Seanad Éireann debate -
Tuesday, 29 Mar 1994

Vol. 139 No. 17

Terms of Employment (Information) Bill, 1993: Committee and Final Stages.

Sections 1 and 2 agreed to.

SECTION 3.

Question proposed: "That section 3 stand part of the Bill."

Mr. Cregan

I welcome the tightening of provisions relating to terms of employment. However there is a danger here. I do not wish to be seen to be objecting to the Bill but I seek clarification on one matter. Concern has been expressed about methods of employment and some employers wonder whether they should employ more people.

Subparagraph (c) provides that the employer will give the employee a statement in writing of "the place of work or, where there is no fixed or main place of work, a statement that the employee is required or permitted to work at various places". Does this mean that there is now a contract or that a contract could be created between an employee and an employer? Are there conditions outside the terms of employment on which an employer could rely? They might not necessarily be relevant to this legislation. Can an employer now lay down conditions of employment without being in breach of the provisions of this Bill?

In Britain employers often make their employees work as sub-contractors or on a self-employed basis. That might also happen here. Does this Bill protect employees and employers or can employers disregard this Bill and have all their employees working on a self-employed basis? I would be happy with the provision if this could be clarified.

Minister of State at the Department of Enterprise and Employment (Mrs. O'Rourke)

This arose on Committee Stage in the Dáil. I am assured that this covers all employees, except the self-employed. Senator Henry raised this matter earlier.

Mr. Cregan

I welcome the Minister's reply but there is a danger of various developments, although they do not happen as much here. I am conscious of trade union regulations. This Bill may be implemented by the employer or by the employee. However, the problem is that people are being asked to sign contracts. They may be told the employer has no responsibility for them as employees and that they will be considered as self-employed. If a person is employed by a company and paid £15,000 per year, he may be told by the company that he must take full responsibility for PRSI, PAYE and health insurance. What does this Bill do to protect the employee in the workplace? What does it do as regards compensation for injury? This is a worry. I know people, particularly in the construction industry, who were hired rather than employed, and when the question of injury arose, they were told they had no cover. This is a danger; perhaps a provision to this end could be included in the Bill. I ask the Minister of State to note that these people may not be adequately protected.

Mrs. O'Rourke

I am sure that is the case. However, regarding the Senator's first point, wages are not included in this Bill.

Mr. Cregan

I know; I am giving an example.

Mrs. O'Rourke

In this Bill, the matters to be included on the sample form are clearly laid out. Regarding injuries at work, if a person is properly insured, that will be covered. This Bill is not about injuries at work. Other legislation deals with that area. All Members know from their constituency work of cases similar to those outlined by Senator Cregan. This Bill does not cover wages or injuries; they come under PRSI entitlements. If firms behave as Senator Cregan suggests, that will be a matter for further investigation.

An Cathaoirleach

Is the section agreed? The Minister of State made the point that it is not relevant to the section.

Mr. Cregan

The Minister of State admitted there is a danger. This Bill deals with terms of employment and there is a possibility we may not recognise that many people have to work, but unfortunately, not all have the same terms of employment as those in different industries. People are asked to sign contracts as self-employed persons when they go to work in particular industries. The Minister of State must be aware that this is happening, I am not trying to hold up progress on the Bill but this point must be made. This Bill deals with terms of employment and there is a danger that many people will not be covered by this Bill.

Mrs. O'Rourke

I know. There was extensive debate on Second and Committee Stages of this Bill in the other House. The purpose of section 1(1), regarding the contract of employment, is that, for the purpose of this legislation, a contract of employment is defined as either contract of service — the usual type of contract — or a contract of the type entered into by persons working through an employment agency. The matters the Senator mentioned, such as subcontracting or self-employed under particular arrangements, do not come under this legislation. The Senator's point was raised in the select committee. People are now entering diverse types of employment, with different parameters and duration, and it sometimes suits them to job share or to work part-time. The regular part-time workers Bill was introduced some years ago but the type of work Senator Cregan mentioned would have to be examined in a comprehensive way. This Bill is narrower, logistical legislation and does not deal with that area. However, this does not mean the Senator's point is any less valid, but it cannot be accommodated under this section.

Mr. Cregan

Section 1 (1) outlines the meaning of contract of employment. However, all jobs suit people until something happens, and at that point they will have no protection. Everyone in the workplace must be protected; there should be no distinction between a part-time or a self-employed worker, or a worker employed under the terms of this Bill. The same protection should be afforded to all, but this is not the case under the Bill.

