Seanad Éireann debate -
Wednesday, 12 Mar 2008

Vol. 188 No. 23

Protection of Employees (Agency Workers) (No. 2) Bill 2008: Second Stage.

Senator Alan Kelly

I move: "That the Bill be now read a Second Time."

On behalf of the Labour Party, I am delighted to introduce the Protection of Employees (Agency Workers)(No. 2) Bill. This is an exceptionally important Bill to provide for the protection of agency workers, to require the principle of equal treatment to be applied in respect of their employment, to make provision for the enforcement of their rights and to provide for connected matters. The EU has been working on a draft directive for the protection of agency workers since 2002. This has been blocked by a minority group, which disgracefully includes Ireland.

The main requirements of the proposed directive were as follows. An agency worker under the control of a client company should not have less favourable employment conditions than a similar permanent worker in the client company unless this can be objectively justified. The following employment conditions are set out in the directive: pay, working time, rest periods, holidays and holiday pay, work done by pregnant women and nursing mothers, children and young people and action taken to combat discrimination. The member country can avoid equal treatment only under very strict criteria. Client companies should give agency workers access to social services provided to permanent workers and agency workers must be informed of permanent vacancies in the client company.

The directive would have given agency workers of all strands the right to equal treatment with a comparable permanent employee on issues such as pay, working time and holidays, maternity rights and protection against discrimination. Many EU countries have already introduced measures giving agency workers equal rights in advance of the desired passing of the EU temporary agency work directive. The purpose of our Bill is similar. It is ultimately to protect agency workers, to require the principle of equal treatment to be applied in respect of their employment and to make provision for the enforcement of those rights. The Bill follows the draft directive in that it does not extend to agency workers who are paid continuously by an employment agency regardless as to whether they are on assignment with an end user.

The central concept to be defined is the issue of a comparable employee. An employee is a comparable employee relative to an agency worker if a collective agreement is in place or the end user for whom the agency worker works is the employer or an associated employer of that employee, or the employee is employed in the same industry or sector of employment as the relevant agency worker. Other stipulations are outlined in the Bill. Put simply, the basic rule set out here is that agency workers who have completed six weeks of continuous work or service with an end user or associated employer shall not, in respect of conditions of employment, be treated in a less favourable manner than a comparable employee.

The Bill also applies the pro rata principle. Where a comparable employee is entitled to receive pay or another benefit, an agency worker is entitled to receive not less than the proportion of that benefit that the number of his or her hours of work bears to the number of hours of work of that comparable employee. The Bill states that a ground is not an objective ground for refusing equal treatment unless it is based on considerations other than the status of the worker as an agency worker, the less favourable treatment which it involves for that worker is for the purpose of achieving a legitimate objective of the employee and such treatment is appropriate and necessary for that purpose.

The Bill also provides that an employer must inform an agency worker of vacancies which become available, to ensure he or she has the same opportunity to secure a position as an employee. The agency worker must be treated equally in a practical way when it comes to giving access to training opportunities, career development etc. The Bill prohibits the penalisation of agency workers who invoke its provisions.

Two additional features go beyond the terms of the draft EU directive. The Bill requires employment agencies operating in the State to maintain sufficient insurance for the payment of all obligations arising from or in contemplation of contracts with its agency workers and for the repatriation of agency workers in the event of insolvency. There is a provision for the prosecution of uninsured agencies, with fines and prison sentences if necessary. The Bill brings both agency workers and self-employed contractors within the framework of section 30 of the Industrial Relations Act 1946, which makes the terms and conditions set out in registered employment agreements binding on all persons working within a sector covered by such an agreement.

The effect of this provision is to include within the definition of workers covered by the terms of a registered employment agreement persons working either as contractors or as agency workers rather than employees if they are working for an end user who is party to or bound by a registered employment agreement relating to the conditions of employment of workers of a particular class, type or group, and the work being done is of a kind generally provided by workers of the class, type or group to which that registered employment agreement relates.

The Bill is necessary and I ask for the Seanad's support for it in order to prevent the exploitation of agency workers. Agency workers used only be involved in secretarial work etc. They were used as short-term temps to fill gaps in organisations etc. With expansion and the changing economy this all changed and we have seen the proliferation of agency workers in the hospitality industry, construction, health care etc. Agency workers became the norm in some sectors for filling jobs rather than hiring permanent replacements.

The pay and conditions of these workers are less than those of permanent workers, which means these agency workers are not getting bonuses, holiday pay, sick pay and a range of other entitlements many other workers get. This completely negates their rights even though they do the same work as their fellow employees and in some cases employers make excessive profits off their backs. We would even argue that this takes away a certain amount of their dignity and treats them as second class.

We have all heard the many cases where we were disgusted by tales of workers exploitation, including the case of Irish Ferries, the response of the IHF to the joint labour committees and the consequent issue we now have with the JLC system, and the unbelievable treatment of the GAMA workers. I would like to highlight the case of the Pakistani national who was forced to work for 60 hours a week for just €50 and was told if he complained he would lose his job. Anyone who engages in such exploitation should be named and shamed.

This is such a serious issue that the president of SIPTU, Jack O'Connor, has already said that any failure by the Government to deal with the issue of agency workers would jeopardise the future of social partnership and, knowing how passionate he is on this issue, I believe it will. He pointed to the current plight of agency workers as being comparable to slavery. The Labour Party stands firm with our colleagues in the trade union movement on this issue and I compliment unions on all their hard work in this area. SIPTU, through Patricia King and her colleagues, has been to the forefront in organising meetings on this issue around the country as part of its campaign to obtain a better deal for workers.

The founding philosophy of the Labour Party was always to promote and espouse equality. Equality is one of our defining components and I am pleased to say we have a track record in this area which continues today with this Bill. We are focusing on vulnerable workers, both migrant and Irish, who are being subjected to naked exploitation, including inferior pay and conditions. We demand an end to this. Why has the Government not acted on this matter to date? Why are we well behind almost every other country in Europe on this issue?

Let us look at what is happening among our friends in Europe. There are equal wage clauses in Holland, while in Portugal there is parity of pay between agency and permanent workers. Agency workers in Belgium must be paid the same wages as their full-time colleagues, and similar laws apply in Spain, Greece and Germany. In France, the pay of an agency worker is linked to the amount of money a post-probationary permanent employee with the same qualifications would earn in that post. French workers also get other compensations when their specific employment ceases. In addition, laws guaranteeing equal pay and treatment for agency workers have been put in place in most eastern European countries, including Poland, Romania, Slovenia, the Czech republic and Slovakia. Let us face it, even eastern European is ahead of us in this regard.

In fact, Ireland, the United Kingdom and Hungary are the only countries that still shamefully discriminate against agency workers, and they have not legislated for equal pay and conditions between these workers and permanent employees working side by side with them. Our country is a disgrace on this issue and our Government should be ashamed of itself.

If the Labour Party was in Government, this Bill would top of the list of priorities for us. That is what distinguishes our party from others. We will protect the dignity of workers and their rights to fair play. We would ensure an end to discrimination against workers by employers, and the consequent exploitation that comes with that would not be allowed to emerge under any circumstances. We will ensure equality and fair play. Equality of treatment and opportunity has been Labour's raison d’être since the party was founded in my home county of Tipperary in 1912.

People argue, incorrectly, that we do not require this legislation as we need to have flexibility of movement in the labour market in order to maintain high employment and protect the economy. This is a bogus argument, however, which encourages the bypassing of permanent workers and the hiring of more agency workers. It discourages training and skills development which help to boost labour productivity. How are we meant to build a knowledge and technology-led economy unless we provide these workers with the prospect of well paid employment with terms and conditions that show we as a country are willing to invest in their futures?

This Bill is about how we treat real people. It is about protecting the rights of some of the hardest working people in our country who are in a vulnerable situation. These people are among us every day. They get up early in the morning to do low-paid jobs and they are still working when we go to bed at night. They are on the margins of the labour market and work with little rights or protection. As a society, we collectively need to protect them.

This House, and the country at large, have a choice to make on this issue. We stand at the crossroads. We can either build a high-productivity economy, investing in people and productivity, where employees are treated with decency, or we can develop a low-pay, low-productivity economy with inequality at its base. In the Labour Party we know where we stand on this issue. Later, we will find out where all the other parties and individuals in this House stand as well.

Our party conference gave a commitment to the wider labour movement that we would move this Bill if the Government failed to act. The legislation is now before the House. Labour, the party of Connolly, Larkin and Johnson, is proposing a Bill that is fundamental to people's rights. It is fundamentally about providing equality of treatment for workers in our society. It is about giving all workers their dignity and it is about fair play. I am proud to move this Bill on behalf of the Labour Party and I commend it to the House.

Senator Dominic Hannigan

I welcome the Minister of State to the House and I wish to second the proposal that the Bill be now read a second time. In November 2002, the European Parliament issued a directive on the treatment of temporary workers. It mainly concerned ensuring fair rates of pay to temporary workers, who are growing in number and are often exploited by unscrupulous employers. Ireland and Britain were the main opponents of this directive. In opposing it they ensured that temporary workers did not benefit from such protections, including fair rates of pay. The Government's inaction is used by some employers — although not many — as a means of making excess profits on the backs of temporary workers. This form of cheap labour is unacceptable and it is time for this model to change. It beggars belief that our Government would fail to represent the interests of our workforce in Europe.

