Amendment No. 1 in the name of Deputy Howlin has been ruled out of order as it involves a potential charge on the Exchequer.
Protection of Employees (Fixed-Term Work) Bill 2003 [ Seanad ] : Committee and Remaining Stages.
I am sorry to hear the amendment has been determined out of order. The amendment states that the Minister may by order provide for the commencement of this Act on a date earlier than the passing hereof where necessary to comply with Council Directive 1999/70/EC.
The Ceann Comhairle will be aware that the EC directive which spawned this Bill goes back to 1999. The original directive gave us until July of 2001—
Perhaps we could deal with the amendment first and then when we come to speak about the section, the Deputy will be in a position to make the point he wishes to make.
I am at a loss to understand why it is out of order because the amendment was allowed in the Seanad.
The position in regard to the amendment is that it seeks to provide for the commencement of this Act on a date earlier than its passage. The effect of the amendment is to impose additional charges on the Exchequer due to the fact that employees covered by the legislation include State employees. The amendment must be disallowed in accordance with Standing Order 149(3).
I am at a loss to know why a different decision was made in the other House.
We are not responsible for the other House.
I will reserve the bulk of what I want to say on this until we discuss the section, in deference to the Chair's ruling. However, I want to make a point before we move from the amendment. There will be an implication in terms of liability to the State because we have a legal obligation from July 2002 to implement it. It will be possible for people to take action against us. I ask the Minister of State to consider accepting the amendment or retabling it in his name so that he will have the option of implementing the legislation at an earlier date if, on further reflection and legal advice, that proves to be a prudent option.
The Chair has ruled on this amendment.
I invite the Minister of State to think seriously about this matter.
I remake my appeal to the Minister of State. I know the Minister is indisposed and I wish her a speedy recovery – she had a minor upset. The Minister of State, Deputy Michael Ahern, dealt with this Bill in the other House. He put on the record of that House a response to this amendment which stated that it would be expensive to do as it proposes and, therefore, we should not. However, the directive goes back to 1999 and we had until 10 July 2001 to implement it. There was a possibility of a one year extension for special difficulty beyond 2001 which, in exceptional circumstances, would have allowed us to transpose this into domestic law in July 2002. That has not happened. There will be serious costs and legal implications unless the protection envisaged in this legislation is made retrospective to at least the 2002 date. That is the good legal advice I have been given. I ask the Minister of State to reflect further on it and to see if he can, even at this late stage, submit an amendment in his own name to give him the option of implementing the legislation at an earlier date. It would be a prudent, wise and cost-saving measure.
Are we discussing amendment No. 1?
We have dealt with amendment No. 1 and we are now speaking on the section. Amendment No. 1 was out of order, therefore, we cannot discuss it.
It is an option I cannot consider because there is a financial implication. I do not have the resources to consider it.
Even to show flexibility.
That would involve resources, which we do not have.
If the Minister of State accepted the amendment, the legislation could be implemented from any date he chooses. It states that the Minister "may" by order provide a commencement date prior to the enactment date. It gives the Minister flexibility. I am familiar with civil servants providing great flexibility to Ministers in legislation because, on mature reflection, to borrow a phrase, it can sometimes be prudent to do that. If the Minister wants to commence it from the date of enactment, that is not precluded in any way by him retabling amendment No. 1 in his own name. It just gives the Minister flexibility, which would be prudent.
I move amendment No. 2:
In page 6, subsection (1), lines 2 to 8, to delete all words from and including "but" in line 2 down to and including "contract)" in line 8.
I want to amend the definition section of the Bill which states that a "contract of employment" means a contract of service whether express or implied and, if express, whether oral or in writing. I want to delete all the words from and including "but" down to and including "contract)". The impact of the amendment would be to narrow the exclusions which are implicit in the Bill. The objective of altering those exclusions would be to include or to delete the exclusion of agency workers. This issue was raised in the debate in the Seanad. I read with interest the comments made by the Minister of State, Deputy Michael Ahern, on this issue. He gave an explicit commitment that this was an important and valuable thing to do. I do not want to take up the time of a confined debate to read the full text of his comments in the Seanad, but the import of what he said was that it was the correct course of action. He stated:
I consider it appropriate that such workers should now be included in the scope of the Bill. It will be necessary to secure agreement from the Government for their inclusion but such agreement will not be possible prior to Report and Final Stages. I intend to report on this matter on Committee Stage in the Dáil and update this House after the passage of the Bill in the other House.
In other words, he gave a commitment to the other House that he would make the amendment I have proposed when the Bill arrived in this House. We welcome that commitment and we would be happy to accept the Minister of State's proposal in that regard.
