I ask members to turn off their mobile phones for the duration of the meeting, although the bad coverage in this room may solve the problem. Apologies have been received from Deputy Halligan. I welcome the Minister for Jobs, Enterprise and Innovation and his officials.
SECTION 1
Amendments Nos. 1 and 19 are related and will be discussed together.
I move amendment No. 1:
In page 5, subsection (2), lines 18 and 19, to delete all words from and including "be" in line 18 down to and including "2011" in line 19 and substitute the following:
"apply to agency workers who were engaged on or after 5 December 2011".
This amendment deals with the issue of retrospection. The Minister also deals with the issue of retrospection to some extent in his own amendment No. 19. New section 6(3) appears to prevent retrospection which extends prior to 5 December. I am concerned about retrospection that goes back to 5 December.
The difficulty here is that, as the Bill stands, agency workers are entitled to be paid retrospectively to 5 December. To determine what they will be paid the employment agency must get that information from the hirer. As I understand it, there is no way the employment agency can get the information from the hirer as the hirer has no obligation to give the agency such information until the Bill becomes law. It is only then that the subsequent section compelling the hirer to provide that information to the employment agency kicks in. One has a situation where people are deemed to have incurred a liability and are incurring that liability on a daily basis, yet they do not know what it is. People might say that 5 December is not that long ago and it might not make much difference in the case of a small number of employees. However, we could be talking about some companies with hundreds of employees. The danger is that if one of those companies decides to challenge the legislation on constitutional grounds and on the basis that it is retrospective and the Government does not have the right in this instance to introduce retrospective legislation, the employees will suffer. Getting their rights will be delayed for an indefinite period, perhaps until this is finally determined by the Supreme Court.
As far as I know this is the first labour legislation or EU Directive that is being made retrospective. I do not know why it must be retrospective. Obviously the Government could have prepared legislation anticipating a derogation being granted. If the derogation was not granted, then the Government could have gone ahead with legislation straight away around 5 December.
On Second Stage I pointed out to the Minister that Irish courts are extremely wary of retrospective legislation. For example, the matter was tested by the Supreme Court in the Health (Amendment) (No. 2) Bill 2004 where the general principle in regard to retrospective legislation was laid down, by reference to a quotation by Chief Justice O'Higgins in the case of Hamilton v. Hamilton 1982, where he stated:
"Retrospective legislation, since it necessarily affects vested rights, has always been regarded as prima facie unjust.”
If it is prima facie unjust to have retrospective legislation then there must be very good justification for putting it forward.
The purpose of the amendment is to encourage the Minister to tease out why he is making this retrospective. I acknowledge that he went no further back than 5 December. I want to tease out why he is making this retrospective to 5 December when the obligation to provide the information on which the payment can be made does not kick in until the legislation is passed? Has the office of the Attorney General advised him on the retrospective element?
Amendments Nos. 1 and 19 are being taken together.
The EU directive has superior effect over Irish law in cases like this. Where there is an EU Directive that comes into force on 5 December that applies; that is the law. We sought the advice of the Attorney General who advised that what is being done here is the correct way to deal with it. Obviously an agency worker could challenge a rate that is not being charged but the hirer has an obligation from 5 December, and not just the agency, to apply equal treatment. We have alerted all employer organisations and placed public advertisements to inform people of their obligation under the directive.
I have dealt with the Deputy's amendment and now turn to my associated amendment No. 19 to section 6(3). The effect of my amendment means that the section in its entirety, as published in the original Bill, will be deleted. Section 6(1) as published does not alter the section in any material way other than in the manner of expression and formatting. When dealing with an earlier amendment in the context of new section 3 that defines what constitutes a comparable employee, I mentioned that it must be read in conjunction with section 6(1) that establishes the core entitlement of agency workers to equal treatment.
I would like to be very clear on the issue of how the comparable employee issue is dealt with in the Bill and how it relates to the issue of an agency worker getting equal treatment in terms of basic working and employment conditions. I understand that this issue has given rise to a significant level of inquiries and around which there appears to be some level of misunderstanding. The Bill does not require that a comparable employee exists in order for an agency worker to avail of equal treatment.
Section 6(1) is very clear, not least from a legal perspective. It provides for two entirely stand-alone situations. In the first instance, under section 6(1)(a), the Bill provides that an agency worker is entitled to the same basic working and employment conditions to which a comparable worker is entitled. The definition of what constitutes a comparable employee is relevant here. Section 6(1)(b) deals with the situation where there is no employee to whom the agency worker can be compared, in which event it is the terms and conditions to which a comparable employee would be entitled if such a comparable employee were to be employed by the hirer. This means that the hirer would consider the rate of pay that would be offered for a particular job if hiring that individual as a direct recruit. If the issue of skills, qualifications and length of service are relevant factors in determining a rate for the job for a direct recruit then it would be within the hirer’s right to also consider those factors.
The amendment to section 6(2) provides for what is generally being referred to as the Swedish derogation. Its effect is to remove from the scope of pay only those agency workers employed by employment agencies on a permanent basis and entitled to be paid between assignments. This is a derogation that is allowed under the directive providing that necessary safeguards are included to ensure that the provision is not used in a potentially exploitative manner. The amendment I have brought before the committee for consideration includes a further safeguard beyond that provided in the original section of the Bill as published. That is the requirement that before signing up to a permanent contract of employment characterised by pay between assignments an agency worker would have to be notified in advance in writing by the employer of the implications of opting out of the equal treatment provisions on pay.
I bring to the attention of the committee that although I understand this model is not one that is used by employment agencies here, I am minded of the need in this legislation to provide adequate safeguards in the event that it should become a more regular feature in the recruitment sector. For this reason I am considering tabling a further amendment for consideration on Report Stage by way of an additional safeguard. This would be in the nature of providing for some level of remuneration to an agency worker on a permanent contract with an agency in the event of termination of their contract related to their last assignment. This would be to counteract the possibility of an employer at the end of an assignment, or period during which the agency worker was not on an assignment, simply letting the agency worker go.
Before we move on to the Minister's amendment, which I am sure various members will speak on, I want to briefly return to my amendment. In the Minister's introductory remarks he said something quite interesting. People who have been involved in the campaigns and various EU referanda will recall that one of the questions that permanently arises is, if we pass the referandum is European law superior to Irish law. The Minister appears to confirm that an EU Directive can supersede the Constitution. If we are lucky enough to have a referendum on the recent deal in Brussels this will be most interesting.
To return to the substance of the amendment, the Minister said that the "hirer also has an obligation." It does not matter about the hirer's obligation here. The obligation to pay the agency worker is with the employment agency. The employment agency will not be in a position to find out what a worker should be paid until the Bill becomes law. Nevertheless, such persons must be paid retrospectively to 5 December last year. In some enterprises in which there are many employees, this will cause financial difficulties and there is a possibility of a constitutional challenge. I am concerned that if there is such a challenge, the Bill will effectively be frozen for an undetermined period.
My understanding is that once the directive comes into force, there will be an obligation to pay a comparable rate.
They will not be in a position to find out what the comparable rate is until the Bill becomes law, although the obligation will run from 5 December 2011.
We have notified hirers of their obligations.
I am talking about employment agencies which will have the obligation to pay.
Any measures introduced will only be enforced when the legislation is enacted. There is an obligation on the parties to respect the EU directive and we have notified both hirer and agency bodies of their obligation to meet the terms of the directive. Under the directive, from 5 December, agency workers have a right to be treated equally. We have advertised the position in order that both agencies and hirers know about it. Formal enactment of obligations will only come after the passage of the Bill, but people understand their obligations to meet the terms of the Bill.
I do not want to labour the point and take up the whole day with this amendment, but the point I am making still stands. People will be obliged to pay an amount starting from 5 December, but there is no way of knowing the amount that must be paid until the Bill becomes law.
The people in question work regularly with the hirer. There is a mutual obligation to respect the terms of the directive.
There is no legal obligation.
The legal obligation derives from the EU directive rather than domestic law.
There is no legal obligation on the hirer to communicate the information.
There is no obligation under Irish law, but there is under the directive.
My understanding is that the thrust of the legislation should be to ensure those doing comparable work who have comparable skills and experience, etc. receive a comparable wage and are not discriminated against. My understanding is also that amendment No. 19 introduces the idea behind the Swedish derogation. As the Minister has correctly indicated, this provision affects a small sector of the economy, but it does allow for individuals with comparable skills and experience who are doing comparable work to be treated differently in these roles. As a result, there will be a loophole. As with all loopholes, where legislation provides for individuals to receive less money for doing the same work - with the economy the way it is - there will be an incentive to engage in this practice in the future. Is that not a weakness of the legislation?
