Employment (Miscellaneous Provisions) Bill 2017: Report Stage (Resumed)

Debate resumed on amendment No. 3:
In page 10, line 6, to delete “intimidation.” and substitute “intimidation.”.”.
- (Minister for Employment Affairs and Social Protection)

On the last day we discussed this amendment, which had been moved by myself and a number of other Members on Committee Stage, our intention was to ensure the burden of proof was shifted firmly to the employer. The Minister said she had received advice from the Labour Court and the WRC to the effect that what we were proposing could cause problems, meaning somebody with a perfectly meritorious case might not succeed, which would be the exact opposite of what we are trying to achieve. In the meantime, I have had a look at this again and have taken legal advice on the matter. The advice I have got is that there could be problems which would prevent a person with a perfectly valid case from succeeding on a technicality.

The second problem with our amendment was that it could create a different onus of proof, depending on the type of complaint made, with the burden being shifted in one type of complaint but not in another. I am advised that the best way to deal with this is to put the new section we proposed in our amendment into section 7 of the 1994 Act, and replace the word "section" in that amendment with the word "Act". The rules of the House do not permit me to do that tonight but I will suggest an amendment along those lines to our Seanad spokesperson when the matter goes to the Seanad. In the meantime, I do not propose to oppose the Government's amendment.

We have been the recipients of advice from the Minister, which we have to take cognisance of because it is important that, in our desire to implement legislation, we do not make the task more difficult for the people whose condition we are trying to improve. The Labour Court has considered the question of the condition of an employee being demeaned, and some detriment being caused to his or her conditions of employment, if he or she asserts a legal right including the making of a complaint in good faith. The Minister has been very generous in informing us of all the issues that arise but the question arises of penalisation. We assume that a change of working hours without consultation is detrimental and is an adverse act to an employee, which could have consequences. I was aware of the case of O'Neill v. Toni & Guy on the question of shifting the burden of proof, which is somewhat analogous to the shifting of the burden of proof in section 85A of the Employment Equality Act.

We want to make sure there is equivalence regarding what we pass here. The question to be grappled with is whether section 26A imposes a different standard or onus of proof. In the natural course of events, and in accordance with other statutory enactments relevant to employment law rights and obligations, the complainant or employee would make an complaint pertaining to, or under, a particular section or subsection of an Act or regulation relevant to the particular employment. One then needs to establish, by way of background circumstances, any facts or evidence possible to deduce or infer from the presentation of the complainant or employee that led to his or her detriment or dismissal or to any other sanction. Then the burden of proof shifts and it is up to the employer to establish to the satisfaction of the Labour Court, the Workplace Relations Commission or the Circuit Court, on the balance of probability standard, that is, the civil standard of proof, that the complaint made by the employee did not lead to the complainant or employee being dismissed. We have to be concerned if anything passed in this House gives rise to difficulties in construction, at a practical level, at the Labour Court or anywhere else. We rely heavily on such tribunals and precedent.

Deputy O'Dea has proposed that we look at this to see if we can improve it or bring forward an alternative to deal with this issue and ensure equivalence and I would support it being explored in the Seanad, where more time will be available.

I understand that Deputy O'Dea has received legal advice and I will defer to that. It is a very difficult area of legislation and I declare an interest as an employer myself. It is very difficult for SMEs.

Any changes we make, however technical, can have many implications for small businesses and employer-employee relationships. Most employers and their employees, especially small ones, get on very well, have a good relationship and mutual respect. Deputy Penrose indicated this will go the Seanad for discussion as well. It is important, though, in legislation we pass here that we try to have an overview of how this might impact on employers and employees. From the employers point of view, it can be onerous to meet the burden of proof. Deputy Penrose is a barrister used to this area, but it can be very difficult, time consuming and expensive. We need to make haste slowly.

The Mandate union has said it wants to keep this piece of legislation. There is a concern that the Irish Business and Employers Confederation, IBEC, is putting the strong arm on certain parts of this Bill. Is it unusual to have two different Acts under which a claim can be pursued against an employer? I have been advised it is. Is it a serious problem that an employee can use two different Acts? I am concerned about that. It is Deputy O'Dea's amendment, so he will have to make a decision on what he wants to do.

I have a quick point of information. I want to achieve what I set out to achieve with this amendment. I have been advised legally that this might cause problems and there is a better way to achieve the same result. I will get our spokesperson to put that forward in the Seanad.

After Committee Stage, where this amendment was introduced, I instructed my officials to seek the advice of the Attorney General on the three amendments carried on Committee Stage. My officials and I thought that could create legal uncertainty and be problematic in practice. The advice was clear that the amendments should be deleted from the Bill. I also instructed my officials to seek the views of the Workplace Relations Commission, WRC, and the Labour Court on the same amendments. A copy of that communication was circulated to Deputies two weeks ago.

If we go back to square one, a penalisation provision never existed in the Terms of Employment (Information) Act 1994. We did not introduce it because we were lobbied by anybody - ICTU, Mandate or IBEC. We did it because it was the right thing to do. Employees need to feel safe in the knowledge that they can exercise their rights under employment law without any fear of penalisation. As we were starting from scratch, we found that the strongest anti-penalisation provision exists in Irish employment law, namely the Protection of Employees (Temporary Agency Work) Act 2012. An adjudication officer has to decide in all cases under the 1994 Act whether they are well founded or not. The burden of proof for that Act is established burden of proof across all other employment rights legislation. The Opposition amendment has inserted a second burden of proof into this penalisation provision and that is where the problem lies.

If this amendment ended up in the final Act, it would be bad law to have two different levels of burden of proof within the one Act. It would not be possible to adjudicate on one without opening up a liability of being adjudicated upon by a judicial review or appeal on the other. We would end up going around in circles. The person who has the ability to take the case against the employer, most likely, would end up having no recourse to justice. I think it was Deputy Penrose who mentioned Hobson's choice on Report Stage. He said this amendment would create a Hobson's choice for the adjudication officer because, no matter what burden of proof the decision was made upon, the losing side would say that the wrong one was used and that the other one should have been used. We would again be going around in circles.

I assure the Deputies no other employment legislation has two burdens of proof. Deputy Bríd Smith mentioned the Unfair Dismissals Act a fortnight ago. That is not the Act we are amending but even if it was, it still has only one burden of proof. By introducing a second standard of proof, the penalisation provisions will be unworkable, whichever standard of proof the WRC adjudicator or the Labour Court relies upon. It will be open to the aggrieved party, who most likely will be the employer, to challenge the decision by judicial review on the grounds that the adjudicator or the Labour Court should have relied on the other burden of proof instead of the one that they did rely on. We will go around in circles once again and have no clear way for an employee who has a particular grievance against an employer to get justice. The second standard of proof really creates a problem. To leave the relevant part of the Bill stand as it does today, with two different standards of proof will render what was potentially going to be a strong measure to protect employees completely unworkable and ineffective. That is why the amendments still stand and I am pressing them.

Are we on amendments Nos. 3 and 4?

No, we have to take them separately. I will put amendment No. 4 in a moment. We are dealing now specifically with amendment No. 3.

Amendment agreed to.

Amendment No. 4 has already been discussed with amendment No. 3.

I move amendment No. 4:

In page 10, to delete lines 7 to 10.

Amendment put:
The Dáil divided: Tá, 70; Níl, 8; Staon, 37.

  • Bailey, Maria.
  • Barrett, Seán.
  • Brady, John.
  • Breen, Pat.
  • Brophy, Colm.
  • Bruton, Richard.
  • Buckley, Pat.
  • Canney, Seán.
  • Cannon, Ciarán.
  • Carey, Joe.
  • Collins, Michael.
  • Corcoran Kennedy, Marcella.
  • Coveney, Simon.
  • Creed, Michael.
  • Crowe, Seán.
  • Cullinane, David.
  • D'Arcy, Michael.
  • Daly, Jim.
  • Deering, Pat.
  • Doherty, Pearse.
  • Doherty, Regina.
  • Doyle, Andrew.
  • Durkan, Bernard J.
  • English, Damien.
  • Fitzmaurice, Michael.
  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • Funchion, Kathleen.
  • Griffin, Brendan.
  • Halligan, John.
  • Harris, Simon.
  • Heydon, Martin.
  • Humphreys, Heather.
  • Kenny, Martin.
  • Kyne, Seán.
  • Madigan, Josepha.
  • McEntee, Helen.
  • McGrath, Mattie.
  • McHugh, Joe.
  • McLoughlin, Tony.
  • Mitchell O'Connor, Mary.
  • Mitchell, Denise.
  • Moran, Kevin Boxer.
  • Munster, Imelda.
  • Murphy, Eoghan.
  • Naughten, Denis.
  • Naughton, Hildegarde.
  • Neville, Tom.
  • Nolan, Carol.
  • Noonan, Michael.
  • O'Connell, Kate.
  • O'Donovan, Patrick.
  • O'Dowd, Fergus.
  • O'Reilly, Louise.
  • Ó Broin, Eoin.
  • Ó Caoláin, Caoimhghín.
  • Ó Laoghaire, Donnchadh.
  • Ó Snodaigh, Aengus.
  • Penrose, Willie.
  • Phelan, John Paul.
  • Quinlivan, Maurice.
  • Ring, Michael.
  • Ross, Shane.
  • Ryan, Brendan.
  • Sherlock, Sean.
  • Shortall, Róisín.
  • Stanley, Brian.
  • Stanton, David.
  • Tóibín, Peadar.
  • Zappone, Katherine.

