This meeting has been convened to consider the Employment Agency Regulation Bill 2009. I welcome Deputy Dara Calleary, Minister of State at the Department of Enterprise, Trade and Innovation, and his officials.
Employment Agency Regulation Bill 2009: Committee Stage.
Sections 1 and 2 agreed to.
SECTION 3
Amendments Nos. 1, 2 and 3 are related and will be taken together by agreement.
I move amendment No. 1:
In page 7, subsection (1)(b), line 24, to delete “worker” and substitute “employee”.
This amendment substitutes the word "employee" for the word "worker", which is more in line with existing legislation.
I appreciate the Deputy's thoughts on the use of the phrases. There can be confusion, particularly where both terms are used in the same Bill. This relates to the nature of the employment relationship and the extent to which the term "worker" means a person who has a contract of service but also can embrace a person with a contract for service, which otherwise was referred to as "self employed".
The term "worker" is embraced by definition under the provisions of industrial relations legislation, whereas in the context of employment rights legislation, the protections afforded to employees and the self employed do not come within the scope of such legislation. I am aware that the definition of a "worker hire agency" under section 3 is similar, if not identical, to that embraced by current European legislation on temporary agency work. I refer specifically to the terms adopted in the recently adopted EU directive on temporary agency work, which defines "temporary work agency" in a way comparable to that embraced in the Bill. The term "temporary agency worker" is used in that definition and it is the term by which such categories of people are commonly known and described, as defined in European legislation. For these reasons, and the fact that we will return to this directive, I will not accept amendments Nos. 1 to 3.
At some point "worker" and "employee" will have to be defined so we know which is which in legislation.
Amendment, by leave, withdrawn.
Amendments Nos. 2 and 3 not moved.
I move amendment No. 4:
In page 7, between lines 35 and 36, to insert the following subsection:
"(3) For the purposes of this Act, a service provided by An Foras Áiseanna Saothair is not an employment agency service.".
This proposed amendment provides for not applying to FÁS the licensing requirements in the Bill, which is a continuation of the current practice that dates back to the 1971 Bill. This was always amended for FÁS and other agencies in labour services Bills.
The primary role of FÁS is to place people in employment. That activity is publicly funded, which deems FÁS to be a public employment service. As such, FÁS does not charge jobseekers a fee. We have also asked the Parliamentary Counsel to examine and make proposals to exempt certain other entities such as charities in specific and designed circumstances from the provisions of the Bill. I propose to introduce those amendments on Report Stage. People will have a chance to see those amendments before then.
Our concern is that the Bill covers all employment agency activities. We do not want anyone to evade the requirements in the legislation by referring to an agency as a language or other type of school or a labour-only contractor. This is where Deputy Varadkar's point is well made. People can operate via electronic media, calling themselves whatever they like.
ICTU made the point to the Minister of State, and the Government gave a commitment to insert an amendment to prohibit the use of agency workers to replace striking workers and other workers who are engaged in collective action. That is sacrosanct to the Labour Party and we will not support the Bill unless we get a commitment that the Bill or some other legislation ensures that happens. It is a fundamental principle that agency workers would not be brought in to substitute for workers engaged in lawful industrial action or are engaged in lawful collective action on their behalf.
Local employment services and not for profit organisations have been included in the amendment. What about secondary schools making arrangements for transition year pupils or local employment services arranging short placement? We want to be sure they are covered by this amendment to the Bill.
I would like to see how the Government will address the prohibition on the use of agency workers to replace striking workers or others who are engaged in lawful collective action on their behalf. That would drive a coach and four through the Bill and the Labour Party would not be in a position to support it.
The Government shares the Deputy's concerns about agency workers being used for strike breaking and we have further amendments to address them that will allow us to discuss our plans in the context of other legislation. I also intend to come back before Report Stage with a suggested list of organisations that will be covered by the amendment.
The old legislation exempts institutes of technology and universities.
Third level employment services are generally exempt. A number of charities and employment placement agencies, trade unions and other organisations will also be exempted by regulation. I will submit the list to the Deputies before Report Stage.
Amendment agreed to.
Section 3, as amended, agreed to.
Sections 4 to 8, inclusive, agreed to.
SECTION 9
I move amendment No. 5:
In page 9, subsection (3)(b), line 15, to delete “3 years” and substitute “18 months”.
Licences provided to agencies under the 1971 Act will continue for three years. I recommend that the expiration period might be reduced to 18 months or thereabouts. We tried to reread the material in the past 24 hours. There has been considerable notice and consultation about the legislation and the state of its development in the past year and a half. Eighteen months is sufficient lead-in time for agencies in this context. It will avoid having parallel systems for a period. I urge the Minister of State to consider reducing this period. This is not a fire and brimstone amendment but three years is a significant time. Parallel jurisdictional issue will arise.
I appreciate the Deputy's remarks on the level of consultation. It is felt that three years is a proper timeframe to allow us to move to the new system. The three-year period is consistent with other provisions throughout legislation. The committee shares the commitment to reducing the regulatory burden on all businesses and a three-year period is sufficient. We can examine specific transition arrangements if Deputy Penrose wants to talk to me before the debate on Report Stage. Three years is a short time.
