Protection of Young Persons (Employment) Bill, 1996: Committee Stage.

SECTION 1.

Mr. O'Toole

I move amendment No. 1:

In page 3, lines 32 to 38, to delete paragraph (b) and substitute the following:

"(b) any other contract whereby an individual agrees with another person to personally execute any work or labour in return for payment."

I welcome the legislation. Any of the issues I am raising today arose out of consultations with the Irish Congress of Trade Unions on areas which we feel could be tidied up. This is forward thinking and progressive legislation. At a time when many people are worried about the protection of young people, this legislation sends a very strong and welcome signal from Government. Any remarks I make on specific issues should be taken in that general context. I intend to tease out some issues today in these amendments, many of which are grouped together, with a view to hearing explanations from the Minister of State on various aspects of the Bill. I intend to retable some of them on Report Stage, depending on the Minister of State's replies.

Section 1 (1) (b) of the Bill which deals with the contract of employment is very convoluted. Paragraph (a) states that a contract of employment means "a contract of service or apprenticeship" which is clear enough. However, paragraph (b) states it also means:

Any other contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act, 1971, and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is party to the contract),

whether the contract is express or implied or if express, whether it is oral or in writing;

One of the difficulties with this legislation is that it should be clearly comprehensible and easily assimilated and understood. It is important that those whom we are trying to protect understand and know their rights. While I know what is meant by "whether the contract is express or implied" or "whether it is oral or in writing" and all the other ifs, ands, buts, qualifications, modifications and explanations, my proposal is infinitely more practical and practicable. I am proposing to delete that paragraph and replace it with "any other contract whereby an individual agrees with another person to personally execute any work or labour in return for payment". If the Minister of State accepts the amendment, I will bring forward a verbal amendment on Fourth Stage to unsplit the infinitive.

My amendment is infinitely simpler and much easier to understand and explain than the existing paragraph. Ordinary, non-legal people need to be able to understand parts of this Bill. Ordinary employers of young people would have difficulties with that paragraph because it requires a great deal of rereading. It is a long, difficult sentence with a variety of subclauses and phrases which make its comprehension quite difficult. It is like a sentence in a difficult examination paper which is accompanied by the words "please explain".

I defy the Minister of State to analyse the sentence "whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act, 1971, and is acting in the course of that business, to do or perform personally any work or service for a third person is party to the contract, whether the contract is express or implied or if express, whether it is oral or in writing" and to tell me at whom it is directed. I had to go through it very carefully and separate the subclauses. I am throwing myself at the mercy of the draftsman, but is my amendment not a much simpler way of dealing with something which sounds very complex?

Mr. Mullooly

I support Senator O'Toole's amendment which is clear and straightforward. It is much easier to understand than the formula of words in the Bill. It covers all conceivable situations which the existing wording purports to cover. It would make good sense to accept the amendment.

Miss Ormonde

I also support the amendment.

Minister of State at the Department of Enterprise and Employment (Ms E. Fitzgerald)

I concur with Senator O'Toole's wish for the use of clear English in legislation, and the importance of people understanding their legal rights and obligations. That is why I have decided to repeal and re-enact sections of the 1936 and 1977 laws relating to young people so that, if someone is consulting a legal eagle on this, all the law in relation to the employment of young people will be between two covers.

I also intend to undertake an information campaign when we have the Bill signed into law and brought into effect. I discussed the information campaign the day before yesterday with the Irish Congress of Trade Unions. We intend talking to schools, giving information to young people and bringing in the major employers of young labour — the supermarkets, vintners, etc. We will also, as Senator O'Toole knows because he has an amendment down on this point, legally oblige employers to display an abstract of the Act. I will ensure the abstract is prepared in plain English so people will know exactly what is involved and employers of young people will be clear as to their legal rights and obligations.

I hold no brief for parliamentary draftspersons. I have seen worse than this Bill, where myself and three of my civil servants were incapable of understanding the draftsman in relation to another piece of legislation. We knew what we wanted in the Bill but we were incapable of understanding what came out the other end. This Bill seems a model of clarity compared with some I have seen coming from the draftsman's office.

The effect of Senator O'Toole's amendment, I am advised, is somewhat different than simply clarifying the legal English of the paragraph. The amendment would widen the groups of young people who would come under the legislation. For example, one of the effects would be that young people babysitting next door or for a relative would be caught by the 10 o'clock and 11 o'clock restrictions in the legislation. That is not the intention.

This Bill, in common with other employment legislation, applies first of all to straightforward employees and secondly to people who are employees of an agency — for example, temporary typists who are direct employees of the agency and work for a third party. Paragraphs (a) and (b) of subsection (1) extend the obligation in relation to employment, whether somebody is directly working for the agency or working under the direction of a third party — for example, a contract worker. Senator O'Toole's amendment would bring in a wider group of people, with many implications. We also debated in the Dáil widening the definition of people to come under the legislation. Widening the definition involves widening the exemptions and exceptions so that common sense issues such as babysitting for a relation can continue to take place.

Last week ICTU presented a report on atypical workers. I have asked my Department to look at the issue of employment rights for atypical workers. Can we generally broaden the protection of our employment protection legislation? It is a much bigger issue than this legislation. I give an undertaking to the House that we will carry out that study. We have just received the report from congress. There are discussions going on through the social dialogue process arising from the Maastricht Treaty. The discussions about atypical workers are about to start between employers at European level and the European Trade Union Confederation. This process, which brought us the parental leave directive, is likely to lead to a European directive on atypical work. We are looking at that in a wider context and are having a detailed examination of that area done in the Department. It is not closing the door on people who are self-employed or quasi self-employed. There are so many complex legal issues involved.

As the Senator knows, we have time pressure and EU obligations in relation to this Bill. I hope to revisit the area of employment law and how we can expand the definition of workers. I hope to engage in consultations with congress and employer organisations in that regard when we have done our examination.

Mr. O'Toole

I appreciate the Minister's full answer. I disagree with some points, and one which causes me to rethink is the question of the interpretation of casual. The Minister is correct to say this amendment widens the net and I do not deny that was part of my intention in putting it down. It was not just the simplification issue but to ensure people would not use the legislation in order to get out of the snare. My difficulty is they could argue through that whole maze of words that in some way the employment or the contract was not covered by the Bill.

I welcome the Minister's and the Department's commitment to have an information campaign on this Bill and to display an abstract of the main aspects of it. Unfortunately, information campaigns by their nature are transient — they are there for a while and then gone. This Bill will last a long period and there will not be an information campaign in five, six or ten years' time when the Bill is still in operation.

I am afraid that section 1 (b) could create a problem. However, I welcome the Minister's commitment to discuss this and discuss the implications with the major employer's associations and organisations. I would consider having discussions with congress myself about the Minister's point that the acceptance of my amendment might create a difficulty in relation to casual work for a neighbour or babysitting for a relative. The Minister makes an emotive point — she did it with such facility today that I am sure she has made it many times before. It still has to be taken on board. I accept that and I will be looking at it.

I want to make one of my favourite speeches, about the time pressure. There was no time pressure. The directive was signed in Luxembourg on 22 June 1994. There is a rule somewhere in the heart of every Government since I was elected to this House ten years ago that no European Directive shall be enacted earlier than one week before two years has elapsed. That is the real issue. I have heard Ministers of the present Government argue in regard to the maternity directive that it has two years to enact it, as if it was a requirement to wait two years. There is no time pressure except that which the Minister placed upon herself. The time pressure is not something which this House can be pushed along on. If we are unhappy we have to work on the basis we are mere nationals and that this is a mere national Parliament. We will make changes on Report Stage, if needed, despite the embarassment to the Government of being a week or a day longer than the two years. I am sure no one will get the Minister as far as the European Court in those couple of days. I ask the Minister to have another look at the matter and I will come back to it. I do not intend to press the amendment.

