We will move on to No. 3 on today's Order of Business, namely, the Private Member's Bill, National Minimum Wage (Protection of Employee Tips) Bill 2017. I call on Senator Paul Gavan, who has 12 minutes to speak.
National Minimum Wage (Protection of Employee Tips) Bill 2017: Second Stage
I move: "That the Bill be now read a Second Time."
I will begin by welcoming the Minister of State at the Department of Employment Affairs and Social Protection, Deputy Pat Breen, to the Chamber. I also welcome our colleagues in the Public Gallery who will be joined by others for this evening's debate. The purpose of this Bill is very simple. If enacted, it will give workers in the services sector a legal right to hold on to tips they earn in the workplace. It is a Bill which will make it illegal for an employer to withhold, deduct or demand the return of a tip from an employee unless the employer has a lawful reason.
Sinn Féin is delighted to have the backing of both SIPTU and Mandate which have expressed public support for the Bill. SIPTU and Mandate represent thousands of workers in the service sector and they understand the seriousness of this issue. Recent research shows the prevalence of this problem. One such piece of research carried out last year by my own party in Galway, which collected over 400 written responses, found that 34% of workers reported that they regularly experienced the withholding of tips by their employer. That is unacceptable. Further research by SIPTU, the Migrants Right Centre Ireland and thejournal.ie has supported these findings with similar results.
I would like to give the Minister of State and the House a flavour of the testimonies we received. The first is from James, who is on his way to the Chamber as I speak. He is 24 years old and this is what he had to say:
I began working in a well-known, up-market restaurant chain. I was told that I wouldn't receive any of the tips I earned during my trial period, which was supposed to last just one week. On my second day I was told by other staff members that the company would ensure my trial lasted until I made an issue of it. So I did, after 1 week. Thereafter, on finishing my trial period, I was told that I would only take home 50% of the tips I earned each night.
A second testimony was from William, who is 26 years old.
While working in a café in Maynooth I had my wages taken without consent. From the start, management said that they would be withholding my tips for work night outs and a Christmas party. I was outraged. I was only getting €9.15 an hour and my tips were vital in order to pay my rent and buy food.
The thejournal.ie investigation also found that workers tips would be used to supplement the till if it happened to be short or if it was a slow night the employer would just say that no tips would be handed out that evening. We cannot allow this to continue.
The unfortunate reality of the hospitality industry is that many workers depend on the tips they earn at work. Of course, it would be my preference that workers were paid a living wage and did not have to rely on tips to survive but their situation is a by-product of a sector in which low pay, precarious employment and poor work conditions are the norm. Last year a worker in the hospitality sector earned an average weekly wage of €324 which is less than half of the national weekly average earnings of €697. That is poverty pay, with workers' wages often falling below the national minimum wage. The food and drink sector is no different. Last year of 717 inspections made by the Workplace Relations Commission, WRC, 48% of employers were found to be in breach of the law and owed unpaid wages amounting to €332,000. Fortunately, through the WRC process, these wages were repaid to workers. However, most relevant to this Bill, tips were not returned to workers as they do not have a legal entitlement to their own tips. This Bill would address this issue and ensure that withheld tips are seen as a debt owed to the employee by the employer. There are over 150,000 workers employed in the hospitality sector. I am sure that almost everyone in this Chamber knows someone who works in a hotel or a restaurant. Is it acceptable that those workers on low pay, zero-hour contracts are denied the right to take home the tips they earn? That is what is happening across a percentage of businesses in Ireland.
The British Government has also recently published a report, the research for which was carried out over an eight-month period. That report found serious issues regarding the withholding of tips and the mismanagement of shared tipping schemes. Very famously, researchers found a pizza restaurant chain that withheld 12% of credit card tips as a so-called administration fee. That is just wage theft and we should it call it for what it is. The Bill we are putting forward is modelled on a Canadian Bill which was introduced last year in Ontario to deal with the very same issue. It appears that this is a universal problem and is not unique to Ireland.
I will briefly take the House through this simple Bill. Section 1 is self-explanatory. Under section 2, I would like to highlight the various definitions of a tip and in particular the fact that we are including a service charge, as often money is retained by an employer under this heading. We also give a definition of a tronc scheme, that is, a common fund into which tips are paid for distribution to staff. Section 3 outlines the protections of the new Bill and is broadly in line with existing workers' rights legislation. The crucial parts are 10F(1) which holds that an employer shall not withhold tips or other gratuities from an employee or make a deduction from an employees tips and 10F(2) which holds that if an employer contravenes subsection (1) the amount withheld or deducted will be recorded as a debt owed to the employee by the employer. This is crucial. In my job as a trade union official, I often brought restaurant workers to the WRC over basic breaches of employment law.
I was able to win back moneys owed to workers for holidays, lack of notice and so forth. I was never able to do anything about the tips that were kept week after week because there is no legal mechanism available in respect of tips.
In section 3, the proposed section 10F(4)(a) of the principal Act will mandate businesses to display on their menus or in another suitable manner the tipping policy, so there is transparency for customers with regard to whom and how tips are distributed. Everyone should be able to welcome this provision. I imagine I am not alone in wondering when I pay a service charge whether the workers receive it. We should recognise that there are many good employers in the sector and many employers ensure that happens, but at the moment we actually have no means of knowing - there is no legal certainty. The Bill will address that point and will give customers transparency. Who could possibly argue with that? Customers want to know where their tips are going. They want transparency so that when they hand over tips, either they go directly to an employee or into a shared tronc scheme to be distributed to the backroom staff. The proposed section 10F(4)(b) requires the Minister to introduce regulations to facilitate the introduction of tronc schemes check to ensure the equitable distribution of tips. This is important because it enables people in the backroom, including kitchen porters and chefs, to be included. Often, they are forgotten about. The proposed sections 10F(4)(d) and 10F(4)(e) ensure that where owners are involved in the same work as staff, they too are included in the receipt of tips. We are not here to disadvantage owners of small restaurants.
Section 4 details the offences and section 5 covers the existence of collective arrangements with regard to tips.
I wish to address briefly the issue of tax. I wish to be clear: the Bill will not change the practice or theory of tips and taxation. The current position of Revenue is that where tips are routed through the employer, then PAYE, USC and PRSI must be applied to the amount paid, including employer PRSI. If tips are received directly from patrons, there is no obligation on the employer to operate PAYE, USC and PRSI on the amounts received. Employees are obliged to declare tips received in their annual return of income. In the case of credit card tips, the employer must operate PAYE, USC and PRSI on the tips received. In other words, all these issues will stay exactly the same. Employees will be required to declare their tips to Revenue.
That is the current situation. The Bill simply attempts to provide that where an employee earns a tip, he or she gets to take that tip home. The word "tax" is not mentioned in the Bill. No tax regulations are interfered with or altered. The only reason I mention this is because I believe the tactic of using the tax issue has been raised by the Restaurants Association of Ireland. It is a straw man; it is fake news. It does not stand up.
It is none of its business anyway.
Exactly. Good employers have nothing to fear. This legislation will have no significant additional impact on or conditions for good employers in the sector. Workers in such establishments will continue to take home tips they have earned. However, a bad employer who does not pass on tips to a worker would rightly be legally obliged to do so from now on.
I am asking for cross-party support. I wish to acknowledge the work of my colleague, Senator Ó Clochartaigh, who worked with me tirelessly and was instrumental in the survey in Galway that produced such shocking results.
I understand the Minister of State wants to speak now. Is that agreed?
Perhaps you would tell us why he wants to speak at this stage.
I will explain it.
I thank the Minister of State. He is always very courteous.
I am always open and honest with Senator Norris, as I was during my days with him on the Joint Committee on Foreign Affairs and Trade. The Minister is ill and I have an engagement at 6 p.m. - it is a long-standing engagement.
I fully understand. The Minister of State need say no more.
Another Minister will take over after I have spoken.
I thank the Minister of State for the explanation.
As Senator Nash knows, I have some knowledge in this area - he was a Minister of State in the same area previously. That is why I am here. I am delighted to address the gathering this evening.
I thank Senator Gavan for the Bill. It is a good Bill, well-intentioned. Unfortunately, we need a little more time to look at the situation. The Government policy, as I have always said, is that there should be decent pay for decent work. The purpose of the Bill aligns with this and it is clearly well-intentioned, as I said. The Government will therefore not oppose the Bill.
I understand that the Bill stems from a desire to protect employees and ensure that they receive their entitlements. However, I think it is clear that more research needs to be carried out before we are in a position to decide on the best way forward.
