Select Committee on Enterprise and Economic Strategy debate -
Wednesday, 19 Feb 1997

SECTION 3.

Mr. T. Kitt

I move amendment No. 5:

In page 7, subsection (2)(a), to delete line 33.

This amendment refers to the position of doctors in training. Discussions are taking place today between the IMO, the Department of Health and hospital managements. My party will move an amendment later regarding the opt out on an individual and collective basis. The Bill has got it wrong with regard to doctors in training. There are disturbing reports of doctors working three days and nights consecutively.

While this measure stems from the directive, there is a requirement on us as legislators to include doctors and training in the legislation and to avail of the proposals which myself, Deputy Harney and others will make to allow for a collective agreement between the junior doctors and management. In the interests of the health of junior doctors and the safety and health of the patients they treat, it is important that an agreement is reached at discussions which are currently underway and which I support.

However, it is equally important for us as legislators to send the right signal to doctors in training because the present state of affairs is unsatisfactory. While we can exclude sea fishing, other workers at sea, the Garda Síochána and Defence Forces, we should not exclude junior doctors. They should be included in the legislation.

Chairman

The organisation representing the junior doctors contacted me and I invited the person concerned to make a written submission which I then arranged for the Clerk to circulate to members.

Ms E. Fitzgerald

I am sympathetic to the points made by Deputy Kitt. Doctors are not included at this stage because negotiations taking place in Brussels regarding their position have not been finalised. If these are concluded before we finish this legislative process I will be happy to include them under the appropriate terms in the Bill. A permanent working group of European doctors has been involved in finding a common solution to this issue and a EU Commission White Paper is awaited. Negotiations on this side are being conducted by the Minister for Health and the Department of Health. The work is being done at that council, rather than the Social Affairs Council. While I am anxious to facilitate matters, it would be prudent to see if a different regime emerges from Brussels. The Bill can then be amended or appropriate amending legislation can be introduced.

Chairman

Are you indicating that if further amendments are required they will be introduced on Report Stage?

Ms E. Fitzgerald

If appropriate.

Mr. T. Kitt

While I welcome the provisions in the directive on working time regarding holiday entitlement, rest periods and health and safety issues, we as legislators should take a stance on specific issues. I will press the amendment, notwithstanding the Minister's intention to come back following developments at EU level. It would strengthen the Government's position in negotiations if we took a stance on this issue.

Mr. Crawford

I sympathise with Deputy Kitt. This is a serious matter. On numerous occasions I have met young doctors who did not know where they were going because of the hours they worked. However, negotiations are now at a very delicate stage and there is light at the end of the tunnel for junior doctors. The media have reported comments from the Minister and others that progress is being made and I question Deputy Kitt's need to press this amendment. We are all conscious of the tremendous work done by these doctors but they are often asked to work too many hours for their good and the good of their patients. Hopefully this can be sorted out by the Minister for Health.

Chairman

Deputy Kitt can press his amendment or withdraw it and resubmit it on Report Stage. I cannot guarantee the Ceann Comhairle's decision, in whose hands the matter will be, as I can only rule here. Generally, he accepts such amendments, but that is his prerogative.

Ms E. Fitzgerald

We have already seen the preliminary draft of the commission's White Paper on this matter so progress is being made on this in Brussels. As Deputy Crawford said, there have been negotiations between the Department of Health and doctors and a ballot is taking place. All of us want to see an improvement in the position but I am advised that amending legislation would be needed. If there are further developments in Brussels on a common regime it could be done by way of regulation, which could also be introduced if agreement is reached as a result of the ballot.

Amendment put.

The Select Committee divided: Tá, 9; Níl, 12.

Tá
Byrne, Hugh. Callely, Ivor. Fox, Mildred. Harney, Mary. Kitt, Tom.	Nolan, M.J. O'Keeffe, Batt. Power, Seán. Ryan, Eoin.

Níl
Ahearn, Theresa.	Crawford, Seymour.
Bell, Michael.	Finucane, Michael.
Boylan, Andrew.	Fitzgerald, Brian.
Bree, Declan.	Fitzgerald, Eithne.
Broughan, Thomas.	Ring, Michael.
Byrne, Eric.	Sheehan, P.J.

Amendment declared lost.

Ms E. Fitzgerald

I move amendment No. 5a:

In page 7, lines 40 and 41, to delete paragraph (c) and substitute the following:

"(c) a person the duration of whose working time (saving any minimum period of such time that is stipulated by the employer) is determined by himself or herself, whether or not provision for the making of such determination by that person is made by his or her contract of employment.".

This subsection is intended to exclude employees from the rest and maximum working time provisions of the legislation where the employer does not control, as a matter of fact, either by virtue of a contract of employment or otherwise, the working times of such employees. In other words, this concerns employees who determine their own working time, particularly over and above minimum core hours. Employees exempt under this provision include managing executives or senior employees in an organisation or enterprise. These would have management as their primary duty and would typically control staff and the financial affairs of the enterprise. The definition is also intended to exempt any other type of employee who, by virtue of the nature of the work, decides on and controls the duration of his or her own working time.