The changes only relate to pay. It was envisaged under the directive that there would be an exception. All other dimensions of conditions of employment remain the same. This is to recognise a situation where people work for a period and are then paid for a period in which they are not working. It is, effectively, a separate agreement with regard to how a person is paid. There are circumstances where for periods the person concerned is paid a standby rate and others in which he or she is paid for being on the job. The thinking behind the directive was that it would not be possible to enforce a higher rate of pay and not take into account another dimension of pay arrangements. There is scope in the directive to treat this issue in a different way. We are ensuring the provision will not be abused and that people will be notified that this is the arrangement under which they are to be employed. We envisage a protection being introduced on Report Stage to ensure an employer would not use this provision artificially as a way of reducing pay and then letting a person go.
The Minister has said this is an option under the directive; therefore, the State does not have to avail of it with regard to the employment of individuals in the future. The other conditions may not be affected by this derogation, but pay is the primary condition on which individuals offer their services. This will mean that in the case of two individuals with the same skills and experience who are doing the same work, one may be paid less than the other. It is difficult to legislate to prevent this incentive being abused.
This concerns an arrangement into which a person enters voluntarily. People are not being compelled to do this. The process is not widely used in Ireland, but if we do not make provision for it, such an arrangement could never be envisaged. In a sense, there is flexibility applied throughout Europe under the directive to recognise this arrangement as a possible way by which people could be employed. It may suit certain people to work at certain periods and to be paid at other times when they are not working. We are not seeking to make such contracts, voluntarily entered into, illegal in practice, which is the alternative, rather we are looking to leave the arrangement as an option, as happens in other European countries. We are also seeking to provide protections in order that people will not be led artificially into agreeing to such a contract without being notified of the implications and employers will not be able to abuse the process.
There were a number of amendments to exclude that Swedish option which is discretionary under the EU directive. I received a letter this morning stating amendment No. 24 was out of order as it involved a potential charge on the Exchequer. How would there be a charge on the Exchequer in ruling out this option? I will return to another aspect of the amendment, but why was the amendment to rule out the Swedish option excluded on the basis that it involved a potential charge on the Exchequer?
Deputies Peader Tóibín, John Halligan and Willie O'Dea seek to delete the provision from the Bill in order that an agency worker would be entitled to equal treatment, notwithstanding the fact that the worker has a permanent contract of employment and is paid between assignments. This would include an additional group of agency workers within the scope of equal treatment. Accordingly, it would have the effect of imposing additional costs on a public sector hirer of agency workers. Accordingly, the amendments must be ruled out of order in accordance with Standing Order 156(3). The Deputy may discuss the issue, but cannot press the amendment.
I do not know if any categories in the public sector would fall under this provision. It would affect workers in the private sector exclusively.
I do not formulate the Standing Orders.
I understand that.
The Deputy is welcome to bring forward a different version of the amendment on Report Stage.
I intend to do so. I am sorry I was not here when the various groups appeared before the committee. The trade unions have serious reservations about this provision. It is welcome that the Minister is ensuring temporary agency workers cannot be unilaterally converted by their employers into permanent agency workers and, therefore, excluded from the provisions of the legislation. They must sign up to it. Nevertheless, the trade unions' submission reveals that the system is wide open to abuse. The State is not obliged to introduce this provision and we can exclude the Swedish derogation or whatever one wants to call it. It would be much safer to do so, as we are opening a number of doors that would be better left closed.
I protest in the strongest terms at the ruling out of order of the amendments on the Swedish derogation. It is unacceptable and defeats and undermines - perhaps it is designed to do so - the thrust of the legislation. The bottom line is-----
It was not the Minister's decision. It was my decision under Standing Orders, given that the amendments involve a potential charge on the State. These are the rules.
In terms of complying with the EU directive, the thrust of the legislation is set out in Part 2, section 6(1), which reads:
the basic working and employment conditions to which an agency worker is entitled shall be the same as the basic working and employment conditions to which--
(a) a comparable employee is entitled,
This is good, but it is undermined one paragraph later. We might as well not have the first paragraph. It is a charge on the State to comply with the directive and treat workers equally.
There is a potential charge on the Exchequer.
What is the point in even discussing the legislation?
It was for this reason that I chatted with the Deputy last night. We must work within the Standing Orders. That is the problem. Whether the Deputy likes them, they are in place. However, he can discuss the matter with the Minister, as he is doing, and table different versions of his amendments on Report Stage that the Minister would be free to accept.
My understanding is that the Swedish derogation is being introduced by way of an amendment. As such and in terms of the overall legislation as opposed to just the original amendment, our amendment to delete the Swedish derogation would make no material difference to the State.
That was not my reading of the amendment.
The Swedish derogation is not included in the legislation.
The amendments are out of order because they could involve a potential charge on the State.
They do not, given that the legislation does not provide for the Swedish derogation.
We are right in this. There is a potential charge on the State. I am afraid the matter is not up for discussion. The amendments are out of order and we cannot discuss them all day.
Since the legislation does not provide for the Swedish derogation, our amendment would not cost the State anything.
As amendments Nos. 23 and 24 could incur a charge on the State, they have been ruled out of order. I will not have this debate for the next hour. I can do nothing about the matter. I am following Standing Orders.
It would not be a charge on the State as per the legislation.
The amendments involve a potential charge on the State. That is the ruling.
It is not a potential charge in regard to the legislation, only in terms of the amendments tabled.
We cannot discuss amendments Nos. 23 and 24. I wish to indicate all of the other amendments the Chairman has ruled out of order.
I will go through the decisions one by one. There are reasons for all of them. These are the Standing Orders in place.
The reason the Chairman has given is the same in each case, namely, that there is a potential charge on the State. Sometimes, by its very nature, legislation will result in a charge being incurred. The Bill will provide for equality-----
I agree with the Deputy, but the Minister-----
Let me finish my point. The Bill will provide à la carte equality for agency workers, in the sense that the Minister has no problem with the concept of equality applying in the private sector but not in the public sector. This makes a nonsense of any legislation that has to do with equality. We question the Chairman’s ruling. Sometimes, legislation results in a cost being incurred.
Often.
So what if a cost is incurred?
The Minister of the day can table such amendments. I will take members through Standing Orders to ensure I am right.
The Chairman has cited the same Standing Order in respect of each of the amendments he has ruled out of order.
Yes. In the case of agency workers assigned to work in the public sector, most of the proposed amendments involve a potential charge on Revenue. Accordingly, they must be ruled out of order in accordance with Standing Order 156(3) which reads: "An amendment to a Bill which could have the effect of imposing or increasing a charge upon the revenue may not be moved by any member, save a member of the Government or Minister of State". I did not write this Standing Order. I have had difficulties with it previously and we should review it, but it is in place. We can address these matters again on Report Stage. If the Minister agrees with the arguments made, he is free to table amendments on Report Stage. The Government can do this, but Opposition Deputies are not in a position to do so.
We are new to this. On a point of clarification, had we tabled an amendment that only affected private sector employers, would it have been all right?
Yes.
Unless the Minister listens to our points and implements them on Report Stage-----
That is what we are discussing.
-----we will table amendments that would affect the private sector only, which would make a mockery of the legislation in its entirety.
I advise Deputies to use the time available to make their arguments instead of arguing with me about Standing Orders that I cannot change.
I did not understand, but I do now.
I accept the Chairman's bona fides in trying to interpret Standing Orders, but this is an EU directive. Many EU directives, for example, on environmental protection and various other issues inevitably involve a potential cost for the State.
The Government designs legislation to that effect.
What the Chairman seems to be saying is that we are not even allowed to discuss an amendment if a charge could be incurred.
What I am saying is what is in the Standing Order. I am implementing it. That is my job as Chairman.
I hope the public understands this because it is crazy.
The Deputy is wasting time.
The section fundamentally undermines the legislation's purpose.
May the committee request the Minister to table proper amendments on Report Stage to address this issue? It is making a mockery out of the concept of equality.
We will deal with each amendment one at a time and the Deputy can make her request at the appropriate time. It is the Minister's prerogative to introduce amendments if the Deputy can convince him with her argument.
I do not have to convince him with an argument. It is a question of equality.
How stands the amendment?
I want to press it, but I do not want to delay the committee by calling a vote.
I cannot accept the amendment.
I move amendment No. 2:
In page 5, subsection (1), line 26, after "agency" to insert the following:
", but
the following shall not be deemed to be agency workers--
(a) employees of contractor companies,
(b) limited liability companies where the worker is also the beneficial owner of the company”.
I have no strong opinions on this issue one way or the other. There is ambiguity as to whether these categories can be deemed to be agency worker and I have tabled the amendment to seek clarification. Perhaps the Minister might inform the committee whether employees of companies contracted to provide workers - these could be one-man companies in which a professional is incorporated to work as a company - become agency workers? In a one-man company the company would be the employer and, therefore, the employment agency if the employee was included in the category of agency worker.
To move the discussion along, I will call Deputy Peader Tóibín before the Minister.
The amendment seems to make an understanding within the law between employees of contractor companies and limited liability companies where the worker is the sole beneficiary. This will create a two-tier system and allow for different pay scales for different individuals. As with the derogation, it will drive down wage rates and create an inequality in the system.
