We resume our consideration of the National Minimum Wage Bill, 2000, on section 32. I welcome the Tánaiste and Minister for Enterprise, Trade and Employment, Deputy Harney, and the officials of the industrial relations section of her Department. As previously agreed we will continue until 3.15 p.m. at which time we will review progress. I understand Deputy Rabbitte will have to leave at 2 p.m. for a short period to deal with a private notice question. In recent sections we have dealt with the ethos of the Bill. It was indicated yesterday that we may consider a further sitting this evening, if necessary. I suggest that if we do not conclude our consideration of the Bill by 3.15 p.m. we resume at 5.15 p.m. to complete our deliberations.
National Minimum Wage Bill, 2000: Committee Stage (Resumed).
At what time is the private notice question being taken in the House?
Between 2 p.m. and 2.30 p.m.
Will it affect the timing of Question Time?
No. We will review progress at3.15 p.m.
I have been here since 1.25 p.m. We are anxious to make progress and are not holding up the Bill in any way.
It has been agreed to discuss amendments Nos. 59 and 60 together.
Although aware that some elderly persons have been conned and fooled, some people are still reluctant, too polite and slow to ask for identification when an official arrives at their door, for example, an official of the labour inspectorate. In subsection (8) I suggest the deletion of the phase, "if requested by a person affected", and the insertion of a phrase to specify that when a Department inspector arrives he or she should produce identification without being asked. Inspectors should, as a matter of course, produce their credentials and state that they have come from the Department to carry out an inspection. That should be built into the Bill. We should delete "if requested by a person affected" and substitute "any person affected and shall subsequently produce the certificate or a copy of the certificate to any person affected if requested to do so by that person". Inspectors should produce the certificate as a matter of course or, if asked, should produce it. In this way both eventualities would be covered. It is a small point but it would be helpful if it were built into the Bill.
I concur with the amendment. Deputy Stanton has raised an important point on which I would like to hear the Minister's response.
I support the amendment. What it seeks is imminently reasonable and it should be accepted.
I also support the amendment. Subsection (5) states, "An inspector, where he or she considers it necessary to be so accompanied, may be accompanied by a member of the Garda Síochána when exercising a power conferred on an inspector by this section". In what circumstances is it envisaged that subsection would be used? It seems extreme.
The practice is that when a labour inspector arrives at a place of employment he or she produces identification. If it were made a mandatory requirement under the Bill that the person affected had to be shown the identification, employers might go out of their way to avoid the inspector and not be available to speak to the inspector. If that were a mandatory requirement, it might be difficult to put into effect the substance of the Bill. I can assure the Deputy that when officials arrive at places of employment, they identify themselves, show their identity cards and warrants of appointment. In time they may well become known to some employers because they may have cause to visit some places more than once. It may not be necessary on the second occasion to identify themselves. If, for example, the inspector arrives and the person affected, the employer, is not present but other members of staff are present and he or she carries out an investigation and gets evidence, that evidence could be non admissible subsequently and the proposed mandatory requirement might make it impossible for him or her to do the job. If there were persuasive reasons why this amendment would be advantageous I would agree to it. At one level it appears simple but it could have the opposite effect to what the Deputy intends.
In most companies there is an office base where secretaries deal with PAYE, the books and so on and the employer may not be present. It is good business practice for persons going into a company's premises to identify themselves immediately on entering the property. If unannounced the employer may not be present when the inspector arrives. An inspector may arrive at the company's premises at an inappropriate time and speak to all members of staff. In this day and age people know the regulations in the event of an inspector calling. I am amazed employers would leave by the back door on the arrival of an inspector. It is common courtesy to produce an ID card; otherwise one may not be certain the person concerned is an inspector.
It is only in extreme cases that a person would not co-operate, but we have to provide for extreme cases. Subsection (5) was included to provide for cases where a person might close the door and not allow the inspector to enter. The inspector would then have to arrive at that premises accompanied by a member of the Garda Síochána. We need to be careful. We want the spirit as well as the letter of this Bill to take effect. We must be careful not to include what may appear to be well-meaning and good concepts but which could have the effect of making the Bill unworkable. That is my view on this amendment. The secretary is not the affected person. He or she is the secretary to the employer.
That is correct.
Showing the certificate to the secretary, on request, or being mandated to show it to him or her would not substitute for the employer. What this amendment suggests is that if requested by a person affected, who happens to be the employer and he or she is not paying the hourly minimum rate, that is the person to whom the inspector would have to show the identity card. That person may not be available or may not want to make himself or herself available, and that could prevent an appropriate inspection.
How can one be certain the person arriving——
If asked for an identity card the inspector should have documentation. Inquiries under the Companies Act are carried out under warrant of appointment. An officer arrives at a premises with a warrant of appointment. Even in those circumstances it can be difficult to get to the people to whom one has to speak to have the books and documents delivered. In exceptional cases people make themselves unavailable for obvious reasons. It is those circumstances we need to provide for in the Bill.
I wish to excuse myself for a Special Notice Question in the Dáil to the Minister for Public Enterprise. I thought the idea behind the amendment was a good one, but if it would make it more difficult or impossible for inspectors to carry out their work, it would have to be amended. That should not be the effect of any proposed change.
I agree with the Minister but something has arisen following her comments. She indicated, if I heard her correctly, that an employer could avoid the inspector if he or she knew the inspector had arrived by not being present and that the employer may be the only person affected. Does that mean that if an inspector arrives on the premises and if the employer, the affected person, is not present, the inspector cannot do the job?