Amendment, by leave, withdrawn.
Section 9 agreed to.
SECTION 10
Amendments Nos. 6, 7, 8, 11 and 12 are related and will be discussed together.
I move amendment No. 6:
In page 9, subsection (3)(c), line 31, to delete “established” and substitute “resident”.
This is a technical amendment to change the term "established" to "resident". Having read the Bill and the speeches on Second Stage, I do not understand the legal definition of established in a state. I understand what resident in a state means but not what it means to say someone is established.
Following Deputy Varadkar's speech on Second Stage, we asked the Office of the Parliamentary Counsel to search the Statute Book for the term "established". In references to being established in the state, in a member state and in an EEA state, the word "established" is used frequently without the need for a definition. It has a meaning that is well understood in European law, being a term used in all of the current treaties and the functioning of the European Union. This Bill uses the term "established" by reference to the State and the EEA states, particularly in sections 10, 14 and 28, and no confusion arises. The term is also used in sections 24, 33 and 34, albeit in an entirely different context. It would cause confusion if there was to be a tight definition of the word. I do not propose to accept the amendment.
I thank the Minister of State for his explanation. Can he explain what "established" means?
In the context of this legislation, it means operating within the State and has tax implications.
Why say "established" and not just "in the State"?
It is parliamentary usage. I know Deputy Varadkar wants to change the world and wants to start by changing this place.
I do not see the need for superfluous words.
Amendment, by leave, withdrawn.
Amendments Nos. 7 and 8 not moved.
Amendments Nos. 9, 10, 14 and 15 are related and will be discussed together.
I move amendment No. 9:
In page 10, subsection (7)(a), between lines 26 and 27, to insert the following:
"(i) the applicant was convicted of an offence under employment legislation including health and safety legislation,".
The Labour Party notes that the legislation does not set out who is ineligible but sets out the reasons the Minister might refuse to grant a licence. The use of "may" immediately invokes discretion. If the applicant fails to meet the requirements of the Act, which the Labour Party is trying to tighten up to ensure people are bona fide and above board, the person might still be granted a licence. That discretion is generally not desirable.
Years ago, when we were discussing planning legislation, one always wanted to give the widest discretion but in areas such as this, where agencies have significant power in terms of employment legislation, if there is discretion there may be inconsistent decisions. The granting of a licence might be subject to the Minister's approval and people might think that applicants knew someone. We recommend the section be amended to prohibit the granting of a licence in circumstances where the applicant fails to meet a sufficient standard of being a fit and proper person, including where a person has been convicted of an offence.
I do not subscribe to excluding someone for being under suspicion of committing an offence. One must have been convicted of an offence under employment legislation, including health and safety legislation. That should be give rise to significant reluctance on the part of the Minister to grant a licence. This matter should be carefully scrutinised. The Minister of State made a number of statements on health and safety legislation recently. The Minister of State has provided strong advice on farming and I agree with that. In this context, health and safety legislation must be applied equally. What are the grounds for refusal and who is an ineligible person? This section sets out why the Minister may refuse to grant an employment agency licence but does not explain who is an ineligible person. It refers to an applicant being convicted on indictment of an offence. We should tighten up this legislation. A number of amendments deal with this matter.
Deputy Penrose's contribution is interesting. A few years ago the Government proposed to introduce legislation, referred to as second chance legislation, where the slate would be wiped clean a number of years after a conviction for certain offences. I am not sure if the Government intends to proceed with this legislation but it was promised years ago. What are the comments of the Minister of State on this?
Deputy Power refers to the spent convictions legislation but that is slightly different. I understand the point he is making. This point is already covered according to my reading of the Bill. Someone convicted of these offences in this State or in another state will be potentially barred from holding a licence. If it is not covered in the legislation, I agree with Deputy Penrose. Those convicted of these offences should not run employment agencies.
The ethos of the Bill provides strong powers under our mandatory licensing regime. The capacity to refuse to grant a licence and extra powers to revoke a licence on similar grounds to that of refusal are powerful means to ensure the provision of a legitimate business environment. Regarding amendments Nos. 9 and 14 and the remarks of Deputy Penrose, the Bill provides for the denial of a licence where the applicant has been convicted on indictment of an offence. This includes offences under employment and health and safety legislation. This measure is added to our general employment rights legislation, which is strong in this area. We must be careful when deciding whether it is appropriate to deny an agency a licence where a code of practice has been contravened. Many codes of practice apply to health and safety. We have made provision for indictable offences. Amendments Nos. 10 and 15 refer specifically to codes of practice.
Deputy Power's remarks are interesting. When people do their time, they have served the sentence imposed by the State. There is a danger in the amendment and in some of the amendments proposed that an offence would be held against somebody for ever in the context of applying for a licence. However, the legislation is strong enough to cover the Deputy's concerns in this area. There are powers in it to grant and to revoke, alongside all the employment rights legislation in place and in the pipeline.
I take what the Minister of State says; I am not against people having a second chance but employment law is an area where employees do not get too many second chances.
