Vol. 162 No. 20
I move amendment No. 1:
In page 9, subsection 2(c), line 7, after “but” to insert “(subject to the proviso that the exceptions at subparagraphs (i) and (ii) of this subsection shall apply only to an employee who is remunerated out of public moneys)”.
I cannot accept this amendment. Its effect would be to include as working time, time spent away from the place of work on stand-by at home or elsewhere. That is not reasonable. It would also include all forms of leave in the work place and various other absences. Time spent on stand-by at a place of work is included for the purposes of working hours. To deal with zero hour contract difficulties involving employees at home, they must be paid for at least 25% of their time when on stand-by at home, even if they are not called to work. It is reasonable to be paid the national hourly minimum wage if an employee is on stand-by at the place of work, but if employees are at home and are able to do all their other chores before being called to work that should not count for the purposes of computing the national hourly minimum wage.
I accept the Minister's comments on time spent on stand-by away from the place of work. However, the net is widely extended in terms of annual leave, sick leave, protective leave, adoptive leave and parental leave. None of these factors would apply, even though they are integral parts of work. They are covered by other legislation and they should be incorporated into the reckonable time.
Amendments Nos. 2 and 3 are related and may be taken together. Is that agreed? Agreed.
I move amendment No. 2:
In page 9, subsection 1(a), line 21, to delete “shall” and substitute “may”.
Section 9(1)(a) provides that an employee “shall keep a written record of his or her working hours”. That is too onerous a responsibility to place on them. Many young employees are not very literate and they lack experience and skills. They can be careless and the imposition of a mandatory requirement to keep written records subject to a punishable sanction, a summary fine of £1,500, no matter how small the transgression, is to impose a very heavy responsibility backed up by a severe penalty. The substitution of “may” for the word “shall” seeks to alleviate the employee's responsibility in this regard.
I cannot accept these amendments for a number of reasons. Of course this provision does not apply to all employees. It only applies to those employees who do not work in a controlled or supervised situation. In general, employees either clock-in or sign on or a supervisor or someone in charge verifies that they are at their place of work for the requisite number of hours. This provision covers employees who telework, work from home or work away from what would be normally regarded as a place of employment in the traditional sense.
Employers have rights too and they must have a way to verify the hours worked by an employee. Originally the Bill contained the provision that a record of hours worked had to be produced within 72 hours. At the suggestion of the Opposition I deleted that and we included the words "as soon as is practicable". That is a reasonable measure. There is always the assumption that employers rip people off. Honest employers must be able to verify hours worked and a written record is the only way they can establish that an employee is entitled to payment in respect of a particular number of hours. The hourly rate of £4.40 must be multiplied by whatever the figure is. I can see no other way around the verification process.
As the Senator will know, the penalties only apply if a person knowingly gives false information or signs a false declaration. For example, a person might have worked only 50 hours but declare that they worked 100 hours. The penalties apply when a person is dishonest and knowingly does something wrong, not just for keeping a false record. The court must be satisfied that a person knowingly noted the wrong hours on verification documentation.
I accept that many people in our society are illiterate and do not have basic reading and writing skills, but it could be argued that they would not know if they received £4.40 per hour because they do not know the value of a cheque or any payment they would get. If a person cannot do simple things like know how much they are paid or write down the figure 100 then they are unlikely to be in this type of working environment. The category of people Senator Costello talked about are unlikely to be in a teleworking environment or working away from a normal place of work. If such people did exist I have no doubt that family members or work colleagues would assist them when they need to file their verification records.
This provision is reasonable. It protects employers and provides a means of verifying that hours were worked. It also provides some form of proof and would prevent someone from claiming a year later that they worked 100 hours the previous year who in reality worked 50 hours or claiming that they did not get the national minimum wage. If there was no provision for a verification document, or if it was voluntary and not mandatory, the employer would not be protected and they could not prove what was verified by the employee and that they paid them accordingly. If there is a dispute about it then the dispute will arise when the claim is being made and not many months later. After outlining all those circumstances I cannot accede to the Senator's amendments.