Under the Bill the inspector can carry out an inspection of the effects on employees but if there was a requirement for the inspector to show the affected person an ID to indicate authenticity, he or she may not be able to speak to that person.
That begs the question that if a secretary or some person other than the employer is present when the inspector arrives, surely that person is affected in some way by the inspector's presence.
That person is also an employee. For example, in carrying out investigations inspectors assemble the facts and speak to whatever employees they wish, and if they draw the conclusion that the £4.40 hourly rate, or whatever it is in the future, is not being paid, they make a finding that the employer has to pay them arrears. The affected person is the employer and can be one or more persons. There is a distinction between the employer and a person who works for the employer.
Does that mean only the employer can ask for the production of a certificate?
Subsection (8) states "... shall, if requested by a person affected,...". Does that mean the only person affected by this subsection will be the employer? If the employer is not present, does that mean the secretary cannot request the production of a certificate?
The employee could be affected as well.
That is exactly the point I am making.
There is a number of companies where the employers would not be present. There may be a chain of different operations and it would be a problem. The person nominated on behalf of the employer could be his wages clerk who would deal with the whole aspect of wages.
This is normal practice in labour legislation. It has worked well. To the best of our knowledge there have been no complaints about it and nobody has asked for change.
On the basis of the practice as outlined by the Minster we will withdraw the two amendments.
I move amendment No. 61:
In page 21, between lines 15 and 16, to insert the following subsection:
"(9) If it appears to an inspector that any person with whom he or she is dealing while acting for the purposes of this Act does not know that he or she is an inspector so acting, the inspector shall identify himself or herself as such and shall produce the certificate or a copy of the certificate of appointment to that person.".
This amendment is similar and perhaps the Minister might accept it. It covers the issue I raised earlier. If the employer of a company is away and the inspector is dealing with an individual who does not know the inspector, the inspector will produce the actual certificate. This is a fairly minor amendment but it would make a small difference to the Bill in a positive way.
The same argument applies to this amendment as to the previous ones. The circumstances are similar and, as I said, the practice that has evolved in reality under various items of labour legislation is that the current regime works satisfactorily and there is no need to change it. If there was, I would do so.
This suggestion is contained in legislation in other jurisdictions and I thought it would be a safeguard and a matter of courtesy, if nothing else, that somebody would produce the certificate. I realise the Minister says that is the practice, but amendment No. 61 does not make it mandatory. It gives the inspector discretion but by including it in the legislation it reinforces what the Minister said is the practice, without making it mandatory or affecting the working of the Act if it was not produced.
I am advised that it could introduce a loophole in that if an inspector gained evidence and, subsequently, it was claimed by the affected person that they were not aware he or she was the inspector for the purposes of the Act, we could then find that the evidence would not be admissible in subsequent proceedings. Regardless of what happens in other countries, we have to tailor our legislation to meet the needs of our situation. This is a very small country. The current practice works well. If problems arise with such matters we can always address them at a future date in the monitoring committee. The current situation seems to be more than satisfactory.
We are giving inspectors enormous powers but I accept that the monitoring committee will monitor this aspect of the legislation. If problems arise we can ask the Minister of the day to change it. Perhaps it would be possible for the Minister to examine on Report Stage the possibility of inserting an enabling section into the Act to enable a Minister to introduce such a requirement if the need arises rather than having to come back with amending legislation. Will the Minister indicate if that would be——
I will take advice on it.
I move amendment No. 62:
In page 22, between lines 10 and 11, to insert the following subsection:
"(3) The Labour Inspectorate in the Department of Enterprise, Trade and Employment shall establish a register of names, open to the public, of those employers found guilty of an offence under this section and such names shall be maintained for 3 years after the offence, after which time they shall be removed unless an employer has been found guilty of a further offence.".
This amendment was requested by the Irish Congress of Trade Unions. Hopefully, when the Bill becomes law there will be very few rogue employers, but if people are found guilty of an offence it should be public knowledge. This acts as a deterrent in other areas in that if somebody is named and shamed they are less inclined to break the law again. I understand some of the social partners are anxious that this be done and I am interested to hear what the Minister has to say on it.
I am not aware that the social partners are interested in this matter. This amendment would introduce enormous bureaucracy for virtually no benefit. Unlike, say, a register of sex offenders, we are not talking about dangerous people. I support the concept of registers and that the public should have access to those registers so that people know who they are dealing with, but this matter would involve a huge amount of bureaucracy on the part of the inspectorate. They would not just monitor what happens through their inspectorate but they would have to monitor the appeals and the Circuit Court process. That would be a minefield for virtually no benefit.
If somebody in a small town is in breach of this legislation or is convicted under it, that will be well known. If it involves a large company somewhere in the country, it will be well known. Circuit Court actions are heard in public. This is not a desirable addition to the legislation. It would send the inspectors or their staff in a direction that is unnecessary. They would probably need to have a number of staff dealing with this matter alone, which is not desirable.
How many inspectors will be employed to deal with the implementation of the minimum wage?
In what locations will they be based?
The general situation is that they are decentralised, or based throughout the country.
Regardless of whether an inspector arrives unannounced——
I understand inspectors cover particular regions.
——with the obligation on employers to maintain records, it should not alter the fact that employers are not adhering to the minimum wage rates. I am an employer and I know the importance of dealing with the obligations on a company and if inspectors come in it should not cause any undue concern. Will the normal protocol be that inspectors will make an appointment and come in to inspect the books and do a thorough check? Is that what is planned?