I said on Second Stage that employment agencies should be required to provide a bond similar to that of tour operators. It is a protective mechanism and would safeguard workers' wages and where necessary allow for those working abroad to be brought home. Perhaps the Minister of State will give this some consideration because it is important that we make every effort to ensure workers have the greatest possible protection. I appreciate that there might be some difficulties in this regard but the Minister of State could explore other ways of ensuring that workers are protected.
Amendment, by leave, withdrawn.
Amendments Nos. 10 to 12, inclusive, not moved.
I move amendment No. 13:
In page 11, subsection (13), between lines 28 and 29, to insert the following:
"(c) a person who has a qualification in human resources, industrial relations, business or law.”.
This takes a similar approach to Deputy Penrose's amendment but is the other way around. Instead of asking who should be barred from holding an employment licence, it asks who should be allowed to hold one. No qualifications are necessary to hold such a licence, anyone can set up an agency without having any qualifications or background in human resources, industrial relations, business or law and it would be appropriate to include that. It is a broad range of people and anyone who would be competent to run an employment agency should fit into one of those categories. I would be concerned that we would go to the trouble of passing this legislation without establishing who is and who is not permitted to establish an agency.
We cannot use legislation to decide who can set up a business. We have several conditions in place in the legislation for the manner in which the employment agency will be run once it is set up. Qualifications would be best discussed under the code of practice. To put them into legislation would be overly restrictive. We have committed to setting down a code of practice and perhaps that is the best place to discuss the day to day running of an agency. I would be concerned about restricting someone if the business opportunity exists and he can employ the staff to do it.
I disagree with the Minister of State. A licence is needed to drive a car or own a dog. Certain qualifications are needed to obtain a licence to practice medicine or law. It would not be unusual in legislation to state that some qualifications are necessary.
Running an employment agency is not the same as driving a car, owning a dog or being a doctor.
It is more important.
One is not necessarily interfering with the human condition. In recent years, employment agencies have been established in response to demand. The amendment would restrict the people who could get a licence to those with specific qualifications as opposed to those who spot a business opportunity, employ the proper staff and undertake to observe the code of practice we will discuss later. If someone wants to be a shareholder in a business, it does not mean they must have specific qualifications in that business. If I want to open a primary medical care centre, I am not a doctor but I should be allowed to employ a doctor to treat people.
This amendment does not restrict someone from having an equity stake in an employment agency but would require the licence holder to have some qualification.
The amendment could be read too broadly as to restrict someone from having an equity stake or someone from opening a business. The licence is part of the asset of the agency, the agency cannot open without it. If I cannot grant the licence, why would someone bother opening an agency?
Why give a licence to someone with no qualifications to establish an employment agency, who has no knowledge of business, law or human relations?
The chance is for someone to employ someone to do that. If that person spots a business opportunity, it is on their head whether it works. There is legislation in place and a code of practice that will address the day to day running. If a person spots a business opportunity, he could be prevented from acting upon it under this amendment.
Amendment put and declared lost.
Section 10 agreed to.
Amendments Nos. 14 and 15 not moved.
Sections 11 and 12 agreed to.
SECTION 13
I move amendment No. 16:
In page 12, subsection (1), lines 43 to 46 and in page 13, lines 1 to 3, to delete paragraph (b).
The Deputy's amendment raises issues around branches in Ireland and extra-jurisdictional powers. It is my intention to revert to the amendment on Report Stage. We are seeking extra advice on it at present.
Amendment, by leave, withdrawn.
Section 13 agreed to.
SECTION 14
I move amendment No. 17:
In page 14, subsection (2)(c)(ii), line 2, to delete “a principal office” and substitute “an office”.
This is a technical amendment to ensure every aspect of an employment agency is covered by the legislation.
Amendment agreed to.
Section 14, as amended, agreed to.
SECTION 15
I move amendment No. 18:
In page 15, subsection (1), line 4, to delete "subsection (9)(b)” and substitute “subsection (8)(b)”.
This is a technical amendment to correct an error in the printed text of the Bill.
Amendment agreed to.
Section 15, as amended, agreed to.
SECTION 16
I move amendment No. 19:
In page 16, subsection (1), line 1, to delete "may," and substitute "shall, from time to time,".
The section provides that the Minister may direct an agency to provide information. The amendment gives teeth to that provision, making it mandatory for the Minister to collect this information from the agencies. The section is broadly welcome but it would be improved by a requirement for a regular annual report to the Minister on the numbers of agency workers and the sectors they work in. We should be able to consider such things. It is important for the Minister to have up-to-date information on the structures and activities of the employment agencies. He should be in a position to secure such information. Perhaps the word "may" in the Bill will be construed as "shall", because that is often what happens in legislation. When I was a young person studying law, that was one of the bloody awful questions we had to face — whether "may" meant "shall" based on the discussions of legislators. I often cursed the legislators for this. Perhaps I am considering it from the point of view of a student. Anyway, I will listen to the Minister of State.