Níl

  • Barry, Mick.
  • Broughan, Thomas P.
  • Collins, Joan.
  • Coppinger, Ruth.
  • Healy, Seamus.
  • Murphy, Paul.
  • Pringle, Thomas.
  • Smith, Bríd.

Staon

  • Aylward, Bobby.
  • Brassil, John.
  • Breathnach, Declan.
  • Browne, James.
  • Butler, Mary.
  • Byrne, Thomas.
  • Cahill, Jackie.
  • Casey, Pat.
  • Chambers, Jack.
  • Chambers, Lisa.
  • Collins, Niall.
  • Connolly, Catherine.
  • Cowen, Barry.
  • Curran, John.
  • Donnelly, Stephen S.
  • Dooley, Timmy.
  • Kelleher, Billy.
  • Lahart, John.
  • Lawless, James.
  • MacSharry, Marc.
  • Martin, Micheál.
  • McGrath, Michael.
  • Moynihan, Aindrias.
  • Moynihan, Michael.
  • Murphy O'Mahony, Margaret.
  • Murphy, Eugene.
  • O'Callaghan, Jim.
  • O'Dea, Willie.
  • O'Keeffe, Kevin.
  • O'Loughlin, Fiona.
  • O'Rourke, Frank.
  • O'Sullivan, Maureen.
  • Ó Cuív, Éamon.
  • Scanlon, Eamon.
  • Smith, Brendan.
  • Smyth, Niamh.
  • Troy, Robert.
Tellers: Tá, Deputies Joe McHugh and Tony McLoughlin; Níl, Deputies Mick Barry and Bríd Smith.
Amendment declared carried.
Amendment No. 5 not moved.

I move amendment No. 6:

In page 11, to delete lines 30 to 34 and substitute the following:

“week. The Minister shall before the coming into operation of this Act, draft regulations which will comprehensively outline the circumstances where work will be deemed casual for the purposes of this Act.”.

The reason I put down this amendment, as discussed to some extent on Committee Stage, is that section 15 of the Bill repeats the terms of the Organisation of Working Time Act 1997, which basically gives compensation to people who are on call, as it were, or who are expected to turn up for work when there is no work made available for them. That is a fairly important provision. It is pretty central to employees' rights legislation and as I say, it is repeated practically word for word in this Bill.

Unfortunately this Bill provides an exception, as does the 1997 Act. It provides that if the work can be designated as "casual", then there will be no compensation if the person is not called upon and does not get the hours for which they made themselves available. I think that is a pretty serious issue, because the term "casual work" is not defined in the Bill. Different people may have different ideas of what does or does not constitute casual work. We have no way of knowing how the term "casual work" is going to be interpreted. If it is interpreted narrowly, that is fine. If it is interpreted broadly, it will dismantle a good deal of the protection which is provided for employees in that section.

Deputy Penrose proposed one possible solution on Committee Stage. It was ruled out of order, unfortunately, on the grounds that it might constitute a charge on the Exchequer. I am suggesting this amendment to the Minister as an alternative way to deal with the matter. We should draft regulations in which we try our very best to set out as exhaustively as possible those situations which can be designated as casual work. We probably will not be able to encompass everything, but I think we will take in the vast majority of situations because most people have a general idea of what does and does not constitute casual work. I am recommending to the Minister that she accept the amendment. That would oblige her to draw up the appropriate regulations, and it will prevent the possibility of the term "casual work", which as I say is not defined in the section, being used in a way that will be too broadly interpreted, thereby depriving people of compensation when they make themselves available for work which does not become available for them.

In principle I have no problem with regulations being drafted. When this Bill was first published I had an issue with what the Minister had to say, namely that it sought to ban zero-hour contracts in most circumstances. That in itself proved to be difficult, particularly for workers, who want an outright ban. When the Minister was pushed on this, she elaborated on the casual nature of summoned employment. The critical thing here is that this legislation is implemented as quickly as possible. This amendment seeks to have regulations drafted before the Bill actually comes into operation. That is where I have a serious problem. How long before the drafting of these regulations actually takes place? Deputy O'Dea has already said that his party is going to table amendments in the Seanad. That will obviously slow things up. It will inevitably have to come back into this House, so it could be October or November before it comes back in here. I am not sure. Maybe the Minister could give some outlines.

If this amendment goes through, how quickly could regulations be drafted? Would it be possible to draft them within that timeframe, over the summer recess or before the Bill actually gets to the Seanad?

The timeline is critical to all of this. We owe it to the workers to implement the Bill as quickly as possible. The trade unions are calling for it and the staff in Dunnes Stores are looking for it immediately. We know the Labour Court adjourned the case the Dunnes Stores workers were bringing forward. It is also looking at this issue. Time is of the essence. I will not stand over any attempt, intentionally or unintentionally, to slow down the drafting of regulations, and the workers out there will not be thankful for it either. Will the Minister answer the specific questions? If she is in agreement with this, how quickly could regulations be drafted? Would it be in line with the timeframe of the Bill coming back to this House ultimately?

I tabled an amendment on Committee Stage that was ruled out of order because of a charge on the Exchequer and a breach of Standing Order 179(3), which states: "An amendment to a Bill which could have the effect of imposing or increasing a charge upon the revenue may not be moved by any member, save a member of the Government or Minister of State." We are told these amendments have potential cost implications but it is an astonishing proposition that a proposal to increase the amount of compensation payable to a worker by an employer found to be in breach of the law could be ruled out of order on the basis that the State itself as an employer might be found to be in breach of the law and have to pay compensation. The debate that took three hours was on the very same issue. I know the Chairman had to do it, but we have had the wholesale ruling out of all Opposition amendments to a Bill seeking to reform employment laws in general terms and not specifically directed at the State. None of the amendments was specifically directed at the State. This seems to be unprecedented and wrong on principle, and it will have to be looked at in the House.

If such an approach were to be applied across the board, we could not amend land law because the State is a landowner, we could not amend tort law because the State is protected by vicarious liability, we could not amend contract law because the State enters into contracts and we could not amend criminal law because the State must pay gardaí to police the criminal laws. This issue must be addressed. It cannot be the case that the relevant constitutional provisions and the Standing Orders designed to inform the Constitution were ever intended to block anyone bar the Government from contributing in any meaningful way to the legislative process in such a draconian fashion. The rest of us are being relegated to mere observer status.

This is important. I agree with Deputy Brady as various unions have been in contact with us. We saw what happened to Dunnes Stores workers, which was the trigger to try to deal with this matter. Certainly during the downturn there has been increasing casualisation of labour. I was very eager this would be encompassed in the legislation. It was germane to the entire issue and went to the heart of what we are trying to fix. The last thing I want to do is delay the implementation of legislation. If it goes around in rings it could be next October or November by the time it gets to be signed by the President, whoever he or she is. That would be a significant delay.

I appreciate what Deputy O'Dea is trying to do, but we will have to wait and see what the Minister has to say. In the context of the previous amendment, the last thing we want to do is go around in rings and come back in a circle to where we started, making no progress for the very employees who are the most vulnerable and who are exposed. None of them will thank us. If we can get the legislation 99% right that will be great, and if we find a 1% lacuna it will be very easy to introduce an amendment. Under the new political dispensation the amendment could be implemented or applied very quickly. However, if there is a 100% lacuna because we fail to act, it will be the worst of all worlds for the very employees we are trying to protect and whose protections we are trying to enhance. I agree with Deputy Brady that we had better see whether we can make progress as quickly as possible on this legislation, notwithstanding that Deputy O'Dea's point is well made.

If it is Deputy O'Dea's view that the Bill will not apply to casual workers it is misinterpretation, because the only derogation regarding casual employment in the Bill is with regard to zero-hour contracts. Every other part of the Bill applies to every other worker. An employer may employ an individual on zero-hour contracts if the work is truly of a casual nature. I distributed some of the examples to which I was referring after Committee Stage. This provision has been in operation in the Organisation of Working Time Act for the past 20 years and it has not led to employees being categorised or miscategorised as casual workers.

It is also important to remember it is simply not the case that employees on casual contracts do not have employment rights. In a recent high-profile case involving an RTÉ employee, the individual was found to have been discriminatorily dismissed on the grounds of age while she was on a casual contract with the organisation. The Workplace Relations Commission found in her favour and duly awarded her €50,000 compensation. In fairness, and we have had conversations about this on other days, the nature of work is changing and jobs that would have been regarded as casual do not exist any more. For argument's sake, there used to be something called a cattle drover, who used to drive cattle from one town to another and from one fair to another. That job no longer exists. Similarly, there are roles in the new world and new economy that we probably have not thought of yet. We are trying to predict exactly what roles will exist in future and, in trying to do so, provide regulations that will adhere to those new roles, which we do not have. It would be unwise for us to do that.

It is not good practice in any legislation, be it in primary or secondary law, to define anything other than essential definitions when the plain ordinary meaning of a word or term is capable of being understood by the bodies that adjudicate on them. The WRC and the Labour Court are capable of examining all of the circumstances of particular cases and then making appropriate judgments as to whether particular arrangements are genuinely casual. It is far better to leave it to the statutory bodies charged with securing compliance with the law than tying both their hands behind their back and defining it in legislation. The most appropriate and effective approach, as this is, has worked very well for the past 20 years.

To return to some points made by Deputies on Committee Stage, it is simply incorrect to suggest the Bill will do nothing for people on if-and-when contracts. The banded hours provision, for example, will apply to people on if-and-when contracts, which means where people have worked an average number of hours over the 12 month reference period, they will be entitled to be placed on a band of hours that reflects the reality of the hours worked.