No. The inspectors will have to have the right to call unannounced. If, for example, gardaí announced they were coming to investigate a murder, it is certain that any evidence that may be on the premises would be gone by the time they get there. I am not suggesting this is in the same category but if a complaint was made to an inspector that an employer was in breach of this Act, and if the employer was told that the inspector was on the way, there is a high chance in some cases - we are talking about a minority of cases - that any supporting evidence might be destroyed or not available.
We must be careful in terms of substantiating a claim arising from a random inquiry. Employees might consider they are entitled to a rate of £4.40 an hour, but they may not be as 75%, 80% and 90% of the minimum hourly rate will apply in different circumstances under the Bill. On the enactment of the Bill, a clear message must be sent on the different rates employers will be obliged to pay their employees.
The Deputy is straying from the section. He is making a statement rather than a point. I have given him plenty of flexibility to make his point.
Will the Department monitor court proceedings to ascertain whether employers are conforming with the legislation and, if they are brought before the courts, will it monitor the outcome of such proceedings?
Yes. This is new legislation and it is intended that the monitoring committee will review all aspects of its implementation including the courts regime and what is happening at court level.
Does the Minister agree it is important the labour inspectorate monitors court proceedings where employers are found guilty of an offence under the legislation in case they would be likely to reoffend?
It is for the courts to ensure their judgments are enforced.
Yes it is, but I am talking about an employer who is likely to reoffend rather than one who conforms with a court judgment.
The labour inspectorate is examining various aspects of labour legislation. It may not need to call to the majority of companies, but the frequency of its calls to companies in certain sectors is likely to be much higher given its experience of what has happened in those sectors. The same will apply with this type of legislation. In the main, it will be adhered to, but the labour inspectorate will be more thorough and vigilant in those sectors where it might not be.
It would be a small step for the labour inspectorate to move from monitoring closely such companies to maintaining a register of employers who are found guilty of such offences. If, as the Minister said, it is monitoring them in any event, it would be a small step for it to monitor them in a more formal way and to make such findings public and it would not involve a great deal of extra work.
It is one matter for the inspectorate to collect such information for its use but it would be a different matter if it has to record that information in a formal register and make sure it is accurate so that it could be made available to the public. If we consider the requirement that public bodies are obliged to produce an annual report, they often do not produce the annual report of a particular year to the Oireachtas until one year, two years or three years later. I do not justify that, but the reason for it is that some of these requirements take considerable effort and put great pressure on scarce resources. They appear to be simple tasks but they involve a good deal of time and effort.
I received a copy of the mergers review group's final report today. That group was established by my predecessor, Deputy Bruton, in September 1996. It has taken three and a half years for that group of professional people to finalise their report. It is a 300 page report and I only received it before I came to the meeting. Sometimes we underestimate the work that may be involved in a measure. I am a politician who likes to think that a bureaucratic requirement should be only introduced if there is a good reason for it, but in this case there is not a good reason for doing so. The inspectorate will be aware of the defaulters and it will have information on them, but there is a big step between having that information and carrying it forward to what was intended earlier.
Surely such information would be available under the Freedom of Information Act and, if so, it should be correct?
I am not sure about that in terms of specific companies.
The records are held by the Department.
Any record held by the Department is subject to FOI legislation, unless it contains commercially sensitive information or——
Surely if the inspectorate is monitoring the outcome of court cases, it holds those records in some form in the Department and they have to be correct, if it makes them available under the Freedom of Information Act.
Any advice that comes under the category of legal advice, advice received from the Attorney General's office or advice received from outside the Government system on any legal case is privileged and protected and is not available under the FOI Act. Deputies will table questions and submit FOI requests on the numbers of companies in different sectors that are not complying with this legislation. In so far as it is possible, individual names should be released, but there may be difficulties in releasing some of them if court proceedings are involved.
I thank the Minister for her patience in teasing out this matter. I will withdraw the amendment.
Amendments Nos. 64 and 65 are related to amendment No. 63 and they may be discussed together by agreement.
I move amendment No. 63:
In page 22, subsection (1)(a), line 17, after “exercised” to insert “or having proposed to exercise”.
Given the time constraints that apply, I want to indicate that I will accept amendments No. 63 and 64.
I am pleased the Minister is prepared to accept them. That saves a long debate on them.
I move amendment No. 64:
In page 22, subsection (1)(b), line 18, after “opposed” to insert “or proposed to oppose”.
I move amendment No. 65:
In page 22, subsection (1), between lines 19 and 20, to insert the following:
"(c) qualified, or in the future will or might qualify, for the national minimum wage or for a particular rate of national minimum wage.”.
This amendment proposes the insertion of a new subsection.
If the Deputy wishes to retable that amendment on Report Stage, I will check the wording of it between now and then.
Amendments Nos. 66 and 67 are alternatives to amendment No. 65aand they may be discussed together by agreement.
I move amendment No. 65a:
In page 22, lines 20 to 24, to delete subsection (2) and substitute the following:
"(2) Dismissal of an employee in contravention of subsection (1) shall be deemed to be an unfair dismissal of the employee within the meaning and for the purposes of section 6(1) of the Unfair Dismissals Acts, 1977 to 1993 (but without prejudice to sections 2 to 5 of the Unfair Dismissals Act, 1977, except that it is not necessary for the employee to have at least one year's continuous service with the employer and that Act shall apply as if the Worker Protection (Regular Part-Time Employees) Act, 1991, were repealed in relation to the number of hours an employee is normally expected to work for the purposes of that Act) and those Acts, with the necessary modifications, shall apply accordingly.