I thank Deputy Willie O'Dea for his amendment. I understand the drafting of the definition of "agency worker" is tight and clear in intent. Therefore, of its nature, the Bill does not include in its scope anyone other than individuals who are employed under a contract of employment with an employment agency and who are assigned to work under the direction and supervision of a hirer undertaking. On this basis, there is an implicit exclusion in that the Bill does not cover limited liability companies and self-employed contractors who may be placed by an employment agency to work at a user undertaking or managed service companies. My Department is in the course of providing guidance on the legislation, including on this aspect. The definition is "an individual employed by an employment agency under a contract of employment" and excludes the case about which the Deputy is concerned.
Amendments Nos. 3 and 10 are related and may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 3:
In page 5, to delete lines 27 to 29 and in page 6, to delete lines 1 to 10 and substitute the following:
" "basic working and employment conditions" means, in relation to an employee, terms and conditions of employment provided for under any enactment, collective agreement or other arrangement relating to--
(a) pay,
(b) working time,
(c) rest periods,
(d) rest breaks during the working day,
(e) night work,
(f) annual leave, and
(g) public holidays,
but does not include sick pay, payments under any pension scheme or arrangement or payments under any scheme to which the second sentence of the second subparagraph of paragraph 4 of Article 5 of the Directive applies;".
There is no intent in the amendment to effect a substantive change to the text of the Bill, as published, but the opportunity has been taken to improve and tighten the wording of the definition of "basic working and employment conditions" to clarify what is intended. The amendment is designed to ensure the working or employment conditions that apply under any enactment, collective agreement or other arrangement that allows, for example, more generous annual leave allowances in excess of the statutory minimum limits provided for, for instance, in the Organisation of Working Time Act, are also specifically provided for in this section.
A number of amendments in the name of Deputy John Halligan have been excluded on the grounds that they could impose an extra charge on the Exchequer. The amendments covered a broader range of issues than the Minister's provisions and were proposed on the basis that there should not be à la carte equality but equality in all areas. We will table amendments on Report Stage to insist on equality in the private sector. We hope, however, that the Minister will table amendments to this effect and prevent us from having to do so. If he does not, he will look poor.
My point relates to the same issue, that one human being is not being given the same rights as another for doing the same job. Were it due to colour, creed, sexual orientation, etc., it would not be acceptable; therefore, it is not acceptable in this situation either. The individuals concerned will not have the same right to sick pay as other workers. I am disappointed that my amendment on this matter was deemed to be out of order. I encourage the Minister to frame the legislation to ensure individuals will be treated equally.
There is a debate on how one should transpose a directive of this nature. We have applied the terms of the directive in its definition of pay and aligned legislative provisions with it. One could define more widely and impose further obligations in such legislation, but we have sought to strike a balance between the pressures exerted on employers and the need to be flexible. We have received a substantial number of representations from the other side to the effect that implementation of the directive could jeopardise 35,000 jobs. However, one must strike a balance when setting out legal obligations, a balance that is struck in the Bill. We have ensured full equality in availing of services in the workplace and provided for equality in pay rates. A permanent employee might have access to other provisions, for example, annual bonuses, different sick pay arrangements, etc., and we have not provided for a statutory obligation to make these provisions available.
We are implementing the directive in the areas in which it is prescriptive and have taken a judgment on whether we should impose new legal obligations in areas that extend beyond the definition of paid workers. We have sought to strike a balance that is cognisant of the pressures exerted on both sides. We do not want to undermine agency working as a legitimate method for workers and employers to deal with peak demands. We also want to ensure the rights of agency workers are not being abused and that such workers are treated equally. They should not be taken on at much lower rates of pay. The concern in this regard is that they have been consistently abused, in that they have not been offered the same basic pay rates. The directive has been designed to deal with this issue. Some employers have unscrupulously applied provisions, for example, on pay rates, rest periods, annual leave entitlements, etc., that are entirely different from those applied to the company's own workers. We are providing for equality to prevent abuses, but we will not move beyond this and legally require that additional provisions apply to agency workers.
The Bill strikes a balance. I respect that there are different opinions on this matter and the purpose of Committee Stage is to debate them. Lest Deputy Richard Boyd Barrett believe there is a Government conspiracy to stifle debate, the Standing Orders are not mine, rather they have been the Standing Orders of the House for an eternity. I did not want to give the impression, as he might have been his suggestion, that there was an intentional move by the Government to try to prevent him from discussing issues.
Owing to Standing Orders, we are missing an opportunity to address the imbalances and discrimination between agency and permanent workers. It has been stated the Minister could introduce the broader changes we are seeking to protect workers. To that end, we expect him to introduce amendments on Report Stage on behalf of workers in the public sector.
The Minister has referred to the employers' belief 35,000 jobs could be lost. When in 1979 women achieved equal pay for equal work, the same arguments were made - that jobs would be lost, that men would not be able to find jobs, etc. I was a public sector worker in An Post. Had we been bound by Standing Orders, I would not be able to avail of the post-1979 protections. We must get back to basics. I hope the Minister will introduce amendments to deal with this matter.
I will make the same point.
We must move on because there are many amendments to be discussed. We do not want to be here all day.
These derogations provide a recipe for agencies to circumvent the legislation by hiring workers on a permanent basis. They will be able to pay people half the normal rate and exclude them from most of the directive's protective provisions. I can absolutely see that happening. It will be a bonanza for agencies and the State will be happy because it will have a second tier, yellow pack, reserve workforce which it can bring into the public sector. Unless we remove these derogations, that is what will happen.
This goes back to the issue of the Swedish model, which was the subject of the previous amendment. My purpose in this amendment is to provide additional protections to prevent abuses of that nature and to ensure people are not unwittingly brought into such situations and cannot be let go. The directive explicitly provides that such arrangements are permissible and have been shown, in other countries, to be attractive for both sides. They are voluntary arrangements into which people can enter in order that they have a way of working where they have down time during which they are paid at a rate that is not less than half and so on. That is the subject of the last amendment.
We will be reflecting on all aspects of the Bill as we prepare for Report Stage. We do not see these provisions as a route for widespread abuse of the situation. Moreover, we have sought not to rule out an arrangement that has been deemed reasonable in terms of how it is working in other jurisdictions. That is allowed for and recognised within the directive and we do not want to close the door on it. Were we to close that door, such an arrangement could never be considered despite any merits it might have for both workers and employers seeking to deliver a service in a flexible way. We are not seeking to outlaw it.
Deputy Joan Collins pointed out that Opposition Deputies cannot table amendments that impose a charge on the State. The Government will look at this debate in the round. We are seeking to introduce equality of treatment in a context where we know there have been abuses of agency workers. The legislation is about stamping out abuses. It is not about additional measures to provide, for example, that an agency worker would have access to the same sick pay provisions or bonuses that are applicable within a permanent employment arrangement. Rather, our objective is to enact a directive which provides protection in respect of pay for workers. The Bill is about delivering equality across a range of pay definitions, but we are not going beyond that into other areas whereby a legal obligation is imposed on employers to apply particular rules. Of course, employers and employees have the right to make arrangements beyond what is set out in this legislation. We are merely defining what is enforceable in law.
Amendments Nos. 4 to 6, inclusive, are out of order.
Amendments Nos. 7, 12, 13, 16 to 18, inclusive, 20 to 22, inclusive, and 25 are related and may be discussed together by agreement.
I move amendment No. 7:
In page 6, to delete lines 11 and 12 and substitute the following:
""comparable employee" shall be construed in accordance with section 3;”.
The amendments in this grouping that are in my name are amendments Nos. 7, 12 and 18. Amendment No. 7 is a technical amendment. The placement of the subsection which deals with what constitutes a "comparable employee" has been changed from its original position in section 2(5) to a proposed new section 3, in accordance with amendment No. 18. Amendment No. 12 is a technical amendment to allow for amendment No. 18.
Amendment No. 18 seeks to remove the existing section 2(3) and to replace it in its entirety with a new section 3. This section must be read in conjunction with section 6. Both deal with the central issue of the entitlement of agency workers to equal treatment with direct workers. Specifically, they are entitled to the same basic working and employment conditions to which a comparable direct employee is entitled or, where there is no comparable employee, to the conditions which a comparable worker, if so employed, would be entitled.
Since the publication of the Bill I have taken on board various views expressed in regard to this issue. This has prompted the amendments to the text as originally proposed. The tests for establishing comparability between an agency worker and a direct employee, as outlined in the proposed section 3(1)(a), (b) and (c), to be inserted by amendment No. 18, have not changed in any essential way, but the text has been tightened up. In regard to the criteria that were previously contained in section 2(5) of the Bill as published, the point has been made by several stakeholders, and it is a point I accept, that a test based on the criterion of work done by the agency worker being of equal or greater value to that done by an employee, as specified in paragraph (e), is very subjective and difficult to establish. For this reason, the amendment proposes to replace these criteria with a more pragmatic approach, as outlined in the proposed section 3(2). The intention is that where skills, qualifications and length of service are relevant factors in the context of determining the basic working and employment conditions of a directly recruited employee, they will also be relevant in determining whether, in regard to an agency worker, that employee is or is not a comparable employee.
