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Seanad Éireann debate -
Thursday, 30 Mar 2000

Vol. 162 No. 20

National Minimum Wage Bill, 2000: Committee Stage.

Sections 1 to 4, inclusive, agreed to.
Question proposed: "That section 5 stand part of the Bill."

Section 5 lists the people who are exempted from the terms of the Bill. It is very wide-ranging and broad. It exempts the entire family of an employer from the conditions of the Bill. This matter was very eloquently discussed by Senator Quinn during the Second Stage debate. He put very strong arguments for not treating members of a family different from other employees. The history of employment has shown that family members working in family businesses are very vulnerable to exploitation. We all know of very hard cases where members of a family, a brother, son or daughter or any of the categories mentioned have been subjected to exploitation in the past. Family members should be entitled to protection as citizens.

One of the great benefits of this legislation is that it treats men and women equally. Traditionally women were the ones who suffered in that they were not paid as much as men for the same work. The minimum wage will now apply across the board. Likewise, this should apply across the board to men and women, irrespective of their relationship to the employer. Why should a blood relationship with the employer be a consideration in regard to people being left outside the terms of this legislation?

I do not see any reason to include this section. The simplest thing to do would be to delete it. I do not know what lobbying was done by family businesses, whether anybody approached the Minister seeking the inclusion of a section of this nature or if the Minister has any statistics on the number of people affected by it but before she introduces an exemption of this nature from the benefits of the Bill, she should have all the information relevant to the people involved and the circumstances in which they may be affected and that the information is given to us before we give our approval to a provision of this nature. I suggest the Minister, even at this late stage, delete that section.

While Senator Costello made a valid point, speaking as someone who grew up in a family business and who now works in it, the one thing about such a business is that family members may work for a rate less than other employees because it is part of their investment in the future of the business. It is important members of the family who manage and work in the business are left with a choice as to the rate of pay. If members of the family in management exploit those members working in the business, the National Minimum Wage Bill is not the instrument to stop that exploitation. I strongly suggest that the Minister does not consider deleting this important section.

I welcome the Minister. I, too, expressed my concern about the large number of people who were excluded. The Minister explained that under labour law it is usual to exclude family members. One must remember how easily people in a family can be exploited by other members. As I said, it will be women members of the family, in particular, who will be exploited. We are not saying they have to be paid a specific wage but the minimum wage. I suggest the Minister look at this again.

I welcome the Minister and thank Senator Costello for raising this matter. I welcome the Bill but, in this particular case, I find myself almost acting in a manner which is against all my normal traditions. I, like Senator Cox, come from a family business and, therefore, I value greatly the benefits of the family business. It was mentioned yesterday that the growth in and the success story of the United States is the result of small, mainly family businesses. Therefore, we should do everything we can to encourage family businesses.

This morning I read what the Minister said on Report Stage in the Dáil and realised that this matter was debated there. I find myself on the side of the support there from the Socialist Party who made this same case. I make the case, however, from a different point of view and make two cases. I would like to see this Bill, when enacted, as solid good legislation. I am concerned about any legislation that goes through the Houses which perhaps has gaps. I would not be surprised if there were gaps in this legislation and if there was an objection to it in the future from the point of view of fairness.

I gave an example on Second Stage of a bachelor running a business, a pub, shop, etc., in competition with a large family business. The bachelor suddenly finds the minimum wage legislation applies to him. I was stunned when I read the range of people to whom it does not apply – I think I counted 17. It includes the spouse, father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, stepson, step daughter, grandson, grand-daughter, brother, sister, half brother and half sister. The list seemed to go on and on. I would not be surprised if there was a case to be made to the Competition Authority by that bachelor who could say it is unfair in business terms. That, however, is not the main point I wish to make.

The fundamental flaw in this goes back to making an exception for such a wide range of employees who are members of the family. It goes back to the old concept which existed until the 1800s whereby people could own other people. I thought that when Abraham Lincoln, Wilberforce and the others got rid of slavery they got rid of that concept and that it would not come back. In recent years our eyes have been opened to what goes on in families, including physical and sexual abuse. We also know there has been exploitation in the past. While Senator Cox rightly made the case that family members may be underpaid because they have an investment in the future, I doubt if that stands up.

In the majority of cases where family members are underpaid it is because it is cheap labour and they are bullied into this situation perhaps with promises that they will benefit at a future stage when the owner of the business passes on. When one looks at the range of people involved, one realises that this concept of someone owning someone else almost implies that because they own them, they can use them in their business and, therefore, they do not have to pay them even the minimum wage. The term I used yesterday in regard to spouses was "chattels", a lovely old word. It treats people as things and that one can own things. This outdated idea of slavery that one can own people as well will almost be enforced in the legislation.

