Employment Agency Bill, 1971: Report and Final Stages.

Mr. Alexis FitzGerald

I move amendment No. 1:

In page 2, between lines 25 and 26 to insert the following new section:

(1) The Minister shall keep a register in two parts containing particulars of licences to be registered in Part A of the Register and in Part B of the Register. The Minister shall not enter particulars of any firm or company to be licensed for registration in Part A which he is not satisfied complies or continues to comply with the requirements of subsections (3) and (4).

(2) The Minister may, without the applicant being obliged to publish notice of his intention so to do, under section 3 hereof issue a licence in a form prescribed by the Minister and subject to such conditions as the Minister may specify in pursuance to the form prescribed by the Minister and accompanied by the prescribed fee. Any such licensee licensed under this section shall be registered in Part A of the Register.

(3) Part A shall contain particulars of any firm or company of industrial or management consultants or any firm of accountants which:—

(i) merely incidentally to other services which it provides for clients also provides the service of advising them on, or assisting them in, the selection of managerial, professional or senior administrative staff, and

(ii) does not accept any fee or payment from applicants or candidates for employment but is paid exclusively by the client interested in recruiting such managerial, professional or senior executive or administrative staff.

(4) The Minister may prescribe the standards of accommodation in respect of premises for use for the business of an employment agency and the standards of suitability and fitness which he considers requisite in respect of an applicant for a licence for a business to be registered under Part A of this Act.

(5) The Minister shall forthwith remove from Part A of the Register any firm or company which he is satisfied has ceased to comply with the requirements of subsections (1), (2), (3) or (4) of this section.

(6) All other licences to be registered under this Act shall be registered under Part B of this Act.

(7) The provisions of sections 4 and 5 shall apply to licences registered under Part A of the Act mutatis mutandis.

This matter has been referred to in the Seanad on the Second Reading by myself and others and on the Committee Stage by Senators Quinlan and O'Higgins. I should like to refer again to what I said on the Second Reading debate on the weakness of the Bill as drafted. I must say I was very disappointed to find that an asterisk did not appear opposite a much better drafted amendment than the one I have put down which would deal with this point. The Government, the Minister and his advisers did not see fit to recognise the amendment I put down which was designed to provide for the very real problems which arise with regard to the Bill as drafted and which the Minister defended in his Committee Stage speech when dealing with an amendment moved by Senator O'Higgins and supported by Senator Quinlan. The Minister then said he could not take the particular amendment proposed on Committee Stage—perhaps I should read that amendment now— because it would provide loopholes whereby this legislation could be overcome. The amendment moved by Senator O'Higgins was to add to subsection (1) a new paragraph the necessity for which had been developed in the course of the Second Reading debate. Perhaps I should remind the House that the arguments I subscribed to and expressed then were agreed to by Members on both sides of the House. In relation to a matter of this kind I think the idea of "sides" to the House is almost irrelevant. We are all concerned to get good legislation dealing with a problem. There are perhaps some ugly fish to be caught but we are anxious that we should have legislation that would not catch in the net fish that are valuable to the community.

Senator O'Higgins moved the following amendment to section 6:

To add to subsection (1)

which deals with the non-applicability of the Act, that it should not deal with——

the following new paragraph:

Any firm or company of industrial or management consultants or any firm of accountants which:—

We were having a debate in which everyone's mind was being alerted to the subject under discussion. It is no use assuming that since I spoke on the Second Stage on the 3rd March everyone has been brooding on my words. I had better repeat what I said with regard to the problem caused by this Bill, recognising as I did the problem which led to the introduction of this Bill. The reference is Volume 69, No. 11, column 1026 of the Official Report for 3rd March, 1971:

There are a number of very distinguished, very expert and professional firms engaged here in consultancy business. In addition to those who are industrial or management consultants, there are a number of the larger firms of accountants who give great service to their country and great service to their clients —and through giving good service to their clients give good service to the economy—who have management selection divisions and all of whom will now require to look for exemption, or if not, be subject to the provisions with regard to inspection contained in this Bill.

The most important thing I want to say about this Bill is this. It cannot come as a surprise for me to present the proposition to this House that Dublin is not London.