An agency worker in Ireland runs a real risk of being denied sick pay, maternity pay, holiday pay, other types of family pay, personal leave and overtime. The Taoiseach said he will introduce two distinct Bills to deal with the problem. The employment law compliance Bill will issue licences to agencies, to try to regulate the way they act, and to institute a code of practice. The second Bill referred to by the Taoiseach will empower labour inspectors. If the first Bill does not have much teeth and is simply a licensing body, and if the second Bill does not increase the number of labour inspectors — I understand there are 17 inspectors at present — then neither Bill will lead to any change to the status quo. Very little will change.

When can we expect to see these Bills? We have all learned this Government's trick — it promises to deliver legislation, while many such Bills do not see the light of day. The Government appears to be proactive in talking about introducing Bills but it does not happen. Senator Callely is smiling but there has been a dearth of legislation in this session.

Deputy Michael Ahern

There were never so many Bills as there were last year.

Senator Dominic Hannigan

I worry therefore when the Taoiseach says he will introduce two Bills. If we saw one of them it might be a way forward, but I worry about the timescales. Towards 2016 made no progress on the issue of protecting agency workers. We can see this when it comes to things like rates of pay. Temporary workers are paid two thirds the rate of full-time workers who are doing more or less the same job. Not only is this discriminating against temporary workers, it is also bad for full-time employees. During the general election campaign I came across a man in Duleek who found it difficult to get a full-time job because he was being undercut by temporary workers seeking employment. It is not just about protecting the rights of temporary workers, therefore, it also concerns the effect it has on full-time employees. There is no doubt that exploitation is happening. Recently I read about a person who sued their agency and received over €100,000 in compensation for years of serious underpayment.

The World Economic Forum says Ireland is lingering at No. 41 of 130 countries as regards the equality of distribution of rates of pay. A recent OECD survey found that Ireland has one of the top ten least protected labour markets, but nothing has been done to change that. Our failure to implement this directive has made things even worse than most other European countries. As Senator Kelly said, temporary workers should have employment rights. We cannot continue to grow our knowledge-based economy unless such protections are in place to prevent a cheap and unregulated supply of labour.

Our Bill calls for such things as a balance of rights between temporary staff and full-time, permanent workers. It sets down a maximum amount of time before which a temporary worker becomes employed directly by the employer. It also allows temporary workers to organise a union. The Bill demands that insurance is put in place so that if a temporary agency goes out of business the temporary worker's pay will be protected. These protective measures are nothing more or less than basic working rights. It is time to help these workers and, if enacted, the Bill would put the employment of temporary workers on a fair footing.

The Government's inaction on this matter is reprehensible. In addition, its refusal to allow the introduction of the EU directive is indefensible. If the Government is serious about protecting our workforce, temporary and permanent, it should support this Bill.

Minister of State at the Department of Enterprise, Trade and Employment (Deputy Michael Ahern)

I oppose the Second Stage reading of the Protection of Employees (Agency Workers) (No. 2) Bill 2008. However, I can advise the House that the subject matter of this Private Members' Bill is to be considered with the social partners in the course of the forthcoming pay talks. A number of significant matters require to be considered with the social partners and the Bill before the House is premature in this context.

I note the contents of the proposed Private Members' Bill, the stated purpose of which is to provide for the protection of agency workers, to require the principle of equal treatment to be applied in respect of their employment, to make provision for the enforcement of their rights and to provide for connected matters. It seeks, as a general condition, to provide that employment agency workers who have completed six weeks of continuous work or service with an end-user or associated employer shall not, in respect of conditions of employment, be treated in a less favourable manner than a comparable employee.

Senators may be aware that the issue of equal treatment is at the heart of the stalled draft EU directive on temporary agency work which did not win sufficient support at the European Council in Brussels on 5 December 2007. The draft directive proposes that equal treatment with regular employees in the end-user enterprise to whom agency workers are assigned would apply, except in respect of short-term six-week assignments, which is similar to that now being proposed in the Private Members' Bill. However, the directive provides a form of derogation from equal treatment in terms of pay for member states which have in place legally binding collective agreements negotiated by the social partners at member state level. This means that in certain instances other member states can, and do, avail of a six-month qualifying period whereas countries such as Ireland and the UK, which have a different legal and industrial relations system, are subject to the six-week qualifying period. Clearly, this is imbalanced and is unacceptable in an EU legal instrument.

The Government is deeply committed to maintaining decent standards of employment and to ensuring they apply to temporary agency workers. Protection is provided already to agency workers by the existing body of Irish employment rights legislation. The issues raised in the Private Member's Bill require further consideration in the context of the forthcoming partnership pay talks and of possible further moves by the EU Presidency to progress adoption of the directive on temporary agency workers by, possibly, mid-2008.

The Government's position on the draft EU directive has been that while we support the principle of equal treatment, the most recent proposals did not have the necessary degree of balance for flexibility between employee entitlements and the needs of enterprises in a competitive market economy. A number of other member states took a similar position and the Portuguese Presidency did not push the matter to a vote, indicating an acceptance that further work was necessary.

In essence, the Private Members' Bill does not contain the requisite balance to command Government support. It goes beyond the commitments agreed in Towards 2016. The Government indicated in the course of the debate on the Private Members' motion in the Dáil on 19-20 February 2008 that the principle of equal treatment is supported and that it is accepted that the matter will be the subject of discussion in the forthcoming pay talks. While, to meet the requirements of EU law, any agreement will be primarily for the social partners, the Government will obviously have a significant role in the process and in introducing the necessary supporting legislation. Any such talks will need to consider not alone the qualifying period for equal treatment but the constituents of equal treatment, namely, the various entitlements to be included in any package. The FDI sector, in particular, is concerned about any possible measure which might require enterprises to offer permanent employment to temporary agency workers following a specific period of employment.

It was intended that contributions from the Government side to the recently debated Private Members' motion in the Dáil would form part of a discussion on where we might want to go as a society and how best we might proceed. In summary, we are discussing an aspect of changing employment structures and relationships in an evolving market economy and it is accepted that the rate of change experienced in this economy in recent times can, in some areas, lead to unwelcome imbalances. In addressing emerging challenges in such periods of change, Government must try to establish where the broader public interest lies at any given time. Governments must consider the impact of specific decisions on wider society and these decisions should have an eye to the longer-term consequences of short-term decisions. It is important to remember that agency working as such has a very legitimate role in an economy such as ours and that many people benefit from the flexibility, personal freedom and good earnings it can provide. However, it is also clear that this does not suit everybody and that the very flexibility it offers can have negative consequences in some cases.

No government wants to see the emergence of agency working as the norm, to the extent it might begin to push out what might be termed "regular" jobs which provide for a stable and longer-term relationship between an enterprise and its employees and an enterprise and its host community. The longer-term development of a competitive economy and a healthy society requires the existence of a labour market where there are reciprocal responsibilities and shared benefits. Again, there is a need for a balanced approach here. Even in situations where we believe we have in place a good social protection framework, there is always a need to assess if further improvements are possible while ensuring our framework does not become so inflexible as to damage employment prospects. This is especially relevant for those attempting to get into employment for the first time or those wishing to re-enter employment following a period out of the labour market. In considering the nature and possible impact of any changes, all concerned must bear in mind the affect of such changes on a future labour market, one that may, perhaps, be more challenging than the one to which we have become accustomed in recent years.

I want now to turn to the next stage in this discussion. In the course of the recent debate in Dáil Éireann, Ministers acknowledged that talks on pay and related issues forming part of the current social partnership programme will resume shortly. The Dáil was also informed that some issues relating to the Private Members' motion before that House were likely to feature in those discussions and that the Government is always ready to participate in discussion on how further improvements can be made in legislation under preparation.

In light of some of the calls for new legislation in respect of agency working made in the course of that debate, I again emphasise that any discussions as to what constitutes "equal treatment" in any given employment relationship must take into account the legitimate expectations of workers in terms of fairness and employers in terms of flexibility. They should also have regard to the legitimate role played in a modern market economy by quality employment agencies and those who choose to work for them.

In the context of the developing Irish model of social partnership, all parties involved in such talks must accept that progress imposes responsibilities on all participants and that all must be willing to play their role in negotiating arrangements which meet, in so far as possible, the legitimate aspirations of all stakeholders and which do not damage our national competitiveness. Our social partnership model is not built on the basis of Government imposing its view on other participants. The Government has a vital interest in ensuring that eventual outcomes reflect the balance necessary to sustain long-term competitiveness. In this regard, the Government will take its responsibilities seriously. It is confident that if the right approach is adopted by all stakeholders positive outcomes for society can and will be possible.