Question put and agreed to.

SECTION 4.

Question proposed: "That section 4 stand part of the Bill."

Mr. Cregan

Regarding the terms of employment for an employee working outside the State, section 4 (1) (b) reads: "the currency in which the employee is to be remunerated in respect of that period,". May I ask the Minister to clarify the mechanism by which this is implemented? For example, can the employee be remunerated in Irish punts or is this to be agreed between employer and employee?

Mrs. O'Rourke

The employee will have an information form which details the currency in which remuneration will be paid — in foreign currency or the Irish currency.

Question put and agreed to.

Sections 5 to 7, inclusive, agreed to.

SECTION 8.

Question proposed: "That section 8 stand part of the Bill."

Mr. Cregan

There is concern over the role of rights commissioners. Is the Minister happy with the way the functions of the rights commissioner, or an officer with similar responsibilities, whether appointed by the Labour Court or whatever operate? Is she assured that employees and employers are satisfied with the way these structures operate?

There is an impression that these structures work one way and then another, especially when it comes to appeals and the implementation of Labour Court regulations. It would appear that employers emphasise that they would prefer if new employees were not involved in these kinds of structures. May I ask the Minister to comment on the truth of this? Is she happy that there appears to be a tendency once again for people to create structures within their own companies which ensure that they have less involvement when it comes to protection?

There is a tendency in many industries and companies — and this is relevant to Item 1 on the Order Paper — to create a situation where they do not wish to employ people directly, rather they impose self-employed contracts on them to avoid the kinds of structures the House has been debating this afternoon. May I ask the Minister to comment on the truth of this?

Professor Hillery

I am unable to answer the Senator's question directly, and perhaps the Minister will do so, but if there is reference, agreed between the two sides, to third party machinery, be it the rights commissioner, the Labour Court or whatever, this would be a procedural arrangement agreed between them. Under our voluntary system of industrial relations and collective bargaining — and this applies to the private sector — this would have to be agreed between the two sides rather than imposed by law.

The service of the rights commissioner was instituted by Dr. Hillery in legislation dating from 1969. It provides a speedy and informal service, focused primarily on individual problems as opposed to waiting in a queue for consideration by the conciliation service of the Labour Court, as people would have had to do at that time.

All I have heard about the operation of the rights commissioner service has been positive. It is ideally suited for individual employment problems; it is informal and speedy, and rights commissioners travel around the country. In view of this I only have praise for the rights commissioners. As regard the provisions of a contract between two sides, I would have thought that reference to third party machinery, particularly in the private sector, would be left to the parties concerned.

Mrs. O'Rourke

Senator Cregan would never be happy about everything. He asked if I was happy about the way employers used or did not use the system. He also asked if employers allowed these matters to go to the rights commissioners and if the availability of redress procedures stopped employers taking on people. The purpose of legislation is to make it clear to both sides that redress is there, and it is laid down in various directives. As Senator Hillery said, the rights commissioners provide a speedy and informal avenue of redress before one becomes involved in the more formal system. Employers who want to be pragmatic and practical would not want things to be appealed. All employers want a life without trouble. I cannot answer Senator Cregan's question about whether we are happy, the procedures are working satisfactorily, but perhaps they could be speedier. I understand the reluctance of employers to have cases brought to any forum, but legislation is for the purpose of ensuring redress or the right to redress.

Mr. Cregan

Section 8 refers to the enforcement of recommendations of rights commissioners. The recommendations of the rights commissioners are not always implemented. How many people return to the workplace after a rights commissioner or any appeals officer decides they are entitled to work or that they should not have lost their job? This does not happen. We must not give the impression that an appeal to the rights commissioners, the Labour Court, etc., works for the employee. Usually the former employee is paid a certain amount of money. Approximately 3 per cent of recommendations made by the rights commissioners are properly implemented, in other words, the employee will return to the workplace. In most cases employees do not return to the workplace.

We must not give the impression that such legislation creates jobs because it does not even keep jobs. Given that the majority of those who appeal to the rights commissioners are paid off, there is a danger that they will not be replaced and that we are creating a structure which will be a disincentive to employment. Employees must be protected; there will always be a certain number of people who will want to go to the rights commissioners and create problems but from a management point of view, it may not pay to employ more people. Is it true that only 3 per cent of those who appeal to rights commissioners or Labour Court officers return to the workforce?