I move amendment No. 4:
In page 10, subsection (2), line 21, after "among" to insert ", or between the Government and,".
This technical amendment should be accepted on merit because it would improve the Bill. If it were accepted we could then refer it to the other House.
Section 12 is sloppily drafted. Section 12(2) states: "Where . . . . . there is . . . a relevant agreement ("national economic agreement") among economic and social interests in the State. . . . ". We all know that you cannot make a national economic agreement among interests in the State. It can only be made with the Government and it can only be authorised by the Government. To present a national agreement in that sort of language is not anyone's definition of what has happened in relation to the social partnership. The social partnership which we have just concluded is one in which the Government has participated with the economic, trade union, business and farming interests. They have come together under the aegis of the Government to formulate a national economic agreement. To state that it is among economic and social interests in the State is incorrect. It is with the Government of the State.
My amendment would put the record straight and provide for the current situation. Section 12(2) should read, "Among or between the Government and economic and social interests in the State" which would reflect the current statutory position. The Minister's provision is an inaccurate statement of the current situation. My amendment is a substantial technical amendment and it needs to be passed by both Houses of the Oireachtas.
The State and the Government are not the same thing. There have been many debates here about the nation, the State and its people but I will not go into that. It is often assumed that what is in the interest of particular people is in the interest of the State or is of national interest but that is a false assumption. I can confirm that the phrase "economic and social interests in the State" includes the Government. I am not a lawyer, and neither is Senator Costello, but the parliamentary draftsman's office is quite certain that that is the case. In section 12(2) is states "Where in the opinion of the Minister. . . " and the Minister is a member of the Government.
Sometimes the law as drafted does not make a lot of sense to most of us, particularly in Ireland. It is simpler in many other jurisdictions and I wish it were so here. We had this debate on Committee Stage in the other House. The parliamentary draftsman is quite certain that this provision includes agreements made with the Government and that social and economic interests in the State also include the Government.
Amendments Nos. 5 and 6 are cognate and may be taken together by agreement.
I move amendment No. 5:
In page 10, subsection (3), line 32, after "to" to insert "each House of".
This is another technical amendment. Section 12(3) is an another example of slipshod drafting. It states:
If the Minister varies or rejects a recommendation under subsection (2), the Minister shall, as soon as practicable, make a statement to the Oireachtas giving his or her reasons for that variation or rejection.
The Minister does not make statements to the Oireachtas. The Minister makes statements to the Houses of the Oireachtas or to one or other House of the Oireachtas. The Minister should not forget that the Oireachtas is composed of the Seanad, the Dáil and the Presidency. One does not go to the President with a recommendation of one sort or another every time a recommendation is varied or rejected. This is sloppy wording and the amendment should be returned to the other House.
It appears that one of the reasons for the inability to change this legislation is that it is being rushed through. Perhaps I am wrong and the Minister may tell us this has been used for years and that "to the Oireachtas" means only one House. If so, I am still unhappy because it should refer to both Houses of the Oireachtas, otherwise a statement could be made in this House and the Lower House would hear nothing about it or vice versa. We may hear about it but only by chance. The Minister may say this is the way it has always been done, that it works and that legal advice has been received on it. There is a danger that one House could be left out. I would prefer if this was considered and I am happy to support Senator Costello's amendment.
It is fair to say I am responsible for the policy issues behind the Bill but when it comes to the drafting and the technicalities it is a matter for the parliamentary draftsman and others. I am assured by the parliamentary draftsman's office, incredible as it may seem, that the Oireachtas includes both Houses and this is a normal usage of the term. I am aware that the Oireachtas includes the President and I do not intend going to her to make a statement nor, I am sure, will any of my ministerial successors. I assure Senators that it includes both Houses of the Oireachtas. The Dáil alone does not make up the Oireachtas and neither does the Seanad. I have been advised by the parliamentary drafts man's office and the Attorney General that it includes both Houses and it is the appropriate terminology.
I move amendment No. 6:
In page 11, subsection (8), line 36, after "to" to insert "each House of".