The Minister should look again at this section even at this late stage when the Bill has gone through the other House and is at a late stage in this House and cannot be easily to changed. We must put down a marker and say this is bad law and is not one we should enact. I imagine that a youngster, who is probably only 14 years of age now, may take this legislation to the High Court and say it is wrong and unfair and is almost akin to slavery. On that basis, I would not like to see a law being passed which will not stand up in the long term. I urge the Minister to rethink this section, recognise that it is too all embracing and find another method to overcome the problem of the family business which wants help in this area.

I welcome the Minister to the House. I would hope no member of a family would be bullied and I know Senator Quinn would not do so because he is exemplary in his own business when it comes to his family. There is undoubtedly a large element of benefit-in-kind for a family member working a family business. This may only arise in extreme cases and I wonder if hard cases make bad law.

I suppose in this area, as in many others, it is not a black and white situation. There is, in life generally and at ministerial level when one is making decisions, a judgment call and a grey area, and this is one such area. If somebody does not pay a member of their family the minimum wage, they are committing a criminal offence and the criminal law would be intervening in what is essentially a family matter. The bachelor can have brothers, sisters, a mother or father in that it is not confined to married people and everybody has a family. I grew up in a family business on a farm where all the members of the family contributed and worked. At critical times everyone had to help out. I was fortunate to grow up in a happy family where I was under no duress. I accept there are situations where people can be exploited.

This legislation is based on other labour legislation, including the Unfair Dismissals Act, the Organisation of Working Time Act, legislation on the protection of young persons, redundancy payments Acts and so on. We need to codify the law in respect of employment rights and other rights in labour law. The Attorney General is keen that we should codify all our laws so that one can pick up a book and read what the law is in a partiuclar area rather than having to check it from several sources. The sooner we do that in this area, the better.

On balance and having taken advice, it is not desirable by way of criminal law to enter into what essentially is a family relationship. If we were to include family members, the law in this area would be unenforceable. I do not know how one could enforce it. Generally speaking, as Senator Cox said, family members are prepared, although perhaps not in 100% of cases, to help out at critical times, to work weekends, to work more than 48 hours a week, which is the maximum level stipulated in the Organisation of Working Time Act, to work bank holidays and not receive the additional premia that apply in other businesses for such work. They do that essentially because their working relationship is often based on the family relationship and perhaps on investment in the business.

Traditionally, one of the major issues in family businesses has been a reluctance to take the necessary steps to broaden the capacity of those businesses. That is a separate agenda. Sometimes family businesses do not reach their potential because they remain family businesses and their members do not appreciate the wider potential of taking a different direction.

On balance, these provisions do not fit into a black or white category. I could not put my hand on my heart and say that I could defend or oppose them vigorously. I would categorise them as a grey area.

As Senator Quinn said, there are exceptions, but we should not exclude from what is normally a good practice a host of family members simply to provide for the exception. Even if we did that, I do not know how one could enforce the law in this area and make it a criminal offence for a person not to pay his or her sister or daughter the national minimum wage and how one could expect a sister or a daughter to give evidence in such a case.

Other areas of the criminal law and cases where sexual or physical abuse has been perpetrated are a different category. We all know about the disturbing events that are coming to light. One cannot compare this situation with those unsavoury and unfortunate events. Therefore, I am not in a position to accede to Senator Costello's request.

In relation to this Bill generally, many good ideas were put forward on Second and Committee Stages in both Houses of the Oireachtas. I took on board a number of changes, of which the Senators are aware, because good arguments were made. I like to think I am open minded, but on balance in this regard I have decided in favour of retaining the provisions in the Bill.

I thank the Minister for the moderate manner in which she handled this query. She said that on balance these provisions cannot be categorised as black or white but fit into a grey area. I like those words she used. While at first blush the provisions appear in order, perhaps we should make an exception in the case of this section. The more I think about it, the more I consider it will make bad law.

I would not dare suggest there is a comparison between sexual and physical abuse and exploitation of family members in this area. When legislation on sexual and physical abuse was introduced, the case was probably made that it would be difficult to enforce in family situations. The Minister is making the same case when she says it would be difficult to enforce the law in this area. The fact that it would be difficult to enforce should not enable us to agree a section that would make bad law. On balance, I suggest this section would make bad law.