It is noteworthy that as discussions on the issue of agency workers and the development of agency working have continued in recent months there have been a number of interesting developments at firm level. Unions and companies have been able to negotiate innovative arrangements for handling issues while continuing to facilitate the required flexibility in response to market forces. Of particular note has been the very pragmatic approach agreed in deciding how agency workers become entitled to benefit from terms of employment comparable to direct employees of the firms in question. The type of agreement reached has much in common with the incremental approach reflected in collective agreements in this area in a number of continental countries, often on a sectoral basis. I would argue that developments in Ireland on this subject should not reduce the options open to agency workers in this country nor put Irish enterprises at a disadvantage in respect of those in competing countries.

Given our particular partnership model and the EU legal dimension, it is clear that while the employer and employee representatives have the lead role in negotiating changes at workplace level, the Government has a role in assisting the social partners and in legislating for any new arrangements as may be necessary. There is a strong basis for stating that discussions on possible changes relating to agency working and the entitlements of agency workers must involve all parties to the Towards 2016 agreement and will require a pragmatic and co-operative approach from all concerned. The type of pragmatism and flexibility shown at firm level has demonstrated this is possible.

While not wishing to anticipate the outcome of any future talks, it may be that elements of an agreement may be best addressed at firm level because it is at that level that enterprises and their employees have the keenest appreciation of their situation, strengths and vulnerability. What may work for one company may not work for another. While legislation may be appropriate or necessary in some situations where there is agreement at partnership level on a principle or a basic workplace entitlement, some flexibility in regard to lesser detail may be more appropriately left to agreement at firm level.

This is a complex issue which will be considered further in the forthcoming pay talks. In the circumstances it would be neither prudent nor appropriate to offer support to the Private Members' Bill before the House, no matter how well intentioned it might be. A successful resolution of the matters at issue requires a broader, more carefully thought-through approach. The Government intends to ensure this happens.

Senator Paschal Donohoe

I wish to quote from someone who knows a great deal more about these matters than I do. He wrote, "As awesomely productive as market capitalism has proved to be, its Achilles' heel is a growing perception that its rewards, increasingly skewed to the skilled, are not distributed justly." The writer of those words is Alan Greenspan, the recent chairman of the Federal Reserve. By the use of that description he captured the insight that some people are not being treated fairly and are not benefiting from the fruits generated by our market economy. Our failure as politicians to deal with that issue could reduce the support our community and country has for the operation of the free market economy in the long run.

Alan Greenspan easily sits on the far right of our political spectrum. He is a libertarian in his views. If he has identified a weakness in how some workers are rewarded for their enterprise and effort and that not addressing it will become an issue for our society, that offers an insight, which means the Bill introduced by my colleagues in the Labour Party is worth supporting. While I have some questions about the operation of the legislation, its objective in seeking to introduce equality and fairness in the treatment of a portion of our workforce, which is currently lacking, must be supported.

In preparing my contribution I spent some time trying to ascertain the number of agency workers in Ireland and given that we and opponents of this approach spend much time justifying a flexible approach to our economy, with which approach I mostly would agree, I would have thought that time would have been devoted to identifying the portion of our labour force which is vulnerable in the way that has been identified in the Bill. I was disappointed I could not ascertain those figures. I took time to go through the last annual FÁS labour report which provides statistics on every aspect of the labour market, whether on gender or age, but from my perusal of it I was not able to find that information. I can see a flurry of paper on my left and predict that those figures may be produced at a later stage in this debate. They did not receive the prominence and weight I would have expected them to receive.

We must acknowledge that the flexibility and creativity of our market economy play a vital role in sustaining our society. We also must acknowledge that since 1998 a phenomenal 600,000 jobs have been created. Flexibility plays an important role in such job creation. The important issue is to ensure a proper balance is struck between making an ethical judgement on how the labour market performs while acknowledging that the labour market needs to perform, generate opportunities and drive wealth creation. We have not struck the right balance. I can think of no greater symbols to illustrate how that balance is wrong than the issues raised concerning the Turkish workers in Gama in this country and the treatment of workers in Irish Ferries. If we accept that an economy must be embedded in a moral framework within which there are basic thresholds for the treatment of people, we must acknowledge those episodes were fundamentally unacceptable. Strong legislation is required to deal with these issues and to ensure such incidents do not recur.

Many of the issues raised clearly deserve action and merit the support of this Bill. I refer to such issues as sick pay, holiday entitlements and when a person's employment can be terminated. The current conditions for these workers are unacceptable. I speak as someone who employed agency workers in a former life and recognised the role they could play in the operation of the organisation for which I was responsible. The limitations in terms of how they were rewarded and treated were apparent to me as an employer.

A number of questions merit further investigation if this Bill is to progress further. One is the question of payment and the principle of equal payment. There is a framework as to how workers are paid. There is a basic threshold of a minimum wage which people need to survive and that should be adhered to at all times. Beyond that, there is complex framework in terms of how good a person is at his or her job, his or her level of performance, the length of time he or she has been working and his or her qualifications. Such considerations give rise to a number questions that should be addressed in this Bill, but from my reading of it, they do not appear to be.

For example, if I were a permanent worker employed in a company for ten years, had acquired qualifications for which I had received an increase in salary, had performed in such a way that had resulted in my receiving salary increases and was loyal to that company, should a temporary worker who came to work in that company be paid the same salary? The answer to that question is "No". Monetary rewards should be in place that reward performance, experience and longevity of service. The principle of equal payment is a blunt one in that it does not recognise the merits and factors that drive the level of pay of permanent workers.

We need to be careful in ascertaining those who constitute agency workers. It is important to address the lack of information in that respect. Many agency workers are paid more than permanent workers because they are willing to take a risk, to be unemployed for some periods and have no pension contributions, which is an essential point. Many agency workers are paid more than permanent workers to justify the lack of those provisions and reward the decisions they have made. I read the relevant sections of the Bill carefully and an implication of it is that people who work in particular sectors would be disadvantaged as a result of its implementation. However, this Bill recognises that we are more than an economy; we are a society. For an economy to perform well, there are standards and objectives that must be delivered to ensure people's work is recognised. Given that, we support this Bill.

Senator Ivor Callely

I congratulate my Seanad colleagues in the Labour Party for putting this Bill before the House. It provides for the protection of agency workers, requires the principle of equal treatment to be applied in respect of their employment, provides for the enforcement of their rights and for connected matters. I also thank the Leader of the Seanad, Deputy Cassidy for his accommodation, without a division and in the spirit of unity of purpose, in having this Bill before the Chamber to facilitate discussion.

In a rapidly changing global environment of work and working relationships, newer forms of employment and management pose new challenges for legislators. There must be open discussion and consultation with all stakeholders. This is all the more important in times of economic difficulty and uncertainty such as we are experiencing. We open this debate with confidence in our cause, goodwill towards our objective, satisfaction that we have achieved much in this area, especially in the past decade, and are in preparation for further considerable improvements in the protection framework for workers.

We have made good progress in the broad sense but we must continually review and take account of changing trends and needs in the workplace. Much has been said and reported about agency working. I listened with interest to Senator Donohoe's comments about higher rates of pay and so on. Much of what has been reported and said includes an undercurrent of concern about exploitation. It is essential, therefore, that whatever further protection measures the Oireachtas considers and agrees reflect the current realities based on the available evidence and statistics. In principle, the Government is committed to equal treatment. I listened with interest as the Minister of State, Deputy Michael Ahern, spoke about the Bill. I agree with his remarks on the six-week qualifying period and the need for a definition of equal treatment.

Senator Kelly spoke about the opportunities before us, the great labour movement, the priority of this legislation and the fundamental importance of putting something in place. He and Senator Hannigan indicated that Ireland and the United Kingdom had delayed the legislation at EU level. That is not the case. There was no vote on the matter and a consensus emerged that it was not opportune to proceed. Moreover, I understand the Government is on record as indicating a desire to see progress and a balanced outcome on the matter.

I have genuine concerns about the six-week period. It is important when making comparisons with other countries that we do so to the fullest extent possible. My understanding is that some of what was alluded to by Senators Kelly and Hannigan would not be compatible in terms of what is applicable in Ireland compared with some of the other countries mentioned. They would have derogations and exemptions should this legislation be applied.

I noted with interest that we all seem to be singing from the same hymn sheet in expressing our support for providing protections. If that is the case, we should proceed with unity of purpose, with all the stakeholders fully supportive and no one being forced into a particular position. Do my Opposition colleagues propose to force a division on this Bill and, assuming it can be carried, present it to the social partners as something that will be forced upon them, like it or lump it? This is not the correct way to approach the social partnership discussions. It is not the method by which we have achieved success in our social partnership negotiations to date.

Senator Donohoe is right that it is difficult to find helpful statistics. I understand the only available data, which were compiled back in 2005, indicate that temporary agency workers represent 2% of the workforce. I welcome the commencement of work by the Central Statistics Office in this area. We will be in a good position to reflect on the existing realities when the latest quarterly national household survey is published in the coming weeks.

As the Minister of State outlined, the Department is finalising a draft section of a Bill which will require employment agencies to comply with the terms of a statutory code of practice. This legislation will strengthen and enhance further the effective enforcement of the employment rights of agency workers. Under existing employment rights legislation, agency workers, regardless of the type of work, their nationality or whether posted by the employer to temporary work overseas, already enjoy certain protections. Such workers are entitled to take complaints to the labour inspectorate and to have their case heard by the State's dispute resolution machinery, which includes the rights commissioner service of the Labour Relations Commission, the Labour Court and the Employment Appeals Tribunal.