Then I went on and spoke about the importance of the information being given to people engaged in this business being kept confidential and of people who have to deal with these firms knowing that it will be, so far as it is humanly possible, kept confidential. The Bill, as proposed, gives the right to inspect files with regard to the people. It is all very well to say that of course everything will be kept confidential, that everybody who is in public office here, whatever that office may be, is a thoroughly reliable person. This is absolute nonsense and it is totally unacceptable to me that legislation should be framed on that basis.

In any debate I do not like to refer to declining standards without having all the information regarding the matter. That decline does not end in the Government or in a Government that has ceased to be and has been replaced by another. Example is given and example is taken. I am sorry if I find it necessary to say that rights ought not to be given by legislation to anybody to get confidential information that it is not absolutely necessary in the State's interest should be available. It is quite clear that for the security of the State nobody has any right, including Members of this House, to the preservation of confidence with regard to their activities. I regard the security of the State as prime and as predominating over every right which I have. I would assume that its administration is guided by a proper regard for the necessary principles which should govern a well-ordered society.

But we are not talking about the security of the State now. We are talking about the Legislature, who are taking power to discover things about other people which may cause grave embarrassment if discovered. We are in the position that we have to rely upon the confidentiality of the people who discover this information, and there is to be no protection against the use made of this confidential information.

First of all, this is a long extension of a principle, that has been increasingly applied by the advisers to the Ministers, of taking the easy way out. It is much too easy for them to say "Get the right to get all the information, then we will have no trouble". This is a great departure from the principles of European civilisation, a most dangerous departure. If this Government were replaced by another— may I say much worse than it, as it could be and I am serious in saying this—then this confidential information could be used as we of my generation will remember that certain rights under the exchange control codes of Germany were used to blackguard the religious orders in Germany under the Nazi rule. Little technical rights which they found they had on the statutes were applied to disgrace and dishonour and reduce the reputation of the Church to which I belong in Germany at that time. It is very dangerous to enact legislation which gives unnecessary powers and civil servants should be rebuked when they advise their Minister to do this.

We are dealing here with the problem of the distribution of skill. In relation to this, and I am repeating what I said in other words on Second Reading in relation to top management in this country, it is very important that the right people should be facilitated in getting into the right jobs. Whether any Members of this House have a predisposition to socialism or a fondness for the practices of capitalism, both sides to this question—as I would have hoped, both sides of this House —agree that it is the organisation of human labour and human skill that is going to determine the progress of this country and this organisation is going to depend upon getting the right people into the jobs of managing those who are at work. The socialists have one approach; the revolutionary socialists have a similar approach. On this matter I do not think there is a division. The decisions are taken on top. Under the system which we still practise and which at least we should think about before we abolish it, the market economy decides that the skills are to be discovered by the rewards to be offered and through the free operation of agencies of the kind that are going to be brought under control by this Bill.

The Minister is not a very giving Minister from what I have seen in relation to amendments proposed to this Bill, though he is giving enough in relation to other pressure which will come up for discussion later today here and in which I hope not to be participating. It is important that the right people be put into the right jobs and the right people will be less likely to be put into the right jobs if the controls proposed to be imposed by this Bill are, in fact, imposed. It will mean that people will not put their present employment at risk because they will not offer themselves through agencies from which information can be obtained and can be made available to their present employers.

People are shrewd enough. I know perfectly well that the employee who is found by his employer to be looking for other employment is, in most cases, the last employee to be advanced in his firm, unless the position is that his application brings to the notice of the employer that he is damn fortunate to have him, and that he must be advanced quickly or else he will lose him. However, this is very unlikely.

As I understand the operation of these bodies—and I do not like using this kind of language normally, but if I have to use it I will—I thought that the Minister was not very considerate in his approach. He tried to deal with this matter as if it were a class matter, as if there was to be one rule for the bosses, one rule for the managers and another rule for the other people. This is grossly to misunderstand it and I do not think that the Minister misunderstands the position. On Committee Stage—unfortunately I was not able to be present, but I read the debate— when he talked about class distinction, it was being singularly unfair to the proposers of the amendment. He said: "There will be class distinction in the ugliest interpretation of the phrase". Let us look at it: it is reported at volume 69, No. 15, column 1411:

There will be class distinction, in the ugliest interpretation of that phrase, if we say: "Top management, you are exempted from being licensed under this legislation because you are important people."...