The amendments to the Terms of Employment (Information) Act will require employers to inform employees by the fifth day of their commencing employment what the employer reasonably expects the normal length of the working day and working week will be. Employers will also be required to state the expected duration of the contract where the contract is temporary or fixed term, and employees on if-and-when contracts will also benefit from the new minimum compensation provisions where they are given notice of hours of work but do not receive those hours of work. Employees on if-and-when contracts will also benefit from the anti-penalisation provisions, so if an employer penalises them for exercising their rights under either Act they will be entitled to pursue the matter to the WRC.

The suggestion was also made on Committee Stage that a person on an if-and-when contract of employment had no recourse to employment rights bodies. It is well established in the jurisprudence of the constitutional courts and the Labour Court that they will look behind the written terms of the contract to establish the true nature of any arrangement. This particular fact was addressed by the Labour Court in the case entitled Ticketline trading as Ticketmaster versus a young lady called Sarah Mullen. In this case, the court accepted on evidence that while the written contract of employment was of the if-and-when type with no mutuality of obligation, the contract was operated on the basis that the employee was required to be available for work at all times and was, thus, entitled to the protection of the Organisation of Working Time Act and, in particular, the compensation provision provided for under section 18 of that Act. She also won her case. For all of these reasons, it would be highly unwise for me to accept this amendment.

It is not my intention to slow down the Bill. We have passed an amendment in my name, which provides that the Bill is to come into operation within six months. I am the one who is trying to speed up the Bill. The Minister did not answer the main question on how long it will take to draw up the regulations. I could draw them up myself in a day. There is no reason whatsoever not to have the Bill debated in the Seanad when we come back, which, we must remember, we will not do until after the summer recess.

We are on Report Stage at this late stage but I do not know why the Bill was not introduced earlier. It is where we are. The Bill will not become law before the autumn whether we like it or not.

The Minister indicates there has been the same definition since 1979 and there has been no problem. However, she also says the nature of work is changing. The question of what is or is not casual work will come more to the fore. I have every confidence in the Workplace Relations Commission and the Labour Court to make a decision but if the circumstances are set out and a particular category of work designated in a certain way, it would save everybody and a person would never have to go to the Labour Court or Workplace Relations Commission. The process would be very much simplified. I hope when the Workplace Relations Commission and the Labour Court begin to define and interpret the term "casual work", they will not do so too broadly. If they do, the protection that has been there since 1979 will be considerably diminished.

This is the thinking behind the amendment. The Minister has indicated it is very simple and everybody knows what is casual work. They do not, and different people have different ideas about it. There are obvious examples, of which we are all aware and which the Minister mentioned. It would not be like trying to write the ten commandments to produce a simple regulation setting out, generally speaking, what is to be regarded as casual work.

Amendment put and declared lost.
Amendments Nos. 7 to 10, inclusive, not moved.

I move amendment No. 11:

In page 15, line 5, to delete "12 months" and substitute "6 months".

I know a concession has already been made on Committee Stage, with the period of 18 months changed to 12 months, but we should reduce it further. The argument has been made about "seasonal" work, and the amount of hours worked would not reflect the real type of work available to an employee. To argue that anything up to 12 months is seasonal means it is a funny kind of season. A six-month period is much more appropriate. If a worker gets a job and is guaranteed a certain number of hours but does not receive them, or works more than what was given in the first place, a six-month period would be long enough to reflect that position and the band workers should be in. After six months, workers should be allowed to contest the matter. This particularly affects young workers who start on a job and they do not expect to have to wait for that process. The Minister and I certainly did not have to wait for a year to find out what our working conditions would be like. Six months is more than sufficient to wait.

The Government first sought a look-back period of 18 months and it then moved to 13 months before it was forced to agree a 12-month period. That is Sinn Féin's compromise position as my colleague, Deputy Cullinane, brought forward legislation a couple of years ago in which he sought a six-month look-back period in line with the study carried out by the University of Limerick. One of its key recommendations was a six-month look-back period.

Members may be aware there was a cross-party committee hearing on Deputy Cullinane's Bill and it produced a cross-party recommendation for 12 months. One of the main reasons put forward for a 13-month period by the Government and others concerned unfair dismissals legislation, as an employee had to be in place for 12 months in such cases. I argued successfully that 12 months was sufficient as once a worker has been employed for 12 months and a day, the unfair dismissals legislation would apply. I am not happy with the 12-month period with respect to unfair dismissal and it must be brought back but that is another day's work and we cannot change that here because it is not in this legislation. Ultimately, it will need to be considered.

In an ideal scenario I would like to see this set at six months but there is a compromise position at 12 months that involved a big row-back from the Government's initial position of 18 months. A six-month period was in the Sinn Féin Bill brought forward by Deputy Cullinane, who successfully focused the debate on the need to put legislation in place to ban zero-hour and if-and-when contracts. It ultimately led us to this debate today. We know the red tape that was put in place in the form of issuing money messages in the process of debating that legislation. We have moved on our position but if the six-month provision is to be pushed, we will certainly not have any difficulties with that. There is an agreed position of 12 months as it stands.

I speak in support of decreasing the look-back period from 12 months to six months. If the argument is that to do so creates difficulties for seasonal work, we should go further than six months and bring it back to three months. Last time I checked, there were three months in a season and six months equates to two seasons. This is a reasonable and fair proposal that would benefit young people in particular. Amendment No. 11 is worthy of support.

Every one us campaigned to have a six-month look-back period with the Dunnes Stores workers who sought the provision. It was reflected in the Bill brought through by Deputy Cullinane, as he reflected the demands of the Dunnes Stores workers. It was kicked to 18 months and Fianna Fáil spoke of setting it at 13 months. It was going all over the place. On Committee Stage there was an amendment setting this at 12 months and Mandate and union members have said they can live with this. We are not going to win a six-month provision here anyway, and achieving a 12-month provision is good from that perspective.

The amendment refers to the look-back and look-forward reference period. I listened to the Deputies' concerns on Second Stage and I am therefore happy to be able to say we compromised and reduced the reference period from 18 months, our initial offering, to 12 months with respect to banded hours. The reference period was selected for several reasons. As Deputy Brady noted, it is the normal length of a business cycle and it should be sufficiently long enough to take account of seasonal fluctuations and the normal peaks and troughs of most businesses. It is an easy divider that will help make this more workable both for employees and employers. It is the reference period recommended by the Oireachtas Joint Committee on Jobs, Enterprise and Innovation in its report following the scrutiny of the Sinn Féin Private Members' Bill on banded hours contracts. The Bill also proposed the introduction of a banded hours arrangement. Deputies will recall there was considerable support for the 12-month reference period during Committee Stage.

It is also important to remember the look-back period is identical to the look-forward period.

If the look-back period was reduced, then the look-forward period would be reduced too. Therefore, if the amendments were carried an employee would only be guaranteed to be put on a band of hours, whatever the band of hours, from the previous six months for the following six months. I hope that, on balance, the Deputy would agree that a 12 month reference period offers better protection from the employee's point of view.

Deputies might recall that the University of Limerick study recommended a reference period of six months. However, when the study was put out to public consultation there was a genuine and overwhelmingly strong response from many quarters highlighting the difficulties or unintended consequences that would arise. For example, in a seaside hotel in the west of Ireland the levels of business fluctuate significantly between the high summer season and the quiet winter season. A review of an employee's hours over the period from May to September would produce a different result to a review of the same worker's hours over the six month period from October to April. An employee who works 35 hours per week during the high season but only ten hours during the winter low season could put in a request at the end of the high season showing that, on average, she worked 35 hours per week. Consequently, she would be required to be placed on an appropriate band of hours for the coming six months, which would coincide with the low season. However, during that period the work may not be available and the employer may not have enough work to justify giving that employee 35 hours of work. The likelihood is that either that employee or other employees would have to be let go to satisfy the 35 hour look-back period. That is not something any of us want.

The purpose of this measure is to be able to establish in principle the actual hours that people are working and for it to be reflected in their contract. The purpose is not to manipulate it or make it better for employees and worse for employers or better for employers and worse for employees. It is simply to reflect the reality of what people are working under their contracts. It is for that reason I cannot accept amendment No. 11.

Amendment put and declared lost.

I move amendment No. 12:

In page 15, to delete lines 11 and 12.

On Committee Stage, Deputy Joan Collins, who proposed the amendment along with Deputy Clare Daly, stated that it was based on EU Directive 97/81/EC on part-time work, which this country had not implemented yet. The Deputies were mistaken in this regard because Ireland has fully transposed the directive. That was confirmed by a 2003 report on the implementation of the directive undertaken by the European Commission. The Attorney General's office has confirmed same and that the amendment is unnecessary for this reason.

Under the Protection of Employees (Part-Time Work) Act 2001, an employer cannot treat a part-time employee less favourably than a full-time employee. The statutory code of practice states that an employer should give consideration to a request by workers to transfer from full-time work to part-time work or vice versa. The code was developed by the former Labour Relations Commission following consultation with the social partners. The code is admissible in evidence in any and all relevant legal proceedings. The code sets out the best practice and detailed arrangements that should apply to a request by employees to transfer from part-time to full-time work or to increase their working time should the opportunity arise as well as a request to transfer from full-time to part-time work. The code also provides guidance to employers about career opportunities for part-time workers and the provision of information by employers to employees and employee representative bodies or union representatives about the availability of part-time and full-time positions. We believe that is the appropriate way to deal with these issues.