I oppose this section because it refers to different rates of pay during the first two years of employment and on reaching the age of 18. My difficulty is that employment equality legislation provides that anybody between the ages of 18 and 65 should not be discriminated against in terms of employment, yet this is being done very specifically with the minimum wage. Under our legislation and Constitution people can vote at the age of 18 – they are considered to have reached full adulthood and should be treated accordingly. Unless this is acknowledged and we subscribe to the provisions of our employment equality legislation it is a form of exploitation of young people. I cannot see the need for the list of conditions and caveats in section 15 for those between the ages of 18 and 20 and the gradual introduction of the full minimum wage by the age of 20 is unnecessary. The Minister should disregard the section.
The minimum wage commission recommended that for people in training there would be a three year run-in period of 75%, 80% and 90%. Our employment regulation order and the registered employment agreements made between parties recognise that experience counts for something. In the UK the minimum wage is not introduced until a person reaches the age of 22, although 18 year olds in the UK have the same rights as 18 year olds here. It is reasonable that there is a link with experience. One cannot say that someone who has considerable experience should earn the same wage as a new job entrant. In all the circumstances, what is being proposed is reasonable. Unfortunately, I cannot accept Senator Costello's amendment.
On this occasion, for a change, I support the Minister and not Senator Costello. One of the major challenges which faces us as a nation, particularly with this legislation, is the danger of people being tempted not to complete their education or training. From that point of view the step the Minister has taken is to be congratulated. There can be serious problems for those who do not complete their education or training and are tempted to work at a young age. They are disadvantaged and it may be difficult for them to get out of the hard core of unemployment. Figures from the NESC report this week showed that we are not making great inroads into the hard core of long-term unemployment. Those people need to be protected by being encouraged to stay in education or training. From that point of view I support the Minister's stand on this.
I realise what has been said and I agree that young people should remain in education and should be encouraged, supported and resourced to do so. My concern is that there would be a category of sub-minimum wage employment for those in their late teens, the 16 to 20 year olds, and that certain areas of, perhaps, the catering and fast food industries and some parts of the rag trade and so on would employ young people until they have to pay them a full minimum wage – there would be a turnover and these young people would be thrown back into the workplace without skills. There is a danger that some low skilled young people in their late teens could be exploited by what would be a new market in the sub-minimum wage payments.
Amendment Nos. 19 and 23 are related to amendment No. 7 and they may be taken together by agreement.
I move amendment No. 7:
In page 14, between lines 16 and 17, to insert the following new subsection:
"(3)For the purpose of calculating the hourly rate of pay in a specific reference period of an employee who is not remunerated out of public moneys, the said Schedule shall be construed and have effect as if paragraphs 2, 3, 4 and 5 of Part 1 of the Schedule were deleted from that Part and were inserted in Part 2 of the Schedule.”.
Senator Costello seeks to move items from the reckonable to the non-reckonable pay components. As Senators are probably aware, I made a number of substantial amendments during the passage of the Bill through the other House. I took out four different items which were going to be included as reckonable pay. The Senator wants employers to provide board and lodgings and if they provide them as part of employment, it is reasonable that would be reckonable for the purposes of calculating the national minimum wage.
Reasonable rates are being applied, particularly in the current environment in which we live. One can get board and lodgings in the region of £6.09 per day or £42 per week. It is not unreasonable that if an employer provides board and lodgings at £6.09 per day that £42 would be drawn from one's pay in the case of a full week. There are separate rates for board or lodgings only. These have been agreed in various joint labour committees or employment regulation orders as the rates that apply in the hotel and catering industry. The regulations specify that these rates would be applied generally where board and lodgings have been provided by an employer.
In the other House, a Deputy raised the situation of a person who works in a hostel where they are provided with accommodation and asked if they would receive the national hourly minimum wage. The answer is yes, but if they are provided with board and lodgings, clearly that is reckonable. The rates for board and lodging are £6.09 per day or £42.63 per week, for board only it is £3.62 per day or £25.31 per week and for lodgings only it is £2.47 per day or £17.32 per week. Those are reasonable rates to deduct from the employee. If we do not allow for board and lodgings, those who are given them will no longer have them. That would be the consequence. There are not many people in Dublin or in any part of the country who could get board and lodgings for £42.63 per week, board only for £25.31 per week or lodgings for £17.32 per week, so that is reasonable.