Amendment, by leave, withdrawn.

Question proposed: "That section 1 stand part of the Bill."

Mr. O'Toole

I find it intriguing that section 1 (3) states:

In construing a provision of the Act, a court shall give to it a construction that will give effect to the Council Directive, and for this purpose a court shall have regard to the provisions of the Council Directive, including the preamble.

We had a recent discussion in this House on the Refugee Bill, where we were trying to establish the relationship between the national legislation and the Geneva Convention. Forms of words such as this were resisted by another Department. I welcome that clarification. I compliment the Minister and the draftsperson for bringing it through. The position of national legislation is that it is not quite subordinate, rather it is an extension of the process of implementation of the EU Directive. I welcome this.

Section 1 (4) states:

In this Act a reference to a section or Schedule, is a reference to a section of, or Schedule to, this Act, unless there is an indication that a reference to any other enactment is intended.

This is new to me, as is section 1 (5). I would prefer if these provisions were not included because they are of the kind which make our court proceedings far too complex. They could not mean anything else. Where they are not written in to other legislation, somebody may use them to claim that the provision was not understood to refer to what it clearly did refer to. This worries me in that it almost establishes a precedent. However, there are other aspects of the Bill which are very important.

Question put and agreed to.

SECTION 2.

Question proposed: "That section 2 stand part of the Bill."

Mr. O'Toole

I missed an opportunity to speak on Second Stage. I am also making sure that if I wish to raise something on Report Stage I will have made some reference to it on Committee Stage. I will not be caught twice in the one week on this.

An Cathaoirleach

I hope we are not returning to Second Stage.

Mr. O'Toole

No, we are anticipating Report Stage. I compliment the parliamentary draftsperson for taking a positive approach to the word "order". Section 28 (2) states:

A draft of every order proposed to be made under section 2 and of every regulation proposed to be made under this Act shall be laid before each House of the Oireachtas...

As a humble, independent backbencher in the Upper House, I welcome this. It is the kind of order which is most progressive and acceptable. It allays the fears of public representatives in that it fittingly provides for a Minister to be open and transparent. I will return to the matters that may be covered by such orders because the references in section 28 are very wide.

An Cathaoirleach

We are on section 2.

Mr. O'Toole

Section 2 (2) states: "The Minister may by order declare any form of work to be industrial work for the purposes of this Act". However, section 2 (3) provides that the order may be amended or revoked. This is unnecessary and unnecessary legislation worries me. If the Minister can make a declaration she can also rescind it with the same power by another order. Regulations normally allow Ministers to withdraw an order by another order. The inclusion of this power in the legislation implies that situations could arise where a Minister would be entitled to issue an order but may not be entitled to invoke, amend or withdraw an order with another order.

Question put and agreed to.

SECTION 3.

An Cathaoirleach

Amendments Nos. 3, 4, 5, 10 and 11 are related to amendment No. 2 and all may be discussed together.

Mr. O'Toole

I move amendment No. 2:

In page 6, subsection (6), line 36, to delete "8" and substitute "7".

Section 3 (6) states:

Subject to subsection (7), an employer may employ a child who is over the age of 14 years and who is a full-time student at an institute of secondary education pursuant to any arrangement made or approved of by the Minister for Education as part of a programme of work experience or educational programme:

Provided that the hours of work do not exceed 8 hours in any day or 40 hours in any week.

The purpose of the amendment is to reduce the eight hours to seven and the 40 hours to 35. There is an inconsistency in the Bill here. By implication or statement, arrangements have been made for younger children and for young persons at a higher level. The arrangements for 14 to 16 year olds appear to be the same as those for 16 to 18 year olds. By definition, 14 to 16 year olds could be part of a course of study. I do not understand, therefore, how the Minister of State has agreed to allow eight hours daily work for those who are also studying and are perhaps engaged in educational programmes. It is inconsistent.

Mr. Mullooly

I support the amendment. It would appear to be somewhat unfair to 14 to 15 year olds that the same hours be specified for them as are specified for 16 to 18 year olds. Do the eight hours and 40 hours specified here include the break times which are specified in the next section? Does eight hours mean seven hours work and one hour break time, or does it mean eight hours work with the break time additional to that?

Ms E. Fitzgerald

With regard to the points raised by Senator O'Toole, the Bill transposes a EU Directive which distinguishes between under 15 year olds and over 15 year olds. When bringing in the legislation I took the opportunity to draw a different distinction between 16 year olds and over and under 16 year olds in line with the proposals to raise the school leaving age to 16 years. There are, therefore, three categories: the 14 to 15 year olds, which is the group whose hours of work are specified in the directive, the 15 to 16 year olds and the over 16 year olds.

We are providing that 14 year olds working outside the school term can work 35 hours a week seven hours a day maximum. They must get a three weeks break in the summer so that they can return to school refreshed. The 1977 legislation, which we are repealing, provided that the older young people could work a maximum of 45 hours per week, nine hours per day. I am reducing that to 40 hours per week, eight hours per day, in line with the directive. We no longer have a distinction between what the 15 years olds and the 16 to 18 year olds can work because I am reducing the hours in respect of the 16 to 18 year olds. My proposal is in line with the directive.

With regard to 14 year olds, they would work only eight hours a day, or 40 hours per week where they are full-time students and are part of organised work experience or educational programmes which would have to be approved. There may be limited circumstances — we would envisage them being limited enough — where the nature of the work experience or training programme would involve a slightly longer day or week simply because that is what is on offer or that is what the employer works to. The chances of young people getting on these course may be jeopardised if they have difficulty meeting requirements on hours. If it is regarded as part of their education course that somebody is placed on a work experience programme, for example in the local hairdressers, they should work the standard hours. However, this would have to be approved to ensure that young people are not exploited. We are not talking about somebody doing a full day's school work and working 40 hours a week on top of it. This is a situation where somebody may work for a fortnight out of school in a job placement and adhere to the normal hours of work of that employment.

It is there to allow some flexibility, but the intention is to ensure that in examining what is happening we are not exploiting or overstretching the young people concerned. That is why the regimes applying to 16 to 18 year olds and 15 year olds are the same. We have reduced the number of hours for 16 to 18 year olds and I believe they are reasonable. We protect the younger children.

Mr. O'Toole

They are adult hours, that is the point.

Ms E. Fitzgerald

It is seven hours a day or 40 hours a week. There are some training or work placement programmes where it would restrict opportunities for young people if one was to reduce the hours. We want to allow for flexibility. The courses must be approved either through FAS or the Minister for Education. That gives us some leverage to ensure we have flexibility and that it is not abused.

Miss Ormonde

I conduct programmes where young people are sent out on work experience. Whatever we do we must keep it clear and simple because the more I listen to this debate the more confused I get. I am worried that we will confuse the issue further. The hours should be reduced further.

Some days young children may work two hours and the next day they may work for more than the specified number of hours, depending on the type of work involved. Flexibility is required because it is so difficult to get work for young people. It is too difficult to measure it in terms of hours per day, but it would work out over a week.

Although I know it would not work, if I had my way I would have reduced it further because there is a certain amount of exploitation of young people, particularly those who must do work experience for their leaving certificate. There is a tendency for exploitation in catering and the bar trade because they know they can get cheap labour. This concern is creeping in because of the requirements of the vocational leaving certificate and leaving certificate applied programmes. It concerns me greatly that there would be exploitation. At least we have some ruling because I am a little uneasy about it.

The information must go to the schools quickly for those who are dealing with this area because it forms a significant requirement of the leaving certificate. The school authorities do not know where they stand or what requirements are necessary for work experience programmes. This information must be available in the public arena.

Mr. O'Toole

We are talking about young people and school children who are working. There is an inconsistency which the Minister explained by saying that she has improved matters in the top band by reducing the limit to that of the middle band. She is now a victim of her own success because we are claiming the same argument in reverse. That is a realistic position.