It is important to remember that there are costs involved in hiring an employee. Most employers are rational and, therefore, will offer the extra hours to people who they know can do the job, in particular, existing employees. The code of practice in the 2001 Act already provides sufficient protections for part-time employees in this regard.

The Committee Stage amendment tabled by the Deputies imposes obligations on employers that are too prescriptive. The general manager of a cleaning company – she happens to be a lady in Meath – wrote to me to say that the provision will not allow her to assign hours according to ability and experience. She said that the provision, if enacted, represents micro-management of her employment contracts by Government and she finds it wholly unacceptable.

I will set out a practical example. Let us suppose an employer with a franchise supermarket has, say, 50 employees, made up of 15 full-time and 35 part-time employees. A member of staff who works ten hours per week cannot work a particular week because of college examinations. Those ten hours would be deemed to be surplus hours. Clearly it would make no sense for the employer to hire a new employee to do those ten hours. The employer will offer the hours to existing staff. However, to require the employer to do so by statute is unnecessary. It also creates the risk of unintended consequence since employees not offered the hours could, and potentially will, seek redress if they do not receive any of the surplus hours.

If we create a new right in law we must set out in statute how that right is to be exercised and how the employer can defend himself or herself against a claim. If the employer offers these hours to a new Irish national employee first, is the employer leaving himself or herself open to a race discrimination claim from non-Irish employees or vice versa?

I am satisfied that the amendment, as carried by the committee, would cause operational issues and difficulties for the employment rights bodies adjudicating on this issue. As it stands, the provision allows no room for flexibility. What if specific skills are required? That is not specified in the amendment. For example, a hospital porter should not, and would be unable to, take over from a nurse without the required qualifications. Yet, under the provision, as currently drafted, an employer of that hospital porter would be obliged to offer the nursing vacancy to the hospital porter.

The amendment from Deputy Collins and Deputy Daly assumes that all part-time workers want increased hours but actually there are many people who do not. According to the latest CSO labour force survey, some 75% of part-time employees describe themselves as unwilling and unavailable to work additional hours. Working more hours could potentially affect many people's social welfare entitlements. Specifically, one important condition of the jobseeker's allowance and jobseeker's benefit being paid to current part-time workers is that recipients are obliged to continue to look for full-time work. If an employer offers a part-time worker increased hours – the employer would be obliged to do so by this law if passed – and the worker refused to take the hours, we would have to give serious consideration to bringing forward provisions to provide that the employer must notify the Department of Employment Affairs and Social Protection of such a situation.

A similar situation arose in Belgium whereby a comparable provision was transposed into law. In that case an employer who offers additional hours of work to the employee who is in receipt of social welfare must notify the social welfare authorities if the employee refuses to work those extra hours. That creates a whole conundrum of issues involving people who are working part-time and who potentially do not want to work more hours. I genuinely know this is not what the Deputies were trying to do.

For all the foregoing reasons I have moved the amendment.

The Minister's explanation was a graphic example of making a mountain out of a molehill. In fact this amendment was an incredibly positive measure and entirely in keeping with the EU part-time workers directive. It serves to enhance the security and opportunity to work extra hours for part-time workers should they desire to do so.

The Minister referred to the directive and the prohibition on part-time workers being treated less favourably than full-time workers. She referred to opting to transfer between full-time and part-time employment and so on. These points are utterly irrelevant for the purposes of these two lines. The text is carefully written. It provides that in the event of hours becoming available an employer shall be required to offer any surplus hours to existing part-time employees first.

None of the scenarios that the Minister outlined about people on social welfare and people who do not want to do extra hours apply. In my former job everyone knew who those people were. If there were extra hours, everyone knew who might want them as well. The Minister says that an employer is sensible – of course costs will come into it – and will offer the hours to existing employees. I agree with her. That is the normal situation. In any healthy employment, that scenario will arise. Therefore, inserting this clause in the legislation will not have any negative impact on that healthy employer-employee relationship.

The reason to include the provision relates to other scenarios that have arisen, for example, the likes of the Dunnes Stores dispute. The idea is to protect people whose faces did not fit, perhaps the outspoken worker down at the back who encouraged other people to go on strike. That person may have found that access to hours were impacted upon and she was being treated less favourably in that sense. The reason was not because the person was part-time but because she was a union activist.

Essentially, these are the very circumstances behind the Ryanair dispute at the moment. It is a similar scenario because what is being sought is a master seniority list. In other words, a transparent mechanism available for changes in hours of work and for transfers between bases and so on. Ryanair wants to keep that because it wants to have the power to send people to different bases and deny them holidays in order to keep them compliant. This is a similar scenario that can be used. Let us suppose a worker wants to avail of extra hours to ensure security.

We should remind ourselves that last month the European Economic and Social Committee stated its view that the directive should open up real opportunities for workers in non-standard jobs, which is important, to move to standard terms of employment appropriate to their qualifications. It said that this requires minimum rights for temporary workers to be moved into open-ended employment or to upgrade from part time to full time where there are places or hours in the company and the worker has the necessary skills and qualifications.

Is the Minister honestly trying to tell us that the Workplace Relations Commission, WRC, thinks that it will be forced to uphold a claim when, say, tomorrow Ryanair does not have a pilot to fly the flight and a baggage handler is going to offer to do it for it? Does she think that the WRC will say that is a reasonable expectation for that worker, any more than a hospital porter thinks that he or she will take over the doctor's job? Be serious. It is a nonsense to suggest the WRC is saying that anyone expects that based on this wording. It says "appropriate to their qualifications" and necessary skills or qualifications are implied, they do not need to be spelled out. However, if they did need to be spelled out, I ask the Minister why she did not insert that wording? This is critically important to workers in this State, and against the backdrop of the research done by Social Justice Ireland which says that more than 104,000 people at work are at risk of poverty. Some of those people want extra hours. Maybe their face does not fit. The Minister is absolutely right that in most cases, if the hours are there in a healthy work place, the workers will get it. This only refers to a minority of cases but it is so important and just having it there will act as a corrective for those employers who might want to exercise discrimination against their workers. It is incredibly important. For me, it was the most positive amendment to come out of Committee Stage and it would be appalling to overturn it at this stage. It would be incredibly harsh of the Minister to do that. If she had taken the discussions on board she would have re-worded it if there was a problem with the wording.

I am also aware of the email correspondence where the Department sought the WRC's advice and opinions on the amendments brought in by the committee. The WRC commented on many things but it did not comment on this one. It had to be emailed repeatedly by the Department which kept asking if this would be a problem and in fact in one of the emails the response was that it did not believe it was. The WRC kept receiving emails asking whether it did not think it was a problem. Finally, we have wording that there was a phone call with the WRC and it said that it could cause huge problems and a burden for it. No workers will take cases saying that they were a baggage handler and wanted to fly the plane and they were not given the hours. If they were stupid enough to do that, no WRC would uphold it. It is utterly ludicrous.

There is a problem here. We have to look at it in the context of the rising number of disputes. The legislation that we bring in can be important. There is currently an issue in the Minister's own constituency with workers in Etihad Airlines. Workers were given a letter under a collective redundancy situation and are now in negotiations. They are vulnerable workers whose company is failing to recognise the union. People with no expertise are supposed to go in and represent all their colleagues in a life-and-death situation regarding their jobs. The company is failing to sit down with the union that those people have joined. That is the consequence of the type of bullying which this legislation and the clause that we are discussing is meant to protect workers from. I feel very strongly that it has to stay.

Before I move to the second round of contributions, does anyone wish to come in for the first time? No.

I indicated earlier.

I am just saying to hold on. Do not rush to any conclusions. The Deputy will not be deprived of her speaking slot while I am in the Chair.

Deputy Mick Barry was first to indicate-----

Deputy Bríd Smith was ahead of me.

It does not matter. I call on Deputy Bríd Smith for her second contribution. Apologies, it is not but she moved-----

My apologies. I am sorry; it is getting late.

It is just as well we are getting a holiday soon.

I am sorry about that.

I want to back up what Deputy Clare Daly said. There is a contradiction here. Recent statistics show that more than half of part-time workers in employment are living in poverty. Part of the reason for that is low pay but also precarious hours and part-time work itself. Say someone is in a job in Tesco - I know it pretty well because I shop in its Ballyfermot store and we supported the pickets around the country recently - and extra hours become available for some reason, for example, there might be a busy period or the World Cup is on, if those hours are not offered to the part-time worker and a new employee is taken on instead and the hours are given to him or her, it penalises the person who is already at work and who needs the extra hours to exist.

There is another thing that the Minister for Employment and Social Protection must consider on top of everything Deputy Daly said. During the last Dáil, while Deputy Joan Burton was Minister, this State told lone parents that their lone parent allowance would be affected when their children reached seven years of age and the parents would have to go out and seek work. This was portrayed as a positive initiative to get people into the workplace rather than seeing themselves dependent on social welfare in the long term. As the hours they work are reflected in the payments they get, then they need more hours. Many of them need more hours in work to sustain themselves. What is happening is that lone parents are on a certain number of hours, but extra hours are being offered to new workers who come in rather than increasing the existing workers and as a result they become more dependent on the Minister's Department. The same is true of things such as family income supplement, FIS, payments for workers who need a subsidy from the State because they are being paid so little. The Minister might be cutting off her nose to spite her face by not supporting this amendment which does two things. It protects workers and undermines the ability and the willingness of employers to penalise workers whose face does not fit or who are too bold because they have joined a union, taken action or spoke up for themselves. That can be used to penalise them. Unless one is in a good unionised job, we have all seen how employers can overlook people who should be next in line when they offer extra hours. The original amendment offered a protection for employees. The Minister thinks that it is a bit hard on employers. That is why IBEC probably lobbied the Minister to remove it, arguing that it wanted to be much more flexible. I am sure that the Minister will respond to my accusation that she was lobbied by IBEC to introduce this amendment.