Other issues include a service charge paid through the payroll. Many employers choose to charge for service. It is generally the case but not always that, where more service is supplied, a service charge is applied to a bill and is included in the central payroll. It is a mandatory payment which customers must pay for the service. The employer pays it to the employees and it is part of the payroll cost. If people leave tips, whether on their credit cards or on the table, that is excluded from reckonable earnings. It is reasonable, given the practice which has built up in the catering industry, that the service charge would be included, as it is in many other countries.
Regarding the shift premium, this is not a black and white area, but the shift premium is so much part and parcel of the rates of pay in so many sectors that it is not possible to exclude it at this point. There would be strong opposition from employers if we were to exclude it. This is one of the issues we could look at again when the monitoring committee examines the experience of this legislation. I have no doubt that, in time, it will probably move from reckonable to non-reckonable, but I am not in a position at present to accede to changing it.
The other major issue in this legislation is what are deemed to be reckonable and non-reckonable components. I know the Minister has made a number of concessions in the other House to various amendments tabled. However, questionable areas are still included as reckonable. There is also some confusion as to what is in each category. There seems to be an overlap in terms of what is allowed in each category.
The shift premium is one of the major issues which needs to be addressed. The Minister said it might be examined again in future. Looking at the non-reckonable components, one area which is not reckonable is the unsocial hours premium. A shift by its nature brings about unsocial hours. Part of the reason for providing the additional premium for shift work is its unsocial nature. It is often around the clock, at odd hours and is not the normal nine to five or whatever. The premium is over and above the basic rate of pay.
My view of the minimum wage is that it entails basic salary and that there is a reason for anything over and above that, such as bonuses, commissions, tips or premia. It is not a basic minimum. Shift work should not be a reckonable component because of the many issues involved, such as its unsocial nature and the family difficulties it causes. I listened to busmen during the week who are on little more than the minimum wage although they also earn a shift premium. They do shift work all the time and they spoke about having to work from 6 a.m. until midnight and working a number of shifts because their basic pay is terribly low and little more than the minimum rate and they need the shift rate and overtime.
The piece rates, the incentive rates, commission and bonuses are additional to a basic rate. While they are productivity based, why should commission or bonuses be included in the context of a basic minimum rate? I do not understand. I can accept the fourth component – the monetary value of board and lodgings – because that can be substantial and is separate from and additional to a wage.
Any service charge distributed to the employee through the payroll is subject to tax and PRSI and is included in that context. However, among the non-reckonable components is any amount distributed to the employee of tips or gratuities paid into a central fund managed by the employer and paid through the payroll. It is difficult to see what is the difference between the two. Once it goes into the central fund and is paid by the employer, it would be subject to the normal deductions in taxation. There is an element of confusion there. How does one distinguish and define "service charge" and not include tips or gratuities?
Regarding productivity related payments, or piece and incentive rates as they are called, and commission and bonuses, which are productivity related, as Senator Costello may know, many people work from home in the textile industry, for example. Both employer and employee work at home and employees are paid per 50 jumpers or 100 tee shirts or whatever. The national minimum hourly rate must apply to those workers. Clearly, the employer and employee must transfer the productivity related manner in which they are paid at present into rates per hour. A specific number will have to be applied to each hour so that we are certain that each individual receives £4.40 per hour. There is no other way of doing it for that category of workers because they are not paid an hourly rate at present. They are paid on the basis of piecemeal, incentive or commission, as the case may be. If we did not include this provision as reckonable it could well be that workers in that category would have to do an enormous amount of work to earn the basic £4.40 national hourly minimum wage.
Regarding the shift premium, as I said, this may move in time from reckonable to non-reckonable income. However, the Senator would be wrong to assume that all shift work involves night work. I know women in my constituency who work specific shifts to fit in with their family pattern and their children's requirements. That is the type of work they wish to do and they are paid accordingly. I accept some of the arguments the Senator makes about the premium, but I am not in a position to change it at present.