It seems unacceptable that people attending school, regardless of whether they are part of a training programme attaching to the school, would work adult hours. It must be wrong to expect them to work adult hours. In fact these hours are longer than that recommended under the Programme for Competitiveness and Work. That is a slight over-statement, but the recommendation of the Programme for Competitiveness and Work is that the working week would be reduced to 39 hours and this goes beyond that.

I would find it impossible, as a member of the executive council of the Irish Congress of Trade Unions and as general secretary of a teachers' trade union, to go along with the view that children on work experience programmes attaching to schools could be asked to work longer hours per week than the social partners feel is necessary for an ordinary worker. There is an inconsistency there and it is one to which I will return. Parents and teachers would worry about this.

I concede that it is probably a theoretical argument. I do not believe any teachers or school authorities would organise a scheme where people would have to work more hours than would be required of an adult. Nonetheless, it gives the wrong signal if the legislation allows what would appear to be —in small letters — exploitation. I recognise the Minister's point that those participating in work experience schemes or other programmes attaching to education would be able to fit in with the rota or shift system in operation. However, this can be sorted out through a longer lunch hour or break during the day. It is not beyond the bounds of human ingenuity.

I recognise the distinction the Minister made between those who are under 15, 15 to 16 year olds and over 16. It is a valid argument and is one of the most progressive provisions in the legislation. However, I continue to worry about the number of hours that can be imposed on young people under the legislation as drafted. I ask the Minister to re-examine the matter and to look at this inconsistency.

It is fine for the Minister to say she has reduced the hours for the top band. That was worth doing but the same arguments apply to reduce the middle band. The argument can be said to have a trickle down effect where the Minister could do precisely the same at the next level. I ask the Minister to reconsider this point.

Mr. Mullooly

The Minister did not answer my question whether "hours of work" includes the periods of rest or obligatory break periods specified in the next section. However, I see now that I should not have asked the question because if I had been diligent enough in my study of the Bill I would have seen in the interpretation section that "hours of work" does not include periods of rest during which the employee is not required to be available for work. The Minister might clarify whether "hours of work" includes periods during which the employee would be travelling to and from work. Sometimes even students on work experience schemes and so on have to travel long distances to work.

Ms E. Fitzgerald

I apologise to Senator Mullooly. I was so busy explaining the complicated details of the different age groups to Senator O'Toole that I overlooked his point. I am delighted that he found it himself; he is a good student. "Hours of work" as defined in law do not include travel times.

I recognise Senator O'Toole's concern. We are trying in law to set out a framework and to set maxima. I hope, no more than the Senator himself, that no young people would be obliged to work more than the hours laid down in the Programme for Competitiveness and Work. However, Senator Ormonde made an interesting point and she is speaking from practical experience. She said that somebody on a work experience programme may work two hours today and nine hours tomorrow. Our directive requires that they work only eight hours. We want to allow ourselves flexibility by providing for eight hours and 40 hours and hopefully the aggregate will be well below that.

These programmes must be cleared by school, education and training authorities which provide protection. If we were to write down in law everything that is custom, practice or the subject of negotiation and if there was an edge, we would be precluded from going over it. That is one of the reasons we try to leave flexibility. If 14 to 16 year olds are working outside term time they are subject to the seven hours per day, or 35 hours per week rule. During the school year their hours of work are also restricted. If part of a work experience and training programme, 15 to 16 year olds can work eight hours per day, or 40 hours per week. Because these hours must be approved. I hope it will allow us to balance flexibility against the need to ensure young people are not exploited. The education authorities are always concerned that they place people in genuine work experience programmes which fit in with employers rota and rosters. It is hard to find placements for young people which mirror the world of work, which give them genuine experience and which are nonexploitative.

Amendment, by leave, withdrawn.

Amendments Nos. 3 to 5, inclusive, not moved.

Mr. O'Toole

I move amendment No. 6:

In page 7, subsection (9), line 2, after "may" to insert ", following consultation with such representatives of employers and representatives of employees as the Minister considers appropriate,".

I would like to hear the Minister's comments on this section before I decide what to do on the next Stage. Until now we have spoken about technical and practical things and the straightforward questions of hours, interpretation and explanation. We are now dealing with a more fundamental issue which should be of no difficulty to the Minister. Under the Bill as it stands "the Minister may attach to such licence or provide in such regulations such conditions as the Minister sees fit." This is old fashioned and I look forward to the Minister's explanation.

My simple and inoffensive amendment states that after the words "the Minister may", we include the words "following consultation with such representatives of employers and representatives of employees as the Minister considers appropriate,". The Irish Congress of Trade Unions is speaking up for the rights of employers, an indication of where social partnership has gone. We believe in the social partnership and in giving a voice to the social partners. A chapter in the Programme for Competitiveness and Work deals with the social partnership and the importance of reaching agreement in these days of competitiveness, etc.

We are talking about the hours which a school child or a young person may work, which is of concern to us all. The Minister is taking upon herself the authority to make decisions on the conditions attached to the narrow regulations in relation to the matters we discussed — I will not go into the details again. It would be appropriate for the Irish Congress of Trade Unions to say it would like teacher representatives to have a say. It would also be appropriate for IBEC to consult with the employers to see what is or is not reasonable.

What I propose is reasonable and I do not understand why it is unacceptable to the Minister. She should do the decent and honourable thing and ask the draftspeople to read the Programme for Competitiveness and Work to make them aware this is Government policy so it may be implemented.

Miss Ormonde

I agree with Senator O'Toole's amendment. Section 3 (9) is very woolly and I would like to know where we stand. His amendment is more simple and, while I know the law is not meant to be simple, it should be in language which those representing young people at work will easily understand. Senator O'Toole has already made the points I would like to make and I support his amendment.

Mr. Mullooly

I also support Senator O'Toole's amendment. The formula of words which the draftsman used in this subsection dates back to the days when Ministers were infallible.

Mr. O'Toole

That was a long time ago.

Ms O'Sullivan

I am curious that Senator O'Toole is looking for consultation under this section. I could understand why he should look for consultation with employers and employees in relation to other aspects of the Bill. He refers to subsection (3) concerning the employment of a child in cultural, artistic, sports and advertising and subsection (7) on work experience. Why is he looking for consultation with employers and employees specifically in relation to those subsections? I would imagine 13 year olds involved in sports would be particularly good athletes and might be getting paid and that consultation would be more important with educational bodies rather than representatives of employers and employees.

Mr. O'Toole

The Minister will confirm that section 3 (2) refers to safety, health and the development of the child. There is an abundance of legislation and directives coming from Europe at present on health and safety. Each directive talks about co-operation between workers and employers. There are Europe-wide committees which are representative of Governments, employers and employees and the National Health and Safety Authority is representative of employers, employees and the Minister. At every level of health and safety there is full consultation, because it is recognised that people usually know best. There is a requirement for a safety officer in every workplace.

A Minister cocooned — despite how well informed he or she may be — will not recognise the difficulties faced by those working in asbestos lined offices in back street factories. That would not arise in this case, but I am getting carried away with my argument. In all aspects of health and safety there is a requirement under all EU directives of which I am aware that employers and employees are involved. When the decent and responsible people in the Irish Congress of Trade Unions looked at the Bill, they saw the Minister had forgotten this, that the draftspeople were not made aware of the Programme for Competitiveness and Work and the directives emanating from Europe on health and safety and the need for consultation to involve all the social partners etc.

Ms E. Fitzgerald

This section deals with employment on an individual basis of children under 13 years of age in cultural, sporting, advertising or similar activities. For example, it may involve 13 year olds as a group of extras in a film or advertisement.