The original amendment goes to the heart of the spirit of what this Bill is about. If the Minister removes it, she will be tearing the guts out of the Bill. I plead with her not to remove it and with the other Deputies to vote to retain the original amendment.

The Minister proposes to delete a section of the Bill which would oblige the employer to offer newly available hours to existing employees. There are many part-time workers in this country who would want this provision to remain in the Bill and many more who would want this, if they were aware of this debate. The worst and most exploitative employers will be watching this carefully and will be on the Minister's side. They will be cheering her on and hoping that this House agrees to delete a proposed obligation on employers to offer newly available hours to existing employees.

This is an important matter. There will not just be a "Tá" or "Níl" vote on it. A full vote will be called for and the bells will be rung. We want to see where every Deputy in this House stands on this issue.

When the Minister spoke on her amendment, she wheeled out a number of theoretical situations that might occur. Before we look at theoretical situations, we should look at the real situations that are occurring in this country every day, every week and every month. Employers have the power to hold over their workforce the threat of giving any additional work that becomes available to someone else. They are going for new hires rather than offering work to existing employees who speak up, challenge what their managers say or try to join or organise unions in their workplaces. That is happening in the real world every day, every week and every month. It has to be combatted and that is what this modest proposal aims to do. The Minister is ignoring what is happening in the real world. Instead, she is wheeling out theoretical examples.

The Minister raised the possibility that if this Bill is passed as it currently stands, when a nurse goes abroad and leaves a nursing position vacant in a hospital, the management of the hospital might have to offer the job to a porter rather than hiring a new nurse. She knows this is nonsense. Everybody in the House knows it is nonsense. It has been deconstructed by other speakers in the course of this debate. Why is the Minister trying to bring such nonsensical arguments before the House? Her reliance on such arguments is a real indication of the weakness of her position. There is no way on earth the WRC would stand over such a situation. By the way, there is no way the hospital porter would apply for a nurse's job in the first place, unless we have madmen among the workforce, rather than the sensible people who keep this country running on a daily basis while nonsense like this is trundled out in the Dáil.

The Minister has referred to several scenarios in which it would make sense for employers to offer additional hours to existing employees, which is what happens in many workplaces up and down the country. If it makes sense in the vast majority of scenarios, why is it a problem, threat or danger to provide in legislation that such an offer has to be made, as a means of combating the more exploitative employers who pursue policies of this kind? We all know there has been a major campaign behind the scenes. We all know that IBEC has been lobbying hard against amendments like this. We all know which employers will benefit most if the Minister is successful in her proposal to reverse the Committee Stage amendment. It should not be taken out; it should stay in. If we cannot get unanimity - I do not think we will - there should be a vote on it.

The amendment that was made on Committee Stage goes to the heart of what we are trying to achieve as we seek to protect some of the most vulnerable workers in our society. According to CSO figures that were published recently, some 105,051 people who are in employment are living in poverty. The amendment that the Minister is now seeking to reverse cuts to the heart of the matter by seeking to ensure additional work that becomes available is offered to people in precarious employment and people who depend on family income supplement on a weekly basis to be able to put meals on the table.

I think the Minister's proposal to have the amendment that was made on Committee Stage reversed has been introduced on foot of the intensive IBEC lobby which has been mentioned by a number of Deputies. If her proposal is accepted, it will affect vulnerable employees and drive down conditions and wages. Some employers are punishing staff who might be trying to hold their employers and their management to account. Employees in Dunnes Stores have been instrumental in the campaign to ban if-and-when contracts and zero-hour contracts, for example, by bringing the company to the WRC. We are aware that staff have been penalised there. By leaving this amendment in the Bill, we can prevent employers from penalising staff in this way. I will give an example of how staff are being penalised. Rather than offering any extra hours that are available to staff who have fought long and hard for their current pay and conditions, these employers are taking on new staff on lesser pay and conditions and giving them the additional hours first and foremost. The amendment that was made on Committee Stage will stop all of that.

I would like to refer to interesting correspondence regarding the WRC that has been provided by the Minister. The Department contacted the WRC time and again to ascertain whether it intended to comment on the amendment requiring employers "to offer any surplus hours to existing part-time employees first". As far as I can see from the correspondence, the WRC did not respond to those contacts. One official who had heard nothing further from the WRC wrote that they had been speaking to Mr. Foley, who is the chairperson of the Labour Court. This official reported that Mr. Foley had said that this provision would lead to a certain level of chaos at a practical level, but had also made the point that the Labour Court would have no difficulty in operating it. Of course there might be a little bit of initial chaos, as Mr. Foley put it, in the rolling out of this measure in employment up and down the State, but it is critical to note that the Labour Court would have absolutely no difficulty implementing it. The correspondence goes on to make it clear that Mr. Foley was speaking as an individual and not on behalf of the Labour Court as a statutory body. The piece of correspondence in question conveys clearly that the views circulated and the observations provided are those of the chairman and not of the Labour Court as a statutory body. In summary, no concern has been expressed by the WRC, the Labour Court has not expressed any concern about this amendment and an individual from the Labour Court has said the court would have no difficulty in operating this provision.

As a result of an amendment that was made on Committee Stage, this Bill provides that "an employer shall be required to offer any surplus hours" that are available. The word that is used is "offer", rather than "give". There is no emphasis on giving anybody anything. Many employees who are trying their best to get additional hours are being precluded from doing so by the red tape and penalisation that exists. As Mandate has put it, the Government's attempt to scupper this provision by deleting it would pull the heart out of what we are trying to do to deal with precarious employment and if-and-when contracts. As I have said, the CSO has categorised 105,051 citizens as being in employment while living in poverty. I am totally opposed to the Government's attempt to delete the subsection that was added to this Bill on Committee Stage. I hope the Minister reflects on the views of Deputies, on the silence coming from the WRC and on the views of the chairperson of the Labour Court. Interestingly, the Labour Court as a statutory body did not have any views on it.

It is extremely important that the amendment of the Minister be rejected. It certainly has IBEC written all over it. IBEC stated it is deeply concerned about the implications of the proposed banded hours legislation. It states:

A further proposed amendment was a suggestion that an employer be obliged to offer any additional available working hours to existing staff before recruiting new employees. This provision, if it were to be accepted, operating in tandem with the amendment placing the onus of proof on the employer that any changes in working hours were not in fact a form of penalisation under the proposed legislation removes any meaningful control that an employer once had to manage his or her business and staff and places that control in the hands of the State. Put simply, this is State micromanagement of contracts of employment.

Our committee recently produced a report on lone parents, the precarious work done by lone parents and the deprivation they experience. The measure is specifically to deal with the issue of lone parents getting extra hours.

The one-parent family scheme age threshold was reduced to seven years. The rationale was that it would be an incentive for lone parents to seek more hours at work but they cannot get them. They are not getting more hours at work. Thirty percent of Tesco and Dunnes Stores workers want more hours. Why are they not getting them if it was provided for in legislation? They are not being offered the extra hours by the employers.

Mandate has won a 3% increase in pay for its members every year for the past five years. That is 15% over the past five years. Its long-term members get about €14 per hour. Where one of those members who is working in Dunnes Stores for 35 hours per week decides to leave, the company prefers to employ someone who can be paid €9.55 per hour rather than giving the hours to a person who has been working in that environment for €14 per hour. My proposal is about offering the hours to part-time workers who are working generally according to the same scheme.

I worked as a post office clerk. Seniority was a factor. I refer to where someone left the job or moved to a different section. Every six months or so, a list of vacancies would be put up for competition and people would apply. Eligibility would be based on one's seniority in the job. It was very simple to operate. There is nothing chaotic about doing that in any retail store. The employer knows one's seniority and the number of hours one works. It would be very simple to publish vacancies every couple of months offering the extra hours. If a worker working ten hours decided to do 25 or 35 hours at a rate of €14 per hour, which is the rate the union fought for, the ten hours could be offered to somebody else who might be working for 15 but who might prefer to work for ten because it would suit their lifestyle better. Part-time workers in employment should be offered the hours.

Rather than trying to delete the section, it would have been much more appropriate for the Minister to consider an amendment to clarify the necessary skills or qualifications, if necessary. I do not believe it is necessary but I am referring to where the Minister believes so. It is very disingenuous just deleting the actual section because the Minister is abandoning those women, lone parents and workers who want to access the extra hours, who need them and who experience a constant barrage from management if they lift their heads above the water. We saw that two and a half years ago when the Dunnes Stores workers went on strike. We saw it with Tesco workers and we see it in other areas. LloydsPharmacy workers are on zero-hour contracts and do not even have contracted hours.

I urge everybody to reject the Minister's amendment and, if necessary, work with us. I will try to have an amendment introduced in the Seanad to strengthen the legislation a little if the Minister believes it is necessary. We certainly should not vote for the Minister's amendment. As I said, a healthy employer is fine but the legislation is to protect those workers who are not in a healthy environment. Many retail companies and others are not healthy employers in any shape or form. I will leave it at that and I might contribute again. I have a few more points.