The difference between tips and service charge is that tips are voluntary amounts of money which are left. One volunteers to leave a tip. The tradition of tipping is not great in Ireland. Speaking as someone who worked as a student in the United States for a number of years between 1971 and 1976, I lived for almost a year on the tips I made. I cannot remember how much I earned in regular pay, but it was minuscule and I was not that interested in it because it did not matter. The tips were where the big money was, as I thought then. I remember coming home in 1971 with £500 and I thought I was a millionaire because that was a great deal of money nearly 30 years ago. We do not have that tradition in Ireland, but it is improving. A tip is a voluntary amount of money one leaves on either one's credit card or on the table.
Some restaurants and employers in the hotel and catering industry – I am not certain it applies to any other sector – choose to impose service charges for the service they provide. One generally finds those restaurants have a high level of service, although it differs from place to place. Compulsory service charges are applied to generate a supplement towards the payment of staff. The staff in those cases are usually paid a lot better. Some people have argued that a tip should not be left if there is a compulsory service charge. Many people leave a tip on a voluntary basis, but a service charge is a formal way of payment in the hotel and catering sector. It is like a shift premium which I am not in a position to remove on this occasion. It may be an area we can review in the future depending on experience.
There will be a monitoring committee which will closely monitor the Bill's impact in the first year of implementation. The Minister has power to make changes through regulation. We may make some changes. I have given an undertaking that the report of the monitoring committee will be laid in the Oireachtas Library and discussed if that is the wish of the Seanad or the other House. We will ensure that the House is kept well informed of what is happening at the monitoring committee so that people are aware of the impact of this legislation.
I move amendment No. 8:
In page 14, lines 18 to 20, to delete subsection (3).
Subsection (3) refers to reckonable components and the fact that the Minister may, by regulation, add an item to or delete it from the Schedule. The Minister is giving herself the authority to change the basis of the legislation without consulting the Houses of the Oireachtas. It seems unconstitutional that the Minister should be able to give herself such powers.
This is a standard feature of legislation and it is done for practical reasons. As we know from the experience, it is not always easy to get Oireachtas time to make changes. Regulations can be annulled provided it is done within 21 sitting days of when they are made. Either House of the Oireachtas can initiate an annulment procedure. One can only make a fundamental change to the regulations after consultation with representatives of employers and employees.
If a national agreement comes into effect, if there is a change or if it is felt desirable to move some of the reckonable matters into the non-reckonable category because of experience or new ways of coming to agreement between employees and employers, where it is agreed that these things should happen, then it is desirable to have a framework to make regulations without amending the primary legislation. There might be an agreement to move something from the reckonable to the non-reckonable category, but because of delays in the parliamentary timetable it might take a considerable length of time to put that into effect. If one simple change needs to be made to legislation, it is desirable not to have to introduce primary legislation but to use the regulation process.
There are safeguards. The Minister has not been given a blank cheque. The power the Minister has been given can be overturned by the Oireachtas within 21 sitting days of the regulation being made. That is reasonable in all the circumstances.
It was pointed out to me since yesterday that three years is a long time to ask small business people to keep records. Perhaps the Minister could clarify why three years was chosen rather than a shorter timeframe.
Is the Senator saying that three years is too long to keep records?
That point was made to me since yesterday when I had a slightly different view. A fine of £1,500 will be imposed if records are not kept for three years.
If an inspector has to carry out an investigation, it is reasonable that he or she should be able to look at the records over a three year period. If an employee made a complaint and a court action followed, it would be important to have the records. I understand this is a normal feature of employment rights legislation. Three years is probably too short rather than too long. Bank records are kept for longer periods, as we discovered recently. The keeping of records is becoming a feature of what is required of employers. There was a reluctance in some sectors to keep any records, to levy PRSI or to pay appropriate taxes. It is not an onerous burden on employers to keep basic records for a three year period. It is a reasonable provision.
I move amendment No. 9:
In page 15, lines 17 to 23, to delete subsection (2).