Section 3 (9) says that "the Minister may attach to such licence or provide in such regulations such conditions as the Minister sees fit.". It is my intention, before drawing up — we have already regulations under the old legislation — models for individual licences or group regulations, to consult with both sides and with educational interests. One of the main conditions in such licences are conditions about having a tutor who will ensure that young people will get a minimum level of schooling if, for example, they are on location in making a film, or having a chaperone or a suitable adult to supervise them if their parents cannot be there so that their educational and moral welfare etc., is properly safeguarded. I intend to consult with both sides, particularly with the educational interests, before we decide on what will be model licences or regulations in this regard. I give that undertaking without us having to write it into the Bill.

If we were to do this, it could lead to inflexibility in specific cases. Two young people are starring in a film being made in Ireland this summer. The finance for the film only came together at a late stage and we are under a lot of time pressure in consulting. In those situations it may not be practicable to consult on individual cases if an advertisement or film is being made or a paid sporting fixture is taking place under a time deadline. However, I intend that the model agreement which might be adapted in individual cases will be discussed with both sides of industry, the social partners and specifically with educational interests and I give that under-taking to the House.

Senator O'Toole raised a more general point in regard to health, safety and welfare at work. The laws that apply in that regard do so across the board irrespective of the age of the person concerned. Senator O'Toole is right; these regulations are enforced by our tripartite Health and Safety Authority and are drawn up in a consultative manner representing both sides of industry, which draws up detailed regulations on specific areas like building etc. We do not intend to make young people work in asbestos sheds etc. but we have in mind specific conditions that are tied in with the belief that the schooling of these young people comes first. There may be a particular need for protecting the young people concerned in the areas of supervision, chaperonage and so on if they are working on a film set. This is the intention of this section and it would contain these kinds of conditions. These are specific to young people and we will be discussing our model regulations and licences with the interested parties.

Mr. O'Toole

I had thought about putting down another amendment to this section. The Minister referred to interference with a child's education. The Bill says "the child's attendance at school". I thought it would be more appropriate if it said "the child's education". I did not put this amendment down because I was not exactly sure of the impact it may have in other places. However, I am not sure if employing a tutor, which is the way this would normally be dealt with in the film industry in particular, is allowed under this provision. Employing a tutor would mean a child would not be attending school. A broad interpretation of that may be that the child could be attending a different school with the tutor, but I still think it is too loose.

I am glad the Minister said that she intends to consult with the interested parties before putting in any agreements. However, the consultation which I am talking about could take a more restricted form. In many areas consultation is simply prior notification to the interested parties of the Minister's intention to do something, the provision would be circulated to them in confidence and the Minister would like to hear any comments from them. The Minister would not be held up in any way; it is not a matter of having rounds of meetings.

I welcome the Minister's commitment to meet with the employers or trade unions on this issue. However, the Minister's commitment, however well meant, does not carry the force of law. Time and time again, courts and judges, if it ever came to that, would reject this. They may say the argument given here is of no use, because once the Bill is enacted the only people who can interpret it are not in court. The Minister's words of explanation might be used by counsel to support the argument, but the justice would interpret these words as they are printed, published and passed.

The Minister is well aware that the film industry, for example, can work in the weirdest and most wonderful of places and there can be risks of all sorts. It does apply in this case. It is not a matter of restriction; I am only using that as an example. When replying to my argument that there should be in the legislation consultation with the trade unions and employers' organisations etc., the Minister said that this was a good idea, she agrees with it and will do it; but she will not tell me why she will not put it into the legislation. It is not restrictive in any way. It is still up to the Minister to decide how this consultation will take place and with whom, as she considers appropriate. That discretion in my proposed amendment still allows the Minister to decide who would be the appropriate representatives with which to speak. I have heard no argument from the Minister why this should not be included.

Ms E. Fitzgerald

It is my intention that model agreements would be discussed with all the interested parties. We will have those and use them in general circumstances. However, it is likely that something may come up urgently — for example, in the middle of the holidays — when it would not be possible or practicable to consult with both sides of industry in advance of giving a licence. In the entertainment world, things can change quickly — an understudy may be called on to fill in for somebody who is sick or an advertisement may have to be made in two days — and it might not be practicable to have consultations on the details of an individual licence for an individually named child in that time. We are doing this only for that practical reason.

In these cases we would take our model agreement, which would have been discussed with all parties, from the shelf and make whatever variations might be appropriate in a certain circumstance if they were warranted — they would not be in general. If we were to go through this process for each individual licence on every advertisement, the unions and employers would not thank us for burdening them with this extra administrative chore and it may pose some practical difficulties when an urgent situation arose.

My Department has recently been dealing with a reasonably urgent situation. Sometimes this is not possible if consultations are to be meaningful. I envisage consultations involving genuine discussions, listening to and adapting our draft model agreement after discussing it with the relevant people and not having a rubber stamping exercise. I give that undertaking to the House. We will have genuine consultation about the model forms of licence and regulations which will apply in these cases. The House should allow me the flexibility of acting in individual cases of urgency without having to go through a procedure included in the statute just as a rubber stamping measure.

Mr. Mullooly

Subsection (9) provides that whenever the Minister grants a licence under subsection (2) conditions may be attached to it. It would be in everybody's interest if the principle of consultation was included in the section because future Ministers operating under the Act may not be as enlightened or anxious to engage in consultation as the current Minister. The principle of consultation should be included in the subsection, with perhaps a different wording from that proposed by Senator O'Toole, such as: "following consultation with such representatives of employers or employees or other interests as the Minister considers appropriate". Having listened to Senator O'Toole's point and the Minister's reply, I favour including the principle of consultation in the subsection.

Ms E. Fitzgerald

The intention is to have consultation on the model agreements. They will be taken off a shelf and applied in individual cases. If a requirement for consultation is included in the statute, the Minister will be unduly tied every time a child acts in a film or an advertisement, particularly if there was consultation and everybody is happy with the general form of licence and regulations and the conditions which must be applied in individual cases.

At present the film industry is booming and may youngsters are employed as extras in advertisements, etc. The current system, which evolved following consultation, is working well. I should have sufficient flexibility so the Department is not urgently looking for consultations at a time when it cannot find anybody to consult. This matter is about practicality, not principle. The Senator may be satisfied that the substance of what he and Senator O'Toole are seeking will be delivered. It was delivered by previous Ministers in relation to the forms of licences given for youngsters participating in films and advertisements, etc.

Mr. O'Toole

The evolutionary trend of the Labour Party towards a pragmatic rather than a principled approach is overwhelming.

Amendment, by leave, withdrawn.

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

Mr. Mullooly

Regarding subsection (2), to whom will the licence be issued? Will it be issued to the employer or the child's parent or guardian? Who is the applicant?

Subsection (2) provides:

The Minister may, by licence, authorise in individual cases, the employment of a child in cultural, artistic, sports or advertising activities which are not likely to be harmful to the safety, health or development of the child...

Subsection (3) contains more or less the same terms, but the words "which are not likely to be" are omitted. The sub-section states:

The Minister may, by regulations, authorise the employment of children over the age of 13 years in cultural, artistic, sports or advertising activities which are not harmful to the safety, health or development of children...

Why is the same formula of words not used in both subsections?

Subsection (10) states: "An employer may retain in his or her employment any child of 15 years of age who was in his or her employment immediately before the commencement of this section..." If a child was in the employment of somebody on an occasional basis prior to the commencement of the section, will the employer be exempt from the section's provisions?

Ms E. Fitzgerald

Subsection (2) deals with an individual licence for an individual child, while subsection (3) deals with a general licence to employ a number of children. The licence is issued to the employer because, under subsection (1), an employer is prohibited from employing people under a particular age unless they have a licence for an under 13 year old or, by regulation, a group licence for a number of 13 year olds. More stringent conditions are attached to a group licence because it cannot be tied down as tightly as licences for individual children. This is the reason for the distinction.

The Senator raised a point regarding subsection (10) which I did not fully follow.