(3) Where an employee alleges he or she has suffered an action prejudicial to the employee in contravention of subsection (1) and the employer, within 2 weeks of being so requested by the employee or the employee’s representative with the employee’s consent, does not restore the employee to conditions of employment he or she enjoyed immediately before suffering the alleged prejudicial action, the employer and the employee shall, for the purposes of section 24(1), be deemed not to be able to agree on the appropriate entitlement of the employee to pay in accordance with this Act, resulting in an alleged underpayment to the employee, and sections 24 to 31 (except section 24(2)), with the necessary modifications, shall apply accordingly.
(4) A dispute cannot be referred to a rights commissioner in pursuance of subsection (3) if a period of 6 months (or such longer period not exceeding 12 months, as the rights commissioner may allow) has elapsed since the employer’s alleged prejudicial action referred to in subsection (1).”.
The purpose of this amendment is to set aside the general requirement to have one year's continuous service in order bring an unfair dismissals claim under the Unfair Dismissals Acts, 1977 to 1993, and the requirement is in accordance with the Worker Protection (Regular Part-Time Employees) Act, 1991, under which employees would normally be expected to work at least eight hours per week.
What does the requirement of one year's continuous service mean? Will the Minister tease out what is meant by the words "... it is not necessary for the employee to have at least one year's continuous service with the employer..."? Is there a requirement that an employee must have worked for a certain minimum period?
If students do summer work for four weeks in one year and for another period the year after, are those two periods of employment taken as the students' employment in one year?
Does the Deputy mean if they were employed by the same employer for one year?
No, I mean if a student is employed by an employer to do summer work for four weeks in a year and for another four weeks by the same employer the year after.
How does the Minister assess an employee's qualification under this section?
I am talking about continuous service.
As amendments Nos. 66 and 67 were discussed with amendment No. 65a, which has been agreed, they cannot be moved.
What is the reason for that?
They are alternatives to amendment No. 65a.
Amendment No. 68 cannot be moved.
What is the reason for that?
It is in the name of Deputy Rabbitte and it was discussed with an earlier amendment.
Does it fall because he is not present?
That is unfortunate as he was here for——
The object of it is already included in a ministerial amendment.
So the object of it is covered.
With discretion, we will try to accommodate Deputy Rabbitte if he wants to return to this matter.
That is important as he has been present for much of the debate.
We cannot return to this amendment, but we will see if the Minister and he can agree on the matter.
Amendment No. 72 is related to amendment No. 69 and they may be discussed together by agreement.
I move amendment No. 69:
In page 22, before section 36, to insert the following new section:
"36.-(1) This section applies in any case where an individual ('the agency worker')-
(a) is supplied by a person (’the agent’) to do work for another (’the principal’) under a contract or other arrangement made between the agent and the principal; but
(b) is not, as respects that work, a worker, because of the absence of a worker’s contract between the individual and the agent or the principal; and
(c) is not a party to a contract under which he undertakes to do the work for another party to the contract whose status is, by virtue of the contract, that of a client or customer of any profession or business undertaking carried on by the individual.
(2) In a case where this section applies, the other provisions of this Act shall have effect as if there were a worker's contract for the doing of the work by the agency worker made between the agency worker and-
(a) whichever of the agent and the principal is responsible for paying the agency worker in respect of the work; or
(b) if neither the agent nor the principal is so responsible, whichever of them pays the agency worker in respect of the work.”.
This amendment deals with agency workers. While this matter might be covered in other sections, I want to tease out the issue of agency workers. The number of employment agencies in the State has increased considerably in the past number of years, with about 400 currently registered. I have tabled a parliamentary question on this.
The amendment seeks to tighten up the position of employees working through, or employed by, employment agencies in case there are any other loopholes. It could be argued that this is covered by earlier sections of the Bill. However, I felt it was important to be specific about it. Perhaps the Minister and her officials can give us some learned words of wisdom on how the Bill covers employment agencies and whether it is necessary to explicitly mention them here.
No, we believe what the Deputy wants to achieve is covered by the definitions in section 2(1), which defines "contract of employment", and the terms of section 2(2). The Deputy may have borrowed this amendment from the English legislation. It was included in the English Act because its legislation did not cover agency workers.
Is the Minister satisfied the Bill covers it?
I am satisfied.
Amendment No. 70 falls, unfortunately. However, under the circumstances I will try to accommodate Deputy Rabbitte when he returns.
I move amendment No. 70a:
In page 23, before section 39, but in Part 5, to insert the following new section:
39.-(1) Where a term or condition of the contract of employment concerned contravenes the Taxes Consolidation Act, 1997, or the Social Welfare Acts, the employee concerned shall, notwithstanding the contravention, be entitled to redress under this Act for any under-payment of an amount to pay to which her or she would otherwise be entitled under this Act.
(2) Where, in proceedings under this Act, it is shown that a term or condition of a contract of employment contravenes the Taxes Consolidation Act, 1997, or the Social Welfare Acts, the rights commissioner, the Labour Court, an inspector or the Circuit Court, as the case may be, shall notify the Revenue Commissioners or the Minister for Social, Community and Family Affairs, as may be appropriate, of the matter.".
This amendment provides that in the case of a contract of employment tainted with illegality by a collusion between an employer and employee to avoid tax or PRSI, the employee will, nonetheless, be entitled to redress for any underpayment by an employer of the employee's entitlement to remuneration under this Bill. If this amendment were not included in the Bill, a rights commissioner, the Labour Court, an inspector or the Circuit Court could refuse to deal with the claim of alleged underpayment of an employee's entitlement under the Bill if the contract of employment were tainted with illegality. The provision is similar to section 8(11) of the Unfair Dismissals Acts, 1977 to 1993.
