I am very pleased to be in the Seanad to discuss this important legislation. Since the Bill was published last December I have had lengthy correspondence and discussions with the social partners and the Office of the Parliamentary Counsel to the Government in relation to a number of central issues in it. During its passage through the Dáil a number of important amendments, which have strengthened it, were made. The relevant EU directive on part-time work should have been transposed into Irish law by 20 January last. However, it was important that any outstanding problems such as pay and pensions were sorted out so there would be no practical difficulties for part-time workers following enactment. Against this background I am very pleased the Cathaoirleach has facilitated Second Stage discussions today, just over a week after the Bill was agreed by the Lower House. Indeed, if all goes well we will be able, with the Seanad's agreement, to take Committee, Report and Final Stages next week and the Bill can be enacted before the end of the year.
Last February, when this Bill was first presented to the Dáil, none of us could have foreseen the economic slowdown that took place in recent months. The dramatic changes have made us all reassess and re-evaluate where we are, what we want to do and where we want to go, not just as an economy, but as individuals in a democratic society. Social partnership involving employers, employees and Government has been the driving force of change in society and, in particular, in the workplace over recent years. Thankfully, this process has not been broken by recent traumatic events globally. The Programme for Prosperity and Fairness, which underpins our economic policies until the end of 2002, has enabled all the stakeholders involved, namely, the social partners, the ICTU and IBEC, as well as Government, to take stock and see how best we can reposition ourselves to maintain our economy in the short to medium term. It is important for us all to continue to work together through this partnership process in the months ahead.
One area where this social partnership process has played an important role in recent years is the area of employment rights and labour legislation. Social partnership has been backed up by a well balanced suite of employment rights and labour legislation which, together with measures designed to stimulate employment, provides an appropriate framework for the purpose of achieving an efficient and competitive business environment.
Ireland has been to the forefront, in the past 20 to 30 years, in ensuring reasonable conditions of employment exist which set out clearly for both employers and employees their respective entitlements. Successive Governments have enacted legislation in the area of employment rights reflecting changes in society and the workplace at both national and international levels through, for example, the introduction of "home-grown" employment rights legislation, the transposition of EU directives, and reflecting in Irish domestic law the standard setting activities of the International Labour Organisation, ILO, and Council of Europe. Such legislation has covered a wide range of areas, including minimum notice and terms of employment, payment of wages, organisation of working time, protection of young persons at work, safety legislation and the introduction earlier this year of entitlement to carer's leave.
One area where employment rights legislation has dramatically affected peoples' work and lifestyles is that of the organisation of working time. This area covers issues such as holiday entitlements, rest periods, maximum working time and night work. Our respective work places have changed over the years. For example, the industrial revolution, especially the mechanisation of industry, together with scientific and technologi cal advances, have over the years greatly improved the ways in which we work, while at the same time changing social needs and demands have influenced the length of time in terms of days and hours per week spent in the workplace.
A practical example of how things have changed is the area of working time. In the 1930s the State set the maximum number of hours people worked at 55 hours. This level of hours has been reduced over the years. In 1997, the Organisation of Working Time Act, which transposed an EU directive, set the maximum number of hours which may be worked in a week at 48 hours.
All these changes in employment rights legislation have also influenced employment trends and the numbers in employment which have risen from 1.22 million in 1994 to 1.7 million today, an increase of one third. Part of this number includes some 284,000 part-time workers. This number represents 17% of the workforce with the majority of these being women. In 1997, women accounted for more than three-quarters of all part-time workers. The incidence of part-time working among women increased from 16% of all women at work in 1983 to 23% in 1997. The number of part-time workers is expected to rise further in the coming years.
The growth in part-time employment is not exclusive to Ireland. In the EU the increase in the numbers working on a part-time basis has continued up to 1998, the date of the latest figures available. Total numbers of part-time workers in the European Union have risen by an average of 14% overall during the period 1994 to 1998, with 6% of men and around 33% of women in employment working part-time. However, these figures vary greatly from country to country, with the Netherlands at 39% in 1998 and Greece at 6% in 1998 being at the higher and lower ends of the scale respectively in terms of participation in part-time employment.
Despite these welcome trends in Ireland and Europe, there are, at present, severe skills shortages in our economy and in others throughout Europe. To address this major problem, the European Commission and the European Council has each year since 1998 under the Luxembourg Process requested member states to prepare an employment action plan setting out their respective Government's proposals on how to improve the overall economic environment in terms of people at work. As part of this process member states' respective annual employment action plans are required to set out policies which facilitate opportunities for women who have raised their families and are keen to come back into the workplace and formulate family-friendly policies which facilitate, in particular, greater female participation in the workforce. The European Commission guidelines for 2001, which is the fourth year of this process, set out a number of horizontal objectives aimed at building conditions for full employment in a knowledge-based society.
