Protection of Employees (Part-Time Work) Bill, 2000: Committee and Remaining Stages.

Sections 1 to 6, inclusive, agreed to.

SECTION 7.

Dr. Henry

I move amendment No. 1:

In page 8, lines 10 to 17, to delete subsection (4) and substitute the following new subsection:

"(4) In the case of a part-time employee placed by a temporary work agency at the disposition of a user enterprise, the comparator worker shall be a comparable full-time employee in the user enterprise.".

The Minister discussed this in considerable detail on Committee and Report Stages in the Dáil but I urge him, given that there is still time to bring the Bill back before the Dáil, to reconsider this serious flaw in the Bill. I doubt that the directive intended agency workers to be excluded. Senator Cox said on Second Stage that she has an agency and I am sure she would not like the people she puts forward for employment to be in a more invidious situation than the people directly employed by an enterprise.

The amendment is simple. Rather than have agency workers who are temporary compared to agency workers who are permanent, it provides that agency workers who are temporarily employed by an enterprise should be compared to full-time employees of that enterprise. People who may be employed through agencies are in a fragile position when it comes to enforcing their rights because some agencies may not be as good as others.

The reason I feel so strongly about this issue is that I work in the medical services area where a considerable number of agency workers are employed. A large number of nurses, hospital helps, paramedical staff and even medical staff are employed on an agency basis and I believe I must speak up for them. They will not have the same rights unless the Minister accepts the amendment. I am also anxious about this matter because many of these workers are women. With the downturn in the economy, agency workers will be increasingly employed in everything from the retail trade and manufacturing to schools because enterprises might not be anxious to take on the full responsibilities this Bill, rightly, imposes with regard to part-time workers.

It is a good Bill; nobody is criticising the Minister for it. However, there is a loophole in this area and with the downturn in the economy many enterprises might feel it is wiser to employ people on an agency basis rather than directly.

Mr. Costello

I support the amendment. Most contributors to the debate on Second Stage focused on this apparent loophole which would allow the thrust of the Bill to be derailed. The purpose of the Bill is to prevent and remove discrimination against part-time workers where such exists. However, if one confines the comparison to agency workers, one is creating a new category of worker which could have the effect of allowing the discrimination to continue. The Minister must ensure that the comparator is other workers within the enterprise or comparative enterprises.

During the debate on Second Stage the Minister gave figures for the number of part-time workers. There had been an increase in the numbers between then and when he originally introduced the Bill. I believe the increase was between 5,000 and 6,000.

Minister of State at the Department of Enterprise, Trade and Employment (Mr. T. Kitt)

The figure I gave for full-time part-time workers was 291,000.

Mr. Costello

Yes, but that was already an increase since the Minister originally—

Mr. T. Kitt

It was an increase of 7,000.

Mr. Costello

That increase occurred in a short space of time. With the downturn in the economy, the likelihood is that there will be a further increase in the number of part-time workers and in the number of agency workers coming on stream. This is a major and increasing area.

If the existence of potential loopholes is a serious concern in the Dáil and in this House, the Minister should respond. It is not difficult to put together an amendment that would protect against discrimination. I am sure the Minister wishes to ensure that discrimination does not take place. When this legislation is passed, we may find that workers lose out because we allowed the comparison to take place purely with agency workers. If the equivalent of a black economy for part-time workers is created and if the purpose and principle of the legislation is defeated, we have done a bad day's work. I am concerned that agencies would look at this legislation and see what we have been pointing out, and that they would act in that regard. It is cheaper for employers and agencies to act in such a way.

We need to look carefully at the legislation before allowing it to go through this forum. The Minister has indicated that he knew that European Union proposals would come up in the short-term to deal with this matter. Should we wait for European directives? We do not know if there will be a directive. Why not deal with the matter now? It is no skin off anybody's nose to put in an amendment that covers the concerns. This legislation is one year in gestation so we can, if necessary, wait a few more weeks. If not, let us introduce the amendment now.

Ms Cox

I declare my interest in this area. The company that I manage in Galway, in addition to my work as a Senator, is a recruitment agency. I am glad to speak on this issue because a lack of understanding of the role of agency workers and agencies seems to lie behind this amendment. There seems to be misunderstanding as to what agencies do.