How will that work in practice?
I think it is clear from what it says. If there were collusion between an employee and an employer for the purposes of avoiding PRSI or tax, that illegality would not diminish the employer's obligation to pay the minimum rate or the employee's opportunity to get redress.
Will this apply where the minimum wage is not taxed?
It applies to all kinds of collusion.
I move amendment No. 71:
In page 23, before section 39, but in Part 5, to insert the following new section:
"39.-A tripartite monitoring committee, to be established by the Minister, will monitor and review the effectiveness and enforcement of this Act and make recommendations where appropriate for improving the level of compliance by employers.".
I understand the social partners, particularly ICTU, are anxious to have this included in the Bill. The Minister referred to the need for a monitoring committee. The amendment makes the establishment of such a committee mandatory, but it might need to be tightened. What mechanism will the Minister use to ensure such a committee is established and when will it be established?
As I have said on many occasions, it is the intention to establish the tripartite committee which was involved in the consultation process that brought us to where we are now. A monitoring committee does what the name suggests. It is not the intention, nor would it be desirable, to establish on a statutory basis for all time a committee of this kind. There is a transitional arrangement.
No doubt, there will be teething problems with this, as there are with all new legislation. That is why it is important to have this committee. However, in time, this will become a normal feature of our legislation. It will be enforced through the inspector, the Labour Court, the Circuit Court and the rights commissioner. It is hoped it will not be necessary to have a committee in place forever on a statutory basis just for the sake of it, which is what would happen if it were written into the legislation.
Deputies can take my word that it will be established and will stay in place for as long as necessary. However, I do not think, to the best of my knowledge, it is the intention of the social partners that it would stay in place forever. It is important that we are in a position to disband things that have outlived their usefulness without having to legislate. We are talking about an ad hoc, informal arrangement between Government - through the officials in my Department - unions and employers. I have no doubt that will work extremely well.
In what circumstances will the exemption for employers from paying the national minimum wage apply? Will it be difficult to avail of that facility?
We are going around so many corners with this Bill that it is becoming ridiculous. The earlier part of the discussion was the other way around. If the majority of employees and employers agree, they can postpone it for one year. In a case where it might put a company out of business, most people tend to take a reasonable approach. In some companies the employees may decide not to have the minimum wage introduced for another 12 months. I do not know of any such cases at present but the Bill provides for them.
It is important for that facility to exist in sensitive situations where there is agreement and where jobs could be lost.
While I have given Deputy Perry some flexibility, I must draw to his attention that we are discussing amendment No. 71. We will deal with the section when we have disposed with the amendments. However, I am happy to accommodate him.
How soon does the Minister intend to establish this monitoring committee?
What is the position in relation to amendment No. 71 before we deal with the section?
I am dealing with the amendment.
It will be established as soon as possible.
How might it be constituted?
It will comprise representatives of employers, the Irish Congress of Trade Unions and officials from my Department.
Will its terms of reference be very broad?
It will not be prescriptive and engage in legalese, but it will do exactly what its name suggests, which is to monitor the implementation of this legislation.
The Minister said earlier we are moving into an era in which we will establish more committees to monitor legislation. I am concerned about the monitoring of the impact of some legislation on consumers. I think there was reference to that in the Amsterdam Treaty. It would be a good start if the monitoring committee to be established under this Bill were established on a statutory basis. That could be for a certain timescale, such as a year or 18 months.
We would then have to enact another Bill to disband it.
No, it could be built into the legislation that it would exist for only one year or 18 months and could then be disbanded at the Minister's discretion. We should consider that. I am little worried about ad hoc arrangements and leaving committees to the discretion of whatever Minister happens to be in power. I am not casting aspersions on the Minister. However, we should examine the possibility of providing for committees in all legislation to monitor its implementation. I ask the Minister to consider this for Report Stage. She is providing for such a committee in any case. The Bill could state that the committee could be disbanded at the discretion of the Minister after a year or 18 months. That would show good faith towards the area of monitoring legislation. That is very important, particularly in this Bill because it is so new and could be far-reaching.
Will the Minister come back to this issue on Report Stage?
I will not promise that. I have been very helpful and I am prepared to be open-minded in other areas. However, I believe in a minimalist role for Government. I do not believe in establishing things by statute for the sake of it, having all the requirements in place and the Minister might decide it would desirable if it remained in place for, say, two years. The looser arrangement which has worked well to bring us to this stage will work well for monitoring also. The committee will definitely be established and will function effectively. If the three parties are involved they have to work together on the monitoring committee. I give an undertaking to report to the Oireachtas, through this committee, on what is happening with the monitoring committee from time to time.
I am delighted the Minister has decided to make an arrangement to report through the committee at some stage. If she could give an undertaking to report to the committee within, say, six months of the committee being established I would be happy to withdraw the amendment.
I move amendment No. 72:
In page 23, before section 39, but in Part 6, to insert the following new section:
(a) the immediate employer of an employee is himself in the employment of some other person, and
(b) the employee is employed on the premises of that other person,
that other person shall be deemed for the purposes of this Act to be the employer of the worker jointly with the immediate employer.".
This amendment has already been discussed. We are talking here about distance working and working from home. There is an increasing number of people working from home. This amendment was tabled for the purpose of tightening up the legislation and to ascertain whether it is desirable to recognise that many people are working from home or away from their place of employment, working over the Internet and so on. It is a new area of working and should be discussed. Will the Minister indicate whether the Bill deals with that point adequately in the absence of this amendment?