The issues that the Bill seeks to address can be relatively complex. We need to consider the protections and rights already afforded to employees. We could consider appropriate non-legislative options for addressing concerns in this area, for example, a code of practice for the sector that would guide employers and employees. We must be cognisant that legislating in this area without being fully aware of how it will impact on current practices could lead to unintended consequences. That could lead to a negative effect. The Bill, for instance, specifically references "additional protections for employees in the service sector". However, no definition is offered of what particular industries that would cover.
Let us consider the UK position. Senator Gavan spoke briefly about the UK position in his introduction. In response to public demand, the UK Government produced a consultation paper and calls for evidence on tips, gratuities, cover charges and service charges in May 2016. The consultation process finished in June 2016. The call for evidence initially focused on the hospitality sector. The UK Department for Business, Energy and Industrial Strategy also received evidence from other sectors where the payment of tips, gratuities, cover and service charges is commonplace. They included gambling, betting and hairdressing sectors and taxi operators. Those involved concluded that intervention may be required to improve the treatment and transparency of these payments but they have not yet decided on the appropriate approach.
In my view, options such as introducing a code of practice could be considered rather than legislation. Without carrying out a thorough examination of the current practices relating to tips and gratuities across all relevant sectors, we cannot be certain that a one-size-fits-all approach is appropriate or that legislation is required. On foot of the introduction of the Bill in 2017 the Department of Business, Enterprise and Innovation, which was then responsible for the national minimum wage legislation, requested input from stakeholders but received no responses. The Irish Hotels Federation was directly contacted by the Department of Employment Affairs and Social Protection in respect of the Bill and expressed several reservations, including potential Revenue implications, the requirement for an employer to publically display the policy with regards to tips and gratuities and the difficulty of effectively policing any legislation in the area.
It is clear that to gain a better understanding of the complexities of the issue and the practices that currently operate in specific sectors, a thorough consultation in which the relevant stakeholders are engaged would be of benefit. In addition, an examination of current practices, including whether legislation might impact negatively in tax or financial terms upon either employees or employers, would be useful. To this end, the Minister for Employment Affairs and Social Protection, Deputy Doherty, intends to ask the Low Pay Commission to examine the payment of tips and gratuities as part of its work programme for 2018.
Senator Nash knows of the important work the Low Pay Commission has done. He was in office when it came into place. The Low Pay Commission was established under the National Minimum Wage (Low Pay Commission) Act 2015. Its primary remit is to make an annual recommendation on the appropriate rate of the national minimum wage. I know the members of the commission. They are all experienced members. It is an independent body, something I am keen to emphasise. The commission has members who have an understanding of employers and employees interests and members who have a particular expertise in labour market economics. The commission members are an expert group and have considerable experience. That is why the Minister has decided to refer the Bill to the commission for examination. The commission is also charged with taking an evidence-based approach, paying full regard to a range of economic factors while also taking account of the views of stakeholders and the public in general.
Since its establishment, the commission has examined and compiled reports on the sub-minima rates of the national minimum wage, that is to say, reduced rates that apply to trainees and age-related rates, the preponderance of women on the national minimum wage and the allowances provided for board and lodgings under the national minimum wage. It is clear that the commission has extensive expertise and could be considered to be the experts when it comes to the principal Act that the Bill seeks to amend. Furthermore, the commission's independence and experience in engaging with stakeholders while taking an evidence-based approach in examining all available data and assessing the strengths and weaknesses of systems internationally leaves it ideally suited to carrying out a fair and independent review of the payment of tips and other gratuities in Ireland.
We can all agree that an independent review of this nature that aims to take on board all arguments and analyse all available data takes time if it is to be carried out effectively. As I have already indicated, with due regard given to the other vital work the commission is tasked with undertaking, the Minister, Deputy Doherty, will request the commission to report its views and recommendations on this matter to the Government. I understand from the Minister that she will be asking the commission to report back to the Government with its findings within six months.
There is a very comprehensive body of employment rights legislation in place providing protection for employees, including legislation governing working time and pay. This includes the National Minimum Wage Act 2000, the Payment of Wages Act 1991, the Organisation of Working Time Act 1997, the Minimum Notice and Terms of Employment Acts 1973 to 2001, the Protection of Employees (Part-Time Work) Act 2001, the Protection of Employees (Fixed-Term Work) Act 2003, and the Protection of Employees (Temporary Agency Work) Act 2012. These Acts provide for redress mechanisms through the dispute settling institutions of the State in circumstances where an individual considers that he or she is not getting his or her legal entitlements.
Under the industrial relations Acts, workers, either individually or collectively, can refer a dispute with their employer regarding terms and conditions of employment, not already governed by statute, to the Labour Relations Commission or the Labour Court, which can assist in the resolution of the dispute.
The Government has a policy of continually improving and enhancing legislation and has recently approved the text of the Employment (Miscellaneous Provisions) Bill 2017, which was brought forward by my Department and will strengthen further the protection and rights of the employee in Ireland.
Good progress has been made over recent years in terms of our economic recovery and creating new job opportunities, the majority of which are full-time positions. We must remember, however, those people who, not by choice, are in less secure arrangements and may not know from week to week what hours they will be working. This makes it very difficult for people to plan their lives outside work.
The Employment (Miscellaneous Provisions) Bill 2017 delivers on the commitment in the programme for Government to tackle the problems caused by the increased casualisation of work and to strengthen the regulation of precarious work.
This is very important legislation. The key objective is to improve the security and predictability of working hours for employees on insecure contracts and those working variable hours.
A number of key issues that have been identified as being areas where current employment rights legislation can be strengthened to the benefit of employees have been addressed, without imposing unnecessarily onerous burdens on employers. The Bill addresses the following five issues.
The first is ensuring that workers are better informed about the nature of their employment arrangements and, in particular, their core terms at an early stage of their employment. Currently, 15 terms of employment are required to be given by employers to employees within two months. Instead, it is proposed that the following five key terms of employment must be provided within five days of starting work for that employer: the full name of the employer and employee in that it is important that the person knows who he or she is working for; the address of the employer, because somebody could be working for somebody else, as we often see; the expected duration of the contract - where the contract is temporary or of a fixed term; the rate or method of calculating pay; and what the employer reasonably expects the normal length of the employee's working day and week will be. Other required terms of employment should be provided within the current two-month period. That is also really good news.
Second, provision is also made for the creation of a new offence where an employer does not provide the proposed statement of the five core terms of employment within one month of commencement of employment. Strengthening the sanction for non-compliance will help to promote better work practices and provide greater clarity around the essential elements of the employment relationship for both the employer and the employee.
The third is strengthening the provisions around minimum payments to low-paid employees who may be called in to work for a period but sent home without any or significantly less work and where they have not been paid. It is intended to introduce a floor payment for employees who are called into work and then sent home in these circumstances. For example, if an employer called six people into work and then decided only three were needed, the three sent home would be entitled to 25% of what they would have been paid for that shift, but with a minimum payment of three times the national minimum wage or three times the Employment Regulation Order rate, where it applies.
The fourth is prohibiting zero-hour contracts except in cases of genuine casual work or emergency cover or short-term relief work for the employer. This proposal is to avoid the contagion of an increase in zero-hours practices in this jurisdiction. There will always be a need for some casual work, but an employer who deliberately misrepresents employees as casual leaves itself open to being prosecuted by the Workplace Relations Commission for providing false and misleading information.
The fifth is creating a new right for an employee whose contract of employment does not reflect the reality of the hours worked on a consistent basis over a reference period of 18 months, to be placed in a band of hours that better reflects the actual hours worked over that reference period. This will provide greater certainty and a truer reflection of the hours of work and level of earnings, thereby addressing, in particular, difficulties employees may have in accessing financial credit, including mortgages. The reference period of 18 months is considered sufficiently long to allow for the normal peaks and troughs of businesses, including those subject to seasonal fluctuations. An employee will be able to seek redress through the Workplace Relations Commission but redress will be limited to being placed in an appropriate band of hours.
Legislation in the area of employment is complex and needs to be carefully thought through. It is important, therefore, that we do not do anything that impacts negatively on employees. Information regarding the codes of practice on the payment of tips and other gratuities in industries in which such payments are commonplace is relatively limited. The introduction of legislation in this area in the absence of such knowledge may have unintended consequences. First, we need to get information about current practices so we have the full picture. The first step is that the Minister, Deputy Doherty, will request the Low Pay Commission to undertake a review of the issue and report its findings and recommendations on the matter. As I said, this will be done within a period of six months. We can then use that evidence to determine the best options with a view to ensuring the adequate protection of employees, particularly those working in the service industry, particularly regarding the sharing of tips. It is about the service industry that Senator Gavan has genuine concerns.
I thank Senator Gavan for introducing this legislation. We will not be opposing it but I hope the House will accept the Government's very genuine reason for referring it to the Low Pay Commission, which has a range of experts. I have worked with them in the past on a number of issues and found them to be very good. I am sure Senator Nash would agree in that regard.