An agency worker is generally paid by the agency and the agency must negotiate the rate workers are paid, as well as negotiating their fee. It is in the agencies' interest to get as high a rate as possible because their fee is generally a percentage of the base rate paid to the employee. It is inconceivable that part-time workers would measure themselves against other part-time workers in an existing company when they are only there on a temporary contract basis. Agencies often put in workers who are over-qualified or under-qualified. It is generally a temporary arrangement. That is the reason employers use agency workers. It is not possible to draw appropriate comparisons between a part-time worker who has been put in by an agency and a part-time worker who is already in a company. There may be different levels of knowledge and skill, different lengths of service and other criteria that are in no way comparable when it comes to setting out the rate per hour, even though the job done may be the same for different workers.

I was president of the National Recruitment Federation and I know that most of the agencies that operate in Ireland do so in good faith and treat their workers well. While they welcome the legislation as it is set out, it is only fair that agency workers are compared to other agency workers, not necessarily within the same agency, and the legislation allows for this. Then, it will be possible to compare one agency worker with another who works for a different agency. That is the way to go.

If we make the changes suggested in the amendment, we are in danger of making the agency business, which is important to our country, untenable. It just would not work if these changes were made. This has happened in a number of European countries, including Germany and France, where it is practically impossible for agencies to operate their business. A platform of rules and regulations has been made which have changed the temporary business completely.

Some people might say that it is better not to use agency workers but there is a body of people who enjoy agency work. It suits them to work for three or four months of the year for personal reasons, particularly in the case of women as Senator Henry has said. They can work around school holidays or take a summer off. They can earn good money on a short-term basis or can spread it out over a longer term. Young people can travel in Ireland and abroad. People coming from places such as Australia and New Zealand can work here under the agency system.

I would do anything to ensure that workers are protected – this Bill will do that – and that the agency business, which contributes to our economy, is also protected. While I understand the points made by Members, I suggest that the points come from a misunderstanding of how agencies operate and how employees are treated. While I would not stand over any employee being mistreated or abused by any agency, that does not happen. The comparisons and safeguards that the Minister has put in the Bill by identifying this category of worker is enough to safeguard them and the industry. If the Bill is to work, there must be a win-win situation for all the players involved.

Mr. Coghlan

This is a good and necessary Bill. This amendment, far from taking from it, will strengthen the legislation. It will guard against discrimination rather than, as could be the case without it, encouraging the black economy. That would defeat the Minister's purpose in this well-intentioned legislation. We are all aware that there has been a downturn in the economy. Increasingly, employers will want to work through agencies as they cut back on full-time staff. The number of agencies has been on the increase in Ireland and throughout the free world.

Notwithstanding what Senator Cox has said – I bow to her superior knowledge in this sphere – not all agencies operate to the high standards of Senator Cox's agency. In my limited experience of this area, agencies want to sell on and take their commission. They do not want to hold on to their problems. I am sure Senator Cox takes an interest in her workers and in their future. Not all agencies will operate to those high standards. As Senator Henry has said, nursing and medical staff are increasingly working through agencies, both here and abroad.

This is a good and useful amendment that will strengthen the legislation. I am happy to support it.

Mr. T. Kitt

I thank Members for their contributions on this amendment. I will again outline the Government position. The concerns raised in amendment No. 1 have been raised by the ICTU. It feels that in the case of a part-time agency employee performing his or her work in an enterprise other than an agency, it should be possible for an employee to compare himself or herself with a non-agency full-time worker in that enterprise. As I informed the House on Second Stage, negotiations took place over the past 12 months at EU level between the European Trade Union Congress and the CEP on the rights of temporary agency workers. It is obviously an issue that needs to be addressed and it is being addressed at European level. The discussions collapsed because the parties could not agree a definition for the comparison of agency workers. The EU Commission now proposes to introduce by the end of this year a new directive on agency workers.

The first meeting of the national experts to discuss the proposal took place on 15 October 2001 in Brussels and at that meeting member states were divided as to whether a temporary agency worker should be able to compare himself or herself with another agency worker in the user enterprise or with a comparable full-time employee in that user enterprise. In light of this development, the Commission undertook to consider the issue further before publishing the proposed directive which, I understand, will require to be agreed at Council of Ministers by a qualified majority and also agreed at the European Parliament under the co-decision procedures laid down in the Maastricht Treaty. Given the above uncertainty at European level, I propose to retain section 7(4) of the Bill as currently drafted and, therefore, I do not propose to accept amendment No. 1.