It is deliberately "may". I am happy that we have enough powers and provisions under section 16 to go after such bodies in the event of any transgressions. From a number of points of view, including those of regulatory burden and resources, I am happy that we have enough power that if we need to make an example of any agency we can do so under section 16. However, it is too much to force people to do annual returns, particularly in the current climate.
Is the amendment being pressed?
Based on the assurance of the Minister of State and his advisers, I will withdraw it.
Amendment, by leave, withdrawn.
Section 16 agreed to.
Amendment No. 20 not moved.
Sections 17 and 18 agreed to.
SECTION 19
I move amendment No. 21:
In page 17, between lines 36 and 37, to insert the following subsection:
"(2) A licensed employment agency that supplies agency workers to carry on work normally performed by workers who are engaging in lawful industrial action is guilty of an offence.".
This is the amendment about which I will have to be very tough, as it is the main one I came here to move. It is of fundamental importance and represents a strong Labour Party viewpoint. We do not want this Bill to be used as a mechanism for getting around the law. The amendment prohibits the employment of agency workers to replace striking workers. I know the Minister of State has a view on this. It is important to ensure the legislation is not allowed to run a coach and four through other Acts that protect the rights of workers to engage in collective action, namely, industrial action, which has already gone through the various voting procedures to satisfy the requirements of the Industrial Relations Act 1990.
We must be careful to copperfasten the provisions to ensure that the prohibition on the use of agency workers to replace striking workers and other workers engaged in collective action is not affected by this legislation. It is a belt and braces approach. We do not want companies to run a coach and four through the provisions under which workers who are properly engaged in industrial action, having gone through all the legal procedures, cannot find themselves replaced by agency workers, which are easily brought in behind everybody's back so that the company's work can continue. This would represent the breaking of a lawful industrial action which is presumably engaged in by workers for a very good reason. There is much industrial relations machinery available to both employers and workers to resolve strikes through engagement. The possibility of employers' hiring agency workers to replace striking workers is anathema to our way of viewing things. I would like a clear acknowledgement from the Minister that this will be pursued. As I understand it, the Government was originally considering this from the point of view of social partnership, and I hope that has not been lost.
There is a similar later amendment which states "It shall be an offence for an employer to afford an agency worker less favourable pay or conditions than a comparable permanent worker who is or has been in the employer's employment." I want to ensure that agency workers are not used to drive down conditions for permanent staff. Such provisions are sacrosanct to the Labour Party in this Bill. I ask for a strong commitment from the Minister of State that this will be addressed and that a coach and four will not be driven through previous legislation by allowing agency workers to become strike breakers, for want of a better word. We cannot and will not countenance this.
There is little we disagree with in what Deputy Penrose has said. We had a meeting with the social partners in April about this issue, with particular reference to Article 5(4) of the EU directive on temporary agency work, to try to come to an agreement at their level on provisions we can incorporate into an amendment. In addition, alongside that process, I have asked the Office of the Attorney General and the Chief Parliamentary Counsel to come up with an appropriate amendment for Report Stage. I very much endorse Deputy Penrose's remarks. We hope the social partners can come to an agreement which will then be incorporated into this legislation.
I am pleased to hear that. I would like an assurance that every effort is being made to introduce an appropriate amendment on Report Stage, otherwise I will press this amendment to a vote. In that context, I will withdraw the amendment on the basis of the assurance given by the Minister of State, who I know is taking care of this area.
The Minister of State might indicate whether, if the social partners cannot reach agreement on a way forward, which is often the case, he will commit to introducing his own amendment on Report Stage.
We have asked the Attorney General and the Chief Parliamentary Counsel to prepare an amendment. However, on an issue this serious, it is up to the social partners to take the lead. We had negotiations in April and they have had further negotiations. Alongside that, however, we have asked the Chief Parliamentary Counsel and the Attorney General to prepare an amendment.
If the social partners are still doing their dance by the time we get to Report Stage, will the Minister of State introduce an amendment in any case?
We will, but we would prefer the dance to be finished.
Is the amendment being pressed?
I will accept the assurance given by the Minister of State but I want to make sure there will be an amendment on Report Stage. Deputy Varadkar is right. Irrespective of the tango in which people are involved, I want to make sure this legislation ensures, in belt and braces fashion, that the rights of striking workers are not being breached in either the spirit or the letter of the law. We have to introduce an appropriate amendment on Report Stage, so I will resubmit this amendment and we can debate it again. For now, I will withdraw it in the context of the assurance from the Minister of State. I have faith in the Minister of State and I know he is a person of his word.
Amendment, by leave, withdrawn.
Section 19 agreed to.
Section 20 agreed to.
SECTION 21
I move amendment No. 22:
In page 19, between lines 15 and 16, to insert the following subsection:
"(3) It shall be an offence for an employer to afford an agency worker less favourable pay or conditions than a comparable permanent worker who is or has been in the employer's employment.".
This amendment concerns the very same idea, namely, it will be forbidden for an employer to discriminate against agency workers by giving them lower wages and less favourable conditions than a comparable permanent employee would have. We want to ensure that agency workers are not used to drive down the conditions of permanent staff. Once again, it is a belt and braces approach.