I will be brief because I am anxious that we proceed with this important Bill. I must say, however, that the Government's amendment is quite outrageous. If it passes, which will obviously depend on the position Fianna Fáil adopts, it will legitimise and encourage the use of hours as a means of control and intimidation and as a means of enhancing exploitation of part-time workers. That is what this is about. This goes back to 1997 and the failure of successive Governments to implement the part-time workers directive properly. Thanks to the select committee amendment, there is an opportunity to achieve this.

It is extremely simple. The Minister's argumentation on having to offer hours to a different worker who is not qualified is patently ridiculous. I am sure she knows that is the case. This is about hours for which the part-time worker is qualified. It is a matter of the hours being available for him or her. It is extremely simple. If the Minister seriously had the concern expressed, then she would have tabled an amendment to deal with any associated technical problems. That is not the issue. There is no problem with the wording: the Minister is simply bowing, as Deputy Joan Collins pointed out, to the demands of IBEC. It is all about increasing the power and control of an employer to punish employees, such as those in Dunnes Stores, for standing up for their rights. It would be utterly shameful for the Government to proceed with the amendment. It would be utterly shameful to vote for it. It is illustrative of the real hypocrisy and doublespeak of the Government on the issue of lone parents to talk about encouraging them to work while allowing employers to block them and other workers actively from accessing to the hours they need to secure a sustainable existence and to plan for themselves, their families and lives.

I spoke about this on Committee Stage. I made the point that any good employer should be implementing these measures without having any statutory obligation to do so. They should be doing this already. They should be implementing it in a practical way voluntarily, as would any good employer. There should be a system in place for implementing it. Employers will know their existing cohort of part-time employees and the hours they work. The extra hours are critical for many. They need them to generate enough money to eat and survive. The essential thing for workers is putting bread on the table.

There are likely to be some teething problems or practical problems with the implementation of the provision but they are not insurmountable. All an employer has to do is bring forward a code of conduct, negotiated between the employer and the employees, on how additional hours that become available may be allocated. It could be negotiated on the basis of seniority. If somebody is working for the employer for three years, rather than three months, it could be a factor. If someone with a family is working for only 18 hours per week and five become available, most people would agree to his or her getting those hours rather than me.

If the seniority issue or what is equitable is important, there is a way of dealing with that and to whom the hours should be allocated. If extra hours become available for a particular task and the employer has an employee whose competence is required, that person will be on the staff so it does not prevent the employer from getting the skill or competence required. It is only prescriptive from the point of view of offering, as Deputy Brady said. It is not compulsory and it does not compel employers to give people work. The employers have to offer it to those people and they can work out a system of doing so. All they have to do is comply.

It is a legislative supervisory stick for the employer to ensure that a good environment is generated in terms of the employer-employee relationship. That should already be there. It will not be very onerous once a code of practice is put in place for how those surplus hours will be made available to existing part-time employees. That is important. Every good employer will know exactly what is going on, if employers are minding their business at all or if the employers are not being vindictive. If somebody is working 12 or 15 hours and an extra five or six hours become available that could be critical for the person's well-being and economic capacity to survive. I supported the insertion of the provision on Committee Stage. I and my Labour Party colleagues find no basis, reasoned or otherwise, put forward here to resile from that position. It is instructive that we must put this in legislation. There is a huge number of very decent employers across the country but, unfortunately, there are the few who are in prominent positions or who wield a lot of clout or control who are sometimes the focus of legislative intervention. Often it is the small and medium sized employers, as the Minister knows, who try their best to comply with the standards one would expect.

I am very supportive of this provision. Where the WRC and the Labour Court have intervened in terms of advising us on this legislation, and they do not wish to intervene in the policy area, it was to point out practical difficulties and we certainly take them on board. That is critical. However, I do not see anything being pointed out here that is insurmountable from a practical perspective or for the application of the provision. Obviously there will be teething problems but these can be addressed in the Seanad, with a circumscribing of the various ways of how they can be offered to ensure there are no difficulties. This is something that good trade union relations with an employer should be able to work out in any event. I do not anticipate any problems in the workplace. Of course the problem is where there are non-unionised environments and that is where people are exposed to the bad behaviour of some unscrupulous employers.

The Minister's position on this is indefensible. In putting forward this amendment she has failed to explain how she will protect workers from victimisation. If this amendment is passed there is absolutely nothing to prevent an employer from making a decision not to give additional hours that might be available to existing part-time employees if the employer is irritated by the fact that those part-time employees have asserted their rights at various points or if the employer feels that the level of seniority of an employee is such that the employee is entitled to better wages and conditions than a new entrant. The Minister will allow employers to do that. That is not to say all employers will do it, but there is no doubt that some do it. They victimise people who stand up for themselves. If the Minister gets rid of this she will have no mechanism to prevent an employer from victimising people by refusing to give them hours.

The only defence the Minister has given is one that can be addressed in the Seanad, if that is a genuine concern. As everybody has said the opposition of IBEC to this is not genuine. It is about wanting to give the whip hand to employers and resenting the fact that existing workers might have certain rights in respect of their employers. The Minister should be under no illusion about that. IBEC has offered spurious justification for it, which the Minister has recycled here. However, if the Minister wishes to address the issue of people having suitable qualifications she can do that in the Seanad. The spurious argument she is offering can be addressed elsewhere. Does the Minister support the principle of existing part-time workers being offered any additional hours that are available first, which will improve the situation of people who are on low hours and are the working poor? They are the 100,000 people, many of them women, who are the working poor whom the Government claims it wishes to activate. The type of victimisation that I and others are describing happens often and it makes people very angry, bitter and resentful when employers can get away with it.

The Minister needs to do better in justifying her position, although I do not believe it is possible to justify it. She should withdraw her amendment, leave the Bill as it is and protect these workers and their right to get some extra hours, which will make their low paid employment a little better from their point of view.

This amendment was passed on Committee Stage. Since then there has undoubtedly been lobbying. I have been approached by both sides too. I have been approached by unions, people representing IBEC and a number of employers, mainly small employers, in my constituency, who have serious reservations about this. I will not be told what to do by anybody - I make up my own mind - but I listen to everybody's arguments. I am very approachable and accessible.

I am fully aware of the EU directive on part-time employment. It provides that, insofar as possible, when vacancies occur in part-time hours they should be offered to people who are currently doing part-time work. That is the strong recommendation. It mentions as far as possible, and some things are possible and some are impossible. I do not know how widespread this is or the number of employers involved but I am aware that some employers employing part-time workers are inclined, if hours become vacant and if there are part-time workers who are well established, are of long standing and have reached a certain level of wages, to bypass those workers and offer the part-time hours to other people to keep costs down. When one does that one is depriving people who are already in precarious employment of the opportunity of getting more hours and introducing a new category of precarious workers. That is not a desirable situation.

Having read the section again, I am uncomfortable with how it is drafted. I support the principle of additional work that becomes available being offered to existing part-time employees. I have no problem, for example, with a company that employs a particular type of worker, say, a machinist, on a part-time basis being offered additional hours that become available. In fact, I would be strongly supportive of additional hours being offered to existing employees to bring them closer to being full-time workers. I have no problem in principle with that proposal.

The section, as drafted, which I did not object to on Committee Stage-----

IBEC must have contacted the Deputy.

Nobody influences me.

That is not what the Deputy said a few minutes ago.

IBEC may have contacted me but I will not be told what to do by IBEC, Deputy Murphy or anybody else. I make up my own mind.

Deputy Murphy, please refrain from interrupting.

I have a difficulty with the section as drafted. We are all familiar with the situation of an employer who employs only one type of employee but there are many businesses that employ different categories of employee. Deputy Clare Daly gave a number of examples. We are all aware of the extreme cases, such as employers of part-time baggage handlers and part-time pilots. If would be ridiculous, when a pilot vacancy becomes available, if the employer would have to offer it to a baggage handler, but that is precisely what the section as drafted provides. This is not only about baggage handlers, pilots, nurses and medical attendants. There are a number of grey areas. Deputy Clare Daly said that it is implied that people must have the requisite skills or experience to take up the work that the employer is compelled to offer them, but why imply it? Why not write it into the legislation? It is only a few words.

It could be done in the Seanad.

The Deputy has anticipated the point I was going to make. Given the delay in bringing in this legislation, we are only on Report Stage on the second last day before the summer recess. Whether we like it or not - personally, I do not like it because I have been advocating for this legislation for a long time - this legislation will not come into operation until the autumn because it has to go through the Seanad, and if there are amendments made to in the Seanad, it will have to return to this House, but I presume that would not be a very long process. If the section were to be amended along the lines I have suggested, I would have no problem indicating to Fianna Fáil Senators that they should support it, and if it comes back before this House, which it will, I will support it. As I said, I am uncomfortable with the section as drafted.

For quarter 4 of 2017, the increase in employment was 66,800 new jobs. This represents an increase in full-time employment of 90,000 new jobs, which as an increase of 5.4%. We had a decrease in part-time employment of 23,000, which is 4.8%. The recovery is producing more full-time decent paid jobs and reducing the number of part-time jobs which we are here trying to protect and improve.

Whenever I am in this House I have the height of respect for people who sit across from me and beside me. I never make personal insults because they are cheap and show how shallow one is in making one's argument in the first instance. Some of the language that has been used has let down Members opposite. If they want to argue with passion about what they believe, they should stick to the core subject and leave aside the petty remarks because they do not do them do justice.