This does not mean, as has been alleged, that temporary agency workers are excluded from the Bill. I think people are clear on this. It means that such a worker cannot for the present, pending the EU directive taking a position on this issue, claim a full-time employee in a user enterprise as the comparator for any purpose. However, a part-time temporary agency worker may under the Bill compare his or her pay and conditions with those of another full-time agency worker in certain circumstances whether or not employed by the same agency. This very provision is contained in section 7(2) of the Employment Equality Act, 1998, so there is consistency here in regard to legislation.

My officials, on my instructions, are very active at EU level in trying to find a reasonable formula. For example, there is a suggestion, which has merit, that a part-time employee with a contract for three or six months could have as a comparator a worker, a full-time employee, in the user company. As in any situation, there is always some middle ground one can pursue. I suggest that and do not have any more to say on it at the moment. It is reasonable for me, as Minister, to say we are leaving section 7(4). We are not excluding temporary agency workers. Senator Cox articulated the position very clearly and I thank her for that. We are leaving that position but we are very actively involved at EU level in looking for a possible solution and we will revert back to Members as soon as we find it.

Dr. Henry

The Minister of State has given us a very good explanation. We should try to help him by pushing this amendment because then he will be able to say there is trouble back at the ranch. When he goes to these meetings, he will be able to say this is an urgent issue. I know discussions have been going on but the unfortunate thing I find about EU discussions is that it is frequently live horse and you will get grass. It may take the Minister of State and his officials considerable time to get something done. Sometimes looking at this Bill I think that if people could be employed on a casual basis, they would be better off. We should help the Minister of State by showing that we are all behind him in getting something done about these agency workers.

Mr. Costello

I agree entirely with Senator Henry. We should give maximum assistance to the Minister of State on this matter.

Mr. Coghlan

We are all wearing the green jersey.

Mr. Costello

It is not so long ago since an agency recruited a large number of Filipino nurses, brought them to this country and put them up in substandard accommodation in Gardiner Street which was condemned subsequently by the local authority. They were paid only a fraction of the money paid to their counterparts doing the same work in the various hospitals. I have no doubt the agency got a fee for this, negotiated the rate with the health boards and put them up in those conditions having negotiated with some landlord. All that was unsatisfactory.

A recruitment agency is a third party service that gets people for employers. Whether the employer employs them directly or whether he or she, or a corporate entity, gets an agency to do it, they are employees. Why should we distinguish because of the method of employment? Recruitment agencies have mushroomed in the past ten years although they hardly existed before. Why should this category of employee, who comes under the auspices of an agency, be different from any other category of employee recruited directly? That is my problem with this.

The purpose of the legislation is to prevent discrimination between employees working on a part-time basis and permanent employees in terms of work and conditions, yet the first thing we do is say this is a new method of recruitment with which we cannot interfere. People recruited under this method will be in a little world of their own given that they can only be compared to each other.

I asked the Minister of State if he could give us an idea of the number of part-time or whole-time workers recruited through agencies. On the 291,000, do we have any figures on that, for example? The Minister of State may not have them but they would give us some indication. I would say quite a lot of them – perhaps 50% or more – are recruited through agencies. We are talking about a substantial number of people whom we choose to leave outside the remit of this legislation. We are saying they can only be compared to each other rather than those in mainstream employment.

It is not good enough to say the European Union will do something. The procedure about which the Minister of State spoke could be very lengthy and it could be some time before we come back to this. I am not happy with that and I understand why congress was very concerned about the matter because I think we are legislating for a new black economy – the area of agency worker. Everybody will recruit workers on a part-time basis through agencies because they will be able to treat them less favourably than if they employed them directly. We have no choice but to push this amendment.

Ms Cox

On the issue of the Filipino nurses, nobody working in a recruitment agency would condone any of that. However, the amendment we are discussing would not have made any difference to what happened to those Filipino nurses. Those nurses were recruited to work here on a full-time basis, not part-time. This amendment is not relevant to that. Senator Costello mentioned that their accommodation was condemned, and that is very emotive, but it is completely irrelevant. It was disgraceful that it happened and something should have been done regarding the people responsible. I do not know if the Department followed it up and whether they were fined.