I did not look at the grouping until this morning. What is at issue here is a fairly central aspect of the Bill, but several different elements are being dealt with together. That is very undesirable and I object to it in the strongest possible terms. It excludes to a large extent the possibility of a meaningful debate on the central core of the Bill.
I am prepared to withdraw my amendment No. 25 on the basis that one of the Minister's amendments meets its intention in regard to the definition of a permanent contract of employment. My amendment No. 16 proposes that where an agency worker is of the view that an incorrect comparator has been nominated by the hirer, the employment agency has an obligation to investigate that claim. Where it is the hirer who designates the appropriate comparator and the employee disagrees with that designation, the employee should have the ability to go back to the agency and argue that the hirer has chosen an incorrect comparator. The agency must then inform the employer who is given 14 days to resolve the matter.
I am putting forward this amendment in order to be helpful to everyone concerned, employers and agency workers. It would remove the need to go through all the rigmarole of going to the rights commissioner and so on. In effect, it offers a fast-track means of sorting out this problem. The Minister should in the interests of improving the Bill accept that amendment.
On amendments Nos. 20 and 21, the Bill provides that where an agency worker is hired to do a job which is also performed by others, he or she will be designated as a comparable worker. However, is it right that an agency worker with no experience should from day one be entitled to the same rate of pay as an employee who has been doing a particular job for ten or 15 years, in respect of which he or she has received increases in pay based on his or her skill and experience? The Minister has tabled an amendment to the effect that where skill, experience and length of service are material considerations, this must be taken into account. However, let us assume that skill, experience and length of service are not material considerations. In a situation where the pay scales of particular employees were set ten or 15 years ago when times were good and the hirer subsequently, say, in the past 12 months or so, took on new permanent staff to do the same job but on a different pay scale, who will be used as a comparator? Will it be those on the old pay scale or those on the new pay scale? More importantly, who will decide this? Will the comparator be selected by the agency worker or the hirer who I presume will designate those on the lower pay scale? Perhaps the Minister might clarify the matter for me. If he was disposed to accepting amendment No. 20 in my name, this problem would be eliminated.
In the situation outlined by the Deputy, the hirer will decide and define the rate and the comparator.
The Minister is saying the hirer will nominate the appropriate comparator.
Yes. My amendment allows for the hirer to take into account a person's skill, experience and length of service. Where a hirer has employees recruited at a particular rate during the Celtic tiger years and others, recruited more recently, on another pay scale, he or she is perfectly entitled to nominate the rate most recently applied as the relevant comparator. However, an agency worker has a right to contest this. I am not sure, as provided for in amendment No. 16 in the Deputy's name, that we should insert a legal provision that the employer should consider the agency worker's argument. An agency worker has the right to take a case to a rights commissioner and should in the first instance take up the matter with his or her employer. However, if the employer does not satisfy the agency worker, he or she has the right to go to a rights commissioner. I am not sure it is necessary to enshrine in law that which the Deputy is proposing. It is common sense that an employer should deal with such issues. There would not be a claim against the employer where an agency worker challenges him or her. It is only when an agency worker goes to a rights commissioner that a claim will be triggered. Therefore, I do not believe the Deputy's amendment is necessary. While it is sensible in that it suggests what should be considered sensible practice by an employer, I am not sure we need to enshrine it in law.
It would be a fast-track system.
On amendment No. 20, the directive requires that equal treatment be afforded as if the agency worker was directly employed. Therefore, the use of the words "is entitled" is appropriate. The amendment would introduce additional conditionality for which the directive does not provide. It is, therefore, not legally possible to agree to the amendment which potentially would bring us into conflict with the European Commission for incorrect transposition.
I do not understand the Minister's final point. However, I will not labour it. I suggest, with respect, that the Minister give serious consideration to amendment No. 16 before Report Stage. It would allow a situation to be addressed where there was a conflict about whether an appropriate comparator had been nominated. It would provide for a fast-track system in that regard, without people having to go to a rights commissioner and so on. Perhaps the Minister might consider taking another look at the amendment prior to Report Stage.
I am prepared to reconsider it. However, the purpose of the reforms we are introducing is to prevent-----
Yes.
-----people rushing headlong into an adjudication procedure that is costly for both sides.
That is what I am attempting to avoid also.
I have no objection in principle to the Deputy's proposal. What we are seeking to provide - this will be piloted in the spring - is that where an agency worker alerts the employment rights bodies to the fact that a problem has arisen, a formal attempt will be made to address it rather have the case assigned to be investigated and a hearing held.
Yes.
We are not at this stage enshrining it in law. It is an initiative taken from our side. When an agency worker first makes a complaint, rather than appointing a hearing date and so on, we will make immediate contact with the employer to set out his or her obligations to nominate a comparator and present evidence such has been selected in a fair manner. The Deputy and I are on the same page in trying to avoid hearings, etc. I will consider his proposal before Report Stage. However, the approach we have taken is to not redefine a lot of laws on conciliation within X or Y number of weeks. This is a learning process which we hope to pilot in the spring. When the system has been worked out, we will return with legislation to underpin the new practices adopted. We are trying, as suggested by the Deputy in his amendment, to ensure issues can be conciliated by an independent person in the industrial relations machinery.
The difficulty with amendment No. 20 is that it would undermine the intent of the directive to require the hirer to show that he or she has presented a reasonable interpretation of what is a fair comparator which the agency worker has a right to contest. The Deputy is seeking to move beyond the terms of the directive. For instance, in regard to commencement of assignment, there is an obligation to ensure an existing agency worker assigned prior to 5 December receives equal treatment. Acceptance of the Deputy's amendment would undermine this intention. Amendment No. 18 provides for the flexibility the Deputy was hoping to achieve.
In fairness to the Minister, it appears as though he is trying to respond to the spirit of the amendments at some level. However, as with all such matters, one must look closely at and study the fine print. This is difficult to do when one is flitting from one amendment to another, trying to figure out where one is and one is getting very dizzy. The Minister appears to be giving a reasonable response, but, obviously, I reserve the Technical Group's right to fine-tune this provision on Report Stage.
I wish to speak to amendments Nos. 13, 16 and 18.
While amendment No. 16 was not tabled by the Technical Group, I note the Minister has made favourable soundings on it. I consider it to be important and the Minister should incorporate it in some way. This would not contradict the positive noises being made by him about his pilot programme and probably would strengthen the ability to make that type of approach. The Technical Group has consistently highlighted the monumental backlog of cases before rights commissioners and the Employment Appeals Tribunal and the last thing anyone wants is for cases to end up there because the tribunal lacks the resources to deal with them. On the one hand, by enacting this provision into law and having a time deadline, one is focusing the attention of, and clearly delineating the responsibility of, the employer. On the other, it is necessary because, in the main, this pertains to a group of workers whose contracts of employment are generally of relatively short duration. What is the point in taking a case to a rights commissioner, when there is a waiting list of 72 weeks, if one is chasing equality in doing five days work? There is much merit in the amendment and while the Minister is making favourable gestures in this regard, I seek its incorporation in some way. If this is not done, I hope the amendment will be retabled on Report Stage.
Amendment No. 13 addresses the important issue of who is the comparable employee. I accept that the Minister has tried to deal with this, but I still think the amendments are incredibly wordy. The more words one includes and the more scenarios one outlines, the more scope there is for someone to decide he or she is outside that box and that it does not apply to him or her. The legislation should be kept simple. Therefore, the purpose of amendment No. 13 was to simplify the process by deleting many of the references. In respect of the comparable employees, it would provide for the same conditions as would apply had they been recruited directly by the undertaking. This covers everyone; the comparable employee is someone who would have been taken on directly to do that job. This would be preferable and overcome a lot. It is a point made by many trade unions, as I am keen to stress. Moreover, when there is not that comparator, it would provides the option of reverting to the definition in section 6(1). It would simplify matters to make it the same as if they had been directly employed. The amendment would make the point abundantly clear in respect of that employment and job.
I refer to amendment No. 18 which relates to training. Its essence is to delete section 4 which deals with training. This is because the Technical Group believes it could be a way out or a basis for coming up with spurious training schemes as a mechanism to overcome the requirement for equality and equal pay for agency workers. In other words, schemes would be set up under the guise of providing training places, vacancies would be filled on that basis and the claim would then be made that it was not actually an agency job but only a training scheme and, therefore, the employer was not obliged to give the workers concerned all the entitlements for which this legislation provides. The proposed section excludes categories, but it is ill-defined and open to abuse and should be withdrawn on that basis.