I was amazed that the Bill included a provision to exclude people on fixed-term contracts with agencies. Many people, particularly those who work in the secretarial field, are on such contracts. There is no reason they should be excluded. I look forward to an explanation for that. It discriminates against people who, as far as I can see from newspaper advertisements, increasingly use agencies. If the amendment is not accepted, there is a strong possibility we will be back to amend it sooner rather than later. I ask the Minister of State to give this serious consideration.
I thank Deputies Howlin and Morgan for tabling this amendment. The exclusion of agency workers from the scope of the Bill was specifically raised by a number of Deputies during the Second Stage debate on 26 June. My colleague, the Minister of State, Deputy Michael Ahern, who stood in on my behalf as I was engaged in the ILO conference during that week, gave a commitment that the Government would report on this matter on Committee Stage in the Dáil. However, he did not give a commitment to make the change but to look at it. He also proposed to update the Seanad of any developments after the passage of the Bill through the House.
The exclusion was done in accordance with the terms of the framework agreement on fixed-term work annexed to Directive 1999/70/EC which provided that the agreement applies to fixed-term workers with the exception of those placed by a temporary work agency at the disposition of a user enterprise. That was done for a variety of reasons, not least the intention since the beginning to deal with part-time, fixed-term and temporary agency workers separately. Although the first two agreements finally reached by the social partners at European level were similar in nature, that is, in the cases of the part-time and fixed-term workers directives, this was achieved through discussion of each type of work. However, negotiations on a temporary agency workers directive among the social partners at a European level broke down in May 2001 and a draft directive in the area was subsequently published by the European Commission in March 2002. This draft directive remains under discussion in Brussels.
Although it is somewhat unclear how the Italian Presidency proposes to advance the temporary agency dossier, we understand that the Italians will continue to work on the proposal with a view to possibly reaching political agreement during their Presidency, which ends in December. Accordingly, under the definition of a contract of employment in section 2 of the Bill, agency workers who agree with a person who is carrying on the business of an employment within the meaning of the Employment Agency Act 1971 and who is acting in the course of that business to do or perform personally any work or service for a third person, whether or not the third person is party to the contract, are excluded from the ambit of the legislation because of the above provision in the framework agreement on fixed-term work.
However, agency workers who have a contract of employment directly with an employment agency are covered by the Bill. In those cases, the employment agency is the employer as defined in the Bill. This means that the Deputy's requirement is provided for. For these reasons, I propose to reject amendment No. 2. I trust that the explanation I have just given clarifies matters for the Deputies. There were three directives on part-time work, fixed-term workers and agency workers respectively. The issue raised by the Deputies is covered in this Bill and will be further covered in the Bill dealing with agency workers when it comes before the House.
The Minister is being disingenuous in the statements he attributed to the Minister of State, Deputy Michael Ahern. I have in front of me Deputy Ahern's comments in the Seanad. The reasoning in the preamble to these comments was identical to that which Deputy Fahey has just given. He mentioned that there was a separate directive and that it was envisaged that would be advanced. He said that negotiations broke down in 2001 and the draft directive in the area was subsequently published by the European Commission in March 2002. All of this echoes Deputy Ahern's comments in the Seanad. However, he then went on to say:
I consider it appropriate that such workers should now be included in the scope of the Bill. It will be necessary to secure agreement from the Government for their inclusion but such agreement will not be possible prior to Report and Final Stages [in the Seanad]. I intend to report on this matter on Committee Stage in the Dáil and to update this House after the passage of the Bill in the other House.
The truth seems to be that Deputy Ahern was unable to obtain Government agreement to broaden the scope of the Bill – to delete the exclusion of agency workers. Telling us now that it will be dealt with in another Bill some other time is well and good – we will welcome the implementation of the directive that applies to agency workers – but, in the interim, we should take the measure of including agency workers, or not excluding them from the terms of this legislation, as was clearly the intention of Deputy Ahern and of Deputy Fahey. If the Minister of State could not get the agreement of the Government, he should at least stand up and tell us that in order that we will know the reasons for it. It is disingenuous to say that it was never intended to do that when it is as plain as a pikestaff that was the intention.
I am carefully reading the paragraph that Deputy Howlin and I are seeking to delete to see whether I can capture the essence of what the Minister of State is saying. I find it unclear. I understand the Minister of State is suggesting that the employee is covered by a contract that exists between the contract agency and him or her. A contract exists between the two parties similar to that which exists in the case of somebody who is employed directly by the company for whom she or he works. The Minister of State claims that this contract will suffice. If that is the case, I do not see why temporary agency workers should be excluded here. I look forward to the Minister of State's explanation for this because it is not clear on reading the section we are trying to delete. It would lead to a considerably more straightforward Bill if the paragraph were deleted entirely.