That was a concept in the Industrial Relations Act, 1946, but modern legislation has tended to make the legislative relationship more simple rather than complicating it. Modern labour law avoids the concept of joint employers, focusing on a definition of employer and employee. Apparently tests have been established by the courts to determine whether somebody is an employee. The Deputy may have taken this from an older piece of legislation. In the modern context we have moved away from that.
Given that advice I shall withdraw the amendment.
I move amendment No. 73:
In page 24, between lines 36 and 37, to insert the following subsection:
"(7) An employee or an employee's representative may make a submission to the Labour Court or may make a request to be heard by the Labour Court before a decision is made under this section and if the Labour Court is satisfied that the employee or the employee's representative has information relevant to the case being made by the employer under this section, then the Labour Court may consider such submission or request.".
This amendment refers to employees who may not be able to make submissions themselves and may have to get somebody to do so on their behalf. The amendment ensures that is possible.
The amendment is opposed. The proposal would appear at first sight to be redundant in that section 39 envisages the Labour Court, on receiving an application for exemption, will verify that it is in the manner and form approved by the court under section 39(4), convene a hearing of the parties under section 39(5), satisfy itself that the parties have entered into an agreement consenting to making the application and abiding by the court decision and satisfy itself that lay-off or termination would follow from a decision obliging the employer to pay the minimum wage. Moreover, the court will establish its own procedures for hearing applications.
The thrust of the amendment is good. We have already agreed that many of the employees concerned here are likely not to be trade union organised. It is important to ensure that as much information as possible is made available. Deputy Stanton's amendment is one way of going about that. I have been in the Dáil Chamber dealing with the imminent Dublin Bus dispute. The Minister had indicated previously that she was prepared to take on board the import of my amendment No. 68. That is the kind of information about which employees need to be clear. If the Minister is minded to take this amendment on board on Report Stage, it is important that if the normal 12 month criterion for protection under the Unfair Dismissals Acts does not apply in the case of this Bill it should be known to the workers concerned.
I agree with what Deputy Rabbitte has said in that regard.
I will press the amendment unless the Tánaiste is willing to have another look at it.
It is a bad and dangerous precedent to prescribe the procedures for the Labour Court. Last night we went through all the advantages of the labour relations machinery available in the State. It was set up for a particular purpose. Its make-up and composition is employee-employer led and it has worked extremely well. Being too prescriptive in laying down precise procedures for the court to follow is not a good thing in this instance.
I can undertake to look at it on Report Stage. I do not want to say I have fixed views on it, but if I thought there was some merit in it I would be more than willing to do it. It would be an unnecessary interference in what are generally good practices that have evolved from the labour relations machinery. I will comment on the matter next week on Report Stage if that would make the Deputy happy.
Given that undertaking I will withdraw the amendment. I appreciate what the Minister has said and I see the difficulties she has raised.
I move amendment No. 74:
In page 24, subsection (7), lines 42 and 43, to delete paragraph (c) and substitute the following:
"(c) the average hourly rate of pay to be paid to the employee or employees during the period of the exemption, and the employee or employees shall be entitled to be paid at not less than that rate accordingly.”.
This is a technical amendment inserted to ensure legal certainty. It also establishes that an average hourly rate of pay determined by the court to apply to an employer during the period of the temporary exemption would become that employee's legal entitlement. The effect of the amendment is that an employer cannot lawfully pay less than what the court has decided.
Amendments Nos. 75 and 75a are related and may be discussed together by agreement.
I move amendment No. 75:
In page 25, between lines 15 and 16 to insert the following subsection:
"(12) For the purposes of calculating an employee's entitlement to a redundancy payment under the Redundancy Payments Acts, 1967 to 1991, any exemption under this section shall be ignored and the calculation made as if the employee had been paid the national minimum hourly rate of pay to which he or she was otherwise entitled under this Act, for the period of the exemption.".
The purpose of the amendment is to safeguard the employee's redundancy payment. Should the workers be made redundant during or immediately after the exemption a similar safeguard should be provided as regards workers' entitlements under the Minimum Notice Acts and the Government will bring forward an appropriate amendment on Report Stage. We have now done it in amendment No. 75a.
I move amendment No. 75a:
In page 25, between lines 15 and 16, to insert the following subsections:
"(13) A payment in lieu of notice to an employee in accordance with the Minimum Notice and Terms and Employment Acts, 1973 to 1991, shall not have regard to any exemption under this section and the payment in lieu of notice shall be made to the employee as if the employee had been paid the national minimum hourly rate of pay to which he or she was otherwise entitled under this Act, for the period of the exemption.
(14) A payment from the Social Insurance Fund in accordance with section 6(2)(a)(i) of the Protection of Employees (Employers' Insolvency) Acts, 1984 to 1991, shall not have regard to any exemption under this section and any such payment shall be made to the employee as if the employee had been paid the national minimum hourly rate of pay to which he or she was otherwise entitled under this Act, for the period of the exemption.".
I seek clarification from the Minister. Unfortunately, like Deputy Rabbitte I have been rushing to and from the private notice question in the Dáil Chamber on the Dublin Bus dispute. Is it correct that the ability of an employer to get an exemption only applies where there is agreement with the workforce concerned?