Mr. Mullooly

Subsection (10) provides that an employer may retain in his or her employment any child of 15 years of age who was in his or her employment immediately before the commencement of the section. If the child was in the person's employment only on a very occasional basis, would it be sufficient to exempt the employer from the provisions of the section? Such a child might only work for one or two hours a week on an occasional basis for a particular employer. Would that be sufficient to exempt the employer from the provisions of the section?

Ms E. Fitzgerald

In the normal course of events the conditions relating to the employment of children aged 15 years and over are more relaxed than those relating to children under 15 years. In general the section deals with the employment of younger children in specific areas. For example, in the performance area, an 18 year old cannot pretend to be a 12 year old and exemptions to the general prohibition on children working before they are 14 years of age are contained in the legislation for such cases. This was also the case in the previous legislation. Fifteen year olds are usually covered by the ordinary conditions of employment.

The minimum age for entering employment is increased in the Bill from 15 to 16 years. The Bill contains transitional provisions to ensure that when the Bill comes into force a 15 year old, who is lawfully working under the existing rules, is not fired. This is the purpose of subsection (10).

Question put and agreed to.

SECTION 4.

Acting Chairman (Mr. Fitzgerald)

Amendments Nos. 7 and 8 are related and may be discussed together.

Mr. O'Toole

I move amendment No. 7:

In page 7, subsection (4), line 25, after "consecutive" to add "and include Sunday".

The word "practicable" is included in amendment No. 8, but it also applies to amendment No. 7, because the last line of subsection (4) states "as far as is practicable".

I seek the support of Senator O'Sullivan on this matter. One of the main difficulties with Ferenke many years ago related to the shift working operations of the employees. Despite the fact that the workers had two days off every week, these days were consecutive only six times in the year and only once in the year did they fall on a Saturday and Sunday. This led to a dissatisfied and restless workforce because the workers' body clocks and biorhythms were undermined.

This legislation says "an employer shall ensure that an employee who is a child receives, in any period of seven days, a minimum rest period of two days which shall as far as practicable be consecutive". We are agreed on that. I am asking to add "and include Sunday" so it will now read "as far as practicable be consecutive and include Sunday." If it is not practicable it cannot be done. Similarly, Sunday should be included in the rest period in the next subsection. This recognises Sunday as being a family day and a time of focused social activity in the home. We are talking about young people and children here. It behoves us to give every indication and signal there about where we feel children might be most comfortable or how we might best look after their interests.

I accept that it is not something that can be held to the letter of the law. Somebody need only say that it is not practicable to do this, but if there is a choice on giving Sunday off to a younger person or an older person in a workplace when rosters are being organised, the bias should be towards the younger person as far as it is practicable. I could make an equal argument in reverse about a parent who would be separated from their children. I am anticipating what the Minister of State might say to me. It is a question of the rights of the child taking priority here. We should as far as possible include Sunday.

Ms E. Fitzgerald

When I published this legislation the main area of controversy and correspondence on it, apart from the broad welcome given by teachers to the thrust of it being pro-education, was from young people who felt that it was restricting their opportunities to go out and earn a few bob to buy their Reeboks, Levis and other brand name products. My teenage daughters raised objections to the parts of the Bill which involved re-enactment of things that had been the law for the last 18 years. We should be reasonably conscious that there is a strong move by young people to ensure we are not acting unreasonably and paternalistically with regard to them in so far as we, as adults, are trying to protect their long term welfare and education.

The effect of Senator O'Toole's amendment would be, for example, to cut out a lot of holiday work for young people aged 14 and 15. That holiday work tends to be relief work in the hotel and catering industry. People in this age group would be quite happy to work in a café on a Sunday and would regard it as an unreasonable restriction if we were to say that you cannot work in a café on a Sunday because you are under 16, whereas hanging around with their parents may be a far less desirable way of spending their time than earning a few bob on the day in question. This amendment would be unpopular with young people. It would be regarded as an unreasonable restriction on the kinds of jobs they can take up as supplementary work during school time. Young people tend to work in the retail and the hotel and catering areas. It would be regarded in holiday resorts as an unreasonable restriction on the job opportunities facing young people in this age group.

If it is a choice between allowing a parent with a four year old child to take Sunday off and allowing a rebellious teenager the opportunity of a Sunday off when the last thing they want to do is spend Sunday with their parents, I, as a parent of teenagers, would be more likely to give the parent with the young child the day off. The family day is more important to them. We have put consecutive days into section 4(4) in so far as is practicable. This is the point the Senator made about Ferenke. This can be tested at the end of the day if employers are not giving, for spurious reasons, the young people two consecutive days off.

I would not like to be so restrictive as to say you cannot work two hours in your local café on a Sunday during term time or on Sundays during your school holidays which is when people are looking for staff. I have sent off for drafting the Working Time Bill, which addresses the issue of Sunday working across the board. We are looking for people who work on Sundays to receive premium time off or premium payments and that would apply to people of any age. I am legislating on the issue of Sunday work in other areas, but an outright prohibition here would not be appropriate and would not be welcomed by the people concerned.

Mr. O'Toole

The Minister of State has mischievously misinterpreted what I said. There is no question of not allowing somebody to work on a Sunday. That is not the issue here. A rest period is a non-working period. The question of somebody working on a Sunday does not arise in this section unless I am misreading it. This only applies to people who are working for seven days and it means that out of those seven they should have some time off. What my amendment is saying is that as far as it is practicable that time should include Sunday. That is it in its simplest form.

It does not mean that it would not apply to somebody who was simply working at weekends. My reading of the Bill is that this section does not apply to somebody who is merely working at weekends. This applies to somebody who is working. "An employer shall ensure that an employee who is a child receives, in any period of seven days, a minimum rest period of two days which shall as far as is practicable be consecutive." That should be Sunday. A rest period is when they are not working, so we are talking about the whole week there. It does not apply to somebody who works on a Sunday only. It is a little bit mischievous to give the impression that somebody cannot get hours in their local café on a Sunday. That would not be restricted. Somebody who is working full-time in a place should as far as is practicable have Sunday off. The Minster of State should concede that point.

Ms E. Fitzgerald

This would be an unreasonable restriction on the kind of jobs young people could take up during their summer holidays if they were by and large precluded from having Sunday included on their roster whatever about the argument about the youngsters working on a Sunday during term time. Young people tend to get offered Sunday rosters because of the nature and types of work that they do. Many young people would regard it as a restriction on their earning capacity if they were not able to work on Sundays and as a result this would not be an appropriate amendment.

I am addressing other issues in relation to Sunday working in the Working Time Bill, which will be the first time we will have legislated for Sunday working. That will apply to workers of all ages, but to have a restriction that applies simply to young people would be unpopular and there is no demand for it.

Amendment, by leave, withdrawn.

Amendment No. 8 not moved.

Acting Chairman

Amendments Nos. 9 and 13 are related and may be discussed together.

Mr. O'Toole

I move amendment No. 9:

In page 7, subsection (8), line 40, to delete "4" and substitute "3½".

Perhaps this should have been dealt with the first group of amendments, Nos. 2, 3, 4, 5, 10 and 11, because they are inextricably related to each other. This is just extending the logic of a seven hour day, a three and a half hour half-day, and morning and afternoon breaks. I cannot put forward any further examples because it is the same argument I made earlier. It is not my intention to press this amendment now.

Mrs. E. Fitzgerald

This particular section goes beyond the directive, which provides for a 30 minute break after four and a half hours; and it is, of course, the lunch break, not the coffee break. The Bill provides for a break after four hours.

Amendment, by leave, withdrawn.

Section 4 agreed to.

Section 5 agreed to.

SECTION 6.

Amendments Nos. 10 and 11 not moved.

Mr. O'Toole

I move amendment No. 12;

In page 9, paragraph 1 (d), lines 4 and 5, to delete ", as far as is practicable,".