I appreciate what Deputies Clare Daly and Joan Collins are trying to achieve. In many ways, I support what they are trying to do, but introducing legislation for one particular retail outlet when that legislation will impact every employee and employer in the country does not make good law. Deputy Joan Collins mentioned that her premise is to try to protect people. The penalisation provisions in the organisation of working time directive already do what the Deputy is trying to achieve. If anybody is being impinged or infringed in terms of the examples she has given, the Labour Court and the Workplace Relations Commission exist to protect them.

The nonsense did not come from me. If the Deputy ever meets Kevin Foley, it is to him the apology is owed, not me.

There is no apology needed.

(Interruptions).

I did not interrupt other speakers. The views expressed by Mr. Foley's are his own personal views because he did not have the time formally to call a division of the court. He is the chair of the Labour Court and I hold him the highest of esteem. Mr. Foley agrees that if the legislation is written as it stands post amendment, it will give rise to a certain level of chaos at a practical level. He made the point that the court would have no difficulty operating the provisions but the outcome of its decision would likely give rise to operational difficulties.

For example, the court has a good understanding of what surplus hours means in the retail sector where the employees operate at similar levels and similar job specifications, but there would be practical implications if the courts were, as the law would allow, to decide that surplus hours relating to part-time nurses should be offered to a part-time hospital porter. Obviously, other safeguards would need to kick in, for example, the need to be a certified nurse, but the legislation would not be doing itself any favours if, for example, the categories of employees remain unspecified per sectors involved. Those are not my words. They are Mr. Foley's words. If the Deputy thinks they are nonsense, he can take it up with him. I will be pressing my amendment.

The amendment needs to be defeated tonight. If people want to re-examine it in the Seanad because they believe it is too open, that is their prerogative. I hear what Fianna Fáil is saying. We do not need an amendment to clarify the situation precisely because, as stated by the Minister in outlining what Kevin Foley had to say, other safeguards would kick in. It is implied that there are other safeguards in place. In other words, one cannot fly a aeroplane unless one is a pilot. Even if somebody were to look for that, it would be wholly impractical.

The points made by Deputy Penrose gave a more accurate portrayal of what goes on in workplaces, particularly good workplaces. Throughout the country there are arrangements in place in workplaces. Some of them have unions and others have staff who get together and come up with their own plans which suit the employer as well. Why would an employer pay a full-time worker to do extra hours at double time if he or she has a part-time worker who can paid to do it at single time? An employer might do that if he or she was in a huff with a part-time worker and wanted to victimise that worker, even if, in doing so, , the employer would be cutting off his or her own nose. The employer, however, would be disciplining the employee and keeping him or her in a box.

The point that needs to be registered is that there are mechanisms for doing this in place in workplaces throughout the country without this legislation. All of the good employers do not need to worry about this legislation. They only need to offer employees additional hours. There will be other clauses in place as well. For example, if somebody is not doing their job properly or has refused additional hours on four occasions, then the employer does not have to offer that worker the additional hours. That would be perfectly legitimate. The Labour Court would not oppose that.

We are in danger of overly complicating it. If people are genuinely saying they can live with the addition in the Seanad of "appropriate qualifications", that is fine, but we need to oppose the amendment now to get to that stage or the Minister could withdraw her amendment with a view to it being dealt with in the Seanad.

I do not know if the Minister was referring to me in terms of the personalised remarks-----

-----but I want to stress I was not being personal. From the point of view of the issue at stake, the amendment is indefensible because it fails to identify, as did the Minister in her response, what mechanism will be in place, if this amendment is passed, to protect against an employer deciding to victimise a part-time existing employee by not giving him or her the additional hours because he or she has asserted his or her rights in some way, has been a union activist or some other reason with which an employer has taken umbrage.

Alternatively, the employee may have built up seniority and have a pay level or in some cases pay agreements which apply to him or her but not to people who are employed later on - new entrants are whatever. The Minister's amendment, if passed, will not provide that protection. That protection will be gone and employers, whether there are few or many, who choose to victimise people in that way will be able to do so.

The Minister has a case to answer in defending her amendment. The example Kevin Foley gave is not a good one for all the reasons already stated. However, if there is a genuine concern, everybody here has said there would be no difficulty in amending what is the fundamentally correct principle in the existing Bill with the added provision about appropriate qualifications. The onus is on the Government to do that and not to press an amendment that removes a protection from workers in a precarious position. The Minister needs to consider that. There is no need for this amendment. Whatever weakness the Minister can argue is in the existing wording, that weakness will be far bigger if the Minister's amendment passes and an important protection for workers will be removed.

We can only judge the Minister's intentions by her actions, which are reflected in the amendment before us. That amendment is to delete the right of part-time employees to get surplus hours that become available. That is a choice by the Minister and from that we must conclude that she is opposed to the inclusion of that provision. Now she tries to present her opposition to the provision as only being because of it being drafted too broadly, etc. If that were the issue, the Minister could have tabled a different amendment. We could now be discussing an amendment that would include the points about qualifications and so on. Why are we not debating that and why are we debating this deletion? I think it is because the Minister is actually opposed to the provision but she does not want to make that argument. If I am wrong about that, there is a very easy answer that has been pointed out by everybody; the Minister should withdraw her amendment tonight and introduce an amendment in the Seanad to deal with it being too broad, if that is indeed the case, thereby resolving the issue. Otherwise she has to make an argument as to why she is in favour of the right of employers not to give surplus hours to appropriately qualified part-time employees. I do not think she wants to make that argument, but that is the effect of the amendment she is proposing which reinforces the system of control and power for the employer relative to the employee.

In the trade unions' experience older workers and those with longer service will continue to be discriminated against as employers choose to hire new workers on lesser terms and conditions of employment rather than allow their existing staff to utilise the extra hours when available. This leads to an increase in low-paid precarious work, an area in which Ireland is one of the worst offenders in the EU. For example, more than 85% of Dunnes Stores workers say that allocation of hours is used as a control mechanism over them. This provision is vital if we are to tackle that scourge.

The removal of the commitment on employers to offer additional hours to existing part-time employees results in the State's continued and growing requirement to support these workers via supplementary welfare payments, such as family income supplement, and increase the number of employees who categorise themselves as underemployed for welfare purposes. We have to accept that we have the second highest level of underemployment in the EU 15 with 147,000 workers stating they are underemployed. That is to say they would like more hours or full-time work. This amendment deals with that.

I and other Deputies would be happy to get together tomorrow afternoon if the Minister withdrew the amendment to try to work out an amendment to deal with some of the issues raised regarding similar job specifications, skills or qualifications. The WRC and the Labour Court are well experienced to know when someone comes in with a grievance or takes a case against an employer and it is a nurse versus a porter. That would not be accepted in the Labour Court. They know the job specifications, qualifications and skills that would have to work around that.

The Minister has two minutes to conclude.

I do not think I need two minutes just to reiterate what I have already said. I refer back to the two specific items that two Deputies raised. The penalisation provisions in the Organisation of Working Time Act, as amended by this Bill, will protect Dunnes Stores workers. There is already protection under the industrial relations legislation against penalisation of workers for being trade union activists. Every activation measure we take in the Department of Employment Affairs and Social Protection is to try to help people who are underemployed be more employed if that is what they want. All the supports and services available from the Department, whether it is working family payment or jobseeker's payment on a three by two basis, are provided to facilitate a minimum standard of living.

The most important thing for us to do is to ensure people have as much work as they possibly can. The purpose of the Bill is to ensure people who are in precarious work have more stability and security. While I do not have a difficulty in principle with the amendment made on Committee Stage, it would have required me to go back to public consultation. We probably would have had to go back to the Oireachtas Joint Committee on Employment Affairs and Social Protection. We would have had to consult all the Deputy's favourite best friends, IBEC, ISME, the retail sector, Mandate and Patricia King of ICTU. We would have had a full conversation on the actual implications of what a properly worded, detailed prescriptive amendment would mean to the people who would be impacted before we could have brought it back here. Then I would have had to go to the Attorney General to have it drafted and present it to Cabinet again. The Bill has dragged on for far too long. As Deputy Brady said, if we had €1 for every time we mentioned Dunnes Stores in this Chamber in the past couple of months, we would all be rich.

Everyone except the workers.

Many people are genuinely waiting for us to pass this legislation. If we keep putting obstacles in the way, we will be back here this time next year, not in the autumn.

Amendment put:
The Dáil divided: Tá, 38; Níl, 35; Staon, 31.

  • Bailey, Maria.
  • Breen, Pat.
  • Brophy, Colm.
  • Bruton, Richard.
  • Canney, Seán.
  • Cannon, Ciarán.
  • Carey, Joe.
  • Corcoran Kennedy, Marcella.
  • Coveney, Simon.
  • D'Arcy, Michael.
  • Deering, Pat.
  • Doherty, Regina.
  • Doyle, Andrew.
  • Durkan, Bernard J.
  • English, Damien.
  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • Harris, Simon.
  • Healy-Rae, Danny.
  • Heydon, Martin.
  • Humphreys, Heather.
  • Kyne, Seán.
  • Madigan, Josepha.
  • McEntee, Helen.
  • McHugh, Joe.
  • McLoughlin, Tony.
  • Mitchell O'Connor, Mary.
  • Murphy, Eoghan.
  • Naughten, Denis.
  • Naughton, Hildegarde.
  • Neville, Tom.
  • O'Connell, Kate.
  • O'Donovan, Patrick.
  • Phelan, John Paul.
  • Ring, Michael.
  • Ross, Shane.
  • Stanton, David.
  • Zappone, Katherine.