I ask the Minister of State to clarify a specific issue for me. When the Labour Court, for example, makes a recommendation on a matter that has been the subject of dispute between an employer and employee, is the Department satisfied that there is a mechanism in place to ensure such recommendations are adhered to? I am aware of a case where the employer refuses to adhere to the Labour Court recommendation. I will not name anybody but the case number is CDO7299, recommendation LCR18977. My understanding is that the Minister is aware of this case but has stated that he cannot intervene. The recommendations of the various bodies that make up our dispute resolution machinery should be binding.

It has also been brought to my attention that legislation relating to contracts of indefinite duration may require some amendment. I was told of a woman who was much valued and appreciated by her employer. On reaching 65 years of age in November 2005, she was given a year-to-year contract. She has now been advised, however, that due to the Protection of Employees (Fixed-Term Work) Act 2003 and legislation concerning contracts of indefinite employment, she must be offered permanent employment or let go. Does this represent discrimination against the over 65s?

It is our responsibility as legislators to have a reliable and constructive debate with an appreciation of our evolving economy and its many competing demands. There must be unity of purpose and a mutual understanding of the needs of all stakeholders — employees, employers, trade union leaders, representative bodies, State and semi-State sectors and the Government. If we genuinely wish to have an improved employee social protection framework and, at the same time, tap into the maximum potential for job opportunity and creation, we must achieve this without becoming so rigidly bureaucratic as to damage either job opportunities and creation or the competitiveness of the economy. This debate will give rise to different views. I hope it will lead to the unity of purpose, mutual understanding and co-operation that are required if we are to achieve the potential that exists. The expertise, knowledge and input of all stakeholders are required if we are to ensure the appropriate protection is in place, specifically designed to bring about the right balance between the relevant competing demands.

Senator David Norris

I welcome the Minister of State, Deputy Michael Ahern. He is a decent man and I know he will not take anything I say either amiss or personally. I compliment Senator Donohoe on his outstanding contribution. While I am delivering bouquets, I compliment the Labour Party on introducing an important and socially relevant Bill. It seems to be part of a pincer movement. I notice the party introduced a similar motion in the Dáil recently and applied some pressure to the Government on this issue.

I turn to the Minister of State's speech and the remarks made by my good friend and colleague, Senator Callely, on the involvement of the social partners. We are the sovereign Parliament of this land and are not bound to be deferential to the social partners. They are citizens, as are we, but as legislators, we can instruct them.

We all may be singing from the same hymn sheet but some of us are singing out of tune. There was a rather flat note in the Minister of State's speech when he stated that the Government is committed in principle to equal treatment for agency workers. What does this mean? It means the Government will not do anything really. That is what it looks like.

Deputy Michael Ahern

We will.

Senator David Norris

It may mean the Government will do something pretty weak. I have come across promises of this nature on many occasions. The Minister of State's comment that "the Government's position on the draft EU directive has been that while we support the principle of equal treatment, the most recent proposals did not have the necessary degree of balance" is what the leader of the Minister of State's party would describe in his inimitable way in the other House as "waffle". The Government side has recognised, at least, that agency people have problems getting regular jobs. I shall return to this important aspect of the debate in a minute.

I am concerned that we have not solved the problems which led to the Irish Ferries dispute. While I was involved in the styling of the Irish Ferries'Ulysses, I refused to be involved in the styling of its new ship, Oscar Wilde, because of my concerns about the way that company treats its workers. Trade unions raised considerable questions about the apparent proposal by Irish Ferries to pay less than half the minimum wage. The company thought it would be able to get away with it by virtue of some kind of offshore arrangement until a storm was raised. It may not be happening now.

Questions remain about the manner in which 500 operatives were made redundant and had their jobs filled by temporary agency workers. There was a suggestion that the employees were working 12-hour shifts for a two-month period. The company was almost boasting about the fact that the workers did not come ashore to Ireland but instead were put on a sister ship during their time off. That is very close to slavery in my opinion. It is an appalling situation in which to be. I do not know exactly what the situation was although I am not sure anyone does. There are serious questions, however. A spokesperson for the company has said that complaints about working conditions should be directed to a Cyprus-based company, Dobson Fleet Management, which employs the crew. I find it quite astonishing that the company claims it is not responsible and refers questions to an English-sounding company that is based in Cyprus.

It is regrettable that Ireland, in nasty collaboration with the United Kingdom and Hungary, is holding up the draft workers directive by reserving its position on it. The Government can massage its position any way it wants but there does not seem to be any doubt about what I have said. I note that Senator Callely is shaking his head. I do not know what the relevant officials are doing behind closed doors, in cigar smoke filled rooms if such behaviour is still allowed under the smoking regulations. I understand that 24 of the 27 EU member states, including Romania and Slovakia, have legislated to provide for equal treatment of temporary agency workers. The three countries which have not done so are Ireland, the United Kingdom and Hungary. One of the reasons we have not done so is that we have a massive inflow of immigrants.

Senator Ivor Callely

No.

Senator David Norris

Yes, it is.

Senator Ivor Callely

The Senator is mixing it up.

Senator David Norris

I am not inviting interruption.

Senator Ivor Callely

What about the other legislation?

Senator David Norris

We have a serious and nasty problem in respect of these workers.

Senator Ivor Callely

The Senator is cherry-picking.

Senator David Norris

I could not dig out any clear research pertaining to the conditions which apply. Perhaps the Minister of State and his colleagues will be able to point us in the right direction. I have found comparable stuff from our neighbouring island, however, the attitude of which we seem to be mimicking. Agency workers in the United Kingdom are paid an average of 68% of the earnings of directly employed workers. They have fewer entitlements. They do not get basic human things like medical treatment, pensions or time off. As agency workers are younger, on average, they are more vulnerable and have less control over the work they do. Work patterns of this nature are spreading into areas such as construction, retail, distribution, transport, logistics, food processing and hotel and hospitality services in which agency workers have not traditionally been involved in this country.

There are many aspects to this interesting problem. I am concerned about the involvement of agency workers in the hotel sector, for example. While I love dearly all my fellow human beings, including Slovenians, Poles and Lithuanians, I find it rather curious to be met with halting English when I go into an hotel. People who come to this country are sometimes disappointed when, rather than getting the traditional Irish welcome, they get an eastern European saying "Yes, you want?" or something similar. Workers from other countries are pretty vulnerable because they are not always in tune with, or aware of, the employment conditions which apply in this country.

I am not sure if it has been mentioned that 520 employment agencies operate in this country which has a population of approximately 4.2 million. Poland, which has a population ten times that of Ireland, has slightly more than 700 agencies or not even twice as many as Ireland. There seems to have been a bloom of agencies on Ireland's troubled employment waters. Just ten of this country's 520 agencies were inspected in 2005. There were 21 inspections in 2006 and six in the first half of 2007, which was after the former Deputy, Joe Higgins, unearthed the problems faced by the Gama workers. The meanest aspect of this matter is that employers frequently employ agency workers for 11 months before kicking them out, which means they do not have to fulfil their obligations, and employ another set of temporary workers. Such behaviour is in flagrant defiance of the intention of the Oireachtas, regardless of whether that intention is enacted in the legislation. This is really awful.

Like my good friend, Senator Callely, I am a north-sider from Dublin. I was concerned to read an article recently written by Matt Cooper about Arnotts, which is the best department store in this city, closely followed by Clerys and to hell with the south side.

Senator Ivor Callely

Hear, hear.

Senator David Norris

Mr. Cooper wrote that it is suspected that 600 jobs will be lost during of the redevelopment of Arnotts.

An Cathaoirleach

The Senator's time is up.

Senator Ivor Callely

This is an important point. The Senator should be allowed to talk about the north side.

Senator David Norris

Irish Ferries got rid of 500 staff.

Deputy Michael Ahern

John Arnott, who founded the store, was a Cork man.

Senator David Norris

We have to watch this space to see if Arnotts, which is a wonderful firm, engages in the noxious practice of hiring agency workers when it reopens.

Senator Jerry Buttimer

Senator Norris is going for the Dáil.

Senator David Norris

I would not touch it.

Senator Ivor Callely

Well done, David.

Senator Déirdre de Búrca

I welcome the Minister of State to the House. I am pleased to have an opportunity to discuss this Labour Party Bill which attempts to highlight an important issue that requires Government attention. Temporary agency work has been the most rapidly growing form of atypical work in the EU over the past 20 years. The use of temporary agency workers has increased fivefold in Denmark, Italy, Spain and Sweden and has at least doubled in most other countries according to the European Foundation for the Improvement of Living and Working Conditions, which is based in Dublin. Like other Senators, I found it difficult to get exact statistics for Ireland. The foundation estimates that in 2000, 2% of workers in the 15 EU member states at the time were on temporary agency contracts. It believes that approximately 6 million people are on the books of employment agencies in any given year.