As regards the taxation system, the Government has in recent budgets substantially reduced the burden of PAYE, thereby making the option of working more attractive. The Government, also recognising the need for improved family friendly policies, introduced a series of initiatives, including the extension of paid maternity leave from 14 to 18 weeks, and unpaid maternity leave from four to eight weeks, which was announced in last December's budget. In July 2000 the Government also extended the provisions regarding entitlement to parental leave. Members will be aware that, earlier this year, I steered the Carer's Leave Bill through the House. The Carer's Leave Act, 2001, which came into effect on 2 July, provides up to 65 weeks' unpaid leave from employment to care for persons requiring full-time care and attention.
With regard to developing policies to facilitate older workers, recent research indicates, for example, that by the year 2020, the numbers of people in Ireland aged 65 and over will be in the region of 700,000. Initiatives under the auspices of the Swedish and Belgian EU Presidencies in the area of quality of work highlighted the need for Governments across Europe to fill job shortages through innovative policies which would involve people working beyond the current retirement age of 65 on a part-time basis.
Three types of measures have been introduced in some member states in recent years to reduce the extent of early retirement and to encourage people to remain longer in work. These three measures are: one, increasing the official age of retirement or eligibility to a full pension; two, the introduction of partial retirement schemes which enable older employees to work part-time while receiving a partial pension and so withdraw gradually from employment; and three, the provision of incentives to encourage businesses to retain older employees in work for longer.
In the context of the above, on Second and Committee Stages of the Bill in the other House a number of Deputies from all parties made specific references to areas in the taxation, social welfare and EU agriculture grant procedures which can sometimes unintentionally act as obstacles to people either entering for the first time or re-entering the workforce to work on a part – time basis. I acknowledged these genuine concerns and raised the specific problems involved with the respective Ministers. I acknowledge that perhaps we need to look at these issues on an ongoing basis to ensure we do not unwittingly deter people who feel they have something to offer society by working on a part-time basis. This would be in the case where people wish to do so. There is no question of forcing people to work beyond their retirement age. People who have worked long and hard deserve their just reward. However, if there are people, and I believe there are many, who wish to re-enter the workforce after retirement, there should not be any obstacles in their way.
In the light of the desire by more people to balance their working and family lifestyles, the timing of our discussions in the House on the Bill is opportune. The legislation seeks to implement the provisions of a directive of the Council of the European Union concerning the Framework Agreement on Part-Time Work concluded by the general cross-industry organisations at European level, namely, UNICE, CEEP and ETUC. The directive was adopted by the Council on 15 December 1997 and should have been implemented by 20 January 2000. My Department notified the European Commission of the intention to postpone the implementation date by up to one year, that is, up to 20 January 2001, as allowed for by the directive, to take account of special difficulties.
The main objectives of the directive are to provide for the removal of discrimination against part-time workers and to improve the quality of part-time work and, second, to facilitate the development of part-time work on a voluntary basis and to contribute to the flexible organisation of working time in a manner which takes into account the needs of employers and workers. A tripartite working group, including representatives from the social partners, IBEC and ICTU, and relevant Departments, was set up to discuss the measures necessary for the implementation of the directive in Ireland, and the deliberations of the group have contributed to and influenced the composition of the Bill. I thank both ICTU and IBEC for their work at both European and national level in framing the Bill which I believe will have a major social impact in Ireland in the years ahead.
The scope of the directive is expressed as applying to part-time workers who have an employment contract or employment relationship as defined by the law, collective agreement or practice in force in each member state. In this context, Irish labour law covers persons employed under contracts of service and agency workers. The directive provides that, after consultation with the social partners, member states may for objective reasons provide for the exclusion wholly or partly from the proposals of part-time workers who work on a casual basis. The directive requires the implementation in member states of measures guaranteeing that part-time workers may not be treated less favourably than full-time workers. It also requires the removal of discrimination against part-time workers where such exists and contains measures aimed at improving the quality of part-time work.