May I ask a question on a point of order?
The Senator may indeed do so.
In light of the Minister of State's comment that the Government is not opposing the Bill, does it mean there will not be a vote and that the Bill will pass on Second Stage unopposed?
We are not opposing the Bill. I presume it is a matter for the House.
So it will pass on Second Stage unopposed?
That will be a matter for the House when the question is put.
We are not opposing the Bill.
The Government is not opposing the Bill so there will not be a vote.
We are not opposing the Bill but we would like the support of the House on our proposal to give the Low Pay Commission time to examine the content of the Bill.
The Senator's interpretation may be correct but the question will have to be put to the House on the conclusion of Second Stage.
The Government is not opposing it. Could I ask the Minister of State another question? He has been very helpful indeed. I take it that the Government would not be distressed by allowing the Bill to proceed beyond Second Stage and then go into suspended animation on the Order Paper until the commission reports.
If the Senator was listening to me, he would know how seriously we are treating this.
We are not opposing the Bill but asking the House to refer it to the commission.
We have dealt with it. We have said how we will proceed so we will leave it at that.
I welcome the SIPTU representative to the Gallery and thank all the unions and others for their research and input into the Bill. First, I thank my colleague, Senator Paul Gavan, and Barry Kearney for their work on the Bill. I also acknowledge the work of Senator Trevor Ó Clochartaigh in bringing this Bill to Seanad and for all the research work he has done.
Legislation of this type, which can have a positive effect on people's lives, involves a lot of outreach and consultation with interested parties. Senator Gavan has done that in spades during the preparation of the Bill. Notwithstanding what the Minister of State, Deputy Breen, has said, I hope the Government takes notice of the many other solutions that we as a party are more than happy to have discussed in this House at any time, not solely during our own Private Members' business periods.
This is an opportunity to do the right thing. I accept what the Minister of State said but I have major concerns with his response and the stated aim of having the Low Pay Commission deal with the issue. He acknowledged that it is a good Bill and that he will not oppose it. The Minister of State referred to what the British are doing. So often with legislation and other issues in this country, we wait for the British to do something and then we decide what we are going to do. The Bill is very innovative and simple. It would avoid disputes. The Minister of State listed legislation that offer remedies to right disputes between employees and employers, but the fact is that no employee wants to be in dispute with his or her employer. The simple legislation we propose would fix an existing problem that we are aware of through the research carried out and the people to whom we have spoken in the consultation process that took place. If enacted, the Bill will do exactly what it says on the tin.
If the Minister of State proceeds as he has outlined, I am afraid the issue will get buried with all the other issues that are being considered by the Low Pay Commission. I get calls every day, as I am sure do my colleagues and others, from people who are affected by banded-hour contracts and zero-hour contracts among other issues. We talk about those issues and we do various reports but the pace of the implementation of legislation is far too slow. Many people who are on banded-hour contracts would love to have bought their own homes had they had the employment security a couple of years ago. The opportunity to do so has now gone way out of their grasp. That is why I believe time is of the essence.
As someone who goes to restaurants, I would love to have transparency on tips. Tips are given according to the type of service one gets. Like every other person, I want to see the tip going to the workers. If I want to pay extra to the establishment, then I would pay over and above for what I got, but the tip is specifically for the workers and it must remain that way.
Senator Gavan acknowledged that there are excellent employers. The vast majority of them fall into that category. Many employers along the western seaboard struggle during the year to pay their bills, yet the vast majority of them treat their employees in the right way. This legislation is not for them but it is intended to protect the most vulnerable workers. Employers need to see the economic folly of not allowing employees to keep their tips because, at the end of the day, the tips are a motivation for employees, be it a hairdresser or a person working in a restaurant or bar, to give the best possible service. That way, one gets increased customer satisfaction and return customers and a correspondingly increased turnover. Keeping tips is a foolish thing.
I could say much more but I urge the Minister of State to let the Bill to proceed through the next Stages. I do not see any anomalies but if they exist, they could be picked up as the Bill progresses in the same way as other Bills. I accept what the Minister of State said about the expertise of the Low Pay Commission, but it could also feed into the process as expert witnesses in order that we can complete the progress of the Bill as quickly as we can. That would benefit not only the employee but also the employer and the entire industry if there are happy workers who are looked after, which would allow us to have pride in our industries. We can lead the way instead of waiting to see what the British do.
Since 1 January 2018, under the National Minimum Wage Order 2017, the national minimum wage for an experienced employee is €9.55 per hour. An experienced adult employee for the purpose of the National Minimum Wage Act is an employee over the age of 18 who has an employment of any kind in any two years. However, the national minimum wage does not stop an employer from offering a higher wage. There are some exemptions to those entitled to receive the national minimum wage. The legislation does not apply to a person employed by a close relative, for example, a spouse, civil partner or parent, nor does it apply to those in statutory apprenticeships. Some employees such as young people under 18 and trainees are only guaranteed a reduced or sub-minimum rate of the national minimum wage.
Under the National Minimum Wage Act young people and those in the first two years of employment can be paid lower rates called sub-minimum rates. The National Minimum Wage Act also provides sub-minimum rates which apply to employees who are aged over 18 years of age undergoing a course of structured training or direct study that is authorised or approved by the employer. The Act provides certain criteria which the training course must meet if the trainee rates are to apply. For example, the training or study must be for the purpose of improving the work performance of the employee. The employee's participation on the training or study must be directed or approved by the employer. At least 10% of the training must occur away from the employee's ordinary operational duties. There must be an assessment and certification procedure or written confirmation on the completion of the training course. If an employer cannot afford to pay the national minimum wage due to financial difficulties, the Labour Court may exempt an employer from paying the minimum wage rate for between three months and one year. Only one such exemption is allowed. The employer must apply to the Labour Court for the exemption with the consent of a majority of the employees who must also agree to be bound by the Labour Court decision. The employer must demonstrate that he or she is unable to pay the national minimum wage and that, if compelled to do so, he or she would have to lay off employees or terminate their employment. An exemption may only be sought from paying the full rate of the national minimum wage, not for the cases covered by the reduced rate, for example, employees who are under 18 years of age.
If a person is not receiving the national minimum wage, he or she may enforce his or her rights by completing the online complaint form that is available. An applicant may refer the dispute to the Workplace Relations Commission, WRC, adjudicator. However that may only be done when there is a request from the employer and a statement outlining the calculation of the average hourly pay. The applicant must refer the dispute within six months of the supplying of the statement. If a person is alleging victimisation, he or she should request that the employer restores his or her employment conditions to the position before taking a case. Where the employer fails to do so within two weeks of the request, the applicant may refer the matter to the WRC adjudicator.
I also see the direction of Senator Gavan's Bill. When I tip a person after a meal in a restaurant, I expect that person to keep their tip. It is not good enough that this money would go to the employer, whether they had a bad night or there is money short in the till. It is an absolute disgrace. I come from a family retail background of video shop chains and hotels. If our employees got a tip, they kept it. I support Senator Gavan's worthy Bill.
The Minister for Employment Affairs and Social Protection, Deputy Regina Doherty, believes it would be helpful to have some research on how current practices work, including service charges. She intends to ask the Low Pay Commission to examine this issue and report to her in due course. It is a pity the Minister is not in the Chamber tonight. When the report comes back, I see no reason why we cannot go further with this Bill.
After listening to nearly 23 minutes of debate on the national minimum wage, zero hours, casual work and casual employment arrangements, I wonder if we are discussing different legislation.
I acknowledge the work Senator Gavan has done on this Bill. Fianna Fáil has some concerns about certain areas in the Bill which we hope can be strengthened to ensure its easier passage through the House. Fianna Fáil support efforts to improve conditions for workers. We are also in favour of increased transparency for workers and consumers in how tips and gratuities are treated and to make it clear to consumers that they are voluntary. However, this has to be clarified by legislation, as this Bill attempts. The British Government has developed a code of practice on service charges, tips and gratuities, as well as cover charges, which are voluntary. We believe such a code should be considered as it would strengthen the current position. It would improve information to customers and workers while enabling businesses to operate in a fair and transparent manner, benefiting both workers and consumers.
This measure, along with addressing issues concerning idiosyncrasies in low pay and precarious hours, would go some way in protecting workers in the service industry. We have some concerns with the legislation but, hopefully, they can be teased out during its passage.
I welcome this Bill and congratulate Senator Gavan for his work on it. I also congratulate Senator Ó Clochartaigh who did important work around the research into the realities of the experience of workers in the Galway area. I know he has also highlighted other workers’ rights concerns in that area. I welcome the representatives of SIPTU and others to the Gallery.