The main element of this Bill is the day-to-day running and the mandatory licensing of agencies, as opposed to the relationship between employers and agency workers. The principle of equal treatment with a worker who was directly recruited to the same job is a core feature of the recently acquired EU directive on temporary agency work, which we must transpose into legislation by December 2011. The Deputy's amendment would be better considered in the context of that legislation, which we will introduce before 2011.
I accept the Minister of State's assurance that such a provision will be incorporated into that Bill. We do not want to see any abuse or exploitation, which is the worst of all worlds and which we are entitled to prevent by law. We must ensure this does not become a lacuna in the legislation. The Minister of State said he will be introducing legislation in this regard and on that basis I accept his assurances.
Amendment, by leave, withdrawn.
I move amendment No. 23:
In page 19, between lines 22 and 23, to insert the following subsection:
"(4) A person who has been charged a fee in contravention of this section may recover the fee on demand from either the placement agency or the employer concerned. Where such demand is not complied with, the Minister may make an application to the District Court in a summary manner on behalf of the worker concerned in order to recover the fee from either the placement agency, the employer or both.".
This amendment concerns a person who has been charged a fee in contravention of the legislation. We want to ensure it will be an offence to charge fees, directly or indirectly. In addition to charges or fees in respect of follow up or approval, placement costs should be payable as translation costs, travel costs and training costs. We do not want a back door for people to charge fees in that context. Charges or fees in respect of accommodation have been shown to be an area of particular abuse and this legislation should prohibit terms and contracts that require agency workers to use accommodation and other services. Furthermore, where agency workers voluntarily use accommodation or other services, or where the agency work is voluntary, it should provide for a maximum ceiling on the amount that can be charged for work in respect of board and lodging, or accommodation.
It makes sense to provide that the Minister would establish, following consultation, a more detailed list of prohibited charges. It is important that legislation must provide an entitlement for the workers to recoup their money where they have been charged unlawfully, contrary to this Bill, along with any compensatory redress.
We feel it is important that people would not be exploited in terms of charging and there should be entitlements for workers to recoup moneys when they have been unlawfully charged, contrary to the Act, and be allowed compensatory redress. Is that part of the legislation or is it envisaged that it will be? It is important that people are protected.
There are a number of issues. First, the overall ethos of the Bill is around direct charges. Everything we are dealing with is to prohibit agencies from charging a direct fee and that has been the central ethos of the legislation since 1971 and of this new legislation under the various international instruments we have used since. Since 1971 we have had very few, if any, cases of prosecutions where a direct fee has been charged. We think the provisions of the Bill are strong enough to continue that dissuasive influence.
The Deputy veered into issues around accommodation, training and such like, which are separate from this legislation and have more to do with the employment relationship between an employee and an employer. The employment relationship and outside influence on it under a contract is a NERA issue and that organisation is on top of it. The main relationship, namely, the charging of a fee by an agency is specifically governed by this Act. We think there are very strong deterrents within the Act to stop that from happening.
Other fee issues warrant further discussion but they lie outside the scope of this Bill.
I do not want a range of defences to emerge. There are defences available under this Bill that were not available under the 1971 Employment Agency Act. That would be a backward step. I ask that the Minister's officials examine this in the context of what is available under the 1971 Act as opposed to what is available now in this legislation. If there is any degree of loosening in terms of defences or in making them easier to avail of in this Bill than were available in the 1971 Act, that would be a retrograde step.
We have tightened it up. We deliberately tried to tighten the 1971 Act, particularly in this area, to create more deterrents. This issue has caused concern among some parties and therefore the legislation has become much tighter.
I ask that the officials examine it again. I withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed: "That section 21 stand part of the Bill."
I take a different view to the other parties in this regard. I do not see any reason somebody who establishes an employment agency cannot charge for a service he or she provides, whether the service be placement, assisting a person to improve a curriculum vitae, interview skills or training. I do not understand why almost all others can charge for those services but a person operating an employment agency cannot do so. I understand the person can charge the subsequent employer but I do not see why he or she should not be able to charge the applicant if he or she is providing a service to that person.
I fully accept this can be abused and nobody would countenance its abuse but in a properly regulated employment agency sector there is no reason an agency should not charge legitimately for services it provides.
I accept the Deputy's comments. The danger, and our concern in the context of legislation, is that rogue or unscrupulous agencies would use the kind of fees specifically allowed for training, CV enhancement or other matters as an overall fee. We asked the Attorney General to look at a drafting around this issue that would not allow fees of the kind to which the Deputy referred to be covered under this aspect and we hope to have his advice on Report Stage. However, there is a very fine line. We do not want the business model to be affected by this provision but equally we do not want unscrupulous agencies or people to charge a direct placement fee and cover or mask it as something else. We are working on a wording to try to reflect that.
What about the other model?
As the Deputy noted, there is a danger that legitimate fees might be excluded under this clause and we want to ensure that does not happen so we will come back with a more finely tuned phrase.
Question put and agreed to.
Sections 22 to 25, inclusive, agreed to.
