being protected.
In its report in the middle of last year on non-compliance with the old JLC rates, the NERA revealed that the compliance rate in catering was only 26%, that the rate in retail was only 28% and that the rate in the hotel industry was 26%. This was under the old JLC-ERO legislation which we all said established a great system, yet only a small minority, a quarter, of employers were found to be in compliance. Therefore, legislation alone is not enough. If the Minister is serious about safeguards, both enforcement and adequately equipping organisations and individuals such as the LRC rights commissioners must be addressed urgently.