Mr. Costello

My point was to show there can be bad standards under the auspices of agencies.

Ms Cox

When we enact tax and company law, one of the key factors is that the legislation is workable. It would be unworkable for agency workers to be compared to other people working in the same company doing the same job on a part-time basis because they are not the same. Agency workers sometimes get paid more than the person doing the job previously or they sometimes get paid less because they have a different level of experience. Most of the time, they get paid a rate which reflects the job being done. Senator Costello made the point that it is in appropriate to compare them to each other. Would he not compare the rate for a part-time carpenter with that for a part-time carpenter elsewhere? That is what he would do if he was trying to get a rate for a carpenter. In that case, is an agency worker not entitled to be compared to an agency worker elsewhere?

There are many different benefits for agency workers compared to full-time employees in organisations. Let us consider the level of protection afforded by this Bill in the light of our role as both legislators and people who have to try to implement it. For example, in terms of legal secretaries rather than carpenters or nurses, it is possible for a part-time legal secretary, under the provisions that have been put in place by the Minister, to say to her employer: "I am a part-time legal secretary working in company A. I am paid £10 per hour. The legal secretary who works in company B for a different agency is paid £15 per hour. Why am I not paid that amount?" That is eminently more sensible than comparing her to a legal secretary within the organisation.

That is the way the legislation is drafted. The Minister can say that is the position but an agency might not be happy with it because it puts additional competitor pressure on it when it is trying to work. However, that is the position. A legal secretary can compare himself or herself to a part-time legal secretary, a part-time account ant, a part-time nurse or a part-time carpenter who is working somewhere else for an agency.

Mr. Costello

But only an agency. One cannot go beyond that.

Ms Cox

However, given that I am an agency worker and chose to work with an agency—

Mr. Costello

There is no such thing as an agency worker. A worker is a worker.

Ms Cox

The same argument applies to a carpenter. Returning to that argument, I would be afraid if this amendment was passed.

Dr. Henry

It will not be.

Ms Cox

I know it will not be passed. If it was correct, I would support it. However, it is not correct. It contains a fundamental misunderstanding of the role of agency workers and the benefits that accrue to them. I would prefer if the amendment was not pressed because it would create difficulties for recruitment agencies and people who choose to work on a part-time agency basis. We should compare carpenters to carpenters and agency workers to agency workers. That is the way the legislation has been framed.

Mr. Coghlan

I support Senator Cox and bow to her superior knowledge generally on this matter, but we are not comparing like with like in the examples she gave. There might be a little touch of monopoly-of-wisdom syndrome.

Ms Cox

We are comparing like with like. With regard to agency workers, we are comparing temporary secretaries to temporary secretaries.

Mr. Coghlan

There are so many variations.

An Cathaoirleach

We must conduct the debate in an orderly fashion. Senator Coghlan has the floor at the moment.

Mr. Coghlan

I am always obliged to have the protection of the Chair. I will not discuss the issue further. There is great merit in the arguments of Senator Henry and Senator Costello, which I salute.

Mr. T. Kitt

Senator Cox articulated my views on the matter and I commend her for doing so. She has rightly taken some time to do that. Obviously, the Opposition is entitled to table amendments. That is its prerogative and I think the amendment will be put to a vote. However, that should not detract from the fact that this is good legislation relating to part-time workers generally and it will be welcomed. It has been welcomed already by many groups and I look forward to its enactment.

Agency workers are a particular type of worker. Many people like working in that area. Senator Costello asked about the number of agency workers. We do not have a figure, but the number of agencies has increased from about 200 some years ago to about 600 today. That gives an indication of how many agency workers there are and demonstrates that many people like to work in this way. The agency is the employer so there is not a normal employer-employee relationship.

Earlier I mentioned what might happen at EU level and I will clarify those statements. They are only suggestions, but one is that somebody with a contract for three to six months could be compared to a fellow agency worker. A person with a contract for perhaps more than six months could be compared to the worker in the user enterprise. They are some of the ideas being mooted at present. I am sticking to my position and the Opposition is sticking to its view so we will have to leave the issue to the House.