NEW SECTION
I move amendment No. 24:
In page 23, before section 26, but in Part 3, to insert the following new
section:
(1) Where, at any stage of proceedings to which this section applies, a person fails, without reasonable excuse, to appear before the court before which the proceedings are for the time being taking place, the court may do any thing or make any order that it would be entitled to do or make had the person so appeared.
(2) Where, by virtue of a person's failure to appear in proceedings to which this section applies, the person does not enter a plea (whether before the District Court or the trial judge), the trial of the person may proceed as though he or she had entered a plea of not guilty.
(3) This section applies to proceedings for an offence under this Act or a specified enactment against a person upon whom a document in respect of those proceedings is served—
(a) in accordance with subsection (1) of section 81 of the Act of 2008,
(b) otherwise than by post, pursuant to a request referred to in subsection (2) of that section, or
(c) in accordance with an arrangement to which subsection (4) of that section applies.
(4) In this section—
"Act of 2008" means the Criminal Justice (Mutual Assistance) Act 2008;
"document" means a document—
(a) to which subsection (1) of section 80 of the Act of 2008 applies, and
(b) that requires a person to appear as a defendant in proceedings for an offence.”.
This is a technical amendment. In its current form the Bill reflects the legislation that preceded the Criminal Justice (Mutual Assistance) Act 2008 and this amendment is to bring it up to date. It makes no change to the substance or intent of the Bill.
Amendment agreed to.
Sections 26 to 29, inclusive, agreed to.
SECTION 30
I move amendment No. 25:
In page 25, subsection (1), between lines 36 and 37, to insert the following:
"(a) engaging in trade union activity for the purpose of vindicating the rights of agency workers,”.
The amendment is self-explanatory. It proposes that engaging in trade union activity for the purpose of vindicating the rights of workers would not be penalised. I believe the Minister of State would not want it to be penalised and I trust he will be in a position to accept the amendment.
It is a far broader issue than for an employment agency regulation Bill. A very detailed review process is under way across a wide number of fronts and I do not think it would be appropriate to accept the amendment in the context of one Bill. Unfortunately, I cannot accept the amendment.
Amendment put and declared lost.
Section 30 agreed to.
Sections 31 and 32 agreed to.
SECTION 33
I move amendment No. 26:
In page 26, lines 35 to 42 and in page 27, lines 1 to 20, to delete subsections (3) to (7) and substitute the following:
"(3) The members of the Advisory Committee shall be appointed in the following manner:
(a) Where a vacancy arises in the membership of the Advisory Committee, the Minister shall submit the names of 7 people to the Chairperson of the Oireachtas Committee on Enterprise, Trade and Employment (which shall be referred to in this section as “the Committee”).
(b) The Minister shall not submit the name of any person who, in the opinion of the Minister, does not possess sufficient expertise in one or more of the following areas, namely human resources, industrial relations, business or law.
(c) A person to whom paragraph (a) applies shall, on the request of the Committee, give evidence to that Committee on—
(i) his or her suitability for appointment to the position of member of the Advisory Committee,
(ii) his or her qualifications for appointment to the position of member of the Advisory Committee,
(iii) such other matters pertaining only to the appointment of a member of the Advisory Committee.
(d) The Committee shall be required to confirm or decline the nomination of a person under paragraph (a) to the Minister within 7 days of the evidence under paragraph (c) having been completed.
(e) Where the Committee confirms the nomination of a person under paragraph (d) the Minister shall order their appointment by resolution of Dáil Éireann.
(f) Where the Committee declines the nomination of a person under paragraph (d), it shall be required to state to the Minister the reasons for its decision in subsequent private session of the Committee, where requested by the Minister.
(g) Where the Committee declines the nomination of a person under paragraph (d), the Minister shall nominate two persons, who have not already been nominated under this section, for consideration in respect of each outstanding vacancy.
(h) Where the Committee declines the nomination of a person under paragraph (d), and the Minister makes a submission under paragraph (g), the Committee may invoke its powers under paragraph (c) in respect of the alternative nominees.
(i) Where the Committee declines the nomination of a person under paragraph (d), and the Minister makes a submission under paragraph (g), the Committee shall be required to make a recommendation from the alternative candidates submitted under paragraph (g) to fill the remaining vacancies on the Advisory Committee.
(j) The Chairperson of the Oireachtas Committee on Enterprise, Trade and Employment shall, with the approval of that Committee, nominate one of the appointed members as Chairperson of the Advisory Committee.
(4) Notwithstanding any other act or provision, a person who is a civil servant is not eligible for any appointment to the Advisory Committee.
(5) If a person, who is at the time of their appointment to any vacancy to which this section applies a member of staff of the Advisory Committee, they shall immediately resign their position as a member of staff of the Advisory Committee on appointment under this section.
(6) The term of office of a member of the Advisory Committee shall be a period of five years.
(7) An outgoing member of the Advisory Committee shall be eligible for reappointment, but shall not be reappointed more than once in any circumstances.
(8) Each member of the Advisory Committee shall hold office on such conditions as may be fixed by the Minister after consultation with the Minister for Finance. The Minister shall notify the Committee of such conditions in advance of the appointment being made under subsection (2).