This form of work is also on the increase in the new EU member states, although few statistics are available. Slovenia, for example, passed legislation to authorise temporary work agencies in 1998, with new measures to protect workers in 2003. Since the enlargement of the EU in May 2004, more opportunities for temporary agency workers from the new member states have opened up in the 15 pre-accession member states. Therefore, we need to establish minimum standards if we are to avoid the undercutting of pay and working conditions.

An increasing number of companies are using temporary agency work to cut costs and increase flexibility by allowing them to adjust their staffing levels at short notice. Agencies help employers to find workers with specific skills when they want them while avoiding recruitment and administration expenses. According to the International Confederation of Temporary Work Businesses, companies most often use temporary agency workers to fill in for staff absences. Such arrangements can also have benefits for individuals, enabling them to work flexibly when they want to or gain experience in a specific sector. Young people under the age of 25 make up the largest category of temporary agency workers. Overall, research shows that a higher proportion of temporary agency workers are unhappy with their jobs and conditions than permanent staff. Many employees do not choose this way of working and would prefer secure employment.

While the manner in which temporary staff move frequently from one workplace to another means it is not easy to secure collective representation rights, trade unions have concluded national deals in a number of pre-enlargement member states, including the Netherlands, Sweden, Belgium, France and Spain. However, the importance of union representation is underscored by the unions because the potential for the exploitation of vulnerable migrant workers and the parallel undermining of well-established standards in the workplace through the use of temporary agency workers has been very evident for some time.

Compared with all other forms of employment, temporary agency work has the worst record for working conditions judged on a number of indicators, including repetitive labour, the supply of information to employees about workplace risks and control over the kind of work done and how it is done. Research shows that agency workers get less training than others, that they have a higher rate of workplace accidents, that they are less well informed about safety, that they do more shift work and that they are given less time to complete jobs.

In most countries, agency work means greater job insecurity. In France, for example, the average assignment lasts only two weeks. Senator Donohoe referred to some examples of temporary agency workers earning higher rates than permanent staff — for example, agency nurses in Scandinavia. However, most evidence points to lower wages for similar work coupled with exclusion from bonuses and benefits awarded to other employees. Agency workers are also deprived of the typical rights to which other workers are entitled, such as maternity rights, holiday pay, sick pay and even overtime pay.

The growing need for an EU-wide legal framework which offers protection to temporary agency workers is clear. The European Commission responded to this need in 2002 by proposing a directive laying down the principle of non-discrimination against temporary workers and aiming to set minimum EU-wide standards and to create a level playing field for companies in different member states. The principles laid down by the Commission state that a temporary agency worker may not be treated less favourably in terms of basic working conditions, that is, working time, rest periods, holiday pay, etc., than a permanent member of staff doing a comparable job in the same firm. However, to accommodate national laws and practices, it also allowed for exceptions to be made where workers have a permanent contract with an agency or where collective agreements provide adequate protection.

Since 2002, despite the efforts of the European Commission, the opposition of a small number of member state governments has meant that no progress has been made in this crucial area. Unfortunately, the Government has been one of those which has failed to reach agreement on this proposed directive. Attempts to break the deadlock by the Finnish EU Presidency between July and December 2006 and, more recently, by the Portuguese EU Presidency in December 2007 were unsuccessful. It would be fair to say there is stalemate and no progress has been made.

I listened to the Minister of State's response and accept he made the case that the Bill is premature given that the social partners are discussing and negotiating on this issue as part of their pay talks. While I accept Senator Norris's point that we are legislators, that the social partners are citizens and that we are entitled to legislate for them, the social partners are proactively discussing and negotiating on this issue. I am happy to accept the Government's bona fides on this but if Ireland continues to drag its heels in approving and reaching agreement on the temporary agency workers directive at EU level, it will be showing itself in a very poor light. Along with the UK, we will gain a reputation of being extremely neoliberal in our approach to trying to create the most flexible labour market conditions possible in the European Union at the expense of workers. That would be very unfortunate.

I am a member of the Oireachtas Joint Committee on European Affairs and ICTU spoke to us about the Lisbon treaty. David Begg was slow to indicate that ICTU would support the treaty. It has many reservations about developments in the European Union and many of them relate to the undermining of long-established rights and protections for workers. It is up to member state governments to get the balance right. Member states have a responsibility to ensure their labour markets remain flexible and that they are not over-regulated in a way which would deter investment or the creation of new employment. They must, however, protect the rights and interests of workers. Unfortunately, the European Union's reputation of providing a good model of a social Europe is being undermined.

This Bill has highlighted the issue which has been the subject of a lengthy debate in the Dáil. The onus is on the Government to bring the negotiations on the EU directive to a conclusion and to use our very considerable negotiating skills to reach a satisfactory conclusion. By supporting the directive, we are recognising that we have created a single market for companies, employers and workers. There is a greater degree of mobility among the workers and citizens of EU member states. To respond to that, we must set down these minimum levels of protection for agency and temporary workers.

I support the spirit of the Labour Party Bill and call on the Government——

Senator Alan Kelly

Of which the Senator is part.

Senator Jerry Buttimer

Only when it suits.

Senator Déirdre de Búrca

——to progress the negotiations at EU level and to support an EU-wide directive to protect these workers.

Senator Phil Prendergast

I wish to share my time with Senator Alex White.

An Leas-Chathaoirleach

Is that agreed? Agreed.

Senator Phil Prendergast

This Bill will go some way to address workers' concerns in regard to displacement in particular industries. We are all aware of the changes in the construction industry. Under this Bill, employers would not be able to discriminate against workers and would have to give them proper pay and conditions. A Pakistani worker who had to work 60 hours per week and was paid €50 per week by a restaurant was fired when he complained. The Labour Court subsequently awarded him a very large sum in compensation, which was justified. It should not have happened in the first place. The appalling way Irish Ferries treated its staff has been mentioned.

I heard some on the Government side rightly say that all workers should be entitled to earn an honest day's pay for an honest day's work, with which we agree. The Labour Party would stand over such treatment of workers because workers' dignity should be protected and they should get fair pay for the work they do.

We should not lose sight of the fact that the continuous exploitation of agency workers is not only awful for those involved but it poses a significant threat to the labour force. Employees' pay and conditions will be undermined if this situation is allowed to continue. Therefore, as a result of the Government's continued opposition to the draft EU directive on agency workers, it is the Labour Party's view that legislation is needed to protect the rights of workers and to ensure agencies which recruit workers are not allowed to circumvent quality provisions of employment, that agency workers are entitled to equal and fair pay and working conditions and that they should not be treated less fairly than others.

There are some instances where agency workers might accrue a higher rate of pay, for example, nursing. At one stage, I did agency nursing. The downside is that one must be available at very short notice to work unsociable hours often at Christmas and Easter when other people are off. Nurses must be available 24 hours per day, seven days per week and 52 weeks per year, whether they like it or not. The Bill is about how we treat people and we should not discriminate against anybody.

Senator Alex White

Despite the talk of people being in favour of the spirit of the Bill, of everybody singing from the same hymn sheet and of the Bill being premature and not thought through, the Labour Party, with the support of others, is proposing a real and practical measure to protect agency workers which is being opposed by the Government. It is being rejected by the Government which will vote against it. I suggest we cut through the waffle——

Senator Ivor Callely

It is being opposed for very good reasons.

Senator Alex White

——and all the nonsense about everyone singing from the same hymn sheet. When we present a practical proposal which has been well thought through and is clear in describing the impact of the measure, the Government informs us this proposal will be rejected, that it might do something in the future and it will discuss it with the social partners.

Senator Ivor Callely

There are very good reasons.

Senator Alex White

We will go through the reasons because there are many of them. The Minister of State does not seem to be able to decide what the reason is.

Senator Jerry Buttimer

Well said.

Senator Alex White

I refer to the contribution by the Minister of State, Deputy Michael Ahern, which lists at least five or six reasons. He referred to the reason the Irish Government did not support the EU directive on temporary agency work. He spoke a nonsense about the fact there are different industrial regimes across Europe, something we all know is the case. Everyone knows there is a long history of collective agreements at national level in Germany and other European countries. This is not a new discovery. There is employment legislation going back 30 years which applies in equal measure across the European Union in circumstances where different employment law and industrial relations regimes are in existence in those countries, such as the fixed-term work legislation and the equality directives. Much legislation and many directives that have been introduced and implemented in different member states are implemented in countries that have different regimes and different industrial relations regimes. The Minister of State's argument is a nonsense and an excuse.

Senator Ivor Callely

The six-week period might not apply.

Senator Alex White

The Minister of State's second reason and explanation is that flexibility is required. He stated that the Irish Government is concerned that these proposals to give proper basic rights to agency workers might compromise the flexibility that is required in a market economy. We are now getting to the real meat. He gives a reason that is much closer to the truth of what is going on. The foreign direct investment sector in particular is concerned about any possible measure which might require enterprises to offer permanent employment to temporary agency workers after a specific period of employment.

Senator Ivor Callely

It is cherry-picking.

Senator Alex White

Who runs this country? Is it the sovereign Irish Government or the FDI sector? We listened to the views and must take into consideration the views of people who set up industries in this country and I do not disagree with that for one moment. However, such people do not decide, do not determine and should not be allowed determine the basic employment standards in this country. The foreign direct investment sector is just one sector and only a sector. For the Minister of State to elevate this, as he appeared to do in his speech, to being yet another one of his reasons for rejecting the proposal is simply unacceptable to this House.