Are they not important people? Is it not important for the economy that the important people—the people with the skills—be got into the positions that in Soviet Russia they would be got into and under the Irish democratic system the Minister is got into? Is he not an important person and has he not got important privileges and does he not enjoy respect?

That does not deal with the amendment which Senator O'Higgins moved. The Minister said he was well aware of many industrial and management agencies which are doing very good work. Frankly, I am forced to regard that as soft soap. He did undertake to have regard to the debate that ensued. He went on to say that he did not agree with Senator Quinlan's statement. The Minister is reported at column 1413 as saying:

I do not agree that they are all that more important than the girls in the typing pool...

This is to say the people who are to be in control of the whole organisation are not all that more important than the girls in the typing pool. I should like to know where would the girls in the typing pool of Rolls Royce be today if the right managers had been managing Rolls Royce? And where would the girls in the typing pools in Moscow be if there did not happen to be, as there are, good managers of the labour that is available. We all give our labour and there is nothing particularly wrong in referring to ourselves under this description.

The Minister made a point of which I took particular note when I made a rough draft of this document. It took me only ten minutes and it does not really please me. I understood that the debate was being taken last week and if I had realised that it would be taken today I would have prepared something better——

(Interruptions.)

Mr. Alexis FitzGerald

Has Senator Ó Maoláin a contribution of importance to make while I am speaking on the Employment Agency Bill? May I ask the Chair if Senator Ó Maoláin has any right to speak when I am speaking?

An Cathaoirleach

All interruptions are disorderly.

Mr. Alexis FitzGerald

There has been only one interruption.

Tomás Ó Maoláin

And it was a sensible one.

Mr. Alexis FitzGerald

There is another one coming from the same source and he could go on for much longer, as I know him. In fact, the Minister was concerned that this would be used as a loophole to let certain people free and that it would be difficult to deal with them. I cannot see, with the skills that are available to him, and if the Minister is concerned to close a loophole, why such a proposal would not close that loophole. I would say that this proposal, improved and properly drafted by someone skilled in that matter, would do so. The proposal is on page 2, between lines 25 and 26, to insert a new section.

I should like to remind the Minister and the House that this type of procedure is followed in many Acts of Parliament. In particular I should like to address the attention of the Minister and his advisers to the provisions of the trade mark registration legislation, which has a Part A and a Part B and certain differences and distinctions that flow from being in one rather than in the other. The proposal was— Senator Eoin Ryan was interested in this—that if you did not have the amendment that was proposed by Senator O'Higgins you would create a loophole through which unworthy people could get through.

At this stage I shall read my proposal:

In page 2, between lines 25 and 26 to insert the following new section:

(2) The Minister may, without the applicant being obliged to publish notice of his intention so to do—

This could be damaging to these highly reputable companies which are giving great service to the country and contribute to the growth factor, which we frequently hear referred to as not being enough.

—under section 3 hereof issue a licence in a form prescribed by the Minister and subject to such conditions as the Minister may specify in pursuance to the form prescribed by the Minister and accompanied by the prescribed fee. Any such licensee under this section shall be registered in Part A of the Register.

Here we start adopting Senator O'Higgins's proposal and trying to fit it into a section, which would mean that a loophole could not be availed of to overcome the desirable controls envisaged as necessary in the Bill.

The amendment continues:

The purpose of the Bill is pretty evident, I think, and accepted by everyone as legislation to control employment agencies. In order to do that I had to take an overall policy position as to how best we are to approach it. Any advice that I have got regarding the mechanism of the Bill or the technicalities of its drafting and of the overall policy decision with regard to any particular type of employment agency must necessarily be my decision, irrespective of what the technical advisers or the legal draftsmen may consider.

I am not accepting the amendment and that is not to criticise the wording of it, which was, as the proposer admits, hurriedly worded and would not perhaps cover the exact provisions which he had in mind. I think the amendment would only exempt a particular class of employment agency from one or two provisions of the Bill regarding advertising. They would be required to conform with all the other provisions of the Bill.

Perhaps the intention was to exempt entirely this particular category of employment agency from all the provisions of the Bill. If that is the case I cannot add anything to what I said, whether I said it rightly or wrongly and was misconstrued or otherwise, on Committee Stage. This legislation to be effective must be comprehensive and must be all-embracing in regard to the type of agency that it includes.