Ms Cox

With regard to the numbers, no information has been collected so I am speaking from my own experience. Most agency workers do not work part-time. Most part-time workers are not agency workers. Given that there are 291,000 part-time workers in the country, probably less than 10% of that group work for agencies, not 50%. The nurses and the medical staff referred to by Senator Henry are not part-time workers.

Dr. Henry

Yes, they are.

Ms Cox

They are temporary. I do not believe the number is as high as 50%, as Senator Costello suggested.

With regard to the issue of comparing one job to another, what if one was doing a part-time job in an organisation and there was nobody else within that organisation to whom one could compare oneself? One could compare oneself to another agency worker working in a similar organisation. That is where the comparison has true validity because one is comparing like with like in that respect.

Dr. Henry

The legislation is good, but Senator Cox has convinced me that I must press the amendment because many of the people who are employed in nursing in particular are part-time employees from agencies.

Mr. Costello

Senator Cox summed it up by saying carpenters should be compared to carpenters and agency workers to agency workers. This is precisely my problem – workers must be compared to workers. How they are recruited is not the point. What is important is their pay and conditions. We want to ensure in this legislation that people who work in a part-time capacity are paid fairly and that their conditions are fair. The same applies to full-time workers. To say that agency workers can be compared only to agency workers is confining matters to the detriment of workers.

There is a serious problem to be addressed in this regard. Although Senator Cox will talk about the problems she deals with in her recruitment agency, as legislators we are concerned about the overall benefits to workers – all workers, not just agency workers. It is a problem that will give rise to discrimination in the future. We could close this loophole now if the Minister of State, at this eleventh hour, had a change of heart.

Ms Cox

I do not want to push the point and make the Opposition Members more convinced than they already are because we have done so much in this House by way of consensus, but I am not certain about their definition of "part-time". The nurses and the medical staff to whom they referred are temporary employees working 35 or 39 hours per week, not those working eight, ten, 12, 14 and 20 hours.

Question put: "That the words proposed to be deleted stand."

Tá

Bohan, Eddie.Bonner, Enda.Callanan, Peter.Chambers, Frank.Cox, Margaret.Cregan, JohnDardis, John.Farrell, Willie.Finneran, Michael.Fitzgerald, Liam.Fitzgerald, Tom.Fitzpatrick, Dermot.Gibbons, Jim.

Glennon, Jim.Glynn, Camillus.Kett, Tony.Kiely, Daniel.Kiely, Rory.Lanigan, Mick.Leonard, Ann.Moylan, Pat.O'Brien, Francis.O'Donovan, Denis.Ó Fearghail, Seán.Ó Murchú, Labhrás.Ross, Shane.Walsh, Jim.

Níl

Coghlan, Paul.Coogan, Fintan.Cosgrave, Liam T.Costello, Joe.Doyle, Joe.Henry, Mary.Jackman, Mary.

Keogh, Helen.McDonagh, Jarlath.Manning, Maurice.Norris, David.Ridge, Thérèse.Ryan, Brendan.Taylor-Quinn, Madeleine.

Tellers: Tá, Senators T. Fitzgerald and Gibbons; Níl, Senators Costello and Henry.

Question declared carried.

Amendment declared lost.

Section 7 agreed to.

Sections 8 to 21, inclusive, agreed to.

Schedule agreed to.

Title agreed to.

Bill reported without amendment and received for final consideration.

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

Mr. Costello

To benefit from this Bill by accruing pension entitlements and other benefits, part-time workers have to work 20% of what was originally eight hours, but is now 20% of the normal working week. What happens when the normal working week is flexible? On Second Stage, I spoke about teachers who have a minimum weekly working time of 18 hours and a maximum working time of 22 or 23 hours. Does the Bill refer to 20% of the minimum hours, 20% of the maximum hours or 20% of mean working hours?

An Leas-Chathaoirleach

I advise the Senator that we have passed Committee Stage, but I will allow a short query.

Mr. Costello

I thought the Chair would be generous as I missed my chance to raise the matter on Committee Stage.

Mr. Coghlan

I thought we were winding up our consideration of this Bill.

An Leas-Chathaoirleach

We have wound up.

Ms Cox

We had a vote on Committee Stage to wind up.