I will be supporting the Bill. There has been much discussion about its positive intentions. This House, however, is not just simply in the business of positive intentions but of policies. Much as I want to see these positive intentions turned into real and concrete policies, similarly, although I am sure there are positive intentions among most employers for their employees’ well-being, the fact is that those intentions are not enough. They need to be underpinned by clear and accountable policies which are published, as the Bill proposes, to allow customers know about how a business works with its employees, values them and deals with tips. There are also public and legal policies which act as the ultimate safeguard in ensuring fair practice and fair treatment.
The fact is we are not dealing with a tabula rasa or thinking about tips in some abstract way. We are in fact dealing with tables with money on them, maybe coins or a few euro. That money has been given by people who receive services. This will not stop during a six-month review by the Low Pay Commission but continue. Accordingly, it is important we send a signal now by ensuring this Bill stays on the table and moves from Second Stage to show it matters how that money is divided. We should not simply wait to see what might happen with it, whether the employer will choose to ensure it is shared or it will be taken by them. There are real concerns about the power dynamics involved. It was mentioned that an employee could go to the Labour Court. I do not foresee a situation where most employees would feel able to go to Labour Court around a case such as this, particularly in many of the service sector areas where wages, conditions and job security have been deeply eroded in recent years.
Some of those issues spoken about earlier, as Senator Davitt pointed out, are not on the table now but do set an important context. We all know this is not the solution to the bigger picture issues which we need, such as the question of moving from a minimum wage to a living wage, the need for real pressure around joint labour committees and the fact we should not be giving tax relief to sectors when they do not deliver on good standards of employment for everyone in them. While these are the wider issues, this issue is simple and straightforward which we can push forward now to send a signal, as legislators, about the tone in which we expect business to behave.
Some of those most affected by these issues in the service sector are women. I have nothing against the Low Pay Commission examining this issue but it can happen in parallel with the legislation moving forward. If we get timely feedback from the Low Paid Commission, I have no doubt Senator Gavan and others will be happy to incorporate it in the Bill as it goes through Committee and Report Stages. They are open to cross-party discussions on this area.
We cannot simply wait for the Low Pay Commission research, however. We already know from it that two thirds of those on low pay are women, the majority of those in the service sector are women and wages in that sector have not been risen like the rates of profit in it. That in itself should be enough to ensure we are seeking to take every step we can to improve the situation for workers in the most immediate way.
Younger employees were mentioned, those under 18 and in apprenticeships, for example. They may not even be on the minimum wage and are often on lower wages. The supplementary income they may get from tips is important. Tips are also an important signal to them, early in their working life, that they are valued by customers which is reflected by their employer.
The tip most of us put on the table, for example after a meal, is intended for the employee and is not part of the remuneration package from the employer. This is a payment from the customer, given in recognition of service. Many tip in cash because they are concerned that, if they tip with a payment card, it will not be properly passed on to the employee. It would in fact be positive if Revenue ensured if people tipped with a card payment, it would reach employees properly.
The Bill has good nuances in that it recognises small employers, for example, who in many cases may work alongside their employees, and should get their fair share.
That is a very positive nuance in the Bill. I will support the Bill and urge everybody not just to recognise and praise it but to actively support it because that would send an important message to employers as we go into the summer tourism season. Let us support the Bill and see it get to Committee Stage, and enjoy any feedback we get from the Low Pay Commission at that Stage of the process.
I welcome the Minister of State, Deputy Byrne, and commend her for being here.
We can talk about ideology and adversarial politics, but this is a debate we need to have. I am very happy that the Government will not oppose the Bill at this Stage. I commend Senator Gavan for putting a lot of work into the Bill. He mentioned Senator Ó Clochartaigh and other Members in his remarks.
I wish to begin on a discordant note. I refer to the remarks of Senator Higgins. She should understand that the previous Government and this one increased the minimum wage and took more people out of the tax net than any other Government in the history of the State. She consistently comes in here and berates this Government and the previous one. She should look at the facts. We increased the minimum wage, took more people out of the tax net and gave people a chance.
Senator Gavan knows my ideology in terms of low pay and workers. I want to ensure that the rights of workers are protected. The opening lines of the speech from the Minister of State, Deputy Breen, were about decent pay for decent work. Senator Higgins should not come into the House and consistently berate the Government and say it did not do anything because it did. A significant number of people have been brought out of poverty. Senator Higgins should be consistent in her approach to politics. New politics is not about giving out about the Government. Rather, it is about trying to bring pay-----
Senator Buttimer might want to look back on my speech. He will find what I discussed.
I was here. It is important that, in the context of the Bill, we work together to ensure there is a desire to protect employees, as Senator Gavan said. I heard him on Newstalk or RTÉ yesterday, and I agree with him.
A lot of work needs to be done on the Bill, which the Minister of State, Deputy Breen, acknowledged. It is a complex Bill. The fundamental core of what it is trying to do is to protect employees. I have always been concerned about where the money goes and how the pool of money is given to employees when customers use Laser or credit cards in restaurants or other places where people tip at the end of service. The Bill is also about ensuring there are adequate protections for employees.
Our service industry is one of the most important parts of our country. It is cliched and hackneyed to say that, but when people refer to the céad míle fáilte and welcome they receive in Ireland it is the people who work in the service industry who contribute to that. Front-of-house receptionists, waiters and bartenders in pubs, restaurants and everywhere else contribute to that. By and large, we are very lucky in terms of the people who serve and work for us.
The Minister of State, Deputy Breen, referred to the UK model and what it did and did not do. We should never follow the UK; we should always lead ourselves. I hope we can do that. That is why I am glad we are not opposing the Bill on Second Stage. It is about ensuring that people who work and deliver a service receive due remuneration and respect from us as citizens of a republic. We speak about a republic of opportunity. That applies to those who get up early in the morning or work all day and night. There was a programme on RTÉ on Monday about what Ireland eats. People get up in the middle of the night in order to be in work at a particular time or work antisocial hours. The same applies to those working in hotels and restaurants.
The Minister referred to contact and communication with different stakeholders in our hospitality sector. One of the best things the previous Government did was to reduce the VAT rate, which was an activation measure to create employment in the hospitality sector. Look at what has happened since in the hospitality sector. Prices have increased for hotel rooms in Dublin and other areas. For some reason, hotels in the capital city of our country have this week charged members of the public astronomical amounts of money.
If we are serious about job retention in the hospitality sector, we must sit down with the Irish Hotels Federation, IBEC and any other relevant stakeholders and address the spiralling cost of accommodation in our capital city and other parts of the country. There will be a reduction in jobs if prices continue to increase. That is not good enough, given that in its very first budget in 2011 the then Government took a decision to cut the VAT rate and retained it following lobbying in the intervening period.
Senator Higgins referred to the Low Pay Commission and said we cannot wait. We all want people to be paid a decent living wage - I am all for that. However, she failed to recognise that yesterday the Minister, Deputy Regina Doherty, addressed a pension anomaly. There is a commitment in respect of the Low Pay Commission. I am not referring to Senator Higgins's speech; rather, I am speaking in general about people who, on the Order of Business today, attacked the Minister for not going far enough. She gave a commitment and addressed the matter. The Low Pay Commission was established under the National Minimum Wage (Low Pay Commission) Act 2015. It will come back with recommendations and work to address the issues which need to be ironed out in this Bill.
We must make a statement of endorsement and affirmation to the men and women who work in our service industry. In tandem with that, from a political perspective, there is a need for the political will to bring about change and ensure there is no rip-off Ireland or under-the-counter skulduggery taking place. I am not saying there is because I know from having spoken to people in advance of the publication of the Bill that restaurateurs in Cork operate on the basis that tips go to workers and are pooled or allocated to those waiting on tables, kitchen porters or whoever else is part of the operation.
It is also important to recognise that this Government and the previous one rebuilt our economy with the Irish people. There are more people back at work. People should compare the number of people who were unemployed at the beginning of 2012 with the number for 2018. There has been a gargantuan change in the landscape of our country. There are now cries that we have traffic gridlock and cannot get people to fill certain jobs. On the Order of Business today, I made the point that there is a deficit in apprenticeship numbers which we must address, in particular in the construction sector. People involved in the construction sector say significant holes need to be filled.
I welcome the Bill. I am glad we are not opposing it as a Government. We must all work to ensure that workers get their remuneration and receive to what they are entitled. I again commend Senator Gavan. I put my sword back in the scabbard for this debate but we will resume hostilities another day. I commend the Bill.
With respect, Senator Buttimer must have been listening to a different contribution from Senator Higgins than the one I heard. If Senator Higgins can be accused of consistency, the consistency I would accuse her of it being consistently supportive of the low paid, in particular women who are low paid.
I have developed a relationship with Senator Higgins over the years. I very much enjoyed the work we did together. Wearing a previous hat, she gave advice to me when we established the Low Pay Commission. In fact, the very valuable work the commission did included identifying the needs of women, in particular, who are in low-paid jobs. As the Senator correctly pointed out, a preponderance of women experience low pay in Ireland and earn the national minimum wage.