I accept, as well as Senator FitzGerald, that we have industrial consultants and accountants who are doing a very important job in that direction, a job which is very important to the economy, and are providing top executives who are so essential. Nevertheless, they are people working in the economy too and the fact that they are more important than the girls in the typing pool does not justify making an exception in regard to the provision we make here for recruitment. I do not think it will in any way impair the effectiveness of the agencies that are set up to recruit professional employees and executives to have them put in the same category as all the other employment agencies.

I do not think that we are imitating London. When we are accused of slavishly following the example of British legislation people very seldom fail to remind us of what they are doing in England which we have not yet done here, but then if we do something similar we are frequently accused of copying. I do not think there is anything wrong in taking example from the experience which other people have had in similar circumstances in schemes or legislation. Sometimes it has been most helpful to be able to look across the Channel, or indeed the Atlantic, to see what has happened in other areas in legislation of a type which we may contemplate or be in the process of producing. It is essential that one should examine all the examples that are available in regard to similar circumstances.

That does not say that we are applying the standards of London to Dublin in this matter. This is a simple Employment Agency Bill which is essential in order to control a problem that could be much more difficult in years to come. If we are taking control of employment agencies I would be very slow to exempt any category unless there is very special reason for doing so. If I used the words "class distinction" as if that were what I was solely worried about, what I meant to say was that we could be accused of operating class distinction in saying: "You are an agency, you are only employing lower grade staff. This is a consultancy agency employing high quality staff. You must not get the same treatment. You must be in an A section and the other must be in a B section."

We should not in any case confer any special benefits on one or the other. I must have regard to the people who are legitimately engaged in the work of employment agencies at the present time. While this Bill may infringe to a great extent on the limit and extent of their work, it also must give them some protection and we must have regard to the protection it gives them. For that reason, one way in which it can protect them is not to single out one section and give them special treatment as against the other. There is no question of doubt that this would be discriminatory. I am convinced that in bringing all of these under the same umbrella I am not conferring any special powers or any special privileges on one section, nor am I in any way comparing the attractiveness or the prestige of the other section.

As I mentioned before regarding loopholes, if I am to exempt the industrial consultancy and the accountancy type of agency, I cannot see any difficulty for the other agencies in setting themselves up as consultancy agencies. We are placed in the position of having to define what constitutes an industrial consultancy agency as against an employment agency as we know it. I do not think that I am faced with having to do that and I think Senator FitzGerald has blown up this problem far in excess of anything that is really in it in making the case which he has made. I would point out that one of the cases which might be made is that it would make it difficult for certain firms, but we must remember that, irrespective of what employment agencies we have or what standing they enjoy, any firm are free to recruit their own staff in their own way as they wish. If they use their own accountant, as they often do, and if he is the accountant retained by that firm he is, under the Companies Act, regarded as a member of the firm and they are free to use their accountant to recruit their staff if they wish. They must not register, of course, as an agency. I merely mention that to dispel any doubt there would be regarding individual hardship in the matter of accountants operating on behalf of their own firms.

If an accountant set himself up as one to employ staff at any level we cannot discriminate just because he is employing staff at a higher level and maybe giving some training as well, giving a consultancy service. He is still recruiting an important type of individual, a most important type, as Senator FitzGerald said. That should not exempt him from the provisions of this Bill. Indeed the fact that he is employing what is an indispensable link in the chain of successful management is all the more reason why he should be brought in and is no reason why he should be exempted from the provisions of the Employment Agency Bill.

I do not think Senator FitzGerald covered all the aspects of the Bill when he was speaking. I do not know whether I should cover those now or take them as we meet them in going along. I should like to refer to the point he made regarding confidential information. If the Bill is to be effective at all it must provide for access by the inspectors of the Department who seek to enforce the provisions requiring certain standards of be-haviour. I doubt if that can be effectively carried out unless there is provision made that the inspectors who will be employed under the Bill when it is enacted will have access to the essential records which agencies will be required to keep.

I do not think that could be regarded as an infringement on the confidential or private running of any agency any more than one might say that in entrusting their business to the bank they must place themselves at the risk of their business being known by somebody else, or indeed with a solicitor or a barrister for that matter. We have in some instances to some extent at all times to depend on the integrity of the individual. I do not care how far we may operate to eliminate that or to show that we are trespassing unnecessarily on the individual's private life or liberty, we must in the last analysis somewhere depend to some extent on the integrity of the people who are charged with the responsibility of doing a certain job.