Mr. Coghlan

As I said earlier, this is a good and necessary Bill, which I welcome. Senator Henry tried to strengthen the Bill with her amendment, but the vote was lost. I compliment the Minister of State, Deputy Tom Kitt, and his officials. They helped the passage of the Bill by answering some queries before it came to the House and I thank them for their courtesy, kindness and help.

Minister of State at the Department of Enterprise, Trade and Employment (Mr. T. Kitt):

Having checked the matter for the Senator, I have established that the figure of 20% refers to comparable workers. A worker may, for example, be compared to someone working 16 hours per week, so he or she would have to work four hours each week to benefit.

Mr. Costello

It is fine if we can be as specific as that, but there may be problems with jobs where there is a minimum and a maximum working week. A full-time secondary school teacher's working week can vary between 18 and 23 hours. Teachers are said to work in a full-time capacity if they work in the classroom for 18 hours each week, excluding hours worked supervising students or correcting examinations. I presume the Bill refers to hours worked in the classroom, but that may not be the case. There may be a need to clarify this issue, particularly as the Minister of State has proposed supervision as part of a teacher's duties.

If a full-time employer—

An Leas-Chathaoirleach

We have passed Second and Committee Stages.

Mr. Costello

If a minimum and maximum number of hours are stipulated as regards what constitutes full-time employment, how will we determine the 20% level? Is it 20% of the minimum number of hours?

Mr. T. Kitt

If there is a problem, an employee would have the right to go to a rights commissioner. However, there would have to be objective reasons for not offering the employee comparable treatment. That is the law. The protection is there.

Ms Cox

I thank you, a Leas-Chathaoirligh, for the latitude you allowed Members who were seeking clarification on Final Stage. I also thank Senators Costello, Henry and Coghlan for their informed debate on the Committee Stage amendment which gives us food for thought in terms of the kinds of protections we need to put in place. The amendment was lost, but the power of their argument was such that it will be taken into consideration and will assist the Minister of State in his deliberations at European level.

I thank the Minister of State and his officials for their assistance. Senator Coghlan referred to the fact that this Minister of State and his officials are most helpful and co-operative when Senators are preparing to deal with legislation in the House. They set an example which I sometimes wish was followed by other Departments.

I welcome the fact that this legislation has been passed by the House. The Bill will complete and confirm the protection of workers. One of the reasons for our competitive edge is that we provide an environment in which business can thrive, but we also ensure that workers at every level are adequately protected. I welcome this.

Mr. Costello

I compliment the Minister of State on this fine legislation which is welcome. The Minister of State and I differed on only one issue and I hope his proposals regarding work in progress at EU level will come before the House before too long so we can resolve this issue. I also thank his officials for their courtesy.

I had better not fail to mention Senator Cox's considerable contribution to this issue. If I ever become an employer I may consider establishing a recruitment agency.

Ms Cox

If the Senator does not do so, we will be sure to place him.

An Leas-Chathaoirleach

Senator Avril Doyle was not in the House for the main debate on the Bill, but I will allow her one minute.

Mrs. A. Doyle

I was elsewhere, a Leas-Chathaoirligh, but I have a mandate to be here. I thank the Minister of State for this Bill which adds to legislation already on the Statute Book.

The workplace has changed dramatically for us all, but particularly for the younger generation. Many people no longer work from 9 a.m. to 5 p.m., Monday to Friday. I thank the Minister of State for protecting part-time workers so their work can become a real part of their lives. These workers make an important contribution to the economy.

Mr. T. Kitt

I thank you, a Leas-Chathaoirligh, and Senators for their contribution to this legislation. We have been working on this Bill for some time and 291,000 people will be better off as a result. We had a good discussion on all aspects of the legislation.

I also thank my officials who have been working with me on this and other important legislation. Senators will recall that we dealt with the Carers Leave Act not so long ago. Such legislation deals with the reality of the workplace and allows for more flexibility and, in many cases, family and people friendly conditions for workers.

On the way into the Chamber one of my officials tripped on a step and dislocated his finger. He stayed with us for the earlier part of the debate, but is now being treated in hospital. That is an indication of his dedication, but he is one of the many officials who worked with me on this issue for some time and we wish him well. Thankfully the injury is not too serious. Officials have been working with me on this legislation for some years and I thank them on my behalf and on behalf of Senators.

Question put and agreed to.

Seanad Éireann debate - Thursday, 6 Dec 2001