I commend the work of the Low Pay Commission, work I asked it to do, to try to get under the bonnet of that issue to understand the issues pertaining to women in low-paid jobs, who need to be supported and protected by improved legislation and indeed improved statutory minimum rates of pay in this country, particularly when we look at the sectors in which those women are concentrated. Sectors in which women are concentrated include the hospitality, food and accommodation sectors and this has been referred to earlier.
I am pleased to support the Bill presented by my good colleague, Senator Gavan, and Senator Ó Clochartaigh, who I know did an enormous amount of works in terms of the research that underpins the necessity for a Bill like this to be presented to this House and to find its way on to the Statute Book. This work confirms what we already know anecdotally, which is that all too often, workers in hotels and restaurants and the food and accommodation sector effectively have their tips stolen from them. This is what it is. They are cheated out of money that is rightfully theirs. I want to consider this figure for a moment. On foot of a request I would have made through the Low Pay Commission when we dealt with those issues a couple of years ago, we asked the CSO to ask a question in its quarterly national household survey regarding the number of people who are on the national minimum wage. We always made an informed assumption that about 5% of the workforce was on the national minimum wage hourly rate. In fact, the quarterly national household survey figures produced last year indicate that the figure is double that with about 10.1% of the workforce engaged on the national minimum wage rate. This has been confirmed. The sector with the second highest proportion of workers on the national minimum wage is the services, food and accommodation sector. This is the sector on which we are focusing in the context of this Bill. That is not to say that there are no other sectors where workers receive tips for the work they do. Standing at a quarter of all those earning the national minimum wage, these are among the workers who are least likely to be members of a trade union and, therefore, do not get the protections that members of trade unions generally have and who are the most likely to be on contracts where they are not guaranteed hours or work - precarious work of one description or another.
Despite the fact that it is State policy that there should be a joint labour committee in the hospitality sector, like the joint labour committees that are successfully operated in the security and contract cleaning sectors, there is no such committee in the hospitality sector and there is very little evidence that one will be set up any time soon. Against this backdrop, we see far too many people working in the hospitality sector - a sector that has, as Senator Buttimer, who is not here to hear this contribution, has said has benefited from almost seven years of consistent State subsidy - being cheated out of their tips in a way that is very difficult to comprehend and defend. It takes some brass neck for an employer to do their staff out of tips to which they are rightly entitled but "brass neckery" is not something of which there is a shortage in this country and that industry. Denying a worker the tips to which they are entitled is a horrible, vindictive and cruel act and is nothing short of robbery.
This Bill could be tightened up and nuanced in some ways. I know that Senator Gavan does not have a monopoly of knowledge or expertise on this. Neither do I. Nobody in this House has. Those of us who have the interests of working people at heart are prepared to work with officials in the Department, the Low Pay Commission and the Minister to try to nuance this Bill and make sure it is the best possible piece of legislation we can produce to defend the interests of the people targeted by this Bill. In reality, we are all agreed that the tips that are generated for the staff who wait on tables, work in kitchens and work in this industry should go to where they need to go, which is into the pockets of those who are entitled to them. It is a really sad commentary on us as a society and on elements of that sector that we must have a legislative response to this issue. It would be helpful if companies could be encouraged and obliged to post in their premises a widely understood policy on the distribution of tips and what happens to them because the public needs that reassurance.
I am also pleased to see that there is provision in this Bill to make sure that the owner-manager is in no way excluded because the reality on the ground is that probably the vast majority of small food businesses in this country are operated seven days a week by the owner-manager - often in very difficult circumstances. They need to be acknowledged and recognised in the context of this Bill. They are as entitled as everybody else working on the floor, in the kitchens or in the background in that company to tips because of their hard work.
I am also pleased to see that there is provision in section 5 around the primacy of collective agreements. It is really important that we encourage employers to use the machinery that is in place, which in this case, is a joint labour committee, and that if a joint labour committee can identify a better customised and tailor-made approach to the sector, it is quite free to do this. I have been on the receiving end of a considerable amount of criticism from elements of the hospitality industry in recent years because I have the audacity to believe that workers are entitled to some certainty regarding the income they might expect and their hours. I have no doubt that Senators Gavan and Ó Clochartaigh and others who have moved this Bill and been involved in its gestation have received similar criticism because they have the audacity to believe there should be a legislative response to address these issues in terms of tips getting to the staff who need them. When I engage with those industry bodies, I always say that there is an alternative to the blunt instrument of primary legislation being imposed on them and that alternative is to engage with trade unions in a joint labour committee to customise an approach to certain rights and entitlements, rates of pay and terms and conditions in their sector, an approach that works for them. However, in the absence of such an agreed order that might emerge from a joint labour committee, legislation like this is needed. Sometimes I get a bit uncomfortable when I hear Ministers talk about the necessity of introducing a code of practice instead. My experience regarding how the code of practice around self-employment has worked tells us that given what we know with the rise in bogus self-employment, sometimes codes of practice are not worth the paper they are written on. However, I have every confidence that the Low Pay Commission has the expertise, interest and the commitment to help us to address these issues that we are ventilating on the floor of the House this evening. I look forward to that report but my absolute preference would be for us to legislate and give legislative effect to attempts to address this issue and not rely simply on a weak and toothless code of practice.
Eight more Members wish to speak. If everyone gets eight minutes each, that would bring us to 7.11 p.m. but we must conclude the debate at 6.55 p.m. to allow Senator Gavan to conclude for five minutes and reply to the debate. If everyone lost two minutes of their time, we would probably get there otherwise three or four people at the end will not get in at all. I will leave it at eight minutes. Is that okay? It is fair that we leave it at eight minutes but could Members try to curtail their time?
Gabhaim buíochas leis an Aire Stáit. Gabhaim mo bhuíochas agus déanaim comhghairdeas leis an Seanadóir Gavan as an Bhille seo a leagadh os ár gcomhair anocht agus le Barry Kearney agus a oifig as a gcuidiú leis an reachtaíocht seo a dhreachtú. Gabhaim buíochas freisin as an obair a bhí curtha isteach ag an Seanadóir Ó Clochartaigh, mar a ghabh daoine cheana féin. I do not and should not have to reiterate the fact that this rather simple and direct Bill is about workers. It is about protecting and defending workers and offering the most modest and basic form of support, courtesy and dignity to a point given the circumstances in which many people within the hospitality sector work. When I came to reflect on this piece of legislation, I thought back to last night and a Bill before us on Second Stage from Senator Swanick. It was the Life Saving Equipment Bill. All of us, including its proposer, acknowledged that this Bill needed to be tightened up and that there were elements of it that could be improved and refined with expert input and knowledge.
Given that it was positive legislation and could have a tangible impact on people's lives, in keeping with the general practice in this House, we all agreed to allow it to proceed to Committee Stage because that is where we can amend, develop, refine and improve legislation such as this.
I acknowledge that a number of parties will abstain on the Bill, but it would have been much more positive and in the spirit of new politics and would have given a positive message of support to workers in the hospitality sector were they to have voted for it to pass and then sought to have their amendments made on Committee Stage.
I do not think my time is up yet, but I will not use the whole eight minutes.
It is not, but I want to get this man in to respond.
I will not go the full ten minutes.
I do not want to let him down.
I want to bring it back to the workers. Some of them are represented in the Gallery while others are following via social media and on the web. The workers have to be front and centre in our minds as we progress the Bill. It is bad enough when the State asks the people to pay for bad banking debt and dips into their pockets to pay for that. It is worse that we would not even consider at this stage very simple legislation that would stop certain employers from dipping into the tips jar. As Senator Nash rightly said, that is effectively what is happening here. People's tips are being taken from them.
Let us reflect on the kinds of workers who avail of, benefit from and, in many instances, rely on these tips. The limited recovery in this State, mentioned by Senator Buttimer, has happened because of those who put their shoulder to the wheel and work in those precarious jobs in the hospitality sector. They get up incredibly early in the morning to clean hotel bedrooms, kitchens and bars. These are the people who have led the recovery. The very least we can do is ensure that they get to keep the tips they get for the good service they provide and despite the often horrible conditions they work in, as identified by the research in Galway carried out by Senator Ó Clochartaigh. We need to ensure their employers are not taking their tips upon which they rely to make up the difference in their wages which perpetuates the kind of awfulness we have seen in this State with homelessness. We are forcing people into poverty where they lose jobs, where they lose their homes and where they are not able to afford rent. Tragically, that is the difference employers taking tips off their staff can make to people's lives. They are stealing them and effectively driving them further into poverty.