A majority of the workers concerned. I have a serious concern about this matter. Again, we are discussing those who are among the lowest paid workers in the country and allowing an employer to apply for an exemption for one year is open to abuse. A majority in a small workplace, for example, where employees are particularly vulnerable or where others may be members of the family of the employer, could be easily engineered and thus put the rights of the minority of workers at risk in regard to getting their full entitlements. I do not understand the reason this type of exemption should be provided when we are talking about such ridiculously low wages.
It is important that we have a provision like this and, as I said, it is only for one year. It is a once-off exemption and if a majority of the employees agree to the employer's request, for particular reasons in a particular regional location, in order to safeguard their employment, that is not unreasonable. We are not giving a blanket exemption power; neither are we giving a power that can be used without the agreement of a majority of the employees. In all the circumstances, that is reasonable.
Is there any obligation on the employer to open the books, for example, to the employees?
Yes. In determining whether to give the exemption the court has to be satisfied that the employee is likely to be laid off by the employer or that the employee's employment would be likely to be terminated, in other words, there is a real danger the company is in difficulty. It is not a question of somebody pulling the wool over the eyes of a majority of workers and then getting that rubber stamped in the Labour Court.
Yes, but if a business gets into a difficult patch after several years of healthy profits, which the employer has been able to use according to his or her will, that business may get an exemption under this provision. There is no provision for taking account of the profits the workers' labour has accrued up to that time. In other words, it is very much biased in favour of the employer.
It is biased in favour of employment.
I move amendment No. 75b:
In page 25, subsection (1), line 31, after "if" to insert "in the opinion of the Labour Relations Commission or the Labour Court, as the case may be,".
The amendment is to clarify that it is for the Labour Relations Commission or the Labour Court to form an opinion that a claim is repercussive in order to refuse to recommend in favour or to refuse to endorse the claim before either body. This provision was recommended by the Minimum Wage Commission and the social partners agreed also.
I move amendment No. 75c:
In page 25, subsection (2), lines 35 and 36, to delete "accept a proposal which could otherwise" and substitute "by Employment Regulation Order give effect to a proposal which could".
The purpose of the amendment is to better reflect the role of the Labour Court when it receives proposals or an employment regulation order for a joint labour committee. The Labour Court, under section 48 of the Industrial Relations Act, 1990, can either accept the proposal by making it an employment regulation order or refuse to make an employment regulation order and submit to the joint labour committee amended proposals which it is willing to accept. Having regard to this proposed amendment, and amendment No. 76 following, section 41(2) of the Bill will require the Labour Court not to give effect, by the making of an employment regulation order, to a proposal received from a joint labour committee if, in the opinion of the Labour Court, the proposal involves a repercussive claim.
What does that mean?
It is giving power to both the LRC and the Labour Court to ensure that they cannot give effect to any agreement if it involves——
A repercussive claim?
I picked up that much but will the Minister give me an example? Between whom and whom is the differential being restored? One category is a worker in these circumstances who gets a pay increase as a result of the implementation of this legislation but is this section designed for a different category of worker, the person with whom the differential is being claimed?
Yes. Obviously one of the concerns of the commission when it examined this issue was the relativity impact of introducing a minimum wage, that if the floor is brought up everybody will want a consequent increase relative to the floor. The Irish Congress of Trade Unions, the employers and almost everybody who has examined this issue knew that that would be undesirable and that it would cause massive wage inflation in the economy. The social partners agreed to the introduction of proposals of this kind to give power to the courts and to the LRC to ensure that they had the final say as to whether something represented a relativity award.
This amendment introduces a blanket ban which is not just in any sense. We must remember that the cohort is always low paid workers but let us take the example of a worker who is earning £3.50 an hour while other workers with some additional responsibilities earn £4.40 an hour. If the lowest paid are brought up to £4.40 an hour as a result of what the Government will do, does the Minister accept it is justifiable for the worker earning £4.40 an hour to seek an increase in view of the different work he or she is doing or their additional responsibilities? Why is the Minister saying it is justified to put a blanket ban on an award being made?
Everybody gets the £4.40 rate and if somebody has extra duties or responsibility - we discussed this yesterday when we removed it from reckonable pay for obvious reasons when one considered the arguments - I have no doubt they will get more pay. If it is the intention that by bringing up the floor every other worker relative to the floor will also get an increase, that would have serious implications for the economy. It is important, therefore, that we ensure that the effect of introducing a minimum wage is not such that it would have inflationary impacts throughout the——
The philosophy is to bring the poorest of the poor, so to speak, up to £4.40 an hour, but the poor earning £4.40 an hour will remain at that level because of so-called inflation in the economy. That is the argument that is trotted out usually by the employers' side and parroted by the media, but the other side of that argument is that if workers get more wages, they will have more spending power and it could have the opposite effect of increasing demand in the economy and making life more comfortable for them. Therefore, I do not accept the argument that is usually trotted out.
On Deputy Higgins's point, people at present earning £4.40 an hour will seek a higher rate. Employers will have to pay them a higher rate and that will add to inflationary pressures. I support the minimum hourly rate of £4.40, but people earning £3.50 an hour or £4.40 an hour will automatically expect to paid £5.50. That will take place, irrespective of the Minister deciding not to bring such a measure into law.
It will happen in practical terms.
Employers may enter into such arrangements with their employees, but we do not want to include any automatic mechanism that triggers that. That was one of the strongest recommendations of the minimum wage commission.
I am disappointed the Fianna Fáil Deputies are not present to hear that argument because I am sure they would want to make the case for low paid workers whom they represent.
As I, as a Fianna Fáil Deputy, would like to.
The Chairman is in a special position. I note the serried ranks of non-attendance here on my left.
They did have to come to the committee to vote on a few occasions.