Similar provisions in other employment legis lation are also bad law. Such provisions regard people as chattels. The section almost provides that because family members are excluded from these provisions, it is in order to exploit them by underpaying them on the promise that in future they will become part owners of businesses. Similar promises were made to apprentices who lived upstairs in grocery shops for years. They were told to stick with the job and that one day they might become the manager. They were exploited.

On balance, the Minister should delete this section. We should not provide for similar exceptions in other legislation as it is bad law and it will not stand up in the long term. On that basis, I support Senator Costello's urging that the Minister should consider deleting this section.

I welcome the Minister to the House. I support this legislation. The Minister said she had listened to good arguments in both Houses and that she was open minded, but she cannot be very open minded to accepting an amendment in this House, as there is no time for the Bill to be recommitted in the Dáil in respect of amendments made in the Seanad. While her mind may be open, time has not been provided for following the procedures to make changes to the Bill. The Minister might address why she came to this House at the eleventh hour to take this Stage of the Bill, thereby not giving an opportunity to introduce worthwhile amendments in respect of which the Bill could have been recommitted in the Dáil.

The Minister said the legislation would be unenforceable in this area and that in terms of the section she has followed other legislative precedents. It is time to draw the line with various legislative precedents. Given that this legislation deals with a minimum enforceable wage, we should set the agenda rather than follow what might be questionable precedents.

The wording of the section is bald in terms of the people who will be excluded from the provisions of the Bill. The relationship of the family members listed in the section with their employer, even though the employer is a family member, is a business one. As a business relationship it should be subject to the legislation. If, as a result of being treated in a family context, such family members stood to gain an interest in the business, the position might be different. The wording of the section is open and it affords no level of protection to the family members listed.

As Senators Quinn and Henry said, women are the most likely to be most exploited in family situations. The legislation has the benefit of being gender equitable in that every worker is entitled to the same minimum wage. It would be valuable if we could improve it by deleting this section or, if more time was available, tease it out by examining the difficulties experienced in family situations and inserting some level of protection for family members. Given that the wording of the section is bald, the only way we can address this matter is by deleting it.

The case for including it has been eloquently made by Senator Quinn and Senator Costello. While the Minister's analogy of the giving of evidence in sexual abuse cases cannot be in any way correlated with this matter, I remember when that legislation was being dealt with by the House and instances were outlined where children may have been required to give evidence against their fathers. However, it was necessary to provide protection in the most terrible cases. This legislation will only be needed in families where people are not getting anything. One frequently finds that people are not paid anything. There may be a family break up and people who worked in businesses for many years have nothing to show for all their effort.

This is why I agree with Senator Quinn and Senator Costello that this section is the core area for ensuring protection is given to vulnerable people who are most likely to be paid very little, if anything. The Tánaiste and Minister for Enterprise, Trade and Employment and Senator Cox are correct that people want to contribute to family businesses and that this can be good for the family and hopes for the future. However, at the same time, the Minister must be aware, as I am, of cases where people contributed for years but one family member came out on top and several others, usually women, did very poorly.

Even if there is a happy situation where somebody is willing to work for less than £4.40 an hour, if family members are excluded, the employer will be breaking the law. One could say that it will not arise unless a complaint is made. Although a person was willing and agreeable to work under those circumstances at the time, if a complaint is made many months and years later, the person, in the context of another dispute, could decide to use the provisions of this legislation. As I said previously, it is not a black and white situation; it is a grey area.

There is a need to consider some of these issues which have found their way into our labour law over a considerable period of time. This also applies to recent labour legislation, introduced by a different Government and different parties. The former Minister, Eithne Fitzgerald, introduced the Organisation of Working Time Act. I dealt with that legislation for my party at that time but I do not recall that this issue arose. However, I am sure it arose in the context of Committee Stage. I am sure the former Minister felt, as I do, that one would not go to the end of the world to defend it but, equally, I am not necessarily enthusiastic about changing it. It falls into a grey area.

Senator Henry is correct. It only becomes an issue where a complaint is made and somebody is being exploited. However, if the law states that everybody, including family members, must be paid £4.40 an hour, somebody who does not adhere to the law, even where a person is willing to work for less than that amount, is breaking it. The law does not provide that one can have private arrangements on the side. There may be an opt out for a year if one goes to the Labour Court, otherwise the law requires £4.40 an hour to be paid. One does not have the luxury of entering into a family arrangement. An employer who does so will break the law and commit a criminal offence. There is no escape route for the people most Senators would wish to protect.