We have an opportunity to do something very simple, straightforward and positive. It is laid out in the Bill. We should allow it proceed to the next Stage, at which point we can, as colleagues have outlined, make the necessary amendments. We have no objection to that.
I welcome this Private Members' Bill. When I heard of it first, I said it struck a chord of well meaning. I congratulate Sinn Féin on bringing it before the House. I have some difficulty - not much difficulty - with some issues.
I had a restaurant over 20 years ago and am proud that the staff kept their tips. I had one member of staff who did not remember orders, was not very fast and sometimes got orders wrong. However, she could smile and say, "Hello", "Please" and "Thank you". She got more tips than I got for running the restaurant and fair play to her. It is wonderful to get service with a smile and people tip because of that. It is sometimes not because of the quality of the meal, but because somebody has been pleasant to them. Fair play to anybody who gets plenty of tips.
I saw anomalies in my restaurant where I allowed the staff to keep their tips. While it was not a high-class restaurant, the tips were quite good. However, when there was a party of 15 or 20 people and the person serving that table got a huge tip, sometimes it did not go into the fund for all the staff. That is an issue. Some people are blaming unscrupulous employers, but sometimes it is an issue when a bill came to €200 or €300 and somebody got a tip of €50 that did not go into the pot. I do not know how we can legislate for that. I suppose it is human nature in some ways. I am very supportive of staff keeping tips.
I agree with Senator Nash that if there are 15 or 20 staff in a restaurant, from a solidarity point of view everyone should have a fair share, and maybe the owner-manager of the restaurant should be able to have a say in how the tips are divided. Maybe even if there was €300 or €400 at the end of the night, it could be €10 or €20 each, because it shows that people were involved. The Senator is right in what he said about joint labour committees. We are looking at one angle and I can understand where he is coming from, but we need to tease this out further.
I think we in Ireland are quite generous with tips. When I visit the United States, a state of panic and confusion sets in because we do not know exactly what to give. I can be in a bar and if someone buys me a bottle of beer, I nearly buy him two or three bottles of beer back, and that is the barman. The minimum wage in the United States is only $5.85 and most of the staff rely on the tips, whereas in Ireland it is €9.55. I agree it is not a living wage and I accept that tips should be considerably more generous.
A balance needs to be struck here and it is never easy. We have to think about businesses, restaurants and employers. I want to speak on behalf of employers because I employed up to 50 people in two separate retail businesses. It is quite difficult to keep businesses open. It was quite difficult to address the minimum wage, although I welcomed it. If a business cannot afford to pay the minimum wage, it is not a viable business. There were challenges. Most businesses did not go out to oppose the minimum wage, but effectively there was no system in place. When it came, I would not say it closed many businesses but it certainly did not help to keep the businesses open. I very much welcome the minimum wage which was one of the best things that happened in our country. It provides solidarity with the staff.
The Bill is welcome. We need to look at practices elsewhere, such as what is happening in the UK. We can probably come up with a better and more holistic way of dealing with it. Senator Nash's proposal of a joint labour committee addressing all the major issues could be the way forward. It is a Bill worthy of debate and contains many good points.
Tréaslaím leis an Seanadóir Gavan as ucht an Bhille seo a thabhairt chun cinn. I have been getting a lot of praise, but the lion's share of the praise on the Bill has to go to Senator Gavan and to Barry Kearney who works with him and who is in the Gallery this evening. They did a huge amount of work on the matter over the past year.
There has been a lot of talk about the survey we did in Galway and the campaign we have on restaurants. There were two real heroes in that campaign in Galway. One of them, Eva Mitchell, is sitting in the Gallery and the other lady was Kaela Mac Cormaic. They were workers in the restaurants who told their stories publicly and were very brave to do that.
What we found is that people working in the industry are afraid to speak out because of the possible repercussions of doing so. The workforce in the sector is highly fluid and employees are told they will be quickly replaced if they open their mouths.
I will recap some of the findings of our survey. The Bill must be viewed in the context that most of those working in restaurants are young people. The majority of the 415 respondents to our survey described themselves as Irish and were between 18 and 34 years of age. Some 45% were employed full time in the sector and a further 25% were working part time. The survey found that 43% had been employed for at least one year. The three most common occupations were waiting staff, bar staff and chefs.
The key findings of the survey were: 45% of respondents were not given written statements setting out the terms of their employment within first two months and 18% did not receive regular pay slips; almost 60% indicated they did not receive the statutory 15-minute break after 4.5 hours work; 50% did not receive a 30-minute break after six hours; 50% did not receive their entitlement to nine public holidays per year; almost 50% did not receive 11 consecutive hours of rest between shifts; and more than 40% did not receive four weeks of paid annual leave.
While tipping is an important issue, workers in these sectors are also suffering for many other reasons. Some 44% of respondents to our survey indicated that the rota in their workplace was used regularly as a negative control mechanism. Effectively, this means that those who do not toe the line lose hours or are not rostered for the hours they need.
On an issue directly related to the Bill, 34% of respondents reported the withholding of tips regularly, very often or constantly, and 28% reported being underpaid regularly, very often or constantly. Instances of physical and verbal abuse were also reported.
I wish to be positive on the basis that the campaign has made significant progress. The committee working with me includes members of SIPTU, some of whom are in the Public Gallery, academics from the National University of Ireland, Galway, people working with migrant workers and employees in the industry. We found an unexpected ally in the Minister for Transport, Tourism and Sport, Deputy Shane Ross, who, following a meeting with us, brokered a meeting with the Restaurants Association of Ireland. We hope to meet representatives of the Irish Hotels Federation in the next couple of weeks.
We put it to industry representatives that there are issues in the sector and they should acknowledge them. We want to work with the industry. We also want to turn our campaign into something positive by rewarding employers who treat their workers well. We are starting an awards programme for companies that show respect for employment and labour. We will develop an awards system for restaurants that treat workers properly, similar to the rosettes given to restaurants under other awards schemes. We met representatives of the Galway Chamber of Commerce, which responded favourably to our proposal, and we hope to meet restaurateurs in the city. We will turn this into a positive campaign.
One of the angles in respect of tips that has not been mentioned is that good employers are penalised by the lack of regulation in this area. Good employers who pass on tips in a proper manner and treat their workers well are being undercut by employers who are dipping their hands into the tips jar. The latter are able to provide services and food at a cheaper rate and are, therefore, undercutting their next door neighbours. The good employers whom we met agree that the sector requires this type of legislation and regulation. It is important to point out, therefore, that they will support the Bill.
Much has been said about the Workplace Relations Commission, WRC. The responses we have received indicate the commission has no teeth. We have dealt with cases involving people who have won cases in the Workplace Relations Commission. Marius Marosan who represents Romanians in Ireland has taken 50 cases to the Workplace Relations Commission, most of which he has won. However, the employers in question laugh at the outcome because little can be done if they do not pay out. They do not give a damn about the WRC or the possibility of staff taking a case to the commission. They laugh at employees who indicate they intend to take a case to the WRC. The way in which the commission operates must be reviewed.
I commend the work being done by Senator Gavan and fully support the Bill. Molaim go mór na hoibrithe atá ag labhairt amach. I encourage more workers to speak out and tell their stories. That is how we will get to the bottom of what is taking place. I thank the Restaurants Association of Ireland, which I have castigated previously, on coming on board and showing support. We hope to work with the association, the Irish Hotels Federation and others to create a positive culture and make this Bill a win-win scenario for everyone.
I know Senator Norris will be brief.
I will do my best. I welcome the Minister of State and commend Senator Gavan on introducing the Bill. I was glad to hear Sinn Féin Senators pay tribute to Senator Ó Clochartaigh despite his separation from the party. He is one of the best Senators in the House and I sincerely hope he finds a way to continue in public life.
The definition of a "gratuity" in the Bill is extremely good. It is defined as a "payment voluntarily made to or left for an employee by a customer of the employee's employer in such circumstances that a reasonable person would be likely to infer that the customer intended or assumed that the payment would be kept by the employee or shared by the employee with other employees". One could not better this definition, which is excellent.
However, I have some questions regarding the Bill. I would like more clarity on the reference in section 3 to "adjudication officer". From where will the adjudication officers come and what qualifications will they have? They cannot be simply dredged up from nowhere. Greater clarity on this issue would improve the Bill.
The Bill provides that employers display on menus and so forth the policy regarding the distribution of tips. If the Bill passes, this requirement will hardly be necessary because all employers will have to behave in the same way regarding tips. The provision may, therefore, be redundant.
The penalty provided of imprisonment to a term not exceeding six months appears a little harsh. While pilfering tips is a nasty thing to do, I am not quite sure people should be sent to jail for it.
Fining them would be enough.
I beg your pardon.
Perhaps I should not suggest that they be fined.
They would be fined under the legislation in any case. I would leave that provision in the Bill.