The Minister of State listed further reasons in his speech. He referred to his fear of unwelcome imbalances. He stated that the Government must try to establish where the broader public interest lies at any given time. What does he mean? His next point states, "It is important to remember that agency working as such has a very legitimate role in an economy such as ours" and is the choice of many people. Senator Paschal Donohoe and others made the point that no one is saying that agency work is to be banned. No one is seeking to impose a prohibition on agency work. Everyone knows that agency work in sectors such health and elsewhere is part of the environment. We are arguing for the principle of equal treatment, that people are not treated differently or less favourably by reason of the fact they are agency employees. What is wrong with this proposal? No one is suggesting a prohibition.

Senator Ivor Callely

What about the six weeks?

Senator Alex White

If Senator Callely reads the Minister of State's contribution, he will see that the six weeks proposal is entirely consistent with what is being proposed in the EU directive.

Senator Ivor Callely

Have they the derogations and exemptions?

An Leas-Chathaoirleach

Senator White, without interruption.

Senator Alex White

Senator de Búrca who is sitting behind Senator Callely on the same side of the House, made a very good speech and I agree with her criticism of the Irish Government for its failure. I am not seeking to embarrass anyone in this House; I genuinely agree with what she said, that the Irish Government is wrong to stand in the way of this progressive measure. It is not enough for the Minister of State to come to the House and say the measure did not win sufficient support and it was not going anywhere and so on. The Irish Government was part of the reason for it not going anywhere.

Senator Ivor Callely

That is not true.

Senator Alex White

Senator Callely does not seem to know the facts.

Senator Ivor Callely

There was no consensus among member states and that is the simple answer.

Senator Alex White

If he checks the facts he will see clearly that Ireland is one of the three governments that has essentially blocked this progressive measure. He cannot have it every way; either he is for this measure or he is not.

Senator Ivor Callely

Let us have unity of purpose.

Senator Alex White

The Minister of State referred to flexibility. Why is it that this great notion of flexibility is so privileged and elevated in the case of what employees must tolerate and sustain but never applies on the other side of the equation? Flexibility is something only looked for from employees. What about flexibility from employers and from this Government in terms of introducing basic standards?

The Minister of State said in his contribution, "I can say already that no government wants to see the emergence of agency working as the norm" but he then refers to "what might be termed "regular" jobs which provide for a stable, longer-term relationship between an enterprise and its employees". We all want this but the Government is standing in the way of it by refusing to implement this legislation.

Senator Ivor Callely

It is not thought through.

Senator Alex White

In what manner is it not thought through? This legislation is modelled on existing legislation covering the rights of fixed-term workers. There is nothing particularly strange or unusual in the overall scheme of this legislation. That statement is not thought through. It is a self-serving attempt by the Government to renege on the responsibility it should have as a sovereign Government to legislate for the basic rights of employees and workers in this State.

Senator Norris is correct. We should not leave this to social partnership in case, as Senator Callely extraordinarily said, we would be imposing it on the social partners. This is the parliament of a sovereign country. We make the legislation; we set the standards; we set what the minimum standards ought to be. That is what we should be doing, not hiding behind this notion of flexibility. The only thing not thought through in this House is the Minister of State's speech. It is a tissue of excuses and alibis and it simply is not acceptable in this State.

On behalf of my colleagues I thank others who have supported the proposition. I wish to reply to the very reasonable question asked by Senator Paschal Donohoe in respect of pay. He was concerned that other criteria should be used when differentiating pay and I agree with him. Performance targets was one issue he raised. We might have differences on exactly how that might be implemented but this Bill will not interfere with it. We simply propose that there should be no discrimination against someone solely by reason of the fact he or she an agency worker. If performance or some other criterion is introduced, it can be introduced in equal measure for agency workers and non-agency workers. There should not be different treatment of agency workers.

Similarly in the case of pay, the Bill proposes that there should not be less favourable treatment of an agency worker. Senator Donohoe expressed the legitimate concern if an agency worker were earning more than the comparator, whether they would be stymied by this Bill. I assure him they would not because the provision in section 5(1) states that an agency worker should not be treated in a less favourable manner than a comparable employee. This would settle any concerns that an agency worker's pay might be reduced by this Bill.

Senator John Carty

I welcome the Bill proposed by the Labour Party as it has many good points. There is evidence of agency workers not being well treated by employers and it is time that protection was afforded to them.

The Minister is well aware of this and has set out to strengthen the Employment Agency Act 1971. In May 2004, the Department of Enterprise, Trade and Employment issued a discussion paper on the review of the 1971 Act and submissions made by various interested bodies. In 2005, the Department issued a White Paper on the review of the Employment Agency Act 1971. This White Paper took account of the submissions received on the Department's discussion paper of May 2004. The review was undertaken and was subsumed into the discussions on Towards 2016. There are commitments regarding the licensing regime, the establishment of a statutory code of practice providing for standards in the employment agency sector and the setting up of a monitoring and advisory committee to oversee preparations of the code of practice. This committee will be representative of the social partners and the employment agency sector of Departments.

The Minister has drafted a Bill which will reflect the commitment in Towards 2016 to a licensing system where to be licensed, employment agencies will be required to comply with the terms of a statutory code of practice which will set out the practices and standards which employment agencies will be obliged to follow.

The issues I wish to put forward are the legitimate role in the economy of the choice for employees to benefit from the flexibility, personal freedom and additional income arising from agency working; the reduction of bureaucracy in the challenge to address the rapid change in employment structures and any purposes which reflect realities in the workplace and sustainability of employment; ensuring a pragmatic mix of employment opportunities prevails in society to accommodate the competing demands of all stakeholders; competition and efficient work practices and willingness to devise and co-operate in initiatives to think outside the box to improve employee-employer relations; and acknowledgement of the long-term broader public interest and the benefits received right across all sectors in a sustained vibrant and competitive economy.

These are some of my views, but my overriding objective is that we must continue to improve our competitiveness to achieve sustained economic performance, and we must continue with a unity of purpose and the right approach being adopted by all stakeholders. A number of issues will be considered further in the forthcoming pay talks. While this Bill is well intentioned, we must await broader legislation which will provide for all aspects concerning agency workers to be well covered. I know the Government intends to do this and I await the outcome of its deliberations.

Mention was made in the House that the new directive was being held up by Ireland, the UK and Hungary. During the Portuguese Presidency last December it was decided there was not sufficient consensus to proceed.

Senator Dominic Hannigan

That is because we held them up.

Senator John Carty

There was no vote in the matter. Ireland wanted to see progress and a balanced outcome. I should like to put that on the record of the House.

Senator Dominic Hannigan

We held them up. They do not like to vote. They like consensus, but we would not agree.

Senator Jerry Buttimer

Cuirim fáilte roimh an Aire Stáit, Deputy Conor Lenihan. The motion before the House is timely, given that we are in a period of economic uncertainty and there is a question mark over the competitiveness of the economy. I attended a SIPTU meeting recently in Cork which was very enlightening.

I commend the Labour Party on the Private Members' Bill. There are two issues to be considered, the regulation of the agencies and the protection of workers' rights and entitlements, including an end to exploitation. It is important we regulate and have appropriate legislation.

The Minister of State referred in his speech to social partnership. My information is that it is the preferred route of SIPTU to have legislation. Exploitation of workers has been mentioned. We all agree that we cannot tolerate exploitation any further. The Gama and Irish Ferries workers were mentioned and I agree with Senator Norris about the hospitality and catering industry where very few Irish people now are employed. I wonder about the rates of pay, the length of the working day demanded by employers and the conditions of service.

In many ways we are somewhat akin to Animal Farm: two legs good, four legs better. In this case some work was good, other work was better. We all know what happened to the animals in Animal Farm. I take issue with the fact that legislation on the Statute Book since 1971 is outdated and needs to be changed. I shall not argue back and forth about who is holding up what but we need to have the law in this area updated urgently. That 520 agencies operate in Ireland requires vigilance. Senator Norris referred to ten inspections in 2005 and six so far this year. That is wholly inadequate. How can workers be protected when we do not have an inspectorate that is coherent, cogent and working properly? The workers of this country built up the economy through social partnership. If we are to continue with social partnership, at its core must be the worker as the man or woman producing the output.

We face a significant issue regarding competitiveness and I would not like to see workers' entitlements lost during a transition period in the economy. I am a member of a trade union, the ASTI, and have been involved in education all my working life. I see the erosion of teachers' rights along with those of other workers in society. We need a Bill from the Government before the Oireachtas immediately. I take Senator de Búrca's comments on board but I must emphasise that one cannot be critical on one level in this House as an agent of Government. This is not a talking shop. We are legislators and it is our duty to stand up for the people we represent. I challenge Senators de Búrca, Callely and Carty on the legislation. Let us bring it in and enhance the protection of workers.