The provisions of the Bill are influenced by the terms of the directive. As I have already said, we have had detailed discussions with the social partners, and both support the intent of the Bill. Both have raised a number of issues, most of which have been addressed during the Bill's passage through the other House
One area of the Bill that I would like to mention specifically is that of pension entitlements of part-time workers. The Bill honours the Govern ment's commitment in the Programme for Prosperity and Fairness that the definition of remuneration in the Bill would include occupational pensions. In the course of discussions with my Department's legal advisers, the question as to the propriety of interpreting the directive as covering remuneration and pensions arose. A view emerged that protocol 14 on social policy annexed to the treaty establishing the European Union, which constitutes the legal basis of the directive, is clearly expressed as not applying to pay and, by extension, pensions.
Accordingly, my Department sought from the Office of the Attorney General a formal legal opinion on the matter. A response from that office was recently received to the effect that in its view the wording of protocol 14 precludes the application of the part-time workers' directive to remuneration and pensions.
Accordingly, while the Bill applies to remunerations and pensions, it does so because of the Government's commitment to this effect in the Programme for Prosperity and Fairness, not as a requirement of the directive. The important implication of this advice is that as regards remuneration and pensions, any benefits accruing to part-time employees arising from the enactment of the Bill will not be retrospective and will apply from a future date only. That is the legal position. There will be no question of backdating arising in these areas in respect of the period since 20 January last when the directive was due for transposition into Irish law.
However, in terms of practicality, section 9(4) of the Bill provides that, in so far as it relates to any pension scheme or arrangement, the entitlement of a part-time employee under section 9(1) – that is, not to be treated in a less favourable manner than a comparable full-time employee – shall apply only to such part-time employees whose normal hours of work constitute less than 20% of the normal hours of work of a comparable full-time worker.
It was considered that such persons should be excluded from such schemes on the grounds that the administrative costs of providing for such access to persons with such little service would be far in excess of any benefits that might accrue to them from such pension schemes. There was some confusion on this issue on Report and Final Stages in the Dáil. I wish to make it clear that employers are free to allow such employees access to pension schemes on equal terms with full-time employees, with the proviso that such employees would not be able to insist on such equal terms under the Bill when enacted.
I would like to outline to the House in detail the main provisions of the Bill. In Part 1, section 1 is a standard provision dealing with the short title, collective citation and construction of the Bill. Section 2 provides that the Bill will come into operation on a day or days to be prescribed. Section 3 sets down the main definitions associated with the Bill. A number of these sections were amended on Committee Stage. In particu lar, the definition of "remuneration" was broadened to provide for a more comprehensive definition of remuneration and pensions. I have just referred to the issue of pensions and the legal advice that was received in this regard. A definition for "framework agreement", under which the agreement on part-time work concluded by UNICE, CEEP and the ETUC annexed to Directive 97/81/EC of 15 December 1997 was established, was also inserted in section 3.
Section 4 empowers the Minister for Enterprise, Trade and Employment to make regulations and orders prescribing any matter or thing which is referred to in the Bill as prescribed, or to be prescribed, or for the purpose of enabling any provision of the Bill to have full effect. An amendment was made to this section on Committee Stage to ensure that commencement orders as provided for under section 2 of the Bill should not have to be laid before both Houses of the Oireachtas, which is standard practice. Section 5 repeals the Worker Protection (Regular Part-Time Employees) Act, 1991. Section 6 is a standard provision in legislation stating that the expenses incurred by the Minister in connection with the administration of the Bill shall be paid out of moneys provided by the Oireachtas.
In Part 2, section 7 deals with the definitions associated with Part 2 of the Bill. This section was amended on Committee and Report Stages in the Dáil with a view to improving its clarity and intent. Such an example is the substitution of the expression "relevant part-time employee" for "first mentioned employee" wherever it occurs in the Bill, for ease of reference. This amendment had been sought by IBEC to make the definitions simpler.
Section 8 provides that each relevant enactment, as defined in section 3, shall apply to a part-time employee in the same way as it applies, other than by virtue of the Bill, to an employee to whom that enactment relates. Section 9 provides that, generally, a part-time employee shall not be treated less favourably than a comparable full-time employee in respect of his or her conditions of employment.
Section 9(2), however, provides that a part-time employee may, in respect of a particular condition of employment, be treated less favourably than a comparable full-time employee provided that treatment is based on objective grounds. Section 9(4) provides that a part-time employee who normally works less than 20% of the normal hours of a comparable full-time employee may be treated less favourably than a comparable full-time employee in relation to pensions. It was considered that persons who work for less than 20% of the normal hours of a comparable full-time employee, should be excluded from such schemes on the grounds that the administrative costs of providing for such access to persons with such little service would be far in excess of any benefits that might accrue to them from such pension schemes.