This aspect of the Bill and other legislation perhaps should be reviewed in the relatively near future in the context of some of the points that have been made and issues that have arisen. I have an open mind on that. As one takes legislation of this nature through the Houses of the Oireachtas, one hears arguments being forcefully made, particularly by people who are in business such as Senator Quinn. I accept Senator Cox has a different view but Senator Quinn is undoubtedly a pro-business person.

Shame, Senator Cox.

Obviously, that aspect should be taken on board in future legislation in this area. There should be a proper debate on it before final conclusions are drawn either way.

The Tánaiste and Minister for Enterprise, Trade and Employment did not reply to a question asked by Senator Costello. Senators who followed the legislation through the other House over a number of months are expressing a certain amount of frustration because there is a deadline on it. The Bill must be passed today and it is unlikely that amendments will be accepted. It is unlikely that we will do any more than rubber stamp it so there is a certain amount of frustration. The Tánaiste and Minister for Enterprise, Trade and Employment's comments are moderate and she said the issues should be reviewed on a regular basis.

She also mentioned a family member who is paid less than £4.40 an hour and promised that something will happen later. However, that also happens in non-family businesses. It can happen where a person is offered a job and is told that he or she will receive their reward in time. If an exception is to be made in that regard, exceptions in other areas should also be made. Those who opposed the idea of minimum wage legislation in the first place made that case, but it did not stand up. On balance, it should not stand up with regard to family members either. If it stands up in one area, it should stand in another also. The Tánaiste is hearing some of the frustration being experienced by Members who are talking about a Bill to which they are highly unlikely to effect any change and it is unlikely that she will accept amendments. Perhaps this frustration is evident in the comments of Senators.

I apologise for not responding to that point and I also apologise to the House. I wish the situation was different and I regret that the Bill was not initiated in the Seanad. As Senators are aware, within a month of the Government taking office, the Minimum Wage Commission was established. I published its report in April 1998 and we agreed to implement the national hourly minimum wage. We then set about establishing an interdepartmental group to consider the issues which arose because it was not a case of simply introducing legislation. There was an ESRI impact study and the legislation was approved by the Cabinet in early December.

The Bill could have been published then but the new round of negotiations was beginning at that time. The Irish Congress of Trade Unions felt strongly about the £4.40 rate the Government suggested should come into effect from 1 April. The rate is not provided for in the Bill because this is enabling legislation and that will be done by regulation. The initial rate is central to the debate. It was felt that a discussion should not start in the Oireachtas in the middle of pay negotiations, where this was a central issue. I said to the Irish Congress of Trade Unions that if the employers and employees agreed to a higher rate than £4.40, I would not oppose it. In any event, they stuck with £4.40.

Those negotiations were not concluded until the end of January and it was impossible to get dates in the other House. I wish I had initiated the legislation in the Seanad because, from a calendar point of view, we could have accepted amendments in both Houses. The agreement was, and we always said, that the minimum wage would be introduced from 1 April. The Government approved an earlier signature motion on Tuesday. Otherwise, the President would not be in a position to sign the Bill tomorrow. I apologise to the House because I strongly believe in parliamentary democracy. The Oireachtas should not be a rubber stamp for things that happen outside the Houses. However, as this formed a central part of the pay negotiations, it would have been very provocative to pursue a matter which we knew was central and important to workers and their representatives. This is why we ended up in a difficult situation.

The other House took five hours more to deal with Committee Stage of this Bill than it did to deal with the Finance Bill although one could not compare the two in terms of complexity. However, the Members were probably making a point as well. I would have done so if I had been in Opposition. I understand the realities of politics. I apologise to the House because it is offensive. I wish the situation was different.

However, there is a desire on everybody's part to have the legislation introduced with effect from Saturday. As Senators are aware, the ESRI impact study suggests that 163,000 people will benefit. This appears to be an incredible number of people and in the greater Dublin area, it is probably impossible to find somebody, other than a home help, who is paid less than £4.40 an hour. Senator Ross takes the strong view that the market should always dictate in this situation, but I am not a free marketeer or an ideologue. If the market was perfect, there would be no need for regulation. I wish it was otherwise, but that is not the case. There is a need for regulation.

If the market gave everybody a high wage, there would be no need for statutory minimum wage legislation. However, because the market does not do so, there is need to introduce this type of legislation to protect vulnerable categories of workers. Even the United States has minimum wage legislation, and has had it for a considerable number of years. Among the notices displayed by companies in the United States at the entrances to their places of business is a minimum wage notice which provides details on the rate of pay per hour they offer.