The process of a labour inspectorate is slow and cumbersome. It needs to be fully resourced and the number of inspectors increased as a matter of course. I agree with Senator Donohoe that we have an issue with permanent and temporary agency workers and their pay. I would like to see that debate expanded because I am not entirely convinced about the norms pertaining to length of time, payment and experience where temporary agency workers are concerned.

I will not attempt to replicate Senator Alex White's criticisms of the Minister of State's speech, but the Minister of State said the emergence of agency workers' terms of employment as the norm should not be the way. None of us wants to see that. Like Senator Alex White, I seriously question whether we are being dictated to by the foreign direct investment sector. Are we being told that because these companies demand flexibility, no unions, lower pay and other conditions, there is no argument? Is that what we are saying at one level? If so, it is a poor day and the Minister of State should go back and read de Valera's writings and pronouncements, which are quite different in tenor to what the Minister of State appears to be saying. I look forward to clarification in that regard.

Senator Ivor Callely

We are not saying that. We want it based on the realities and statistics.

Senator Jerry Buttimer

We have had growth in the economy on the back of both employers and employees. The key word here is "both". When the issue goes pear-shaped, do not blame the employee and write him or her off because that is not right. Let us not do that.

Senator Dominic Hannigan

Hear, hear.

Senator Jerry Buttimer

It is important we have social partnership and the Fine Gael spokesman on finance, Deputy Richard Bruton, has raised some legitimate questions in this regard. I hope we have an informed debate. I ask SIPTU and the other agents involved for a real discussion on what it means to have social partnership in Ireland in 2008 because it is very important. Senator Donohoe referred to equality and fairness in the workforce, and we need that. Unfortunately, that has been lost in some areas, for example, in health, education and tourism where the hospitality industry is concerned. There is a major issue concerning the way people are being treated and I would like the Members opposite to give serious consideration and not just pay lip-service to the protection of agency workers and, indeed, all workers.

I cannot understand why the Government has not yet established the national employment rights agency, NERA, on a statutory basis. I would like to hear why that has not happened.

If we are to continue to have proper employment methodologies and equitable pay and conditions of service, we need flexibility. The Irish workforce, regardless of whether it includes agency workers or non-agency workers, has never been slow to be flexible and fair over the past 20 to 30 years. However, the time has come in which we need to be vigilant regarding what and who we are protecting.

I commend the Labour Party on introducing this Bill. We have some questions on this side of the House but it is important we have this debate and meaningful dialogue.

Senator Pearse Doherty

Cuirim fáilte roimh an mBille seo, atá curtha chun tosaigh ag Páirtí an Lucht Oibre. I welcome the Bill proposed by the Labour Party which comes some weeks after Sinn Féin and the Labour Party tabled a Private Members' motion on agency workers in the Dáil. While I welcome the Bill, it is a pity it has been left to the Opposition to introduce legislation that is worthy and necessary.

The exploitation of agency workers has blighted this State and the Six Counties for the best part of a decade. During this period, we have had promises from Fianna Fáil, the Progressive Democrats and now the Green Party that legislation would be forthcoming. It was even alluded to in Towards 2016. During the discussion on the Private Members' motion there were protestations from the Government benches to the effect that legislation was pending, yet three weeks later we are debating legislation on agency workers put forward by an Opposition party. Tonight again, Senators on the Government side claim the Government is committed to introducing legislation. When will it be introduced? Let us include it on the Order Paper and deal with it.

The excuses and delaying tactics of the Government have been ridiculous. It has claimed the evidence of agency workers being exploited is based on hearsay. When my colleague, Deputy Arthur Morgan, attended a SIPTU campaign meeting on this issue in Waterford, he noted it was attended by a Fianna Fáil councillor who, having met agency workers, spoke at length about the problems faced by them. If Fianna Fáil had attended any of the other campaign meetings held by SIPTU throughout the State, it would have direct evidence from agency workers regarding their having to work for lower pay than that received by directly employed workers, and regarding their having to work in poorer conditions while doing the same work.

SIPTU and all the other unions have countless cases of the abuse of agency workers on their books. If the Government asked the social partners to give it the details of these cases, I am sure they would do so. Who are we really kidding? If the Government did not know its friends in the world of big business were benefiting from the exploitation of agency workers, there would be no problem introducing legislation on agency workers.

The Government, along with the authorities in the United Kingdom and two other member states, has stalled the proposed EU directive on agency workers. I heard Senator Callely denying this but he is incorrect. The Government voiced concerns over the lack of competitiveness that would ensue if it legislated in this area. This is the nub of the problem. When a British Member of Parliament from the Labour Party introduced legislation on agency workers in Westminster last month, the British Chambers of Commerce stated the clampdown on flexible workers would put Britain at a competitive disadvantage.

We cannot sustain the economy with a race to the bottom in respect of wages and conditions. Doing so is madness. We cannot compete with the economies of China and India, even with agency workers, and anyone who believes we can needs to do a refresher course in basic economics. The future of the economy in this State lies in high-end quality industries such as those that engage in research and development. It lies in our having a qualified, educated workforce that wants to build that economy. The rights of this workforce must be protected or labour disputes will multiply and harm the economy we would like to see developed.

We need to develop workers' rights on the basis of equality, which also means equality for agency workers. Agency workers are being used by employers to avoid employee legislation that has been in force for 30 years. The exploited loophole, like the one that allows the employers' rich friends to avoid paying tax, has been left alone because unscrupulous employers will run riot if flexible employees, including agency workers who, with no recourse, can be treated like rubbish, are clamped down upon. In this regard, I welcome this legislation and hope that, with some amendment, it will receive the support of all Members of the Oireachtas who claim to represent, or work on behalf of, the people.

I have some questions on the Bill which I hope my colleagues in the Labour Party can answer, if not now perhaps on an another day. Sections 5 and 6 refer to incidents in which an agency worker can be treated in a less favourable manner when that manner can be justified on objective grounds. The Bill lists such objective grounds. I seek clarification because this could open up a can of worms in terms of what constitutes objective grounds for less favourable treatment.

When composing section 5, did the authors of the Bill consider reducing the number of weeks of continuous work after which an agency worker should be treated as comparable to a direct employee, except under the conditions set out, from six to four? Did they consider making them comparable from the day of commencement of employment? I ask this because it has been brought to Sinn Féin's attention, especially by employees in the construction sector, that the six-week timeframe has the potential to allow employers to continue to use and exploit agency workers owing to the short-lived nature of many construction jobs. The EU directive recommends a period of six weeks but some debate is needed on this issue. After all, we do not have to accept every EU recommendation.

I have some less serious concerns about the Bill which I can deal with on the upcoming Stages. I hope the Bill will be supported as a first step in dealing with the problems faced by agency workers. I commend the Labour Party Senators on introducing it.

Senator Joe O’Toole

I, along with Senator Doherty, congratulate Senator Kelly and his Labour Party colleagues on bringing forward this important and testing Bill. It has been terrible to listen to Members trying to avoid agreeing with the very ordinary, sensible and pragmatic measures of the Bill. There were weasel words, false arguments and a specious approach to the relevant issues.

The legislation is very simple. When I was listening to the debate, I thanked God we joined Europe. Senator Doherty might not agree. I heard the arguments propounded in the legislation in the early 1970s when I was fighting with many individuals to obtain simple rights for workers in respect of unfair dismissals, equal treatment and equal pay for equal work. The issues are arising again. This is a one-principle Bill in that all it is calling for is equal pay for equal work. There is no complexity attaching to it.

No issue of competition arises unless we say we ought to pay people nothing to maintain competitiveness. My colleagues on the Government side should note that the Competition Authority issued a statement, which we all received in the past month, pointing out the areas in which we are and are not competitive. We do not have a problem in terms of labour costs. We have problems with telephone costs, energy costs and access to broadband, and all these issues come ahead of labour costs. I say this in good faith.

The practices that are taking place are purely exploitative. Agency workers are being taken on and used. Senator Callely stated we should hand the matter over to the social partners for them to deal with it. As it happens, I participated for years in social partnership negotiations and led them for quite some time. Consequently, I can assure the House that this legislation would help social partnership. Would we be prepared to wait for consensus on social partnership? It is a bit like considering how we dealt with issues in the past. We must determine what we are talking about. We are talking about people in bondage, who are tied in a bond in a country far from home. They are transported, and almost trafficked, to Ireland and put into tied work where they are used and abused. This used to happen in the past and it was called slavery. How long would we have waited if President Abraham Lincoln had been told to hang on for consensus in the south of the USA and they would surely get rid of slavery in a short time? This is not an issue of consensus; this is an issue of right and wrong. I want to hear just one person tell me why it is right for two people doing the same job to be paid different amounts of money.

Senator Alan Kelly

Hear, hear.

Senator Joe O’Toole

It is a simple question. People will then state that we will get them to work for nothing or for half nothing so that we can be competitive. They will end up telling me that that is right and that is the basis on which we build our economy.

Members on all sides of the House fought for 40 years to ensure we were fair and protected people in employment. There were 100,000 people on the streets of Ireland less than two years ago when they saw what was happening in Irish Ferries. People did not like it. It did not meet the vision Irish people have of themselves. It was not right that people were recruited into bonded employment on the ships and paid pence to do work which should have attracted greater money. Any Member who ever spent time working abroad, as a student or in another capacity, knows how strongly he or she felt if he or she found himself or herself in employment where he or she was paid less than the people with whom he or she was working. It was unacceptable.