For this Bill to be effective the whole thing rests on the authority we have to ensure that the standards required will be maintained. This to a great extent depends on our having access to the necessary records which agencies will be required to keep and is not a question of searching through the confidential or private papers or whatever other records agencies may compile for their own purposes. I think this is the minimum one must accept in the way of having the necessary supervision. I would, as any Member of this House would in reason, agree that only in cases where there is suspicion should we seek access to papers and then only to that minimum amount of information which the agencies will be required to keep. I am as careful as anybody about what we write into legislation. We have a good Government at present and Senator FitzGerald was probably anticipating one day when we might not have one just as trustworthy and that these powers could be misused or abused.

Mr. Alexis FitzGerald

I always welcome light relief.

Mr. J. Brennan

I would even take that risk and say that we will always have people who will be reasonable and that the minimum powers given in this respect in regard to supervision would not be such as would permit any serious infringement on the lives or personal liberty of the people concerned. The Bill is sufficiently important to warrant that we must have this amount of supervision and I think it does not go unnecessarily far. At this stage I do not want to say anything further except that we did not accept Senator FitzGerald's amendment—and as he said, we have not had the draftsman look at it and put an asterisk drawing attention to a similar draft that would perhaps embrace in more legalistic terms what he had in mind—not because we considered the amendment as submitted was not right, not because we did not regard it as being good enough, but because I had decided as a matter of policy—and this is the whole point—that we could not accept the consultancy element.

Mr. O'Higgins

Having heard the Minister's reference to good Government and having heard the Minister describe the present Government as a good Government, I am rather tempted to suggest that the remainder of this discussion should be postponed until we have finished dealing with some of the aspects of good Government which will arise on the next item on the Order of Business.

I do not intend to take up much time on this because the Minister has made it quite clear that his mind is made up on this matter and that he does not propose to change it. Having listened to what the Minister said with regard to this amendment it seems to me that he and his Department seem to be wilting under a mass of imaginary difficulties. The Minister refers to the propriety—which I do not wish to question —of examining similar problems elsewhere and to the necessity for control. Then he seems to see some insuperable difficulty in singling out, as he put it, for special consideration a particular category of consultants who, by virtue of the definitions contained in this Bill, come in under the term "employment agency". I do not think that insuperable difficulty exists at all. The amendment proposed by Senator Alexis FitzGerald solves the Minister's difficulty so far as that goes.

The Minister also seemed to see some huge difficulty in having to face up to the task of getting a definition for "industrial consultants" and people of that description. In earlier discussions we sought to have such people exempted from the provisions of this Bill. Again, I do not think there is any insuperable difficulty there because the amendment we are discussing now gives the Minister the type of definition required, if the Minister was prepared to take up a flexible position in dealing with it.

The Minister seems to be obsessed with the bogey of class distinction or the possibility that he would be leaving himself or the Government open to a charge of class distinction if he were to accept this amendment. That view seems to me to be rather farfetched. Surely the whole purpose of this Bill is to deal with a particular problem which does not exist—I think this has been conceded—in relation to the category of consultancy services for which this amendment is designed to cater. I would prefer that those people should be exempted entirely from the provisions of the Bill.

In view of the attitude the Minister adopted on earlier Stages, an amendment designed to meet both the Minister's point of view and the special position and special needs of agencies and consultants in this category has been proposed. Under this amendment the degree of control which the Minister might reasonably require in connection with industrial consultants and others is given to him by the simple device of differentiating between different categories of employment agencies. What is the offence in doing that? Apparently, in the Minister's mind the offence is that there is discrimination and class distinction, but every bit of legislation which seeks to deal with one class rather than another can be open to exactly the same kind of objection. There is legislation dealing with office conditions. There is legislation dealing with factory conditions. There is legislation dealing with a host of different sets of circumstances. Is it all bad legislation because it deals with particular classes or categories of people? Is it bad legislation because there is an element of class distinction in it? I do not think it is bad legislation and I do not think the Minister's point in this connection is valid.