Why should an employee not be entitled to know the pay reference period and the national mini mum hourly rate of pay? Why could such a request be interpreted as being frivolous or vexatious? This subsection is unnecessary.
This amendment seeks to delete section 23(2). The purpose of subsection (2) is to avoid imposing on an employer who pays an employee well in excess of the national minimum hourly rate of pay an obligation to undertake an unnecessary regulatory burden. There is a reasonable cut-off point in the subsection whereby employees who are being paid up to 150% of the national minimum hourly rate of pay may not request a written statement from their employers. If the amendment were accepted, employers would have to provide a written statement on a request from workers who are paid well in excess of the national minimum hourly rate of pay. The purpose of such a wide-ranging obligation on all employers, almost 90% of whom are paying well above the national minimum wage, would not be consistent with the enforcement provisions of the Bill.
If an employer pays up to 150% of the national minimum wage, it is unlikely that employees would make frivolous or vexatious demands. What type of illogical and perverted thinking is behind such a provision?
We want to create an incentive for employers to accept and embrace the new environment of a national minimum wage. On that basis there must be an incentive for them to pay above the going rates, to treat their staff with generosity and respect and to give them proper remuneration. This amendment would take away the unnecessary burden of having to account for figures being paid when they are above the basic minimum. We have stipulated 150% and if that is not generous then I do not know what is.
I move amendment No. 10:
In page 16, lines 14 to 32, to delete subsection (2).
This amendment is along the same lines. There is much red tape and procedural gobbledegook in the Bill. The legislation could have been a fraction of its size and I do not know from where all these caveats are coming. This section refers to a rights commissioner and states that a dispute cannot be referred unless an employee has done certain things. I do not see the need for all the paperwork required of an employee. If a dispute takes place it is obvious that one would have to go through all of the procedures. There is an entitlement to a rights commissioner and that is it.
The amendment seeks to delete section 24(2). Paragraph 24(2)(a) provides that a dispute may not be referred to or dealt with by a rights commissioner unless the employee has sought a written statement from the employer under section 23 and has obtained such a statement for the four weeks before the issuing of such a statement by the employer has elapsed.
This provision is intended to prevent disputes which are not soundly based on the facts of the case from being referred to a rights commissioner. The obligation on an employee to comply with section 23, prior to referring a dispute to a rights commissioner, is considered reasonable by virtue of the purpose of section 23 which is, first, that the process should help to identify any underpayment of the employee's minimum entitlement and any such underpayment may then be paid by the employer on recognising and realising the underpayment. Second, the employee can make an informed judgment before referring a dispute to a rights commissioner. It is a two way process.
Subsection (2) also provides that the time limit for the referral of a dispute to a rights commissioner is to be within six months from the date the employee obtained the statement under section 23, or within six months from the latest date the statement was required to be issued to the employee by the employer under that section. The time limit may be extended to within 12 months at the discretion of the rights commissioner, depending on the circumstances of the case. This time limit is in keeping with other employment rights legislation, the Organisation of Working Time Act, 1997, being the most recent.
Subsection (2)(b) is designed to avoid double jeopardy so that an employer is not subject to a rights commissioner investigation if they are, or have been, the subject of an investigation by an inspector under section 33 in relation to the same alleged underpayment of the employee's entitlement to remuneration in accordance with the Bill, or is being, or has been, prosecuted for an offence under section 34 in relation to the same alleged underpayment in accordance with the Bill.
Such double jeopardy would be wasteful of the resources applied to detect breaches of the Bill. The choice is left to the employee to decide which method to use to refer a case to a rights commissioner or a complaint to an inspector if he or she believes that his or her employer has not paid the minimum payment required under the Bill.
Once the employee decides to pursue one route, the other route is closed to investigate the same alleged underpayment. We are giving employees an option which is not normally available. The legislation is very tight and the parameters and criteria are strict. One gets an option which one exercises. There is no dual option. There are two routes and choosing one means the other is not available. That is fair.
I move amendment No. 11:
In page 18, lines 34 to 46, to delete subsection (5).