On the most recent point, this is a derogation provided generally across Europe and it has been used. It is perceived as a good provision, in that providing training places on the job generally is something that is welcomed. In public consultation on this legislation there was no indication that key stakeholders such as the trade union or employer sides were opposed to this measure. Section 4 complies fully with the requirements demanded under Article 1.3 of the directive, the text of which includes the requirement to engage in prior consultation with the social partners which has been provided for in the Bill. While I can understand there have been abuses, to leave out an option to do this would be a mistake. We must provide for this. As for abuses occurring, I note many such schemes are State-supported, including programmes such as JobBridge in which the Government is trying to encourage employers to take people into specific work experience positions. It was deemed that this was a flexibility the Government ought to be providing for. Many people are out of work and obliged to move from using skills they might have gained when the construction sector was booming. This derogation could have particular relevance in a labour market such as Ireland's in which a very difficult transformation is under way. Consequently, I am not disposed to shutting off this activity by imposing obligations as though those concerned were agency workers. I am not sure I can discern the benefit of so doing. The benefit is on the other side in that we must provide such training.
On the other amendment, were one to make it very simple, the Parliamentary Counsel would then state it was even harder to interpret and enforce. Consequently, while I understand the intent of the amendment, the position is that section 6 achieves the Deputy's objective, in that the directive requires that agency workers be treated as if they were directly employed by the hirer. Section 6 achieves this, in that where there is a comparable employee, the agency worker can be measured against such a worker. This is achieved in section 6(1)(a). However, if there is no directly comparable employee, section 6(1)(b) makes it clear that in such an event, the entitlements are those that would apply were the hirer to recruit an employee directly. That is the intent.
The language of the directive which includes the words "as if directly recruited" is vague and it is for members as legislators to clarify to the greatest extent possible and interpret the objectives of the directive in a manner that is meaningful for the parties involved. That is the reason the provision that deals with "comparable employee", read in conjunction with section 6(1), is very important and endeavours to make it easier for all parties to adhere to the law. It is an attempt to have something in respect of which both sides will discern its meaning and how it will be applied. The Parliamentary Counsel has advised that leaving it vague would not make it easy and could result in unnecessary disputes.
I have two questions, one for the Chairman and the other for the Minister. I seek clarification on the reason amendments Nos. 14 and 15 tabled in my name were not allowed. Second, my amendments sought to bring the legislation into line with equality legislation, under which only one of the three tests is necessary for a comparator to be allowed. I understand that in this case all three must be undertaken for a comparator to be given consideration. The Minister has spoken previously about his desire to strike a balance between equality and the desire of some employers to discriminate between citizens in an effort to gain a competitive advantage. The subtext to this is that inequality in its own right creates jobs or at least provides for job creation. If this is the subtext being used throughout this legislation, does the Minister intend to use inequality in his new jobs plan as a policy to create more jobs in the State?
To clarify, amendments Nos. 14 and 15 seek to reduce the number of criteria to be fulfilled for an agency worker to qualify for equal treatment in basic working and employment conditions with employees recruited directly by a hirer. This would have the effect of imposing additional costs on a public sector hirer of agency workers. I agree it is tight but this is advice we have received.
These amendments each propose to include "or", and these little words would cost the State money?
Yes. We must have regard to Standing Order 156(3) as the amendments involve a potential cost. I agree it seems harsh. We are here to discuss it and there is a chance to correct it.
With regard to the interpretation of the Standing Order, potentially many of the amendments being discussed could incur a cost at some level.
Absolutely.
That would be a very broad interpretation-----
The Bills Office has experts on this as Deputy Tóibín knows. They advised me on this and I have no choice but to invoke the Standing Order. As I stated, if the Deputy makes a compelling case to the Minister, he could table an amendment but Deputy Tóibín is not allowed to do so. That is a simple way of putting it.
The Deputy is complaining about section 2(5) which states an employee is a comparable employee with regard to an agency worker if the employee's employer and the hirer of the agency worker is the same person; the employee and the agency worker work at the same place of work within the meaning of Act; and the employee and the agency worker do the same work under the same or similar conditions. This is what the obligation is. If an employer takes on agency workers, he or she must ensure they are treated the same as other workers in the same place. This is not unreasonable.
It is a significant step away from what is understood as a "comparator" in equality legislation.
They are different types of legislation.
One is equality and one is inequality.
Equality legislation is broader. It is with regard to where a person seeks to bring a case because of alleged discrimination. With regard to the directive, where an agency worker and employee work alongside each other, the comparator must be tied to the specific place of work, so the person who must nominate the comparator must state it is based on an existing employee doing the job or what the conditions would be if someone were hired to do the job. One cannot interpret the directive as being as broad as a public sector employee finding out what happens in every other workplace to establish whether his or her employer applies the same terms and conditions. This is not what is envisaged by the legislation or the directive. The Deputy is seeking to raise a much wider issue. It would not be reasonable to expect an employer to scan all possible alternatives which seems to be the implication of what the Deputy suggests.
I was delighted to hear the Minister's response to Deputy O'Dea with regard to not having to bring a matter before the rights commissioner if at all possible and moving on the situation as quickly as possible.
From an employer's perspective, if an employee brings an unreasonable comparator, instead of the employee bringing the matter directly to the rights commissioner, perhaps the Minister or the Department could work in tandem to point out to the employee that what he or she is doing might not lead to a proper outcome, so the employer would not be put in a situation where an unreasonable comparator would be put forward.
If an agency worker goes to the employment rights service and raises an issue of the comparability, the service would seek to conciliate and it would go to the employer to establish the basis on which he or she put forward the comparison. If it was clear the employer had solid grounds, the agency worker would be informed of the defence, but this would not prevent him or her from not accepting it and continuing to seek a hearing. Conciliation by its nature would look at both sides and would not seek to take one side or the other. If the service thought an issue was a confusion of a matter of fact where one person was not aware of his or her obligations, this could be clarified.
This is what Deputy O'Dea's amendment envisaged, that people would have to examine whether they had properly applied the rules and, if so, should someone be allowed to continue a challenge. It seeks to deal with the issue in an even-handed way if it is thought it could be resolved by conciliation without a hearing. In some cases there will have to be a hearing and we must facilitate it if there is a difference and both sides maintain the legislation has not been properly applied.
The effort will be to try to have a set of rules that employers can understand easily in order that they know what they need to do. Compliance is the best remedy. We do not want to create disputes so we seek to make something that is possible to apply in a reasonable way and which takes into account skills and experience and the condition at the time when the person is hired. Such legislation can give rise to disputes and we must have in place dispute resolution mechanisms. We will provide guidance and in the event an employer has failed to meet his or her obligations, the rights commissioner service will investigate it. We seek to strike a balance in as fair a way as possible.
My point is a worker may use an unreasonable comparator and instead of going through the process the Minister outlined, the Department might be able to write to the worker to point out his or her obligations.
If an agency worker states to an employer that he or she believes the correct comparator has not been applied, in the first instance the employer would set out the basis on which the comparison has been made. The agency worker would then be in a position to decide whether he or she would go to a dispute agency. If the agency worker decided to do so, we would hope, if the case put forward by the employer was very robust, that its contents would be explained to the worker during a conciliation phase. The agency worker would still have the right to go ahead. We will not decide whether an employer or a worker is right. If a dispute arises due to a misunderstanding because employers did not understand their obligations in the first place, they could mend their hand without going to a dispute, or if a worker misunderstood what he or she was entitled to, this could be clarified. Any of these conciliation type arrangements are entirely voluntary and do not interfere with either side's right to pursue his or her case. The spirit is that we would try to avoid disputes and try to have the system clearly understood by employers so that when they nominate a comparator, it should be soundly based and fair in its selection. There should not be a cause for people to have dispute but we must allow for it. This does not concern the Department but rather experienced industrial relations and employment rights personnel, who will handle it on the Department's behalf.
I move amendment No. 10:
In page 7, to delete lines 11 to 13.
I move amendment No. 11:
In page 7, between lines 13 and 14, to insert the following:
" "place of work" has the same meaning as it has in the Safety, Health and Welfare at Work Act 2005;".
I move amendment No. 12:
In page 7, lines 39 to 44 and in page 8, lines 1 to 17, to delete subsection (5).
I move amendment No. 16:
In page 8, subsection (5), between lines 17 and 18, to insert the following:
"(f) if any agency worker believes that an incorrect comparator has been used that worker must inform the employer and the employer will be obliged to investigate the claim and if necessary correct the situation within a period of 14 days. If the employer corrects the situation within 14 days, then no claim will lie against the employer.”.
I will consider the amendment for Report Stage but I cannot accept it at this point. I must ensure there are no unforeseen consequences. I will not support it now but I will consider it on report Stage.
I move amendment No. 18:
In page 8, before section 3, to insert the following new section:
"3.—(1) For the purposes of this Act and subject to subsection (2), an employee is a comparable employee in relation to an agency worker if—
(a) that employee’s employer and the hirer of the agency worker is the same person,
(b) that employee and the agency worker work at the same place of work or, where that employee and the agency worker work or are required to work at different locations, their work is directed and supervised by the hirer from the same place, and
(c) that employee and the agency worker do the same or similar work under the same or similar conditions or each is interchangeable with the other in relation to the work, and any differences between the work done or the conditions under which it is done by that employee and the agency worker are of minor significance when viewed as a whole or occur with such irregularity as not to be significant.