Section 6 (1) (d) "ensures that the young person receives in any period of 7 days a minimum rest period of 2 days which shall, as far as practicable, be consecutive". I am trying to insist that the two days should be consecutive. I am not going to rehearse the arguments again. It is the same argument I put forward a while ago. I intend listening to what the Minister has to say on this and the other issues. They are the same arguments — two sides of the same coin. I will consider the Minister's answers and decide how far the matters should be pushed on Report Stage, so I do not intend pressing this amendment either at this time.

Amendment, by leave, withdrawn.

Amendment No. 13 not moved.

Section 6 agreed to.

Sections 7 to 11, inclusive, agreed to.

SECTION 12.

Mr. O'Toole

I move amendment No. 14:

In page 12, between lines 5 and 6, to insert the following new subsection:

"(2) Every employer shall provide any child or young person in his or her employment with a copy of the prescribed abstract of the Act within 7 days of commencing employment with the employer.".

I expected, and still expect until I hear to the contrary, that the Minister will accept this particular amendment. The Minister made a strong point some time ago about the need for an information strategy to ensure children were aware of their rights and that employers knew them also. She said that this would be followed up by information through the schools, employers' organisations and trade unions.

It seems that there is one clear test of the Minister's diligence and commitment to this area. An information programme is surely important and, similarly, such programmes are worthy and effective for as long as they last, which would involve a particular period of time. The information programme will not be continued in four, five or six years' time when children are still being employed. It seems a simple and effective consolidation of the methodology to ensure we do not forget what is intended by this Bill; that the programme of information continue in perpetuity and that it no longer become a responsibility of the Minister, training agencies, educational authorities, teachers, parents, etc., to ensure young people are aware of their rights.

Section 12 requires employers to display an abstract of the Act in the place of employment at the entrances to the premises. Therefore, this abstract will be printed and available. There is no additional requirement. All that is required is that the young person receive a copy of the abstract of the Act with his or her first pay cheque. It is a reasonable, simple, highly effective measure which saves the State because it will not require continuing programmes of information to make people aware of their rights. It is a matter which is in line with the spirit of the Bill and the directive. I commend this provision to the Minister and ask her to respond reasonably by accepting this crucial amendment.

Mr. Mullooly

I support Senator O'Toole's amendment. A copy of the prescribed abstract of the Act should be provided to the child or young person within a reasonable period of that person taking up employment. No matter how condensed the abstract of the Act is, it will still be pretty lengthy and will require a certain amount of time to read and absorb. By providing a copy to the young person you are giving the young person an opportunity to consider it, read it, digest it in their own time and perhaps seek an explanation or clarification of some aspect of it with which they might have some difficulty. This amendment has a considerable amount of merit and I join Senator O'Toole in urging the Minister to accept it.

Mr. Lanigan

I agree with the sentiments expressed by Senator O'Toole. Under present labour laws an employer must display the regulations in the premises. Where an employer displays them is a matter of consequence in certain areas, but I do not think one Senator could say they have seen them displayed in business premises in the last number of years. I have never seen them in schools but I have seen them when inspectors have come around from the Department of Labour. The amendment would counter the effect of an employer putting the abstract of the Act at the back of the premises where it will not be seen by the public.

The employee under the Act is a employee who has a contract. The Minister spoke of casual labour, but casual labour does not have a contract. Such workers get part-time work at £x per hour for a couple of days per week. If the Minister is to introduce any regulations under the Act, the employee should be given a copy of the agreement which they are purported to have signed or made with the employer, that is, "the person with whom the employee has entered into or for whom the employee works under... a contract". I have never seen a casual worker enter into a contract with any employer.

Ms E. Fitzgerald

The Department will be launching an information campaign and it will not be a one off campaign because, as Senator O'Toole recognised, there are new generations of young people coming through the system. What we have in mind is a systematic programme involving schools and the youth committee of ICTU. I have already discussed this with the assistant general secretary of ICTU and I know ICTU is anxious to get involved in a constructive way.

We are also undertaking a programme of information campaigns on existing labour legislation as well as this Bill, which will be launched on Tuesday. In that context we have been looking at imaginative new ways of communicating with people. Senator O'Toole suggested giving people a piece of paper within a week of starting work. There are other ways to get information across to people which are easily heard, read and digested. On Tuesday we will start to use Teletext, which is on the Internet, to provide information on employment rights. That is an important and constructive way of doing it. We are also looking at ways of expanding such information.

The abstracts of the old Acts, particularly in the 1930s, were as dry and unread as the original legislation. This section deals with a prescribed abstract of the Act. We are also looking at other forms, such as cartoons, to get the information across to people. It might not be appropriate for ministerial prescribed abstracts, but it would be a positive way of telling people about their rights and obligations. We will talk to the major employers of young people, such as supermarket owners, vintners and restaurant and hotel owners, about their legal obligations and how to ensure the legislation is implemented.

Section 12 states that "Every employer shall display at the principal entrances to the premises .... and in such other places as an inspector may require". That gives me the flexibility to expand on the type of information we provide. We have been working on the preparation of abstracts of labour law which are similar to menu cards provided in canteens to ensure that people can understand them.

I am anxious to take on board as many constructive suggestions as possible on how to promulgate this legislation to ensure that we are not just offering people bumf but that we make sure it is used. I recently spoke to the Institute of Guidance Counsellors. It is involved on an ongoing basis in reaching out to young people and ensuring the information gets through to them. A range of contact points, including FÁS offices, employment exchanges, local employment services, Youthreach programmes, etc. can be used to get information across in a new and imaginative way. Senator O'Toole's suggestion is interesting but it will tie us down to one way of doing it. We should put our heads together and devise more imaginative ways to ensure that not only is the information given but it is received and read by young people.

I ask Senator O'Toole to consider the points I have made. I accept his point and I am trying to meet his concerns and to ensure it is not done on a onceoff basis. We should bring together all the expertise we have to ensure that young people receive this information and that is not just regarded as another piece of paper. I would like to explore imaginative ways of doing that.

Mr. O'Toole

Imaginative new ways are important but tried, tested and effective old ways are also important. Today I asked in the Library for an Internet connection which Members could use. That will eventually happen. Earlier this month at the Committee on Procedure and Privileges I raised the fact that we should have an E-mail address. I cannot send an E-mail to this House from outside. Imaginative new ways sound good in theory but they do not work in practice if people cannot use them.

My amendment is important because it does not preclude the imaginative new ways the Minister mentioned and with which I agree. However, handing somebody the abstract has long-term implications. It is a continuing education and a type of monitoring operation and it is most likely to find its way into the hands of the child's or young person's parents, who will also become more informed. This amendment would create a continuous programme of information and education and it would cost only the money to print and copy the abstract of the Act. The wording of the abstract and the inclusion of cartoons is at the Minister's discretion. There is nothing to prevent the Minister from doing what is required to make it attractive.

Senator Lanigan mentioned where the abstract of the Act may be located. Section 12 mentions the "principal entrances". The back of the door of the principal entrance would be a great place to display it where nobody could read it. This is a loose form of words which does not require it to be seen. One cannot say it is displayed when it cannot be seen. I do not know how this section will be implemented.

Forgive me if I sound cynical — I believe that when politicians become cynical they should resign — but I place a wager with the Minister that when this Act comes into operation in the next fortnight, the number of inspectors required will not be appointed. The Irish Congress of Trade Unions will be fighting for their appointment this time next year and the year after. They will be appointed with the same rapidity as all other inspectors in labour legislation, whether in the health and safety area or in other areas. I am on the central review committee of the Programme for Competitiveness and Work, so I know what I am talking about. The Irish Congress of Trade Unions put forward the case at every meeting for the employment of one inspector or another under the various forms of legislation. I do not believe there is a budget in the Department for the appointment of these inspectors. If the Minister contradicts me, I will apologise profusely and I will spread the word far and wide. This will not pass the new embargo because there is no commitment to appoint them.