The proceeds from fines should be given to the workers.
The Minister of State referred to considering options such as "a code of practice for the sector that would guide employers and employees." A code of practice is no bloody use because it would catch good employers, while bad employers would give us the two fingers. They will not care a damn about this.
I do not know what the Minister of State was going on about when he referred to "gambling, betting and hairdressing sectors and taxi operators." I do not gamble and I do not imagine that people give tips in Boyle Sports or whatever the other bloody places are called. I always give a tip to the hairdresser, however.
That is why the Senator always looks so well.
The same applies to taxi operators. People give the tip directly to the driver as there is no other person involved in the transaction.
The Minister of State referred to reservations expressed by the Irish Hotels Federation when it was directly contacted. Of course the federation will query the legislation. Given that hotels are profiteering from this, why would they not object to the Bill?
There is no harm in asking the Low Pay Commission to give a view on this matter. The Minister of State referred to asking it to report back within six months. There is no harm in imposing a time limit on this.
The Minister of State indicated that workers can refer disputes under the industrial relations Acts. Like hell they can. They would be fired and their feet would not touch the ground if they tried to do so. Who is the Minister of State kidding when he comes out with this crap? I will withdraw unreservedly that word if it is considered unparliamentary language.
I thank the Senator.
The circumstances addressed in the Bill do not only affect Ireland. We heard evidence of similar legislation in Canada. Restaurant staff in the United States could not survive on their wages and need tips. In France, if one does not leave "service" in a restaurant, one is battered on the head.
With regard to credit cards, it is a bit cheeky to leave a space for tips on bills paid by card. Sometimes the staff are no bloody use. Why should one give a tip to someone who is absolutely useless? I had an experience recently while waiting outside the Gresham Hotel for a taxi to take to me to St. Patrick's Cathedral where I was due to speak at a service. After waiting for about ten minutes, a woman approached and when a taxi pulled in, I got in because I was the first person in the queue. The driver then asked me if the woman was with me. I replied that I had never seen her before and she had just arrived in the queue. He responded by calling me a disgrace. "You call yourself a gentleman", he said. I have never called myself a gentleman and I told him I had been waiting for ten minutes before the woman in question floated into the queue. He wanted to let her into the taxi because she was a bit of skirt and he could go to hell, I said. When I was getting out I told him he was not getting a tip because he was an ignorant, ill-mannered thug. At that stage, I had got out of the taxi and was standing on the pavement.
I was afraid he might take a smack at me. Among the things I do not like in restaurants is the way they push drinks, particularly upmarket restaurants. They do not ask if guests would like three starters instead of two but they will keep pouring and opening more bottles and pushing the drink.
Apart from water.
Apart from water - my colleague is absolutely right.
With regard to the tax situation, it is a gratuity, a gift. I do not think it should be taxed at all. It is a matter between the customer and the person who provides the service. I do not think it should be taxed. I always give cash because if one puts it on a credit card, the credit card company and the management take money out of it and there is damn all left for the unfortunate employee. I am glad to say that when I give cash - to use a word I really like that came out in one of the tribunals - it is "trousered" immediately. Trousered - into the pocket and off they go. That is the way it should be. It is a way of saying "Thank you very much" outside the tax system.
I hope I have not used the whole eight minutes.
It is hard to follow on from that very agreeable contribution from Senator Norris. I do not always agree with him but on this occasion I agree with practically everything he has said. I welcome the Minister of State, Deputy Byrne to the Chamber, it is great to have her here. The Minister of State, Deputy Pat Breen was here earlier but he did not stay to answer questions. That is all right too.
I come from County Clare, where the hospitality industry is a very significant employer. This is an extremely important piece of legislation. What has gone on in businesses when it comes to gratuities and tips is an absolute disgrace. Tips are paid because people are happy with the service. They got a good product and felt good about themselves. The people serving and looking after them did so in a way that made them feel happy about their meal and the occasion for which they were out. It is not acceptable for businesses to retain any portion of the tip.
Equally, if there is a restaurant with five staff out front and another five or six staff in the back doing the cooking and washing up, when a tip is left, the staff in the back should be entitled to their portion as well. They are part of the equation that makes up the overall experience. People usually will not tip if they do not get a good meal or if they do not like the food, irrespective of how good the service is. Equally, if people have a very nice meal but the service is not good, they will not tip either. Usually when people tip, it is because they have had a whole, rounded, positive experience. The various people who help make up that experience should be rewarded. Unfortunately, in a lot of cases and particularly in tourist areas - I would not be as familiar with Dublin - it is the front-of-house people who benefit most when the tips are given. There are many fair employers who divide it up, however, which is welcome.
As to whether gratuities should form part of someone's taxable income, Senator Norris is right that it is a gift. There is a certain threshold here whereby one can receive up to a certain threshold per annum tax free in terms of a gift. It should be classified as a gift. I do not think there is anybody in this country who is paying tax on tips. If there is, I would love to meet them because they must be getting some ginormous tips.
A lot of young people fund their college courses and their accommodation, in particular, through tips they get from employers that do pay them back out. That is good because it is educating young people, giving them the opportunity to embrace education and fulfil their lives. I talk to many young people who tell me it is as a result of the tips that they have been able to live in reasonably good accommodation and so forth. Not all restauranteurs, hoteliers and so forth are blackguarding when it comes to tips. Quite a lot of them are paying them out.
I commend Senator Ó Clochartaigh. It is the first I heard of that scheme in Galway. It is like a quality mark for treating staff right. Maybe it could be extended into other industries as well. I would encourage the Minister of State, if there is a few euro somewhere along the line, to see if they could get a grant towards what they are doing on a pilot basis to see if it could be extended. It sounds like a wonderful concept.
There is a practice that goes on in tourist areas in particular, where bus drivers will bring a bus-load of people to a restaurant. The driver will get his meal free, which is absolutely appropriate and I do not have an issue with it. However, there may be hello money involved whereby a bus driver is getting €100 or maybe even more if he brings 50 people into a particular restaurant. That is a worrying practice that should be taxed and should not really be allowed. I have some concern that this is becoming very prevalent. I am also concerned that some of our State operators are also engaging in it, perhaps in an ad hoc, informal way. My understanding is that there could be a blind eye being turned to it. CIÉ and all those organisations need to publish their policies on bringing people to certain venues to reassure us that there is no money changing hands or anything like that. If it is the case, it is certainly not appropriate.
Overall, it is a very innovative piece of legislation. If the Government cannot support it for whatever reason, I hope it may take the benefits and good parts out of it and bring them into another Bill that could be developed. The debate has been extremely useful. It has highlighted something that has evolved in an ad hoc way. When that happens, those who are less honourable in how they treat people can get away with things. As Senator Ó Clochartaigh quite rightly pointed out, it does not help those who do their business right. Some sort of guidelines through legislation would be very welcome in this area.
I welcome Senator Paul Gavan's Bill, ably helped by Senator Trevor Ó Clochartaigh. I want the House to recognise that it would be a stand-alone Bill. If there are concerns about unintended consequences such as those we have heard from different sides, I ask that it be allowed go to Committee Stage where the issues can be argued out. That is what these Houses are for, not to shut down debate or kick anything down the road. I hope this is not a ploy to do that.
The Bill enjoys countrywide support among all the workers in the hospitality sector, who are, in the main, young people, as well as from their parents and families, who want to see their children having job satisfaction and being able to progress to independent lives of their own at some stage. We all love our children but eventually it is time to go as well.
I do not think it is necessary to refer the Bill to the Low Pay Commission for examination or to make recommendations. It is a very easy Bill for us to manage and allows us to improve workers' rights and security of pay. It is appropriate that we discuss it here and not kick it to touch at the Low Pay Commission. It would take up too much time, which would be time wasted.
These tips which have been left to workers by customers are direct payments to staff and a "Thank you" for and an acknowledgement of their good work and an enjoyable experience in a restaurant, hotel, etc. Customers want a guarantee that their tips go to the young workers in question, the majority of whom are low paid. Since they are legally entitled to that money, taking it would amoun to theft. The tipping culture is not new in Ireland. It is no longer foreign and has become normal practice in society in the past decade. That brings with it the possibility of exploitation, which is happening in some instances.
The public's interest in the Bill is considerable. The issue impacts most negatively on young workers and those in precarious employment. If one speaks to young people, they automatically calculate tips as a top-up to their wages to see whether they will be able to afford an extra gúna or go out for a night. I have in mind a young woman in my own family. She moved out after sharing a house, as one does when one is 22 years of age. She had just about been managing to pay the rent and in her head her tips were automatically a part of her wages. That they were hers is the truth. She decided to have a conversation with her employer about lunch breaks. While we cannot tie it to that conversation, she was let go a week later. She managed to find another job in the restaurant business and, again, it was low paid. She was not aware that the tips would not be hers, that they would instead be taken by her employer. Eventually, as she could no longer afford to pay for her room in the shared house, she moved back home. Luckily, she had parents to whom she could move back. That is an important point. This issue does not only affect the low-paid worker who in many circumstances is young but also the individual's family and friends.