There are various serious reasons why an amendment on the lines suggested here should be accepted by the Minister. It is not at all an exaggeration to make the case which has already been made on this Stage, on Committee Stage and on the Second Stage with regard to the particular and peculiar need for confidence and secrecy in relation to the work carried on by consultants so far as the question of seeking to place people in suitable employment or seeking a suitable person for a job on behalf of an employer is concerned. All those arguments are valid and are not arguments that have at all the same relevancy in respect of other classes of workers and other classes of employment agencies. That is the vital distinction. I do not think we will be doing the legislation any good if we blind ourselves to the fact that that distinction is there. To my mind it is no answer to say: "I am not going to see the distinction because if I see the distinction I am creating class distinction." That is not an effective approach to the problem.

The Minister wants this Bill to deal with particular problems which already exist or may in future exist. So far as I am concerned he is welcome to the Bill. However, I think he cannot have legislation which will be entirely effective or suitable to all the classes of employment agencies covered by the definition in the Bill unless he is prepared to recognise that there is a distinction and to recognise it in the legislation.

Professor Quinlan

Frankly, I am very disappointed with the approach of the Minister to this matter. On a very reasoned debate on Committee Stage reasonable suggestions were put forward and the Minister seemed to take an open view of them. What has happened in the meantime to close his mind so firmly to any advice that has come from this House? I am in no way casting any aspersion on the Minister's advisers when I say the quality of the advice the Minister received in this House from the eminent legal Member that we are fortunate and privileged to have in Seanad Éireann is something that is not available in his Department or, indeed, in any other Department of State. We are fortunate in having such advice, freely given, on a Bill which is non-controversial and non-political.

This Bill is neither the Fianna Fáil, Fine Gael or Labour Employment Agency Bill. If there was ever a piece of non-political legislation this is it. The Bill has been initiated in Seanad Éireann and we have an obligation to look at it on a non-political basis. That has been done. An effort has been made to try to put the point of view of the general public as against the point of view of the Civil Service. On the one hand, the Minister's viewpoint, the Civil Service viewpoint, seems to control everything—this mania for control which is sweeping the country—and with the Government crisis we have had during the past few years, the Civil Service have pushed ahead with their scheme of control.

An Cathaoirleach

The Senator will appreciate that Ministers are responsible to the Seanad.

Professor Quinlan

I know Ministers are responsible and I wish they would face up to their responsibilities. Their responsibility is to ensure that bureaucracy in this country is kept within reasonable bounds. This Bill, in its blanket approach, is one that is obviously a bureaucrat's ideal where everything must be reduced to the same level. The banner of classlessness must be waved aloft in the interest of gaining control. What could be more like class distinction than saying, as the Minister did at column 1412 of the Seanad Debates, that nobody would expect him to bring the Civil Service Commission under control. Yet, I submit there is at least as good if not a better case for bringing the Civil Service Commission under this legislation as there is for putting consultancy firms under the legislation, who were handed such tasks as recruiting the Director General of Bord Fáilte. Surely, that is on a higher plane than the work of the Civil Service Commission in recruiting writing assistants; yet one is classless when it is left out and the other is not. I cannot see the logic of this.

Neither can I see the purpose of the Bill as such. The Bill is supposed to check some abuse, to protect some section of the community who are being abused. There are only two classes involved here—the people who pay fees to employment agencies and those who do not. We all readily agree with the Minister that those paying fees are in a much more difficult position to defend themselves, especially when they are employed in the lower paid jobs. They can be exploited by unscrupuluos groups offering to put them on the records, look for jobs and charge fees for doing this. Those people certainly deserve every protection we can give them. They are not organised, though the support of the Labour Party and the trade unions for this would imply that they think this group need the protection that is afforded here.

The other group are those who are in the class where the posts are senior and where it is not a question of paying fees but of simply making application at no cost to themselves. Where the making of the application is accompanied by a selective process by the agency concerned, the applicants are not put to undue cost unless the employment agency concerned, in conjunction with the body whom it is advising, have decided that this person might be suitable for the post in question.

Contrast this with the approach of the Civil Service Commission whom the Minister has said there is no need to bring under legislation. There are many unfortunate people who almost have to get a weekly travel ticket to Dublin for attendance at sessions of the commission. There is obviously great need for more rationalisation and endeavouring to ensure that the business of interviewing is not exploited and is not making too great a financial or time demand on the people concerned. I refer in particular to the engineers who have had a great grievance for a long time in the number of applications they have had to make and the number of successive interviews which they have had to attend where there were 100 candidates seeking one post. That is not employment selection as we know it in any modern context.