Chairman

Is the amendment agreed?

Mr. T. Kitt

The Minister has submitted various forms of this amendment over the past week. Was this inserted as part of a backroom deal between the social partners where the Minister agreed to this amendment and conceded regarding section 15? Last week's meeting was aborted for all sorts of reasons. We gave the Minister the benefit of the week for consultation. As we sifted through the various amendments we could see changes taking place. I strongly object to any type of dealing in relation to this legislation. It is solid and worthy legislation and I object to making deals in relation to this section which would have a quid pro quo relationship with section 15. Section 15 allows for a phasing in period. Was this inserted to suit IBEC as a quid pro quo for the phasing in period which suits trade unions? That is a bad way of dealing with this legislation. As a parliamentarian I feel excluded.

Is this not a dangerous amendment in the sense that it might allow a person to work for up to 90 hours without any protection whatsoever? Is it dangerously liberal by dealing with work outside the agreed number of hours? Would it not mean in that situation that the worker has no protection under this legislation? In a hypothetical situation somebody could work for up to 90 hours without protection.

Deputy Harney and I have suggested a very practical and realistic amendment on section 15 for an individual opt out and a collective opt out. I think some backroom dealing between the social partners is taking place which is excluding Members of Parliament, resulting in a muddled and confused piece of legislation. This goes far beyond what any of us wishes to see. Our amendments have inbuilt safeguards. The confusion now developing reflects very badly on the way this legislation is being dealt with.

Chairman

I wish to clarify a number of points. I deferred last week's meeting for one week to allow Members, the Minister and others who had made submissions to consider the proposed Government amendments as I felt there was not sufficient time for that process.

Any submission subsequently made to me was circulated immediately by the clerk to all Members, including party spokespersons. I, or Members of the committee, would not be privy to discussions which took place between the Minister and her officials and any representative body or organisation that made a submission. We are only responsible for the consideration of submissions made to us directly.

Mr. Creed

I am confused by Deputy Kitt's comments. Since this Bill was published there has been much comment about shortcomings, etc. Members and the Minister have tried to introduce the most effective legislation possible. The Government and the Minister of State were criticised for not consulting widely enough and not taking on board the views of interested parties but when she did so and reached a conclusion with a sector which had a grievance about the Bill, she was criticised for excluding other Members of the committee from the deliberations. We cannot have it both ways.

What the Minister of State has done is welcome. Those referred to in the amendment are clearly identified as employees, particularly middle and senior management, who determine the number of hours they work. There is an inherent contradiction in what Deputy Kitt said. The Minister was exhorted to meet the relevant interest groups, listen to their concerns and draw up amendments which would take those concerns on board but when she did so, she was criticised. I share some of the reservations about the remaining sections of the Bill. However, agreement has been reached between persons who expressed concerns and the Minister which is welcome and is reflected in this amendment.

Mr. B. Fitzgerald

I understand, though I have not checked this with the Minister, that we are referring to people working in forestry or in Bord na Móna who work on a contract basis and determine the hours they work at certain times of the year. While such workers would be employed indirectly by Bord na Móna and Coillte, they would decide on their working hours because of the seasonality of their work.

Ms E. Fitzgerald

Amendment 5a clarifies the wording in section 3(2)(c) which states: "a person the duration of whose working time is determined by himself or herself." The amendment seeks to clarify situations where that is or is not written into the contract of employment. It could cover cases, including those which Deputy Brian Fitzgerald raised, where people determine their own working hours which follows article 17.1 of the directive which allows us to have an exemption in relation to workers who determine their own working hours.

This amendment is necessary to clarify that, for exemption purposes, it is necessary for an employee's contract of employment to state that he or she can determine his or her own working time. In other words, the facts of the case will determine whether the exemption will apply and not whether it is written into the contract of employment. The Labour Court will be the arbiter on the facts of the case. Employers are not obliged to have certain rules where they do not control the working hours which are set by the employee concerned.

Mr. T. Kitt

Is this not very liberal in that the employee controls his or her own working time? I understand the purpose of the amendment. The matter should have been left as it was and we should have had the opt out clause, to which I will refer later, for the individual and the collective situation. It would be clearer and workers would understand their position. I agree with the amendment as it relates to people who determine their own working time, but will this not go too far? Does the worker have no protection for hours worked outside those stated in the contract?

Ms E. Fitzgerald

The key question is, do workers determine their working hours or are they asked to work those hours? If an employer says to an employee that there are five hours overtime, is the worker obliged to work that? Section 15 deals with that situation. This deals with a case where the employee decides whether to stay on until 7 p.m. or 10 p.m. at night. They are not opting for something the duration of which is essentially determined by the employer. This was contained in the original text of the Bill and we are clarifying it for legal certainty.

Mr. Power

The Bill will not apply to the Defence Forces. Recently, we have seen major changes and restructuring in the Defence Forces. We accept there are times when, in the interests of the security of the State, it would be important that members of the Defence Forces work long hours. However, at present due to lack of proper management, members of the Defence Forces are regularly asked to work long hours. It is a mistake to exclude them from this Bill.