(9) Each member of the Advisory Committee may be paid such remuneration, if any, as the Minister with the consent of the Minister for Finance, determines. The Minister shall notify the Committee of such remuneration in advance of the appointment being made under subsection (2).
(10) If a member of the Advisory Committee is personally interested in a particular matter with which the Advisory Committee is dealing, he or she shall inform the Minister accordingly and shall not act as a member during the consideration of the matter.
(11) (a) The Minister may remove from office a member of the Advisory Committee who has become incapable through ill-health of performing efficiently his or her duties as such member or whose removal appears to the Minister to be necessary in the interests of the effective and economical performance of the functions of the Advisory Committee.
(b) The Minister may not exercise his power under paragraph (a) unless he or she has received approval for such action from the Committee.
(c) Where the Minister removes a member of the Advisory Committee from office, he or she shall lay before each House of the Oireachtas a statement in writing of the reasons for such removal.
(12) A member of the Advisory Committee may resign his or her office.".
This amendment concerns the appointment of the advisory committee. The party opposite has a fetish for setting up as many committees, boards, task forces and whatever as are imaginable. I do not see the need to have any advisory committee in regard to employment agencies. If one must be established, however, it should be appointed democratically using the mechanism that we proposed for other vacancies, for example, most recently the vacancies in the Competition Authority. It would be done in the following way, namely, the Minister would propose nominations to that committee and those persons would then be interviewed before the relevant Oireachtas committee about their qualifications for the position, not on their personality or personal affairs, and would then be ratified by committee. In the event that the committee could not ratify somebody, the Minister would then put forward two alternative nominations from which the committee could choose.
There has been some effort made to do something like this by the Minister for Communications, Energy and Natural Resources, Deputy Ryan, in the case of the Broadcasting Authority of Ireland, and by the Tánaiste, in at least advertising the positions for the FÁS board. I do not see why that should not be the case with this advisory committee, if we must have it.
Moreover, there is a commitment in the programme for Government to go down this route and I do not see why we cannot use the opportunity of this legislation to fulfil the commitment in the renewed programme for Government.
The intention is that the advisory committee will do a focused job to draw up the code of practice on which there is a commitment in the legislation. It is intended that the advisory committee would reflect the professionals involved in the sectors and some of the users, and no more. Once it has the code of practice done, it will meet only once a year. There will be no long-term quango around this. It is specifically to give us technical guidance in the drawing up of the code of practice and it would be my intention to convene it as soon as possible. I came to this committee with the FÁS legislation where we committed to advertising and went down that route. We can look at advertising it, but given the tight nature of its job, the focused nature of its remit and the fact that it will not have a long shelf life, I cannot accept the amendment.
It is being provided for in legislation and there is no indication that it will have a short shelf life. My understanding from reading the legislation is that it will be a permanent fixture.
The intention is that it will be active in the drawing up of the code of practice and, subsequently, it will meet probably once or twice a year. It will not hold monthly meetings, as State boards do.
If it will not have a short shelf life, then it will be a permanent fixture.
It will be there, but in terms of its usage and expense, it will be minimal.
Will there be payment of expenses?
Just expenses. We cannot ask people, particular the kind of people we will be looking for, to serve and take time away from their businesses.
The Government can. People do that all the time, for example, those on county enterprise boards and city enterprise boards do not receive expenses.
We can look at advertising it when we come to it. However, I cannot accept the amendment in terms of going through the long process, given the tightly focused job that we want it to do and the fact that we want it up and running as quickly as possible.
This is an efficient committee. The Chairman always ensures that we operate in a timely manner.
I am not sure what the Minister of State is saying. He indicated that its shelf life was quite short and that this advisory committee would be set up with a particular job to do, mainly developing the code of practice. What is the purpose of keeping it beyond that?
The purpose would be to ensure the provisions of the Bill are being met, that the code of practice is still relevant, particularly in an industry that is changing a lot at present, and to act as a sounding board for issues around the general sector. For instance, there is, as I stated earlier, the temporary agency workers directive coming up, and this advisory committee can act as a sounding board around general issues in this area.
Will the licensing fee cover the cost of this advisory committee?
No. That is why it is in our interest to keep it as small and as inexpensive as possible.
Amendment put and declared lost.
Question proposed: "That section 33 stand part of the Bill."
I oppose the section. Having heard the Minister of State's comments, I am even more convinced that this is a stealth quango and we will see all the usual carry-on emanating from that. I certainly do not want my party to be associated with the establishment of any more quangos of this nature.
Question put and declared carried.
SECTION 34
Amendment No. 27 is in the name of Deputy Penrose. Amendment No. 28 is an alternative to amendment No. 27 and amendment No. 29 is also related. We will take those three together.
I move amendment No. 27:
In page 27, subsection (1), lines 39 and 40, to delete all words from and including "or" in line 39 down to and including "authority," in line 40.
Deputy Varadkar and I tabled more or less the same amendments. If there were to be committees — notwithstanding reviews, we probably have enough of such advisory committees and others — let them be quangos or quasi-quangos or whatever. It is not so much the matter of the establishment of such bodies but that when they are established, they assume a life of their own and become permanent.