The Minister should, even at this late stage, take another look at the amendment proposed by Senator FitzGerald. If the Minister cannot accept it here, he should be prepared to consider it fully between now and when this Bill reaches the Dáil, if ever it gets there. The Minister may then see the wisdom of what Senator FitzGerald has put forward in a completely non-political way and with a professional lawyer's approach to the need for those two categories. It is not an excuse for the Minister to say that the intrusion of the Department inspectors is akin to the same type of confidence which exists between a client and his banker or between a client and his lawyer or accountant. Surely not. The inspector is a third party here and all rational people want to keep out third parties to those dealings so far as possible. It is through the third party that the breach of confidence is most likely to occur. The third party has not got the same standing as the lawyer who is advising and who has to maintain confidence if he wants to keep his clients. The inspector, like all inspectors, is under no such obligation to either the client or the person concerned in the employment.

It is wrong in principle to bring third parties in where they are not necessary. It is the height of nonsense for any State, in all its modern difficulties, to try to bring in legislation to interfere in an arrangement between two parties where the two parties concerned are satisfied that the arrangement is in the best interests of both. What kind of a baby State are we trying to run if we say "No, neither of you knows what is good for you, there must be a third party in between who will have the power to see any confidential records which pass between you and have the power to save each of you from the other"?

I think the amendment proposed by Senator FitzGerald is a very reasonable one and it goes a long way to meet the difficulties that were teased out on Committee Stage. I support it very strongly and would urge the Minister not to disregard the very good advice and the good debate that has been held in Seanad Éireann. I ask him to show his common sense by saying that this piece of advice is at least as valid as that he has already received and that he should not stay a prisoner of the first advice he got. The characteristic of a statesman or a Minister is surely his reaction when confronted with facts that require a decision. This is a case where the facts have been given and have been cogently presented. They have been given by some of our best legal luminaries and it is to the credit of Seanad Éireann that they are on the record of Seanad Éireann.

Mr. Alexis FitzGerald

First of all, I should like to thank the Minister for the cool and considered way in which he expressed his point of view with regard to the amendment, and for the kind way with which he had regard to its frailties and his acceptance of the circumstances which gave rise to those frailties. I should also like to thank him for his recognition of the fact that it was an attempt—however unsuccessful he may have thought it to have been—to meet the point which I thought was the important point that he made on the Committee Stage of the Bill, as drafted, that if the amendment proposed by Senator O'Higgins had been accepted, the Bill might then have become one which, as amended, would have provided a loophole out of the controls which he deems desirable to have, and which he recommends to this House.

I note again with satisfaction that his mind is not utterly closed on this. He did say that he made up his mind there was to be no special provision for this sort of company. I do not think that he was altogether satisfied with his own arguments as to why this decision should be adhered to. He did seem to indicate that between now and reaching the other House he might have consideration given to see how the evils that are designed to be curbed can be curbed without creating other unnecessary evils. He said that the auditors of the company were employees of the company, which I consider to be incorrect, although he may be able to restate his position in a form which would make it correct. Of course, they are not. There is no question of this at all. For certain purposes they are officers of the company and in certain circumstances individual auditors could be members of a company.

If by these words he was intending to indicate a mind which had decided that auditors were not to be brought within the control of this Bill, I would suggest that he would examine if it is not necessary to provide expressly for auditors who are in fact engaging in activities which are being brought within the network of this Bill. The description of them as employees or officers or members will not exclude them from the requirements of this Bill. The Minister will find that, if it is in his mind to have this achieved, he will either have to decide, which is undesirable in my view, to exempt or to provide that certain classes, auditors at least, are not to be covered by this Bill. He recognises that his principle not to have one class distinguished from another is not reconcilable with the terms of the section.

Senator Quinlan has drawn attention to a very big subject, on which I should like to be more informed, as to the non-applicability of this to the Civil Service Commission, the Local Appointments Commission, and schemes or services relating to the employment or the recruitment of staff and administered or operated by or under the direction of a Minister of State.