Níl

  • Barry, Mick.
  • Boyd Barrett, Richard.
  • Brady, John.
  • Broughan, Thomas P.
  • Buckley, Pat.
  • Collins, Joan.
  • Connolly, Catherine.
  • Coppinger, Ruth.
  • Crowe, Seán.
  • Cullinane, David.
  • Daly, Clare.
  • Doherty, Pearse.
  • Fitzmaurice, Michael.
  • Funchion, Kathleen.
  • Healy, Seamus.
  • Kenny, Martin.
  • Mitchell, Denise.
  • Munster, Imelda.
  • Murphy, Paul.
  • Nolan, Carol.
  • O'Brien, Jonathan.
  • O'Reilly, Louise.
  • O'Sullivan, Maureen.
  • Ó Broin, Eoin.
  • Ó Caoláin, Caoimhghín.
  • Ó Laoghaire, Donnchadh.
  • Ó Snodaigh, Aengus.
  • Penrose, Willie.
  • Pringle, Thomas.
  • Quinlivan, Maurice.
  • Ryan, Eamon.
  • Sherlock, Sean.
  • Shortall, Róisín.
  • Stanley, Brian.
  • Tóibín, Peadar.

Staon

  • Aylward, Bobby.
  • Brassil, John.
  • Breathnach, Declan.
  • Browne, James.
  • Butler, Mary.
  • Byrne, Thomas.
  • Cahill, Jackie.
  • Casey, Pat.
  • Chambers, Jack.
  • Collins, Niall.
  • Cowen, Barry.
  • Curran, John.
  • Donnelly, Stephen S.
  • Dooley, Timmy.
  • Kelleher, Billy.
  • Lahart, John.
  • Lawless, James.
  • McGrath, Michael.
  • Moynihan, Aindrias.
  • Moynihan, Michael.
  • Murphy O'Mahony, Margaret.
  • Murphy, Eugene.
  • O'Dea, Willie.
  • O'Keeffe, Kevin.
  • O'Loughlin, Fiona.
  • O'Rourke, Frank.
  • Ó Cuív, Éamon.
  • Scanlon, Eamon.
  • Smith, Brendan.
  • Smyth, Niamh.
  • Troy, Robert.
Tellers: Tá, Deputies Joe McHugh and Tony McLoughlin; Níl, Deputies Richard Boyd Barrett and Mick Barry.
Amendment declared carried.

Amendments Nos. 13 and 14 will be discussed together.

I move amendment No. 13:

In page 16, line 19, to delete “intimidation.” and substitute “intimidation.”.”.

These amendments are intended to delete the new section 26A, which was inserted on Committee Stage into the penalisation provision of the Organisation of Working Time Act 1997. These amendments have been brought forward for essentially the same reasons as amendments Nos. 3 and 4, which related to the penalisation provisions being introduced into the Terms of Employment (Information) Act 1994. The Attorney General has advised deleting the amendment carried by the committee because it creates two different standards of proof in the same legislation, resulting in legal uncertainty and a penalisation provision which would be unworkable in practice. Deputies will see from the material circulated that the WRC and the chairman of the Labour Court had also acknowledged the difficulties this will cause.

It is important that we have robust penalisation provisions in both the Terms of Employment (Information) Act 1994 and the Organisation of Working Time Act 1997, and the two Acts this Bill seeks to amend are as stated. The penalisation provisions are core to each of the other elements that we are bringing in through this Bill and we are introducing new rights and strengthening existing rights. It is vital that employees believe they can exercise those rights without any repercussions. It is important, therefore, that we get the penalisation provisions right.

The penalisation provisions being introduced in this Bill mirror those that exist in the Protection of Employment (Agency Work) Act 2012. This is the strongest penalisation provision in Irish employment law and it includes threats of penalisation so an employee who is successful in a penalisation claim under the 1997 Act can obtain up to two years of salary in compensation.

The new section 26A introduces a number of additional elements into the penalisation provisions of the 1997 Act which are unnecessary, inappropriate and somewhat confusing. The net effect of the amendment would be a weakened and flawed penalisation provision. Section 26 provides for the broad definition of the term "penalisation" and subsection (5) provides that penalisation should include transfers of duty, change or locations of places of work and the reduction in the wages as a change of working hours. Section 26A purports to provide that penalisation shall be taken to have occurred where an employee, only after a complaint has been made to the WRC, has their hours of work reduced unless the reduction can be objectively justified by the employer. The new section is not necessary because a change in the working hours in section 26(5) would include any reduction in working hours and in fact the existing section 26(5) is a broader and more comprehensive protection for employees. For example, an employer could penalise an employee on only a 12-hour week contract by forcing that employee to work a shift of 12 hours on Christmas Eve completely against their will. That would not be captured by the amendment carried on Committee Stage as it only deals with a reduction in hours. Furthermore, the new section 26A introduces the defence of objective justification. This defence is generally applied in age discrimination cases under equality legislation. To import this language from a statute serving a different purpose and use it for penalisation is not appropriate.

Section 26A goes on to introduce a second standard of proof by providing that it shall be for the employer to show that such justification existed. Again, we do not think it is necessary and it only serves to cause confusion and undermine the original penalisation provisions. It could also leave the WRC or the Labour Court open to judicial reviews. Which section does the adjudication office or the Labour Court rely on when deciding a complaint? Is it section 26A or section 27(3)? Whichever it is, its decision would be open to challenge on the basis that it did not rely on the other section, regardless of the substance of the decision. Employers intent on circumventing the penalisation provisions could challenge any decision of an adjudicating officer or the Labour Court on this basis, rendering what should be strong employee protection provisions completely ineffective.

I really appreciate that this was not the intention of the Deputies who brought forward the amendments on Committee Stage or of the committee in agreeing the amendment. However, it would be genuinely be an unintended consequence if the provision remains in the Bill and I hope all Deputies can see the difficulty and agree to remove it.

Amendment agreed to.

I move amendment No. 14:

In page 16, to delete lines 20 to 26.

Amendment agreed to.

I move amendment No. 15:

In page 17, after line 35, to insert the following:

“PART 7

MISCELLANEOUS

Designation

20. (1) It shall be an offence for an employer to incorrectly designate an employee as self-employed.

(2) A person guilty of an offence under this section shall be liable on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or to both.

(3) Where an offence under this Act is committed by a body corporate and is proved to have been so committed with the consent or connivance of any person, being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in any such capacity, that person shall, as well as the body corporate, be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

(4) Summary proceedings for an offence under this section may be brought and prosecuted by the Workplace Relations Commission.

(5) Where a person is convicted of an offence under this section the court shall order the person to pay to the Workplace Relations Commission the costs and expenses, measured by the court, incurred by the Workplace Relations Commission in relation to the investigation, detection and prosecution of the offence unless the court is satisfied that there are special and substantial reasons for not so doing.

(6) In proceedings for an offence under this section, it shall be a defence for the accused to prove that he or she exercised due diligence and took reasonable precautions or any person under the control of the accused to ensure that this designation was correct.

(7) Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act 1851, summary proceedings for an offence under this Act may be instituted within 12 months from the date of the offence.

(8) An employee is a person who in performing his or her duties does so as a person not in business on their own account and who is not a free agent or economically independent of the person engaging his or her service. While all of the following factors may not apply, an individual would normally be an employee if he or she—

(a) is under the control of another person who directs as to how, when and where the work is to be carried out,

(b) supplies labour only,

(c) receives a fixed hourly/weekly/monthly wage,

(d) cannot subcontract the work, if the work can be subcontracted and paid on by the person subcontracting the work, the employer/employee relationship may simply be transferred on,

(e) does not supply materials for the job,

(f) does not provide equipment other than the small tools of the trade, the provision of tools or equipment might not have a significant bearing on coming to a conclusion that employment status may be appropriate having regard to all the circumstances of a particular case,

(g) is not exposed to personal financial risk in carrying out the work,

(h) does not assume any responsibility for investment and management in the business,

(i) does not have the opportunity to profit from sound management in the scheduling of engagements or in the performance of tasks arising from the engagements,

(j) works set hours or a given number of hours per week or month,

(k) works for one person or for one business,

(l) receives expense payments to cover subsistence and/or travel expenses,

(m) is entitled to extra pay or time off for overtime.

(9) While all of the following factors may not apply to the job, an individual would normally be self-employed if he or she—

(a) owns his or her own business,

(b) is exposed to financial risk by having to bear the cost of making good faulty or substandard work carried out under the contract,

(c) assumes responsibility for investment and management in the enterprise,

(d) has the opportunity to profit from sound management in the scheduling and performance of engagements and tasks,

(e) has control over what is done, how it is done, when and where it is done and whether he or she does it personally,

(f) is free to hire other people, on his or her terms, to do the work which has been agreed to be undertaken,

(g) can provide the same services to more than one person or business at the same time,

(h) provides the materials for the job,

(i) provides equipment and machinery necessary for the job, other than the small tools of the trade or equipment which in an overall context would not be an

indicator of a person in business on their own account,

(j) has a fixed place of business where materials, equipment etc. can be stored,

(k) costs and agrees a price for the job,

(l) provides his or her own insurance cover e.g. public liability cover, etc.,

(m) controls the hours of work in fulfilling the job obligations.”.

We discussed this in detail on Committee Stage. The Minister was unhappy with the idea of a code of conduct. The committee wanted a legislative provision and it is here in this amendment.

Debate adjourned.