(2) Where length of service or the possession of a particular skill or qualification is a material consideration for the purpose of determining the basic working and employment conditions of an employee of the hirer of an agency worker, then it shall also be a material consideration for the purpose of determining whether, in relation to that agency worker, that employee is a comparable employee or not.".
I move amendment No. 19:
In page 9, before section 6, but in Part 2, to insert the following new section:
"6.—(1) Subject to any collective agreement for the time being standing approved under section 7, the basic working and employment conditions to which an agency worker is entitled shall—
(a) be the same as the basic working and employment conditions to which a comparable employee is entitled, or
(b) where there is no comparable employee employed by the hirer of the agency worker, be the same as the basic working and employment conditions to which a comparable employee would (if a comparable employee were so employed) be entitled.
(2) Subsection (1) shall not, in so far only as it relates to pay, apply to an agency worker employed by an employment agency under a permanent contract of employment, provided that—
(a) before the agency worker enters into that contract of employment, the employment agency notifies the agency worker in writing that, if the agency worker enters into that contract of employment, subsection (1), in so far as it relates to pay, shall not apply to the agency worker, and
(b) in respect of the period between assignments and subject to—
(i) Part 3 of the Act of 2000, and
(ii) any other enactment or any collective agreement that makes provision in relation to terms and conditions of employment relating to pay, the agency worker is paid by the employment agency an amount equal to not less than half of the pay to which he or she was entitled in respect of his or her most recent assignment.
(3) Where the assignment of an agency worker commenced before 5 December 2011 and ended or ends on or after that date, that assignment shall, for the purpose of determining the agency worker's basic working and employment conditions in accordance with subsection (1), be deemed to have commenced on that date.
(4) In this section "permanent contract of employment" means a contract of employment of indefinite duration.".
I have a procedural question. We are strongly opposed to section 6(2). We have had discussions on some of the other elements and our amendments in this regard have been ruled out of order. We do not want to agree to the section when that subsection is contained in it. Do we say "Níl" to it?
It is the other way around in this case.
We have amended section 6 and included some safeguards but I accept we are not going as far as Deputy Boyd Barrett would want. We have accepted amendment No. 19, which is the new section 6.
To clarify, the amendment we had related to the Swedish derogation and it has been ruled out of order because of a potential charge on the Exchequer. We have asked the Minister to consider it as we are not allowed to table the amendment.
Does the Deputy wish the subsection to remain?
No, we want it out. We do not want section 6(2) in the Bill because it undermines the legislation.
So the Deputy wants to delete it.
We are maintaining the subsection but we can consider more safeguards. The Deputy seems to be opposed in principle to this form of derogation, and that is not our position. We are seeking to retain this as a potential source of derogation, although we are looking to build in safeguards to prevent abuse. We have dealt with amendment No. 19, which provides for that. I accept there is a difference of views in this regard.
Amendment No. 19 has already been agreed.
The Deputy's concerns would have been relevant to amendment No. 19.
I accept that the Minister's amendment has made a genuine attempt to deal with the issue of comparators. As I stated earlier, we will have to look at this closely, although I accept the Minister's remarks in that regard. The concern we raised is different, and I hope the Minister will take it on board. We will raise it again on Report Stage.
Amendment No. 19 inserted a new section 6. This concerns the deletion of the old section 6.
The new section 6 has been established and the old section 6 is to be deleted.
I move amendment No. 27:
In page 10, subsection (4)(c), to delete lines 4 and 5.
We have a big problem with this. Section 7(4)(c)(ii) indicates “in the opinion of the Labour Court, sufficiently representative of agency workers;" and this wording is problematic. It is very difficult for unions to have majority membership among people employed by agencies, so unions may never be able to reach that criterion of claiming to represent workers employed by agencies. Unions may often represent the comparable worker in the public or private sector and represent a majority of them but may not - or likely will not - represent the agency workers brought in as comparators. This is a recipe to deny agency workers union representation and on that basis it should not be included in the Bill.
of agency workers;" and this wording is problematic. It is very difficult for unions to have majority membership among people employed by agencies, so unions may never be able to reach that criterion of claiming to represent workers employed by agencies. Unions may often represent the comparable worker in the public or private sector and represent a majority of them but may not - or likely will not - represent the agency workers brought in as comparators. This is a recipe to deny agency workers union representation and on that basis it should not be included in the Bill.
I am not in a position to agree to the Deputy's amendment as the effect would be to deprive the Labour Court of an essential function that it has in the process, outlined in full in section 7, of determining whether the body representing the employees in the negotiation of a collective agreement is sufficiently representative of agency workers. After all if a collective agreement was to be concluded in accordance with the terms of this section, it would be for the Labour Court to approve of the agreement which would then be registered in the court. The provision is taken from an identical section in the Organisation of Working Time Act.
My understanding is that where a collective agreement is negotiated in a workplace or by a company, this is a protection to ensure that whoever negotiates the agreement is sufficiently representative of the workers affected, that it represents a collective agreement and, as such, is entitled to a derogation from the general terms. This is a reasonable protection that the Labour Court would have before it would register an agreement to see that it has been validly negotiated by people who are genuinely representative of those affected.
The problem arises because the section refers to it being sufficiently representative of the agency workers. If, for example, it was worded to the effect that it was representative of workers in that sector or comparable workers - I would have to think about the wording - that would cover it. However, it refers specifically to agency workers and being sufficiently representative of the agency workers. If the Labour Court were to deem that a union is not sufficiently representative specifically of the agency workers, collective agreements that pertain to a workplace or sector would not apply.
This is offering a derogation from the directive in the event that a collective agreement is negotiated for agency workers alone. It must be a collective agreement around the position of agency workers which would arrange that some of the general terms do not apply to those agency workers because a collective agreement has been negotiated, with which they are happy, which offers them something else other than whatever is strictly in the terms. Effectively, this is a derogation that the full terms of the directive do not apply because agency workers and their employer have come together and negotiated a broader collective agreement with which both sides are happy and that can be recognised. That is regularly recognised in other European countries and it is a standard derogation in the directive. We are simply adding the protection that if such a collective agreement is purported to have been made whoever made it must be sufficiently representative of the workers affected to have validly negotiated it. This is a protection for agency workers, not an undermining of their position.
I do not think so, to be honest. This matter was raised with us by the UNITE trade union. The point of this legislation is to ensure the protection of agency workers who are a more vulnerable group of workers, more open to exploitation and abuse by unscrupulous employers because they are not tied and directly employed in a particular established workplace where there is established pay and conditions. In those established workplaces where pay and conditions are reasonably well established collective agreements would be in place, but agency workers, by their nature, in many cases will not have a collective agreement with the agency because they are a diffuse group of people, not fixed in a workplace where they would have established arrangements with an employer. To have a requirement that for a union to represent the interest of those workers, it must be sufficiently representative of specifically agency workers effectively means that they will never have union representation or that such representation will occur in very few circumstances.
The Labour Court is charged with a responsibility that before it registers an agreement it must be satisfied that those affected by the agreement have been reasonably represented in reaching the deal. All this is saying is that one of the points the Labour Court would naturally consider is whether the negotiation has taken into account the views of the workers who are directly affected.
We can deal with this on Report Stage.
I can see the point the Deputy is making that agency workers-----
I will not labour the point. We have registered the point and the Minister has made his point.
The amendment can be withdrawn, the Deputies can get clarity on the position and it can be considered for Report Stage. Is the amendment being withdrawn?
As long we can have it considered on Report Stage.
I move amendment No. 28
In page 12, lines 1 to 4, to delete subsection (2) and substitute the following:
"(2) Subsection (1) shall not operate to prevent an employment agency from charging an individual a fee in respect of reasonable expenses incurred by it—
(a) in the provision of training to the individual necessary for the purpose referred to in that subsection,
(b) as a consequence of the making of an arrangement for the individual to be subjected to a process of vetting by the Garda Síochána where such vetting is necessary for the purpose referred to in that subsection, or
(c) in the provision of footwear, headgear or clothing to the individual necessary to ensure compliance with any enactment relating to health and safety in a place of work.”.
I have a question on this amendment.
The amendment was discussed with amendment No. 11.
I did not realise we had discussed it but it involves a serious issue.
The Deputy can raise his concern when we deal with the section.
I want to discuss it under the section.
Amendment No. 28 on page six of the list of amendments states that if an employment agency which is supplying workers to a hirer has to train those workers, it can charge them for training. It goes on to say that if the agency workers require protective headgear, protective clothing, footwear and so on the employment agency is entitled to charge the agency workers for them. Furthermore, if the agency workers have to be vetted by the Garda, the employment agency is entitled to impose a fee for the privilege. This is outrageous and appalling.
I will re-examine those. It is an unintended provision. I will examine subsection 2(b) and (c) and come back to those on Report Stage.