Incidentally, perhaps it is worth noting that in other countries similar bodies do not hesitate to seek the advice of such bodies as those that I have sought to have left outside the scope of this Bill in relation to the choice of the people for high employment in State services, and have found this advice useful in what is my major concern—to see that the right people reach the right jobs.

The Minister should agitate his mind about this whole question of his Department's expressed functions, with regard to our manpower policy. There should be deep consideration given to the whole question of the organisation of that manpower and this means that special regard must be given to the selection of the people who are to manage the skills involved.

We all know that we can have two businesses employing the same number of people, with the same amount of capital involved, and one is a total failure and the other is a great success, that it all depends on the quality of management. If the effect of this is, as I believe it honestly to be, to produce a Bill to ensure that the flow of the right people into the right jobs is to be impeded by a Bill which is designed to curb mischiefs, about which no doubt the Minister is very well informed but about which this House has not been well informed, then I think the whole scheme and the purpose and the usefulness of the Bill ought to be reconsidered. I would ask the Minister to give directions, which is what his position entitles him to do, to his advisers to see that when he comes into this House or goes into the other House all those facts which are known to them, and which are not confidential, are made available to the people who have to debate these Bills. He would find that the debate would be more fruitful. He would find that proposals that are made might well be proposals capable of being considered.

To take up Senator Quinlan's words, the Minister will realise that this could not conceivably be regarded as a political measure introduced by a Fianna Fáil Government or opposed by the Fine Gael or Labour Party— that there is no politics in it. The politics in it might well be the adroit handling by the Minister at Committee Stage of certain proposals that Senator O'Higgins moved in regard to the class nature of the proposals which are before the House today, if these are to be regarded as class proposals. One must really grow up on this and realise that the management of the economy depends on getting the right managers into the right places.

I do not know what precise words I said in this respect, but the Minister, in dealing with what I had said, talked about following British legislation and examining British legislation. Of course, this should be done. Of course, we should benefit from the great experience of these countries. We have spent a long time considering the proposals of the British with regard to this because these are contained in a document which was issued on 22nd November, 1921, and we have spent 50 years working on them. The situation, economy-wise, politically-wise and in all sorts of other ways, has quite remarkably changed since these measures were introduced, though it would be wrong of me not to tell the House, if it were not already aware of it, that there were amendments made to these as recently as March, 1964.

However, essentially, the Minister will find if he specifically has a look at this—he has a lot of other things to do and I am aware that it is difficult for Ministers to look at everything— that this could have a bad consequence. He ought to have a look at the way these regulations are applied in Britain. He will find that their application to these sort of companies is such as to leave them almost totally free from the ill consequences which can be afforded in London and which cannot be afforded in Dublin. I am just looking at the bye-laws for the Royal Borough of Kensington in Chelsea. If the Minister has another close analysis made of the Bill which was proposed by a socialist—which, by the way, looked for very much less power than is being looked for by the authors of the Bill at present before us—the Employment Agency Regulations Bill introduced by Mr. Hugh Jenkins, he will find that he may learn that this Bill before us can be greatly improved by some appropriate amendments in the other House. When this happens and when it comes back to us —I hope it will—we will not be found criticising him for having made changes that we have recommended. Indeed, I take pleasure here in saying from time to time that some Ministers encourage us, the Ministers who listen to us and who, not necessarily accepting everything we say, accept some of the things we say as being genuinely designed to improve the legislation of this country.

Amendment put and declared lost.

Government amendment No. 2:

In page 4, to delete lines 1 to 4 and substitute the following:

"A person carrying on the business of an employment agency shall not charge any fees or expenses, in respect of services rendered in the course of the business, in excess of a scale approved by the Minister, and shall prepare and submit to the Minister as may be required for the purposes of this section a scale of such fees and expenses."

Mr. J. Brennan

On the Committee Stage of the Bill, the question of approving fees was raised by Senator O'Higgins. This redrafting is really to clarify the position that what is applied for is in fact a maximum. The question was raised on Committee Stage as to whether the fees which would be approved were not flexible and this is to enable agencies to charge less at the source.

Mr. O'Higgins

This amendment meets the point raised on Committee Stage.

Amendment agreed to.

Bill reported with amendment, received for final consideration and passed.

Seanad Éireann debate - Wednesday, 19 May 1971

Employment Agency Bill, 1971: Report and Final Stages.

Seanad Éireann debate -
Wednesday, 19 May 1971