This issue relates to the powers of the Labour Court in the giving of evidence. A similar provision in the Employment Equality Bill, 1997, was declared unconstitutional by the Supreme Court. That is why I wonder about the constitutionality of the provision in this Bill.
This amendment seeks to delete section 28(5). The purpose of subsection (5) is to avoid the necessity of an officer of the Labour Court attending a court hearing to confirm factual information which can be provided by a written statement signed by the chairperson of the Labour Court. A similar provision is included in section 30 of the Organisation of Working Time Act, 1997, and in section 12 of the Unfair Dismissals (Amendment) Act, 1993.
Legal advice has been sought and confirms that the provision is constitutional. The Supreme Court judgment in the Employment Equality Bill, 1996, does not reflect on this type of evidence which is of a factual nature, that is, that a person is required to attend a Labour Court hearing on a certain date, that a Labour Court hearing was held on that date and that the person did not attend, or, having attended, refused to give evidence. We are talking about a situation where factual information is being provided to the court and it is unnecessary for the legislation to make it mandatory for an officer of the court to attend when the information can be confirmed by the chairperson of the Labour Court, the highest officer of the court. There is no room for omission, discrimination or unfairness. All the information would be available and confirmed.
Is the Minister of State's advice that the provision is constitutional?
Yes.
I move amendment No. 12:
In page 24, subsection (2), line 37, to delete ", in his or her absolute discretion,".
This section concerns the institution of civil proceedings but I am concerned by the provision that "the Minister may, in his or her absolute discretion, institute or refrain from instituting civil proceedings in the name of the employee". This again raises the issue of a Minister taking total responsibility and absolute discretion upon himself or herself. We thought we had done away with this kind of provision in favour of a Minister engaging in some kind of consultation. This provision smacks of absolute power corrupting absolutely. The Minister wants to be in complete control. Surely the Minister should consult about the matter. Would not be better to say "the Minister may institute or refrain from instituting"?
The section ensures the Minister has the choice to institute or not to institute civil legal proceedings in the name of an employee for the recovery of underpayments. Senator Costello, in agreeing the clause "the Minister may institute" seems to accept this point. The parliamentary draftsman has stated that to avoid any legal doubt, it is proper to include the phrase "in his or her absolute discretion". From a democratic, constitutional and parliamentary point of view, it is very important to place the onus on the Minister of the day to take a decision and, therefore, absolute discretion rests with the Minister of the day rather than with the officer, Department, division or section which will deal with the issue.
This provision allows the Oireachtas to question the Minister on an issue and to play a key role by doing so as distinct from a situation where, if absolute discretion was not available, it would be presumed that the officials acting on behalf of the Minister were using discretion without the Minister's knowledge.
Amendment No. 14 is cognisant of amendment No. 13 and they will be taken together by agreement.
I move amendment No. 13:
In page 28, line 31, to delete "1977" and substitute "1998".
This is a technical amendment. The Employment Equality Act, 1977, no longer exists. It was repealed. We are talking about the Employment Equality Act, 1998, which came into effect in 1999. We cannot, therefore, include in section 47 legislation which does not exist. This is an important technical point and should be amended.
While the Employment Equality Act, 1977, was repealed, the parliamentary draftsman advised that it was not necessary in the context of the amendment to section 6 of the Protection of Employees (Employers' Insolvency) Act, 1984, to refer to the Employment Equality Act, 1998. Section 47 (a)(ii) is merely a technical drafting matter to allow subparagraphs (12) and (13) to be inserted into section 6(2)(a) of the Protection of Employees (Employers' Insolvency) Act, 1984. This is purely a technical drafting device to ensure we are absolutely correct.
It is a technical drafting device but is it accurate? If the Act is now the Employment Equality Act, 1998, how can we refer to it as the 1977 Act which was struck down by the Supreme Court? The Employment Equality Act, 1977, does not exist.
This takes into account the previous legislation to which reference was made and it is used to continue that referral right through. That is the reason for the technical drafting. The parliamentary draftsman has advised that this is the correct thing to do.