Amendment No. 77 is related to amendment No. 76 and they may be discussed together by agreement.
I move amendment No. 76:
In page 25, subsection (2), line 38, after "if" to insert ", in the view of the Labour Court,".
This amendment was inserted at the request of the Labour Court and it is self-explanatory.
I move amendment No. 77:
In page 25, subsection (3), line 44, after "if" to insert ", in the view of the Labour Court,".
I move amendment No. 78:
In page 27, paragraph (b), line 32, to delete “expired.’.” and substitute the following:
(c) in subsection (9), in the definition of ’the relevant date’, by the substitution for ’(x) or (xi) of subsection (2)(a)’ of ’(x), (xi) or (xiii) of subsection (2)(a)’.”.
This amendment permits a new paragraph (c) to be added to section 45. Paragraph (c) amends section 69a of the Protection of Employees (Employers’ Insolvency) Act, 1984. The amendment is consequential on the insertion of subparagraph (10) into section 62a of the Protection of Employees (Employers’ Insolvency) Act, 1984. The effect of the amendment is to provide that the relevant data in relation to section 10 of section 62a of the Protection of Employees (Employers’ Insolvency) Act, 1984, is inserted by section 45a of the Bill.
That is certainly clear.
It is very clear.
We will ask the Minister to give examples in a moment.
The purpose of the amendment is to align minimum wage legislation with insolvency legislation.
How stands amendment No. 78a?
The Chairman is like Istabraq heading for the final fence, he has the bit between his teeth and is going like the hammers of hell. He should give us a chance to catch up with him.
I move amendment No. 79:
In page 28, line 31, to delete "MINIMUM" and substitute "AVERAGE".
It is necessary to delete the word "MINIMUM"?
That was discussed yesterday. It is being deleted to make it clear that we are talking about the average hourly rate.
Would it not be preferable to if it read "minimum average"?
The words "minimum average" would make it more confusing. We are trying to introduce some certainty.
We discussed this matter yesterday with amendment No. 40 and we have moved in that direction.
Amendment No. 81 has been ruled out of order as it involves a potential charge on the Exchequer.
I move amendment No. 83:
In page 28, paragraph 4, line 36,to delete "Unsociable" and substitute "Unsocial".
Amendment No. 84 has been ruled out of order as it involves a potential charge on the Exchequer.
Most of the objects of those amendments has been included in a latter ministerial amendment except for one matter.
That is correct.
Will the Minister clarify what objects of those amendments have been included and which one has not been included?
We have deleted from reckonable pay, service pay, unsocial hours, allowances for special duties and additional duties, tips and gratuities and public holiday premium.
They have been excluded.
Yes. In other words, we have catered for everything in those amendments except one item.
What is the position on paragraph 5 of Part I of the Schedule?
That will remain. We had a debate on that last night.
Amendment No. 85 has been ruled out of order as it involves a potential charge on the Exchequer.
Amendment No. 86 is the name of Deputy Rabbitte and was discussed with amendment No. 40.
It relates to the regulations we will introduce in relation to this matter.
Amendment No. 90 has been ruled out of order as it involves a potential charge on the Exchequer.
I move amendment No. 90a:
In page 29, between lines 18 and 19, to insert the following:
"3. Service pay.
4. Unsocial hours premium.
5. Any amount distributed to the employee of tips or gratuities paid into a central fund managed by the employer and paid through the payroll.
6. Public holiday premium, Saturday premium and Sunday premium, where any such holidays or days are worked.".
Amendments Nos. 91, 92 and 93 have been ruled out of order as they involve a potential charge on the Exchequer.
I move amendment No. 94:
In page 29, paragraph 5, line 24, after "holiday pay," to insert "payment for health and safety leave under the Maternity Protection Act, 1994,".
Amendment No. 95 is ruled out of order as it seeks to impose a potential charge on Revenue.
Amendment No. 99 is ruled out of order as it seeks to impose a potential charge on Revenue.
I move amendment No. 100:
In page 29, paragraph 10, line 37, to delete "payment" and substitute "payment-in-kind".
This is a drafting amendment.
The paragraph will then read "Any payment-in-kind or benefit-in-kind, except board with lodgings, lodgings only or board only". Are these the non-reckonable elements?
That is okay.
I move amendment No. 101:
In page 30, after line 4, to insert the following:
1. In the private sector the national minimum rate of pay shall be £5.00 per hour from April 1st, 2000. In order to approximate a level of two-thirds of the European median wage the national hourly minimum rate of pay shall increase as follows:
to £6.00 per hour from 1st April 2001
to £7.00 per hour from 1st April 2002
to £8.00 per hour from 1st April 2003.".
This amendment has already been discussed. How does it stand?
I am pressing the amendment, in view of the justice of the £5 per hour rate. I also feel I should allow Deputy Lenihan the opportunity to vote for it since he is on record as wanting a rate of £5 per hour. I look forward to him voting for it.
- Higgins, Joe.
- Rabbitte, Pat.
- Ardagh, Seán.
- Brennan, Matt.
- Callely, Ivor.
- Carey, Pat.
- Doherty, Seán.
- Ellis, John.
- Harney, Mary.
- Lenihan, Conor.
- Perry, John.
- Stanton, David.
Amendment No. 102 involves a potential charge on the Revenue and has been ruled out of order. Amendment No. 103 has been ruled out of order as it is not within the scope of the Bill.
I move amendment No. 104:
104. In page 5, lines 9 and 10, to delete "OR CALCULATED BY REFERENCE TO".