Is section 12, as amended, agreed to?
If the Minister is acknowledging the points made by Deputy O'Dea and we had tabled a similar amendment in this respect and this is a problem, why would we assent to this section?
The Deputy missed the opportunity to identity it earlier.
We did not flag that amendment.
We did not accept the section.
We did not accept the section. We have not accepted it.
We want to protect section 12(2)(a) dealing with the provision of training and we will reconsider subsections 2(b) and (c).
I think the section is agreed and the Minister has said he is willing to re-examine those paragraphs for Report Stage. That has to be accepted. It is up to the Deputies, if they want to put it to a vote, that is not a problem.
To be helpful, in the amendment as proposed at section 12(2)(b) and (c) the intention is to provide also for the exclusion from the offence of charging a fee where this is mandated under statute. In particular, the amendment addresses the issue of the provision of personal protective equipment under health and safety legislation and the issue of Garda vetting. However, I take the opportunity to advise the committee that I intend to re-examine this section further as regards section 12(2)(b) and (c) in advance of Report Stage as it may be that the aspects being provided for may already be appropriately provided for in extant legislation. This is an issue that arose. While we have put down a marker, we recognise that it is not satisfactory and will be reverting to it. We have signalled that there is an issue that we must examine.
I do not understand. We are opposed to section 12(2), but if I understand this correctly, I am even more opposed to the Minister's amendment. Is he withdrawing it?
No, but we will revert to it on Report Stage in respect of this issue. There are issues for which we need to provide, but we do not believe the amendment is sufficiently robust. We will be reverting to it on Report Stage.
The Deputy can oppose the section if he wishes.
I seek clarification of the Minister's position which I do not understand. We have a problem with section 12(2), but the Minister has proposed an amendment which is actually worse. He need not push it if he is acknowledging there is a problem with it. Why would he press it if there is a problem with it? I accept that he wants the Bill to be passed, but why is he pressing the amendment? It is not included in the Bill.
It is. We agreed to it a few minutes ago, but the Minister is prepared to change it. If the Deputy is still unhappy, he can oppose the section now. The Minister hopes to deal with this issue on Report Stage to make the section satisfactory. If the Deputy is opposed to it, he can oppose it when I put the question, "That section 12, as amended, stand part of the Bill."
We oppose the section.
It is opposed.
Amendment No. 30 is out of order.
It proposed to delete the words "unless there exist objective grounds that justify less favourable treatment of the agency worker". What objective grounds would justify less favourable treatment of agency workers? How would that cost the State?
The amendment which was tabled by the Deputy would remove this opt-out provision. This could have the effect of imposing additional costs and administration overheads on a public sector hirer of agency workers.
How?
That is the advice of the Bills Office.
Can we ask the Bills Office to give the committee information on how it foresees that happening?
The Deputy is welcome to consult the Bills Office and re-word the amendment prior to Report Stage. It is not my job to do it for him.
I do not wish to delay the committee, but I have a question on this section which states it will be the duty of the hirer of an agency worker to provide the employment agency with all such information in the possession of the hirer to enable the agency to give the worker what he or she is entitled to. What happens if the agency workers bring a case and win it because incorrect information has been given by the hiring company to the employment agency? Does the employment agency have to lose the case and then sue the hirer for giving wrong information? What is meant by the phrase "the hirer shall indemnify the employment agency"? I do not envisage two sets of proceedings.
My understanding is that the case would be won by the agency worker but the employment agency would be entitled to seek to recoup the cost from the hirer.
How would he or she recoup?
I understand he or she would have an enforceable finding of the rights commissioner, but if the hirer was refusing, he or she could have to pursue the matter in the District Court.
There will be two sets of proceedings.
The finding of the rights commissioner would make it clear that the hirer was liable. The hirer would have a direct obligation. The substantive case would not have to be heard again.
If an agency worker takes a case against the employment agency, they are the two parties. The Minister is saying the rights commissioner can make an order against a third party.
The employment agency would have a defence when it went to the rights commissioner. The rights commissioner, in making a finding, would make it clear where liability had fallen.
With respect, that matter should be clarified.
Okay.
Perhaps the Minister might examine it and see if he can make it a little more clear.
I will seek clarification before Report Stage.
Amendments Nos. 31 to 36, inclusive, are related. Is it agreed that they be discussed together? Agreed. Some of the amendments are in the name of Deputy John Halligan who is not present.
May Deputy Joan Collins and I substitute for Deputy John Halligan?
That is okay.
We are new to this and have not quite figured out how things works.
Is that agreed to by the committee? Agreed. The amendment is supposed to be formally moved by the proposer, but this can be done when the committee agrees to it.
I move amendment No. 31:
In page 18, to delete lines 3 to 5 and substitute the following:
"20.—Where a person communicates his or her opinion, whether in writing or otherwise, to a member of the Garda Síochána or National Employment Rights Authority or the Minister that—".
We do not wish to waste the committee's time as these are minor and technical matters. This is about including the National Employment Rights Authority, NERA, in all of these areas in order that where somebody reports a breach not only to the Garda or the Minister but also to NERA the Bill would apply. That would apply to both malicious and productive complaints. That is what NERA is in place to deal with and it should be specified in the Bill. The first few amendments are similar in that respect. Those who report breaches should also report them to NERA.
I understand this is only a technical matter in the sense that NERA is an office of my Department and the reference in the Bill is the appropriate one. The staff of an office report to me; it is not an authority established under separate statute. In practice, it will be NERA which will be notified, but in the legal formulation it is an office under my direction and reports to me. That is the way it is provided for in legislation.
It is not consumer friendly. If one is an agency worker, one will not say, "Do I have to go to the Minister about this?" Obviously, one will not do that when the body is in place. It is supposed to be the arena-----
A body must be statutorily established before it can be put into law, as being a body to whom this case would go. Where it is not established under statute, the Minister is used as the legal authority. Therefore, it is the Minister that is put into the legislation but, in practice, it is to NERA that all these cases will be directed.
We have to accept what the Minister is saying but on a learning point, why was that amendment not ruled out of order? If NERA does not have a basis in statute and cannot, therefore, be included in legislation, presumably that amendment should have been ruled out if it has no place.
If it had been put in, it probably would have been------
Just as a matter of interest.
All the amendments are ruled out of order, a number of which are in the names of Deputy Halligan, Deputy O'Dea and Deputy Daly all of which were treated equally. The Bills Office advises that those which involve a potential charge on the State are ruled out order. This amendment, obviously, does not come into that category and it is being discussed. Everybody was treated equally and that assertion cannot be made publicly at a committee meeting, unless the Deputy wants to back it up.
Okay.
The Chairman is telling me it is inappropriate to include NERA in the legislation because it is illegal or whatever-----
I am not trying to-----
Either it is or it is not. If it has no place in legislation then it should have been ruled out of order.
It is not out of order.
It is not out of order. It can be discussed but a charge on the State cannot be discussed. The Standing Order deals with the potential charge on the State. That is what was ruled out.
It can be discussed but the answer is, "Sorry we cannot put it in, as it has no place here".
What the Deputy is saying is that it would not be legally robust - that is our case - but we are not suggesting that it was out of order for the Deputy to put forward the idea.
Just to clarify, we are discussing amendments Nos. 31 to 36, inclusive. They include some ministerial amendments.
The original text includes the Garda Síochána, the Minister and the National Employment Rights Authority which is essentially what will happen. What is the problem? Will the Minister clarify the difficulty in terms of NERA?
As I understand it, as NERA is not established under any statute its authority derives entirely from the Minister. It does not have a separate legal authority. In the event, it would be the Minister who would be sued for any misdemeanour. In that case the Minister is put into the legislation rather than a body that does not have an independent authority under statute.
We would see the other two amendments Nos. 34 and 35 as technical. In section 22 we are seeking to specify that the employee be "a directly employed employee or employee assigned by an agency", and that the protection would cover both. If a person who was not an agency worker but a permanently employed colleague reported the breach, they too would be protected and the agency worker. The amendment seeks to define the employee to cover the agency worker and the directly-employed employee.
Amendment No. 35 was highlighted by the UNITE trade union. I wonder if the word "not" is a misprint. It appears to exempt people from cover in terms of unfair dismissal. I do not know why it would be included. If a penalisation of an employee constitutes a dismissal of the employee, relief may not be granted to the employee in respect of that penalisation. I ask whether the word "not" should be there, because it does not seem to make any sense.
The Minister will clarify that issue.
The Deputy's amendment No. 34 arises because the provision in the existing Bill does not deal with the position of both a directly-employed person and an agency worker. However, in amendment No. 36, that is to be considered by the committee, the intention is to have two separate provisions that deal respectively with penalisation of a direct employee and that of an agency worker. For this reason I hope the Deputy will understand I cannot accept this amendment as the intent is provided for in my subsequent amendment.