I would have assumed that using the right year would have been the correct thing to do.
I move amendment No. 14:
In page 28, line 32, to delete "1977" and substitute "1998".
I move amendment No. 15:
In page 29, subsection (3), line 46, to delete "Court" and substitute "Courts".
This is a technical amendment to fix slipshod drafting which does not accurately reflect the situation. We are talking in section 48(3) about documentation served on a court. It states that documentation may be served on such a body "under the Rules of the Superior Court". It may be more accurate to say served "under the Rules of the Superior Courts" because there are a number of courts relevant to this – the High Court, the Supreme Court and the Court of Criminal Appeal. It is a matter of adding the letter "s" to the word "court".
Section 11(a) of the Interpretation Act, 1937, provides that, in the interpretation of an Act, the singular includes the plural and conversely, the plural includes the singular unless a contrary intention appears. Similarly, man includes woman, male and female. It is not necessary to make this amendment. The legal advice is that the Interpretation Act covers the interpretation in totality.
There are some tulips coming through from the parliamentary draftsman's office and the legal advisers. That is the first interpretation of singular and plural of that nature I have heard. This is a relevant amendment for the sake of accuracy.
I move amendment No. 19:
In page 30, lines 40 and 41, to delete paragraph 5.
I move amendment No. 23:
In page 31, between lines 24 and 25, to insert the following new paragraph:
"9. The amount of any service charge distributed to the employee through the payroll.".
I thank everybody for the fine debate we had on this legislation. It was agreed on Second Stage that this legislation is momentous and historic and I thank the Minister, her officials and the Ministers of State for bringing it to this House.
I join with Senator Cox in expressing thanks to the Minister, her officials and Ministers of State. It is historic that we now have a statutory minimum wage on our books, something for which trade unions, workers and my party have campaigned for a long time. My only caveat – and I have flagged it well already – is that the House did not have a serious opportunity do introduce amendments because of the time available to it. We were in limbo, knowing that any amendments we tabled would not be accepted. I thank the Minister and staff for their courtesy and the manner in which they responded to the debate.
I also pay tribute to the Minister, her staff and Ministers of State for their dealings with this important and relevant legislation. I share Senator Costello's reservations, however. Everybody is happy to see this legislation passed and we had a wide-ranging debate. I was glad to note the Minister's gentle disagreement with Senator Ross on the rule of the market and her acceptance that market imperfections exist. I look forward to pursuing that matter with her on other issues.
It would appear that every political party is out of line with Senator Ross at this stage. He has no home to go to.
I will not delay the House except to say that I thought the choicest remark came from the Leader of the House yesterday when he credited the former Taoiseach, Charles Haughey, as the forerunner of all that is right in our economy. He paid tribute to him for introducing, I think, the first national wage agreement.
All of them.
He said the then Taoiseach had taken the economy by the scruff of the neck and straightened everything out. I thank the Minister, the Ministers of State and their officials for a very fine debate.
I thank you, a Chathaoirligh, your staff and this House for the tremendous co-operation in passing this historic legislation. In particular, I thank Senators Cox, Costello, Coghlan and Quinn and all others for their contributions to the debate.
We would have liked to provide more time for discussion on this Bill, although it has been well debated. I would like to pay a special tribute to the officials of my Department who worked diligently and assiduously on this legislation with the Minister. I also thank the National Minimum Wage Commission and the many organisations who participated in the intensive consultative process which led to the introduction of this Bill – partnership in action aptly describes this process.
The Bill is a balanced measure which achieves its objective of protecting vulnerable workers from exploitation but also ensures that the price for that protection is not job losses. It will result in tens of thousands of workers, particularly vulnerable groups such as women and young people, getting a pay rise which reflects our concern that they share in the economic benefits achieved over the past few years. The Government is honouring fully its commitment to introduce a national minimum wage. It marks an important step in recognising the contribution of the low paid to our economic development which combined with the tax adjustments coming into effect next week shows this Government's determination to not alone have a modern economy but to also have a caring society.
This is an historic day which is a tribute to all those who have participated in enacting the legislation.