I call on the House to allow the Bill to progress. Let us have a concise and comprehensive debate on it. That needs to happen today.
I welcome the Minister of State. I wish to speak about this issue because I support the thrust of the Bill. Senator Máire Devine is right - it affects people across the spectrum, including students, males and females, young and old. Why do we tip in restaurants? I will define "restaurant" as both a restaurant and a pub, as pubs now usually serve food. We are more inclined to give a larger tip when we get better service. I feel strongly about this matter. It is important that we have structures in place to ensure the person to whom we intend the tip go actually receives it. The majority of employers are reasonable and fair, but as there are unscrupulous individuals in every walk of life, we must ensure that whatever measures are in place address this issue.
When the House debated the Life Saving Equipment Bill 2017 last night, it was stated that, although there were probably many measures within existing legislation through which we could deal with the issue of people wilfully damaging defibrillators and other life-saving equipment, it would be a good idea to address the matter in specific legislation that would be worked on by Fianna Fáil and the Government to leave us with something that would function. This Bill fits into a similar category. Everyone agrees with its import. There is myriad legislation on the protection of workers' rights, but there does not appear to be anything specific to deal with this issue. The Low Pay Commission has addressed various matters. While it has not dealt with this one specifically, it has a body of knowledge.
What is being proposed in the Bill will be accepted by all and there is significant goodwill towards it. In a cross-party spirit, I hope that goodwill will be reciprocated when we engage in detailed due diligence so as to ensure there will be no unintended consequences. What I have learned during the years is that legislation is not perused enough by Members. That is possibly not the case in this House, but it is certainly the case in the Lower House. In many instances, legislation went through in double-quick time without the perusal required, only for us to suddenly find that it did not work in practice.
What is being proposed in the Bill makes great sense. Like all legislation, it must go through the process of having a body of research prepared. We will then consider the legislation in the normal way on Committee Stage. Much legislation moves over and back. Obviously, we cannot consider legislation forever, but the longer we consider it and the more time it receives, the more we can strengthen it and tease out its unintended consequences.
The Bill is specific rather than overarching, as the Title describes. I hope it will progress and be examined by an expert group. All parties are aiming to research it. I am a research man and hope we will find a way to ensure that, when we have a meal in a restaurant or a pub in Limerick or anywhere else and receive particularly good service, the tip we leave will get to the person for whom it is intended. In my experience, those who work in the industry are invariably good and polite. We still have the céad míle fáilte.
I have only addressed a single aspect, but the Bill contains several measures. I am glad to support the basic principle behind it. I would like the Bill to be subject to the normal perusal and due diligence it deserves. It could then be reverted back to us as a body of work that would function in practice, as the main intention should not just be to get a Bill through but to get legislation through that will do exactly what it is intended to do.
I wholeheartedly support the Bill and its intention. I agree with the Minister of State that it needs to be examined, as nothing should crop up down the line, for example, benefit-in-kind or other tax implications. We need to do this properly as people deserve their tips. When I eat out, I am always conscious to bring cash for a tip. I never leave it on a card because I am concerned to ensure the people who serve me and deserve the tip get it.
My daughter is in college and has been funding herself through working in restaurants. One time in particular, she deserved a tip just for putting up with the restaurant's owner, never mind difficult customers. It is important that people of all ages get their tips.
The Bill is excellent and has wonderful intentions. I admire it.
I admire the initiative in Galway to award restaurants that look after their employees. It is really important and I commend Senator Ó Clochartaigh for bringing it forward. I absolutely agree tips should go to the workers, but it should be done properly. However, we do not want to see tips being considered as a benefit-in-kind with tax implications down the line. I agree that this should be referred to the Low Pay Commission. I agree wholeheartedly agree with the Bill.
Senator Gavan has a decent five minutes.
I thank the Minister of State and all the contributors to the debate. We have had a constructive debate this afternoon. I am very conscious of the visitors in the Gallery who work or have experience in the industry and have taken the time to travel from Galway and other places across the country. People who work with the Migrant Rights Centre Ireland know the way some foreign nationals have been unfairly treated in this sector. I wonder what they are thinking right now because on the one hand, we have had positive talk about the Bill - and I welcome and accept the sincerity of my colleagues - but I must admit that I am still frustrated. I am frustrated as a trade unionist and as a person who has worked alongside these people and has seen the conditions and the terrible treatment that has been meted out to them. I cannot see a reason for delaying this Bill.
I really cannot. It reminds me a little of what happened to the Banded Hours Contracts Bill 2016, with which everyone agreed but it was postponed for 12 months. It then went to the then Oireachtas Committee on Jobs, Enterprise and Innovation, where it was given a cross-party endorsement but now it has been parked again. We hear about the Bill sponsored by the Minister for Employment Affairs and Social Protection, the Employment (Miscellaneous Provisions) Bill 2017, that is coming up. We will have to see what it looks like. In the meantime workers are waiting for help and support.
I acknowledge that the Bill is not perfect and I take my colleague, Senator Davitt's point. We are very happy and open to working on Committee Stage to correct the Bill. I have to say I had a really constructive and helpful meeting with my colleagues in SIPTU yesterday, who were really supportive of the Bill but who pointed out ways in which it could be strengthened and improved. That was fantastic. We are willing to work with all Members on this Bill.
My worry is that at times this Chamber, no less than the Lower House, can be seen as a talking shop. Those in the Visitors Gallery and the thousands of people who work in this sector need our help. They do not need to be told that it will take six months before we can even progress to the next Stage of the Bill. I do not think they should have to wait six months because it is a very simple Bill.
I will address a couple of the points that were made. I am really concerned to hear talk about a code of practice. Trust me, as someone who has worked as a trade union official for ten years, codes of practice do not work with bad employers. Do not let a code of practice be a get-out clause for what is a simple Bill which will not damage good employers. Everybody is correct that there are plenty of good employers out there. We need to ensure that they do not suffer the unfair competition from unscrupulous employers.
I was delighted with Senator Norris's speech. I will now address his point as to why one would display the tipping policy. The tipping policy may be to share the tips with everybody or it might be a direct tip to the person who served the customer. Customers like to know that. It gives clarity and transparency and that is why it is important.
The Minister of State at the Department of Employment Affairs and Social Protection, Deputy Pat Breen, who was present earlier, stated there was no definition of the particular industries to which we are referring. We are talking about the service sector because it should not be restricted just to hospitality workers. I was in a taxi yesterday and the taxi driver explained that when he takes fares from his app that 12% of his tips are taken back by the app employer. That is just as unfair as having a tip stolen if one is working in a restaurant. There has been a significant response to the Bill. My colleague, Mr. Barry Kearney, from our office has been working night and day on this Bill. He will confirm that the office has been inundated with telephone calls. I have been on 17 radio stations during the course of the past two days. The stations have run polls on their Facebook pages and have had huge responses on this Bill. What they are telling us is that there is something fundamentally wrong. It is young people, such as those in the Gallery, who are suffering. I do not think it is good enough to say that the Bill will have to wait six months. Of course, we need due diligence - that is the purpose of the Committee Stage of a Bill. This is a short Bill and we can do this on Committee Stage. I urge Members to support that principle. Let us work together. Let us show that we are good, that we are not just here to talk and to state our good intentions but then park the bus for six months. There could be an election in six months' time. What do we do then? Start the clock rolling again. How much longer do the visitors in the Gallery have to wait for respect and dignity. When the banks were in trouble, we did not wait six months. We did not wait to do due diligence, we passed the legislation at midnight and it was in place the next day. Why do these people have to wait? This is not complex legislation, it is very simple.
I genuinely welcome the comments from across the Chamber. Senator Buttimer talked about a statement of endorsement. We need more than words. We need action. Would it not be wonderful if the Members of Seanad Éireann were able to produce a simple Bill that would make a major difference to ten of thousands of workers; that would send a strong message to the bullies and the unscrupulous employers that they cannot do this anymore; and that would stand by the very many thousands of good employers across the country who do their best and look after their staff and give them a fair wage? We need to do a little more than we have agreed to. I am really pleased the Bill will pass Second Stage. The intention of my party is to pursue this Bill to Committee Stage. I would ask for and expect the support of everybody in this Chamber in this regard.
I thank Senator Gavan.
When is it proposed to take Committee Stage?
On Tuesday, 30 January 2018.
Is that agreed? Agreed.
When it is proposed to sit again?
Ar 10.30 maidin amárach.