This is a practical amendment which the Minister has not convinced me I should withdraw. I might table it again on Report Stage which could lead to the slow passage of this legislation through the House. It could also mean we would be out of Kilter with what is required by our European colleagues, which would be embarrassing in the week before we assume the EU Presidency. I ask the Minister to accept my amendment.

Miss Ormonde

I wish to register my grave reservation in relation to section 12. It will not work in the way it is presented if the abstract is to be displayed at the entrance to these places of work. Some young employees or their parents may not be able to read properly and may not fully understand what would be displayed so it should be handed to the schools. I agree with what Senator O'Toole's amendment tries to achieve but we must look at other ways of creating that link so that young people will not be exploited. I could not accept this section as it stands.

Mr. Lanigan

This section is an absolute nonsense. It is nonsense to think that every employer will now display a notice at the principal entrance to his or her business. Where is the principal entrance for somebody who is selling strawberries? Children are employed to sell strawberries on the side of the road. We passed casual trading legislation here recently and only certain groups are exempt from its provisions. Until that legislation was enacted, people who sold strawberries at the side of the road were exempt from casual trading legislation but now they are only exempt if the local authority deems them to be exempt.

Can the Minister explain where a farmer who employs his son or daughter to do this kind of work will display a notice of the relevant provisions under the principal Act? Will chip shops in Ballybunion put a notice inside the door as required under this legislation? Can the Minister imagine lads going into the chip shop looking for this notice? This is an absolute nonsense. What has been proposed in the amendment should have been in the original Bill. A young employee should be handed a notice or an abstract of the conditions of employment. That section as it stands is absolute nonsense. As Senator O'Toole said, no inspectors will go out to check the doors and windows of places of employment of young people to see whether there are notices of the abstract of the employees' legislation. When tourists come to Ireland, instead of reading the prices of whatever is on display in the shops, they will read notices of employees' rights. This is an absolute nonsense.

Mr. Farrelly

I am amused to some extent by some of the comments made by Senator Lanigan and I agree with some of them. However, many employers have displayed regulations as they are required to do by law in places where they can be read and it would be unfair to give the impression that they do not comply with the law of the land. In the particular case of the young people who are selling strawberries — they have been selling them on our own road every day for the last couple of weeks — if the Senator takes this provision to its logical conclusion the notice could only be placed either on the boot of the car in which they are taken to the place where they will sell the strawberries or on the corner of the pallet on the side of the road.

I ask the Minister to examine the points being raised here. Perhaps it is not practical to do so but it is important that when we bring forward legislation we do it in such a way as to help the people we want to help. We are all on the same side as far as this issue is concerned. We want to protect those whom it is the purpose of the legislation to protect. At the same time, we all know this legislation will not be displayed on the side of pallets or on the boots of the cars.

Mr. Lanigan

In that case why put it into the legislation?

Mr. Mullooly

I fully support the provision in this section that the prescribed abstract of the Act be displayed in all places of employment. I have no objection to that; it is very desirable. However, I also support Senator O'Toole's amendment that each employee be provided with a copy of the prescribed abstract of the Act for all the reasons that have been stated here but particularly because it gives the employee an opportunity to study in his or her own time the particular abstract and also to seek clarification on any aspect of it which might not be very clear to that employee.

Usually an amendment is rejected by a Minister on the basis that it is in some way flawed. However, the Minister has not given us any reason to think that she considers this amendment to be flawed or that it would adversely impact in any way on either this section or on the Act.

Ms E. Fitzgerald

I have listened very carefully to the points made. I am very anxious that the maximum information is made available in as user friendly a form as possible to the young people concerned. I wish to respond to a couple of the points made. Senator Lanigan raised the issue of the strawberry sellers. Employees who are family members would not be regarded as employees for the purposes of this legislation and the situation would not arise. However, the Senator has raised an interesting point in relation to people who sell produce from the side of the road.

Section 12, as written, repeats the provision in our existing law. It is a straightforward re-enactment of what is in the 1977 Act. This has been one of the most useful sections in terms of prosecutions for breaches of the Act. Sometimes, particularly if young people are colluding with an employer or are unwilling or afraid to give evidence, it becomes very difficult to engage in prosecutions but either an abstract is displayed or it is not and it has been an important way of ensuring that we are able to prosecute non-compliant employers.

Most successful prosecutions have involved a conviction under this section. Unfortunately it has proved difficult to get convictions under other sections because young people may feel intimidated or be reluctant to pursue their rights or the legal duties of the employer in other ways. That is one of the reasons we will provide another avenue of redress in this Bill through the rights commissioner at the Employment Appeals Tribunal. We have a role for the parents and the trade unions in terms of pursuing particular grievances under the Act.

Senator Lanigan argued to replace our existing provision with Senator O'Toole's proposal. Senator Mullooly took a different point of view. He wanted the maintenance of the existing provision with the addition of the amendment. This is the right course to take. There may be scope for looking at changing the section to deal with those who sell produce, such as strawberries, by the side of the road.

It is important that there should be an objective legal obligation by which it can be readily ascertained whether employers are meeting their obligations. If one took out what is already there and substituted Senator O'Toole's suggestion there might be a conflict of evidence between the young person and the employer as to whether the employer had handed over the abstract of the Act at the time of employment.

Given the positive views on all sides of the House in terms of information, I would like to have a look at this proposal again on Report Stage. Perhaps Senator O'Toole could reflect on the phrase "within seven days" because I want to have legislation which is practical and practicable. If the employer takes on somebody and has to ascertain whether they are a young person, they will have to look for these abstracts and could run into postal delays in the Department. We would want to examine the period.

I would like to supplement a prescribed form of information with nonprescribed forms of information because it is difficult to prescribe cartoon information. One is talking about a set of words and we will try to get it designed as best we can. As a mother of teenagers myself, I know it is important to have something they will read. If they get a dull bit of paper it will end up in the bin and, whatever the merits of Senator O'Toole's amendment, they will not look at it. I want to see young people getting an abstract of the Act in a user friendly leaflet form.

Mr. Lanigan

Concise.

Miss Ormonde

Not gobbledegook.

Ms E. Fitzgerald

That should be done rather than giving something that of its nature has to be a kind of legal document even though it is the most successful enforcement mechanism we have for naming non-compliant employers. Within those parameters I will examine the principle of Senator O'Toole's point to see if we can come up with something that is practical and enforceable. We are all trying to get information across to young people.

Mr. O'Toole

I thank the Minister for her positive response. I am amenable to an approach that would amend the seven day period, get rid of "the" and substitute "a" before "prescribed abstract". I look forward to hearing from the Minister on that on Report Stage.

Amendment, by leave, withdrawn.

Section 12 agreed to.

Sections 13 and 14 agreed to.

SECTION 15.

Mr. O'Toole

I move amendment No. 15:

In page 13, subsection (1), line 18, after "years." to add "Such records shall include copies of the birth certificate of, or other satisfactory evidence of the age of, the young person or child, as the case may be and the written permission of the parent or guardian of the child.".

This section refers to the employer keeping records. Section 15 (1) reads:

An employer shall keep, at the place where a young person or child is employed, such records as are necessary to show whether the provisions of this Act are being complied with in relation to his or her employees and such records shall be retained by the employer for at least three years.

I am proposing to add to that the following:

"Such records shall include copies of the birth certificate of, or other satisfactory evidence of the age of, the young person or child, as the case may be, and the written permission of the parent or guardian of the child."