I have referred to the legal advice obtained from the Office of the Parliamentary Counsel to the Government in relation to pension entitlements under the Bill. Section 10 provides that a benefit accorded to a part-time employee under section 9(1) of the Bill shall be on the basis of the principle of pro rata temporis, that is, it shall be related to the proportion which the normal hours of work of that employee bears to the normal hours of work of the full-time comparator concerned.
A new section 10(3) was inserted on Report and Final Stages in the Dáil for the avoidance of doubt, to make it clear that the annual leave entitlements of part-time workers under the Organisation of Working Time Act, 1997, would not be adversely affected by the provisions of this Bill. Section 11 provides that a part-time employee who works on a casual basis, as defined in the section, may be treated less favourably than a comparable full-time employee if objective grounds exist to justify such less favourable treatment.
Following Second Stage of the Bill in the Dáil, the ICTU raised certain concerns with me about the reference in section 11(4)(b) of the Bill to certain collective agreements. It was concerned that this subsection allowed a collective agreement with no standing in law to derogate from the legal definition of a part-time employee who works on a casual basis. This effectively meant that, potentially, all types of part-time employees could be excluded from the provisions of the Bill if they were regarded in a collective agreement as working on a casual basis.
These concerns were brought to the attention of the Parliamentary Counsel to the Government and were addressed through a number of Government amendments which are reflected in sections 11(4) and 11(5) of the Bill as currently drafted. These amendments are based on section 24 of the Organisation of Working Time Act, 1997, and provide that, to be covered by the Bill, a collective agreement referring to an employee who works on a casual basis must be approved by the Labour Court in accordance with the proposed new Schedule to the Bill. These amendments have strengthened the Bill in relation to the entitlements of casual workers.
Section 11(6) provides that the Minister shall, from time to time, review the operation of this section and may, following such a review, prescribe a class or classes of such employee to be a class or classes of employees to whom this section shall not apply.
Section 12 provides that a ground for treating an employee less favourably shall not be regarded as an objective ground for that purpose unless it is based on considerations other than the part-time status of the employee. The less favourable treatment involved for the employee must be for the purpose of achieving a legitimate objective of the employer and such treatment must be appropriate and necessary for that purpose.
Section 13 provides that the Labour Relations Commission may, and at the request of the Minister shall, to identify obstacles to a person being able to perform part-time work, study every industry and sector of employment and make recommendations as to how any obstacles identified in such study could be eliminated. The commission shall report to the Minister in relation to any study and shall publish such study and recommendations.
Section 13(4) provides that, in drawing up recommendations, the commission shall invite oral or written submissions from appropriate organisations representative of employers and employees, and shall take account of such submissions in preparing its recommendations.
Following Second Stage in the Dáil, the ICTU, IBEC and FLAC raised the issue of the implementation of clauses 5(2) and 5(3) of the framework agreement annexed to the directive on part-time work relating to the review of obstacles to part-time work. A number of Government amendments on Committee Stage in the Dáil resulted in the insertion of a new section 13(5) in the Bill. This new section addresses clause 5(3) of the agreement by providing that the Labour Relations Commission should consult representatives of employers and employees to discuss the preparation of a code of practice and, if forming the view that such a code would be of sufficient practical beneficial effect to employers and employees, they should prepare and publish a code accordingly.
A second Government amendment agreed on Committee Stage is the new section 13(6). This section also provides for the amendment, revocation and replacement of codes of practice, and the publication of such replacement codes or notice of the making thereof. These amendments have substantially strengthened this section of the Bill in relation to the review of obstacles to part-time work.
Section 14 provides that a provision in any employment agreement shall be void in so far as it is inconsistent with any provision of this Bill. Section 15 provides that an employer shall not penalise an employee for having lawfully opposed an Act which is unlawful under this Bill. Section 15(2) states that penalisation for this purpose includes dismissal, unfavourable change in conditions of employment or any unfair treatment, including selection for redundancy. An employee may not seek relief against such penalisation under this Bill and under the Unfair Dismissals Acts.
This section was amended significantly during Committee, Report and Final Stages in the Dáil by the insertion of a new section 15(1)(c). The new section implements ICTU's and FLAC's requests to transpose clause 5(2) of the Framework Agreement annexed to the directive into the Bill. Clause 5(2) of the directive states:
A worker's refusal to transfer from full-time to part-time work or vice versa should not in itself constitute a valid reason for termination of employment, without prejudice to termin ation in accordance with national law, collective agreements and practice, for other reasons such as may arise from the operational requirements of the establishment concerned.