I have spent my life fighting for people who were not treated fairly in all sorts of ways, for example, women or people on incremental service. There is no answer to the argument that people should be paid equal pay for equal work. I have never found any objection to it. No one dealt with it in this debate.

People spoke of the free movement of labour. This is not about the free movement of labour. The people who take advantage of the bondage in which many of these agency workers find themselves are exactly the same people who would put gates and locks around the country to ensure people could not come here for equal pay for equal work.

If we applied the Treaty of Rome as we envisaged it in the 1960s and 1970s so that people could move about the place, we would not have this difficulty. If someone had told us in 1973 that we could send Irish workers to Germany, France or the UK but they would be paid only half what the local people were paid, how would we have felt about it? That is the question we must ask ourselves. Would we have stated that France, Germany and the UK needed to be competitive and therefore it was okay for Irish workers to be steamrolled, oppressed and stood upon in order that the competitiveness of other countries could be maintained? That is what we are saying in this debate and nothing else.

It is not complex and anyone who tries to introduce complexity into this argument is not examining the reality as we look at it. It is a matter of equal pay for equal work, of protecting, giving dignity to and respecting people.

Members come from communities where, regardless of the part of the country, in the local street in the local town or village there are people from all different types of backgrounds. A person could be unemployed, the veterinary, the shopkeeper or could have another job. We live and mix together and treat each other with dignity. That is what this is about.

I do not want to live in a country where we bring people in from abroad, employ them in factories and keep them tied to there, such as we have heard. A Member cited the example of Pakistani workers in a restaurant who were being paid €50 a month. Mushroom pickers in another part of Ireland were found to be spending almost their entire wages on their substandard accommodation. This is not a correct image of modern Ireland. This is not what the Celtic tiger was about. This is not why we tightened our belts in 1987, 1990 and 1995. This is not the vision we had. The vision we should have is of a place where people do their best and are rewarded for it. It is a place where we have allowed market forces to develop.

What social partnership has done, and some of us bear the brunt for having to compromise on this point, is to allow the market to work in a regulated space so that everyone gets fairness and protection. I am not happy with the level of protection but I realise it is good to a certain point. I am not happy either with the influence the market can exert sometimes but I have had to concede that point. Neither am I happy at times with the increase in wages, salaries and rewards for workers, but it is a compromise we have had to make and sell and for which, perhaps, we have received little thanks from the people we represent. It is a matter of trying to get that balance into it. However, there is no balance in this situation.

The other aspect of this is that if an Irish worker cannot get a job because an agency worker has been employed at half the price of the Irish worker, that feeds xenophobia. Irish workers ask whether such people are taking their jobs. These people do not even know whose job has been taken. They have arrived looking for work, have been employed and, suddenly, are objects of hate and the focus of attention, The result is a growth in the level of xenophobia. We cannot allow that to happen.

There is no basis for doing anything other than accepting the principles in this legislation. It cannot be right to do otherwise. The only question we must ask ourselves is what is right in this situation. What is right is either to accept this Bill, introduce something similar or deal with the issues in it. There is no way other than the right one on this matter.

Senator Alan Kelly

I thank Senators for their contributions on this Bill. I especially thank all those who spoke in favour of it — Senators Donohoe, Norris, Buttimer, Doherty and O'Toole. I even thank Senator De Búrca because, as far as I could hear, she spoke in favour of it as well.

I want to respond to a few comments by the Minister of State, Deputy Michael Ahern. He stated this Bill is premature. The opposite is the case. It is badly needed now and it was needed a long time ago. I would like him to make the same comments to the likes of Mr. Jack O'Connor and Ms Patricia King who have organised thousands of workers throughout the country to go to meetings on this issue.

We also heard that the EU directive did not receive consensus. It did not because the Government did not allow it to happen. The Minister of State hit on a sore point and he was getting close to the bone when he mentioned that the foreign direct investment sector had certain concerns about it. This Government is facilitating big business to exploit vulnerable workers.

Senator Pearse Doherty

Hear, hear.

Senator Alan Kelly

That is the reality of the situation and if the vote on this legislation is not successful, that is the message that should go out to all and sundry. That is the truth and I will stand over it.

It is a bit rich of Senator Callely to state that no Government wants to see the proliferation of agency workers to become the norm when this Government has facilitated it. It has done so over recent years as the economy has changed and it continues to facilitate it by its refusal to act.

Concerns were expressed by Senator Callely and others about the six-week period. We in the Labour Party believe this is an adequate period and we stand over it. We believe the terms workers would receive under this legislation are correct and it is the most proper timeframe that should be put in place.

We also must look at the suggestion that has been made that social partnership should deal with this. What happens if the next round of social partnership fails, which will be the case if this issue is not dealt with and if Mr. Jack O'Connor, whose bona fides I can state safely I accept 100%, is being true to his word? The time to legislate is now. We are the sovereign Parliament. If we are not going to legislate for this, we cannot expect social partnership to deal with it. That simply is not the way this should work.

As Senator O'Toole stated in his excellent contribution, this Bill is a simple one. It is about giving agency workers equal rights across a range of entitlements, including pay, holidays and sick pay. There is a sizeable list. It is not complex or premature. It is, as others stated previously, a matter of equal pay for equal work done by two people working side by side in the same organisation or in comparable organisations. It is not complex and it is certainly not premature.

We need to avoid the horror stories, which Members from all sides of the House know and of which they have spoken in this Chamber, such as Irish Ferries or Gama. This Bill will protect not just agency workers but all employees, permanent and agency. It will help stop the rush to the bottom in standards which we are seeing. The Bill deals with exploitation and displacement and with the possible growth of xenophobia. This is important because these problems arise in the absence of this kind of legislation. The Bill also helps to build society's values. We should know this, because of the good experience of many of our diaspora and their treatment while working abroad. It seems we are expected to treat people differently here. That is not on and we should not be countenanced.

We heard from Senator Carty and others that we need flexibility in the workforce. This is a bogus argument which encourages the bypassing of permanent workers. It discourages training, skill development and the continuation of employment, and means de facto that we do not intend to invest in people, which is not good for the economy or employees.

I have been in the House nine months and have a track record on raising the issue of workers' rights. On many occasions I have heard the Leader say that all workers are entitled to an honest day's pay. I agree. It is time to put up or shut up. The time for rhetoric is over. I accept that Senator de Búrca fully agrees with what is proposed in the Bill. Unfortunately, she will sleepwalk through the "No" lobby, just like everyone else on the Government side of the House, even though she agrees with us, and not just in spirit.

Tonight, the Labour Party is following in the tradition of Connolly, Larkin and Johnson. It asks Members to give agency workers their dignity and to protect them and invest in their future and that of the economy. The Bill is a distinguishing Bill for the Labour Party. Over a long period of time I have heard Members of the main Government party say theirs is the party that looks after workers and deals with the working class. They say theirs is the party that has the fundamental needs of these people at heart. The reality is the Labour Party is the party that looks after these people. This Bill proves it and I ask Members to support it.

Question put.

The Seanad divided by electronic means.

An Cathaoirleach

Under Standing Order 61, I have to inform the House that due to a technical fault, it is necessary to take the division again otherwise than by electronic means and Members should proceed to the lobbies where the division will be taken manually. The bells will ring again for four minutes.

Question again put: "That the Bill be now read a Second Time."

The Seanad divided: Tá, 20; Níl, 25.

Tá

• Burke, Paddy.
• Buttimer, Jerry.
• Coffey, Paudie.
• Coghlan, Paul.
• Cummins, Maurice.
• Doherty, Pearse.
• Donohoe, Paschal.
• Fitzgerald, Frances.
• Hannigan, Dominic.
• Healy Eames, Fidelma.
• Kelly, Alan.
• McFadden, Nicky.
• Norris, David.
• O’Reilly, Joe.
• O’Toole, Joe.
• Prendergast, Phil.
• Regan, Eugene.
• Ryan, Brendan.
• Twomey, Liam.
• White, Alex.

Níl

• Boyle, Dan.
• Brady, Martin.
• Butler, Larry.
• Callanan, Peter.
• Callely, Ivor.
• Carty, John.
• Cassidy, Donie.
• Corrigan, Maria.
• Daly, Mark.
• de Búrca, Déirdre.
• Feeney, Geraldine.
• Hanafin, John.
• Keaveney, Cecilia.
• Leyden, Terry.
• MacSharry, Marc.
• McDonald, Lisa.
• Ó Domhnaill, Brian.
• Ó Murchú, Labhrás.
• O’Brien, Francis.
• O’Sullivan, Ned.
• Ormonde, Ann.
• Phelan, Kieran.
• Walsh, Jim.
• White, Mary M.
• Wilson, Diarmuid.

Tellers: Tá, Senators Dominic Hannigan and Alan Kelly; Níl, Senators Déirdre de Búrca and Diarmuid Wilson.

Question declared lost.

An Cathaoirleach

When is it proposed to sit again?

Senator Donie Cassidy

Tomorrow at10.30 a.m.