I accept the Minister of State's bona fides, but this relates to many of the problems of the Government. There are some very good advisory groups and they are needed in that we all must take advice and help. However, there are other bodies with chief executives, executives, semi-executives and assistant executives which, as the Minister of State looks down through their budgets, must make his hair turn from black to grey quicker than he would wish.
If there is to be one, there is no good reason to exclude a member of a local authority. We have not heard any sound reason to disqualify councillors from the advisory committee.
I am not a Member of the Seanad and I am not playing to the Gallery. However, I know councillors of every party who are committed. Deputy Varadkar is correct to state there would be councillors who would have a particular competency in this area who would freely give their advice. It would not be the few euro that would motivate them. I must say that of councillors, who sometimes get maligned unfairly in this regard. I know of councillors of all parties who would give of their time in this regard. We do not want to see them excluded by this legislation. I do not understand why that section is included. I understand the position on Members of the European Parliament and ourselves, but I was a little perplexed about the exclusion of local authority members. That is why I tabled the amendment.
My amendment is much the same as Deputy Penrose's and I agree with everything he stated. I could understand why the Minister of State would not have a Member of the Oireachtas or the European Parliament on this advisory committee but I do not see why he would want to exclude members of local authorities. It has been the culture of this Government to appoint failed local election candidates to as many advisory bodies as possible, but I do not see why it would want to exclude successful ones. These are persons who could serve on county enterprise boards or city enterprise boards, who could be quite qualified in the field and who are not full-time politicians or legislators. They just happen to be members of local authorities.
I dislike this trend of excluding members of local authorities from everything. It is almost as if politicians should not be allowed near any kind of board or agency, or anything the Government does, because the Government does not trust elected persons.
I would be very much supportive of what has been said here in this regard. We have tended to do this in recent legislation. It is almost as if public representatives, at a local authority level or even in the House, had some particular disease which meant they could not be trusted to sit on boards and perform our duty in an independent way. Everyone has a political viewpoint, one way or another. This is a slur on the characters of the particular individuals who are serving on local authorities and is totally unnecessary.
A former colleague of mine from Kerry, looking back before he left this House on his career here and on how the influence of politicians had changed enormously, made the point that when he was elected first if the position of a postman became vacant in his area it was just a matter of nominating his man for the job, and that so much had changed recently that if the vacancy arose now and 100 people applied for it, the only way one could guarantee one's man to get it would be to recommend the other 99.
That is probably the other extreme. What is being said here deserves further attention and I would ask the Minister to reflect on it.
I have much sympathy for what has been said. There has been a tradition, in the best interests rather than for the reasons Deputy Varadkar put forward, that because serving politicians have a day-to-day relationship with people, their involvement on boards such as this, for whatever reason, may be seen as a conflict of interest. I know many good councillors in any field who would serve and have served well. Given the tradition that is involved I cannot accept the amendments.
Is the amendment being pressed?
It is. I will press my amendment.
We are still on amendment No. 27.
I will press that amendment. I am disappointed with the Minister of State's reply. It could be anybody. Deputy Power made a good point. Just because one is a politician does not mean one does not have some degree of competency. Many politicians are sitting, for very little remuneration, on local authorities throughout this country and give up a lot of their time to serve on them. I found out the other day that the representation allowance is now calculated as part of one's jobseeker's allowance. If one is unemployed or on disability allowance that is now taken into account. I urge the Minister of State to go back to the book on this one. We will have to press it.
Okay. The question is, "That the amendment be made".
I intend to examine this in the context of Report Stage.
What does that mean?
I will examine the role of the advisory committee and ensure that there is no conflict of interest. I will revert to the Deputy.
I was going to call a vote on it on Committee Stage but I will not. I will be happy to call a vote on Report Stage if the Minister of State does not satisfy us.
Amendment, by leave, withdrawn.
Amendments Nos. 28 and 29 not moved.
Section 34 agreed to.
Schedules 1 and 2 agreed to.
TITLE
I move amendment No. 30:
In page 5, line 6, after "TO" to insert the following:
"GIVE EFFECT TO ILO CONVENTION NO 181 ON PRIVATE EMPLOYMENT AGENCIES;".
I examined the Long Title and believe it should be amended to include the reference to the ILO convention 181 on private employment agencies. I note the European Commission has called on member states to ratify this convention. We are seeking to use this Bill to give effect to the convention, thus allowing Ireland to ratify it. It is an opportune time and is the appropriate place to insert this amendment, and I ask the Minister of State to accept it.
The standard position on ILO conventions is to ensure that all of our laws are consistent with the convention, as opposed to specific ones. We are going through that process at the current time. To include it in the Long Title of the Bill would undermine that process across a lot of other areas. I cannot accept the amendment.
I am pressing the amendment.
Some 20,000 people have lost their jobs since Deputy Calleary became Minister of State with responsibility for labour affairs and public service transformation.
Amendment put and declared lost.
Title agreed to.
I thank the Minister of State, the officials and the Deputies for their co-operation and very effective and efficient Committee Stage of the Bill.
Bill reported with amendments.