Chairman

We will deal with that when we discuss the section. Is that point relevant to the amendment?

Ms E. Fitzgerald

It is not relevant to the amendment, but it is to the section.

Mr. Finucane

I accept what my colleague, Deputy Brian Fitzgerald said about people on contract work, for example, people working for Bord na Móna. Does this apply to companies which rely on outside maintenance contractors to carry out maintenance work? Is the Minister talking about contract workers? The quicker they do the job, the sooner they may leave so they often work excessive hours to complete a job. Such workers are often given a time within which to do a job. Are we talking about middle and senior management who dictate their own hours depending on the type of company in which they work? We received a submission from Hewlett Packard, which has about 800 employees, on its concerns about the other section. In many cases, management in companies that set up in this country work long hours to get a project on stream, and the same may apply to workers. Perhaps the Minister might expand on the section?

Ms E. Fitzgerald

In general, employees would be in middle management. In the contract situation described, employees would not normally be employees of the firm but of the contractor. The contractor's responsibilities would come into play. This legislation covers employees and not people working on contract.

Mr. Finucane

Would those working on contract not be employees of somebody?

Ms E. Fitzgerald

If they are employees of somebody, it would be a matter for their employer, the contractor. He would be subject to the rules — they would not be determining their working hours. A self-employed contractor, a plumber, is not covered by the legislation because it does not cover the self-employed but rather employees.

Amendment agreed to.

Question proposed: "That section 3, as amended, stand part of the Bill".

Chairman

Will the Minister deal with Deputy Power's question before we put the question on the section?

Ms E. Fitzgerald

The Department of Defence requested the exclusion of the Defence Forces on the basis of section 85 of the Defence Act, 1954, which provides that military personnel are liable for duty at all times. In common with other Deputies I received much correspondence from PDFORRA so I raised the matter with the Minister for Defence. He felt, in the interest of the efficient running of the Defence Forces, he would need an exclusion. However, he said the day to day operation of the forces has built-in rest and sleep periods and there is a flexible and generous system of leave, granting time off and days off for rest in keeping with the unique nature of military life. The intention is to meet the criteria in the Bill on a non-statutory basis. The Minister for Defence, who is charged with running the defences of the country, felt he would need flexibility in training and other exercises and for operational duties — personnel could not stop defending the country because they had reached the 48 hour limit. That is the judgment we received and we have accepted it.

Mr. Power

What is the Minister of State's view?

Ms E. Fitzgerald

I have not studied defence issues in any great depth but the Government has accepted the advice of the Minister for Defence on this issue and I am bound by that.

Chairman

As a former officer of the Defence Forces I was interested in this point. Are you happy with the advice, Deputy Power?

Mr. Power

No. If the Minister was sincere in her intentions the Defence Forces would not be excluded from the Bill. Members of the Defence Forces know better than anyone that they are liable for duty at all times. They have proven in the past that if the occasion demands they will always make themselves available. It is most unfortunate they have been excluded. I am not happy with the Minister's answer and I am not sure she is either.

Miss Harney

The Minister's remarks highlight the huge inconsistency in the attitude to this Bill. She advanced the case that the legislation must be introduced in Ireland in its most inflexible form because it is a health and safety issue for workers. If that is the case I can think of nothing more taxing than fighting wars, although we do not engage in them too often. I would have thought the Defence Forces, the Garda and the prison service should not have been exempt, although I support everyone being exempt because I believe in freedom and choice. Of all countries, Ireland should not introduce inflexible labour law practices because we have a huge unemployment problem and if employees wish to work more than 48 hours they should be free to do so. It should be about choice — we should not force people, we should give them the freedom.

The Minister advanced the case on the basis that the Minister for Defence put forward logistical and other reasons for exempting the Defence Forces, which is the same point that many of us have made about this Bill. It is impractical in many respects and it is unfair to place a burden on the private sector, extending even to small companies operating in exposed markets, and not to place the same burden on the State.

Chairman

The Minister has given an explanation but she may have something to add. Members are free to put down an amendment on Report Stage if they wish to change this provision.

Ms E. Fitzgerald

I have nothing to add on the substantive point but I refute Deputy Harney's allegation that we have implemented this Bill in the most inflexible way possible. Ideologically speaking, it may suit her to make that point but it is utterly untrue.

Miss Harney

Why does the Minister——

Chairman

I do not want unnecessarily argumentative discussion to develop here. The debate was proceeding well.

Mr. T. Kitt

One of the strengths of the committee system is that we can express individual views. Whereas I have disagreed with the Minister and agreed with my colleagues on other issues, I agree with her on this point. I have consulted my colleagues but am traditional in these matters. The Defence Forces and the Garda have a role to play. I accept the Minister's position and we should be fair when we hear a reasonable argument.

Chairman

As Chairman I do not want to influence the debate but when I was an orderly officer, on many occasions I had to do 24 hour duty with only a few hours' rest, often on the Border when it was dangerous to be there.

Question put and agreed to.