Mrs. O'Rourke

While I am always willing to listen to arguments, the Senator is referring to the Unfair Dismissals (Amendment) Act, 1993, with which we dealt last summer, and the original Unfair Dismissals Act. I could not answer the Senator's question without knowing the number of cases which went from the rights commissioner to the Employment Appeals Tribunal. The Senator is speaking about the numbers who want to be reinstated, under the terms of the Unfair Dismissals (Amendment) Act, and the number who do not. We had a good debate about this last summer. Few employees in small firms who take cases against their employers and use the procedures open to them, wish to be reinstated. This may be because the place of employment is small and there was animosity arising from taking the case. This is the individuals' choice and one cannot impose one's will on them. However, this is not relevant to the Bill we are now discussing.

The kernel of Senator Cregan's argument is that legislation such as this is a disincentive to employment. I spoke strongly about this. People have rights. This legislation is simple. The information to be provided under the Bill is to be on one sheet of paper, as we agreed with Senator Quinn last week. A simple booklet will be introduced and sample sheets will be supplied free to employers. They will be able to complete these sheets in five minutes. This is a simple matter of civilised behaviour between employers and employees, both of whom have rights and obligations. The purpose of employment legislation is to ensure that one group does not transgress the rights of the other.

Mr. Cregan

This section is relevant to rights commissioners and to whether employees have rights. The Unfair Dismissals Act is relevant to this section, which deals with the protection of employees. We must not think this legislation is simple. There is nothing simple for employers or employees, and this is a problem when trying to create more employment. The Minister must be aware that things are not easy; irrespective of the company in which people are employed or the management positions they hold.

This legislation may be a disincentive to the creation of work but I hope this will not be so. Young people are aware of the need for diversification and do not want additional legislation dealing with the workforce. I agree there must be protection for employees but the basic protection is to ensure that a person always has work. Unfortunately today there are fewer people in work and entrepreneurs with the imagination to create more employment do not want to do so. We must consider why this is so. Bills like this do not help. We should not give the impression that it is easy to employ people, the opposite is true.

Question put and agreed to.

Sections 9 to 14, inclusive, agreed to.

Title agreed to.

Bill reported without amendment and received for final consideration.

Question proposed: "That the Bill do now pass."

Minister of State at the Department of Enterprise and Employment (Mrs. O'Rourke)

I appreciate the varying views that Senators have put forward. That is what makes democracy work.

Dr. Henry

I congratulate the Minister on bringing the Bill before the House. As I said it is extraordinary that a Bill had to be introduced to ensure that a worker would know the employer's name. May I repeat Senator Quinn's excellent suggestion — which we agreed did not have to go into the legislation — that a simple form be devised by the Department of Labour which employers could obtain easily rather than individual employers having to devise their own forms. Senator Quinn is not here today because he is improving the employment situation in Kilkenny by opening a new supermarket there.

Mr. Cregan

Good.

Mrs. O'Rourke

That is marvellous.

Dr. Henry

I hope the suggestion will be followed up by the Department.

Mrs. O'Rourke

I know I have already concluded but I want to answer that point and I thank the Senator for raising it. As Senator Quinn said at the time, it is an excellent and simple idea. The availability of a standard form to be drafted in simple, straightforward and easily understood language will help to provide the necessary impetus and incentive. My officials are introducing that form to all employers. It will be free, on one sheet and in simple language. I will be discussing it with IBEC shortly. I thank Senator Quinn for his idea and Senator Henry for reminding me.

Mr. Cregan

I thank the Minister for her attendance in the House and for her open mindedness and interest. Having listened to her over the past few days I realise she is on top of her brief.

May I might broaden the discussion? A great example has been shown over the past two or three years by the Department of Social Welfare which produced a leaflet explaining social welfare benefits when the new amounts are allocated each year. The Minister's Department could learn from that. This leaflet could be provided at very little cost. I welcome what Senator Quinn and others said. Things must be simplified particularly for people who want to become employers, those who have imagination and want to implement their ideas. We must never give the impression that doing something for yourself is not the right thing. American society has proved that small units do best. We have so many people with imagination that a little push could create one or two more jobs in each case. We need proper structures to help these people. We speak of blue and white collar workers, but the workers who do not wear collars and ties are the backbone of society. Things should be simplified for them.

Question put and agreed to.

Sitting suspended at 3.35 p.m. and resumed at 6 p.m.