In the case of amendment No. 35, the rationale for section 22(2) is to prevent claims for the same issue being taken to different adjudication bodies. The inclusion of the word "not" is, therefore, very important as it simply means that an agency worker can either take an action under Schedule 2 to the Bill or under the provisions for redress that are available under the unfair dismissals legislation. For this reason I hope the Deputy can understand why I am not in a position to accept this amendment. One of the features that has clogged up the system is multiple offences, therefore, this is a sensible provision.
Amendment No. 33 is in my name. In the Bill as drafted an offence provision that is necessary to link with the existing section 21(1) is required. That is the intent of this amendment. This provision is standard in respect of whistleblowing provisions in a number of other statutes. This relates to persons found guilty of an offence under section 21 of the Bill in relation specifically to persons making false statements and knowing them to be false.
Is Deputy Daly happy or does she require more clarification?
No, I think I know what the Minister is saying. Obviously there is a huge amount involved here. Essentially he is saying the protection for the directly-employed worker, which was not originally envisaged, is being included. We sought to include them.
That whole category which is being covered deserves its own protection in section 36.
That is right. Amendment No. 36 is a new section which mirrors many of the provisions already in place in section 22 which is reflective of the standard of any employer-employee relationship and is a feature of similar such provisions in extant legislation. In the case of section 22, it is the employment agency that is the employer and the reference to employees is taken to refer to agency workers. The new section 23 relates to a prohibition on penalisation in respect of actions taken by the third party, the hirer, in the tripartite relationship that is agency working to the detriment of agency workers.
How stands amendment No. 31?
We will have to withdraw it for now.
I move amendment No. 33:
In page 18, between lines 18 and 19, to insert the following subsection:
"(2) A person guilty of an offence under this section shall be liable-
(a ) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or
(b ) on conviction on indictment, to a fine not exceeding €100,000 or imprisonment for a term not exceeding 3 years or both.”.
I move amendment No. 36:
In page 19, before section 23, to insert the following new section:
"23.-(1) A hirer shall not penalise or threaten penalisation of an agency worker for-
(a ) invoking any right conferred on him or her by this Act,
(b ) having in good faith opposed by lawful means an act that is unlawful under this Act,
(c ) making a complaint to a member of the Garda Síochána or the Minister that a provision of this Act has been contravened,
(d ) giving evidence in any proceedings under this Act, or
(e ) giving notice of his or her intention to do any of the things referred to in the preceding paragraphs.
(2) If a penalisation of an agency worker, in contravention of subsection (1), constitutes a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2007, relief may not be granted to the agency worker in respect of that penalisation both under Schedule 2 and under those Acts.
(3) In this section "penalisation" means any act or omission by a hirer or a person acting on behalf of a hirer that affects an agency worker to his or her detriment with respect to any term or condition of his or her employment, and, without prejudice to the generality of the foregoing, includes -
(a ) suspension or dismissal (within the meaning of the Unfair Dismissals Acts 1977 to 2007), or the threat of suspension or such dismissal,
(b ) loss of opportunity to apply for a position of employment with the hirer,
(c ) transfer of duties, change of location of place of work or change in working hours,
(d ) imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty) and
(e ) coercion or intimidation.”
Amendments Nos. 37, 40 and 41 are related and may be discussed together, by agreement.
I move amendment No. 37:
In page 19, before section 23, to insert the following new section:
"24.- Schedule 2 shall have effect for the purposes of this Act.”.
This is a technical amendment that occurs as a result of the subsequent amendment No. 40 that I have tabled which involves an amendment to Schedule 2 as a result of which the existing section 23 of the Bill is no longer relevant. Amendment No. 40 contains a new paragraph 1 in respect of Schedule 2 which contains the standard complaint and redress provisions applicable and procedures to be followed by the three parties for any breach of a right in relation to equal treatment provisions in the Bill. Thus, in the case of an agency worker's entitlement to equal treatment in respect of basic working employment conditions under section 6, in regard to prohibition of the charging of a job seeking fee to agency workers under section 12, or, in the case of the penalisation provisions under section 22, the agency worker may present a complaint to the rights commissioner against the employer of the agency worker, the employment agency in this case, for breach of a right to equal treatment. In the case of a breach of an agency worker's right to equal treatment in respect of access to collective facilities or amenities of the hirer, liability in respect of any breach rests with the hirer and not the employment agency, as an employment agency cannot be held responsible in this instance as it has no control over the provisions of such access rights, which fall within the area of responsibility of the hirer.
My amendment No. 41 is self-explanatory, will the Minister respond to it briefly?
The method of transposition of the terms of the EU directive on temporary agency workers being based on equal treatment being afforded to agency workers in respect of individual components of pay, as is being proposed in Deputy O'Dea's amendment, does not provide a basis for considering a rounded or a package approach in respect of decisions to be taken by the rights commissioner in the award of compensation for breaches of the individualised equal treatment provisions of the Bill. The EU directive on temporary agency work in this respect differs from other directives that afford equality of treatment in respect of fixed-term employees, where such a package or rounded approach is available, as an element that may be brought into consideration in respect of compliance with equal treatment requirements of that particular legislation. In the circumstances I cannot accept the proposed amendment.
What strikes me about amendment No. 41 is that it could possibly reduce the compensation to an employee, to which I would be opposed.
I am not in a position to accept this amendment as it goes outside the terms of the directive.
Amendments Nos. 38 and 39, tabled by Deputy John Halligan, are related and may be discussed together, by agreement. Deputy John Halligan is not present.
With the permission of the Chair, may I be allowed to substitute for Deputy John Halligan?
Is that agreed? Agreed.
I move amendment No. 38:
In page 19, before Schedule 1, to insert the following new section:
"24.—(1) The employment agency and the employment to which the agency worker is assigned shall be jointly and severally liable for all breaches of this Act with the exceptions of the matters of facilities and amenities for which the employer who is end user shall be solely responsible.
(2) When an alleged breach of this Act is brought to the attention of the National Employment Rights Authority an investigation should commence within 21 days of such notification.".
I want to check who is liable for the breaches of the legislation, as the Bill is silent on whether it is the employer or the agency. We think it should be both and that is the reason we tabled the amendment. In amendment No. 39, we seek to set a minimum amount of €1,000 for the level of compensation awarded to an agency worker.
With the exception of sections 10 and 13, responsibility for breaches of the legislation is attributable to the employer of the agency worker, given the direct employment relationship that exists between both parties. However, exceptionally in sections 10 and 13, which relate respectively to the rights of agency workers to vacancy notices relating to job opportunities that the hirer is undertaking and the right to access amenities and collective facilities at the hirer's undertaking, responsibility for these aspects rests solely with the hirer undertaking. For all other matters in respect of which a breach is claimed, it is the employment agency that is responsible.
In parallel with the provisions of sections 10 and 13, as outlined, Schedule 2 to the Bill, on which I tabled an amendment, No. 40, proposes that in these specific instances, it is the hirer undertaking which has sole control and discretion over these aspects that can be taken before the rights commissioner. For all other issues, it is the employer of the agency worker who will potentially have a case for breach of the legislation taken before a rights commissioner.
An important consideration, however, is that set out in section 14 which provides for the subsequent indemnification of the employer in the event that the breach incurred, if proven, was actually incurred as a consequence of failure by the hirer of the agency worker to provide accurate information to the employment agency in the first instance. I have taken advice on this approach and understand that this is a preferable route to take and is much simpler than that of enjoining two parties, only one of whom has responsibility for the particular breach. This would have the undesirable effect of usurping the time and resources of all parties concerned, including the rights commissioners service, when there is in fact a simpler solution. This is the reason I am not in a position to accept the Deputy's amendment, but I indicated to Deputy O'Dea that I would come back on Report Stage to satisfy him on the robustness of the procedure that is set out in section 14.
The Minister did not comment on the payment of compensation, which is the matter at issue in amendment No. 39.
The remedies for breaches of the legislation are set out in Schedule 2 to the Bill and these allow the discretion of the rights commissioner service, as is normal having heard both parties involved, to set any level of compensation. This must have regard to what is just and equitable, having regard to all the circumstances. I believe that is the correct manner to approach this issue generally and I do not propose, therefore, to accept the Deputy's amendment.
I move amendment No. 40:
In page 30, paragraph 1, to delete lines 4 to 11 and substitute the following:
"1.(1)(a) An employee or any trade union of which the employee is a member, with the consent of the employee, may present a complaint to a rights commissioner that the employee’s employer has contravened section 6, 12(1) or 22 in relation to the employee and, upon the presentation of such a complaint, the commissioner shall give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint.
(b) An agency worker or any trade union of which the agency worker is a member, with the consent of the agency worker, may present a complaint to a rights commissioner that the hirer of the agency worker has contravened section 10, 13 or 23 in relation to the agency worker and, upon the presentation of such a complaint, the commissioner shall give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint.
(c) References to employee and employer in the subsequent provisions of this Schedule shall, in so far as they relate to a complaint to which clause (b) applies, be construed as references to agency worker and hirer respectively.”.
I thank the Minister and his officials for their attendance. I also thank members for putting in two hours of solid work.