This ties in with all the arguments and discussions we had earlier. The question of satisfactory evidence of age becomes quite crucial at this point. It is an issue which comes up in much legislation. It arises in the Intoxicating Liquor Act where people can be prosecuted for selling certain substances to underage persons. This is more definite arrangement of contract between a young person or child and an employer who is required to satisfy himself or herself that the child or young person is suitable and able for work and that the application of the law of the land, as it then will be, is proper.

This is important because of the way people are changing. As a parent of teenagers, the Minister must have noticed that it is often difficult to establish a young person's age nowadays. In many cases it is difficult, if not impossible, to tell the difference between a 15, 16 or 17 year old. Speaking as a teacher I know that with make-up and manner of dress young people can appear to be older than they are. This can lead to many difficulties. In addition, some children develop at a faster rate than others and, thus, can look mature beyond their years.

I cannot understand how we can implement the Act without this amendment. Employers will have to satisfy themselves about the age of those they are employing and this is the way to prove that has been done. It would be useful in terms of the authorisation, certification or records of somebody taking up employment.

Miss Ormonde

I go along with this amendment which is all about complying with the provisions of the Act. A link with schools would also help in this regard. I am not sure whether young people should have to have their birth certificates with them everywhere they go from the age of 14, but the employer should have to show records. In the interest of clarity I should like the Minister to explain what is meant by "such records as are necessary". Does it mean that it will be necessary to leave one's birth certificate with the employer?

Mr. Lanigan

I find myself at odds with my colleagues on this issue. Perhaps that is because I have been an employer since 1956. The only ones I can think of having possibly exploited are my children but perhaps I was exploited by my parents, too, when I worked for them.

Under the Principal Act, the parent of an under age person, a 14 or 15 year old, must give permission to their child to seek a job. This amendment, in addition, seeks the provision of a birth certificate. If the child is looking for a job and the parents want to give them an opportunity to work, why add further difficulties for the employer by way of having to keep records?

We are talking about part-time jobs during periods when an emergency might arise and an employer might need someone to work for a few weeks or months. Those who are students and in their mid-teens are all members of the Union of Students in Ireland. They go off to the United States and we cannot dictate how many hours they will work there during the summer. We can be confident, though, they will work every hour God gives them to make enough money to go off to Florida or elsewhere for a fortnight's holiday before coming back to drain your pocket for the next year in college.

We are talking about young people who are looking for part-time jobs. Under the Act children must get their parents' permission to work. If the child is looking for a part-time job and the parents agree they are capable and willing to do it, why ask the employer to keep records for three or four years for someone who will be working for only a fortnight or three weeks, and for very little money? Much of this legislation is unnecessary, as is the amendment. In fact, the Bill is unnecessary in many respects.

Mr. O'Toole

There is no doubt that the Senator is a loose cannon. Has he concluded?

Mr. Lanigan

If the Minister of State thinks anybody who employs people on a part-time basis for a week or a fortnight will keep records for three years, she is mistaken.

Ms O'Sullivan

I support Senator O'Toole. There should be an onus to prove that the child is the appropriate age and not younger than he or she should be in taking up employment. However, I would be surprised if that was not covered under the directive in the First Schedule. Is it necessary to include this provision in this section?

Mr. Farrelly

It is unrealistic to require birth certificates in this context. The majority of employers who employ young people will keep the records for at least a year for their tax returns and so forth. We are providing that the parents or guardians give a letter stating the age of the child and giving permission for the child to be employed. That is sufficient information for the employer.

If I give my daughter a letter stating she is the appropriate age for employment the letter will be a record to protect the employer and assure him that he is working within the rules. I doubt that we need to provide in legislation that people must provide birth certificates for part-time work. We can go over the top making rules and regulations and not help anybody. Members will agree that a middle of the road approach is most appropriate.

Mr. Mullooly

If the Minister were to accept the amendment it would not involve a great imposition on the employer. Under section 5 an employer, before employing a young person, must require the production of a copy of the young person's birth certificate and obtain the written permission of the parents or guardians of the child. These documents will have been produced to the employer at the time the employer was considering employing the young person. The employer need only retain the documents to have the records required under this amendment.

Ms E. Fitzgerald

Section 15 repeats the existing provisions of the 1977 Act. They are not new except in so far as the records must be kept at the place of employment. The problem encountered in the past, addressed in section 15, was that when labour inspectors called to the place of employment the records were not on the premises.

I have no problem with Senator O'Toole's proposal but its requirements are already implied in the Bill. The employer will have to keep records at the place of employment to show they have complied with the provisions of the Bill. Details such as the name of the young person, the date of birth, hours of work, salary details, normal working hours and the total amount of salary paid would be included in the records. They are the normal prescribed records to comply with the provisions of the Bill and the employer must keep that information on the premises.

There is also an onus of proof on the employer under 15 (2). If there is a problem or a prosecution, the onus is on the employer to prove that he or she has complied with the legislation. The sensible way for an employer to demonstrate that is to photocopy the birth certificate and the letter of permission rather than simply noting that he or she has seen them. Given that the burden of proof is on the employer it is implied that a prudent employer will keep those records.

I listened to senator Lanigan with interest. I have an open mind about the amendment but I am concerned that we do not add too much legal bureaucracy instead of leaving the matter of complying with what is implied by section 15 up to the common sense of the person concerned. This applies to all young employees between 14 and 17 years old. If a 17 year old gets a night's work in a pub, are we to provide that the employer must keep that employee's birth certificate for three years? Perhaps we should take a more common sense approach. The protections are implied in the section but if we spell it out in too much detail we might run the risk of people deciding that it is not worthwhile employing young people because the paper work is too onerous.

Mr. Lanigan

That is exactly what the Bill is doing.

Ms E. Fitzgerald

The protections sought by Senator O'Toole are already implied in the existing provisions. Hitting the employer over the head with more requirements might be counterproductive and we do not want that.

Mr. Mullooly

I remember being told at one time that it is illegal for a lay person to photocopy a birth certificate and that the only place a birth certificate can be legally photocopied is the office of the registrar of births. I do not know if that is the case but perhaps the Minister of State will clarify it.

Mr. O'Toole

Everybody who has ever applied to me, in my various capacities, for a job has included a birth certificate which was photocopied so the law has been broken many times. It is normal for people to include birth certificates in job applications.

The Minister's response has been reasonable. I was trying to achieve a system of checks and balances. The earlier amendment, which would allow an abstract of the Bill to be made available, would mean that people would be aware of the legislation so what I am proposing in this amendment might not be required. The section states: "An employer shall keep, at the place where a young person or child is employed, such records as are necessary..." and perhaps that is sufficient. If the abstract of the Bill was made available to young people at least they would know their rights. The two amendments are linked but I prefer to step back from this and look at it again in the context of the response to the earlier amendment on Report Stage.

It is not my intention to increase the levels of paper work; there is enough already. However, the amendment is about protection and balance although I accept it is easy to go overboard. Perhaps the two amendments are not necessary. The acceptance of one, which might lead to the implementation of the other, might be sufficient. I will with-draw the amendment and look at it again on Report Stage.

Mr. Lanigan

I echo Senator Mullooly's comments. Nobody is entitled to a birth certificate except the person to whom it refers. The parents are not entitled to apply for a birth certificate for somebody. The only person entitled to apply for a birth certificate is the person to whom it applies. No employer is entitled to a copy of anybody's birth certificate.

Amendment, by leave, withdrawn.

Section 15 agreed to.

Sections 16 to 29, inclusive, agreed to.

First Schedule agreed to.

Second Schedule agreed to.

Title agreed to.

Bill reported without amendment.

An Cathaoirleach

When is it proposed to take Report Stage?

Mr. Farrelly

Next Wednesday.

Report Stage ordered for Wednesday, 19 June 1996.

Seanad Éireann debate - Thursday, 13 Jun 1996

Protection of Young Persons (Employment) Bill, 1996: Committee Stage.

Acting Chairman

Seanad Éireann debate -
Thursday, 13 Jun 1996