We do not live in a perfect world and we do not have a perfect system of parliamentary democracy. I apologise again and I wish the position were different. It is my intention to initiate the next legislation with which I must deal, the company law enforcement Bill, in this House. I initiated the Cement Bill in this House and we have not yet had an opportunity to complete our deliberations on it in the Lower House. It seems that many months have passed since we discussed that Bill and repealed the existing and archaic legislation. Unfortunately, we have not had time to put the Bill through the Lower House.

I hope to introduce and have enacted two items of legislation before the summer recess, namely, the company law enforcement Bill and the training Bill, and I hope to initiate the first of these in the Seanad. I am sure Senators will appreciate the difficulties I faced on this occasion and I hope they will accept my undertaking that the position will be reversed on the next occasion.

The Minister's bona fides in relation to her commitment to parliamentary democracy are not in question. However, the fact remains that the Bill spent over two months in the Lower House while it will only spend two days in the Seanad and there is no possibility that it will be amended at this point. Instead of voting through a motion for earlier signature, would it not have been possible for the Seanad to continue its deliberations on the Bill past 1 April and its application could have been made retrospective? I cannot imagine that the President is anxious to spend Saturday signing Bills. I am sure she has other matters of national importance with which she must deal.

She will be signing it on April Fool's day.

Yes. We would not be anxious to change the way the President spends her weekends.

The President works every Saturday.

I suppose she will be obliged to sign the Bill tomorrow and she will have a busy weekend.

If we had had the opportunity to tease out the legislation in the proper fashion, we might not have come to the conclusion that this section should be deleted. We might have suggested the introduction of certain protections for family members. That cannot be done now without a thorough teasing out of the implications. The Bill contains various caveats and conditions regarding those who will be affected by the Bill, how they will be affected and how its terms will apply.

As stated earlier, the Minister's bald inclusion of a wide-ranging list of family members – these people will be treated not in terms of their being family members but in terms of their relationship to their employer – is not acceptable and the provision, if it is allowed to stand, will give rise to the exploitation of vulnerable people. We should have had the opportunity to deal with the legislation in a more flexible fashion and return it to the Lower House with amendments, if necessary. Would it not be possible to delay the early signature and apply the legislation retrospectively from 1 April?

That would be the ideal way to proceed but, unfortunately, it is not constitutionally or legally possible to do so. I dealt with that matter on Committee and Report Stages in the Lower House. I wish to outline the contents of the written advice I received from the Attorney General's office in that regard.

The Attorney General indicated why we could not make the legislation retrospective and further stated that such a burden would have to be justified on the overwhelming ground of the common good. He stated that the Supreme Court made it clear in the case of the Employment Equality Bill that the Government cannot simply pass on the costs of its social reforms to employers or indeed any section of the public. The Attorney General concluded that, in the absence of a compelling justification for such a measure it would appear that there would be considerable danger involved in making the minimum wage legislation retrospective and proceeded to state that he agreed with advice given orally.

Unfortunately, making the legislation retrospective is not an option. I explored the possibility approximately one month ago because it appeared that we would not have completed our deliberations on the Bill. I took legal advice because that probably would have been the best case scenario, given the deadline involved. Unfortunately, it is not possible to make the Bill retrospective. If the Bill was not enacted by Saturday, the workers to whom it applies would not benefit until such time as it eventually came into force. I do not believe anyone would want that to happen.

Question put.

Bohan, Eddie.Bonner, Enda.Cassidy, Donie.Chambers, Frank.Cox, Margaret.Farrell, Willie.Finneran, Michael.Fitzgerald, Liam.Fitzpatrick, Dermot.Gibbons, Jim.Glynn, Camillus.Keogh, Helen.

Kett, Tony.Kiely, Daniel.Kiely, Rory.Lanigan, Mick.Leonard, Ann.Lydon, Don.Mooney, Paschal.Moylan, Pat.O'Donovan, Denis.O'Toole, Joe.Ormonde, Ann.Walsh, Jim.


Burke, Paddy.Caffrey, Ernie.Coghlan, Paul.Coogan, Fintan.Cosgrave, Liam T.Costello, Joe.Doyle, Joe.Henry, Mary.Jackman, Mary.

McDonagh, Jarlath.Manning, Maurice.O'Dowd, Fergus.O'Meara, Kathleen.Quinn, Feargal.Ridge, Thérèse.Ross, Shane.Ryan, Brendan.Taylor-Quinn, Madeleine.

Tellers: Tá, Senators Farrell and Keogh; Níl, Senators Costello and Quinn.
Question declared carried.
Progress reported; Committee to sit again.