The amendment as drafted by the Office of the Parliamentary Counsel to the Government goes further than clause 5(2) of the directive in that it not only forbids termination of the employee's employment contract for refusing to accede to an employer's request to transfer from full-time work to part-time work or vice versa, but it also provides that an employee, or indeed another employee giving evidence on behalf of an employee, cannot suffer any unfavourable treatment or change in conditions of employment for such a refusal. The anti-penalisation clause is a standard provision in employment rights legislation.
I received some very helpful suggestions from the Opposition in relation to this section when it was being discussed at Report and Final Stages in the Dáil. The section as now drafted is stronger for both employees and employers alike.
Section 16 provides that a complaint by an employee, or by a trades union of which the employee is a member, that the employer has contravened section 9 or section 15 of the Bill in relation to that employee may be presented to a rights commissioner. The rights commissioner shall issue a written decision in the matter and communicate that decision to the parties. The decision of the rights commissioner may require the employer to pay compensation, subject to a limit of two years of the employee's remuneration. A complaint to a rights commissioner must be made within six months of the date of contravention of the Bill. This period may be extended by a further 12 months if the commissioner is satisfied that failure to refer the case within six months was due to reasonable cause. The hearing before the rights commissioner shall be conducted in private.
Section 16(3) of the Bill was amended at Committee Stage in the Dáil to prevent employees attempting to pursue grievances, particularly in the area of pensions, years after they have left the service of their employer.
Section 17 provides that a decision of a rights commissioner may be appealed to the Labour Court within six weeks of the date of the decision. The Labour Court shall issue a determination in writing affirming, varying or setting aside the decision of the rights commissioner. The Labour Court may request the Minister to refer a question of law arising in proceedings before it under this section to the High Court for final and conclusive determination. Where a decision of the rights commissioner has not been carried out by the employer, and an appeal against the decision has not been brought within the time allowed for doing so, the employee may, within six weeks after the expiry of that time, refer the complaint to the Labour Court and the Labour Court shall, without hearing any evidence, make a determi nation to the like effect as the decision of the rights commissioner.
Section 18 provides that, where an employer fails to implement a determination of the Labour Court within six weeks from the date it is communicated to the parties and the determination has not been appealed within the appropriate time limit, the Circuit Court shall, on application to it by the employee concerned, a trades union of which the employee is a member, or the Minister, and without hearing any evidence, make an order directing the employer to implement the determination.
Section 19 provides that the redress mechanisms set out in sections 16 to 18, inclusive, of the Bill shall not apply to members of the Defence Forces who have their own redress procedures under the Defence Acts. This new section was sought by the Minister for Defence.
Section 20 confirms that Irish employee protection legislation conforms to the requirements of Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services. In this regard, the section provides that a range of employee protection legislation applies to workers posted to work in this country, both within the meaning of the directive and otherwise, in exactly the same way as it applies to Irish workers covered by the legislation. In addition, a Government amendment agreed on Committee Stage in the Dáil widens the category of employee covered by this section to cover not only posted workers, but also foreign workers who work in this country but are not strictly speaking posted workers, that is, those working here under a visa or a work permit.
The broader definitions proposed are an important amendment, given recent media publicity and controversy regarding alleged abuse of non-national workers here in Ireland. As highlighted in recent parliamentary questions these workers, regardless of nationality, have the same entitlements under employment rights legislation as Irish workers. This Government amendment copperfastens the position. It was necessary to amend the Long Title of the Bill as a consequence of this amendment.
Section 21 provides for an amendment of section 14(2) of the Protection of Employment Act, 1977 – relating to collective redundancies – to increase the amount of the fine provided for therein from £3,000 to €12,500, in regard to an indictable offence.
As Minister with responsibility for labour affairs, I am satisfied that the right to reasonable conditions of employment should and will continue to be enshrined in employment rights legislation. It is our duty as elected and accountable legislators to take a proactive approach in ensuring that any such future legislation reflects the needs and expectations of both employees and employers, is framed in such a way as to respond to the needs of society as a whole, and reflects the ongoing changes taking place at a great pace in the labour market.
The Protection of Employees (Part-Time Work) Bill, 2000, is without doubt a major change in our employment rights legislation and will, I firmly believe, change the employment landscape in the years ahead. There is an obligation on us as legislators to move ahead with its swift passage through the Houses. There are some 284,000 part-time employees waiting for its enactment so that they can continue to work in the knowledge that they will for the first time have statutory entitlements which will facilitate their continuation in employment and encourage even higher numbers of part-time workers on to the labour market in the years ahead, for the reasons I have outlined above.
I thank Members for their attention and I commend the Protection of Employees (Part-Time Work) Bill, 2000, to the House.