The Minister of State, Deputy Ahern, gave the view as outlined, but we did not go to Government with this request. It was a decision on my part and that of my officials that it would be more appropriate to deal with agency workers under the directive being negotiated in Europe specifically for agency workers, which will be the subject of legislation at a later date. In reply to Deputy Morgan's question, agency workers who have a contract of employment with a temporary agency are covered by this Bill. It does not cover workers who are contracted out to other employers, but they will be dealt with in the directive, which is specifically for their benefit.
I am confused. I know that when one Minister of State replaces another during a debate – I understand that Deputy Fahey had to attend a meeting of the ILO – he or she normally works from a prepared script. Somebody prepared the script and handed it to Deputy Ahern, who then said that he considered it appropriate for this legislation to encompass agency workers. That position has now changed. It surprises me that Deputy Fahey could overturn that view after it had been given in a House of the Oireachtas.
Deputy Ahern promised to look at the matter.
No, he said: "I consider it appropriate that such workers should now be included in the scope of the Bill."
That is a change.
The bottom line is that is what he said. Did Deputy Fahey overrule that and if so, why? The Minister of State said that there would be another Bill once a directive is agreed upon. Firstly, the directive has not even been concluded. The Minister of State has already told the House that he does not know the status of the directive in the Italian Presidency – it may well fall to us to conclude it during our own Presidency. Once it is concluded, when will it be enshrined in legislation? Let us take this Bill as a typical example. The directive with which this Bill deals was concluded in 1999, so the Bill dealing with the other directive should appear four years from now.
It is wrong to exclude a category of workers from the protections offered in this Bill in the hope that in three, four or five years' time, a specific directive relating to this category will be transposed into domestic law. I ask the Minister of State to think again. Could he explain to us why he has reversed the position clearly enunciated as the Government's position, given that Ministers speak for the Government in a collective constitutional capacity? A clear commitment was given to the Seanad to include agency workers in this legislation.
The framework agreement on fixed-term work annexed to Directive 1999/70/EC states:
This agreement applies to fixed-term workers with the exception of those placed by a temporary work agency at the disposition of a user enterprise. It is the intention of the parties to consider the need for a similar agreement relating to temporary agency work.
Therefore, as in the case of every other country in Europe, temporary agency workers will be catered for when the directive relating to them is agreed on. It is for that reason that the advice of my officials – and my own view – is that temporary agency workers and part-time workers should be covered by the specific directive being put through in Europe at present. That is why we reject the amendment.
It is not only unfortunate but also unfair that such a wide range of workers will be excluded from the protection of this Bill until the EU manages to put in place a directive dealing with this matter. Goodness only knows when that will happen.
Meanwhile, it would be better to delete this and include them in the legislation proper, thus giving them the entitlements enjoyed by other employees.
Is the amendment being pressed?
I move amendment No. 3:
In page 7, subsection (1)(b), line 7, after “any” to insert “monetary”.
As the Bill implements an EU directive, it gives rise to few matters warranting criticism or amendment. It is a non-controversial Bill, which is to be welcomed in principle. I welcome some of the Minister of State's amendments and I support the Labour Party's amendments also. I hope the Minister of State will be more inclined to accept subsequent Opposition amendments because it would be a shame not to do so. This amendment is technical in nature and seeks to add the word "monetary" for purposes of clarification.
I do not propose to accept this amendment, which is unnecessary as the only amounts that could be involved concerning pension entitlements are monetary, and this is implicit in the current wording.
Is it not possible that share values or other matters could be included, thus affecting the participation of workers in a share scheme?
I move amendment No. 4:
In page 7, lines 38 to 41, to delete subsection (2).
I am intrigued by the subsection my amendment seeks to delete. Perhaps the Minister of State could explain why he wants this subsection in the Bill. Section 3(2) states:
Regulations under this Act may make different provisions in relation to different classes of employees or employers, different areas or otherwise by reference to the different circumstances of the matter.
Why does the Minister of State want to give himself broad powers to discriminate between different groups of employees? Why should the Oireachtas blindly grant this power to a Minister through a blanket provision which may have significant implications?
This is already in the part-time legislation. To a certain degree, the Deputy is saying the opposite of what he said in respect of the previous amendment.
The amendment would have the effect of deleting section 3(2) which, as drafted, permits different provisions for different classes of employees or employers in regulations or orders made under the terms of the Bill. This is a standard provision in legislation, generally, whereby a Minister can make regulations or orders under an Act of the Oireachtas. A similar provision to section 3(2) was provided for in section 4(2) of the Protection of Employees (Part-Time Work) Act, on which much of the text of this Bill is based.
By way of clarification, however, if this section were ever to be used in the future it could not lessen the rights of fixed-term employees, as provided for in this Bill. Accordingly, I do not propose to accept the amendment.
I am heartened to hear the Minister of State's assurance that the subsection cannot be used to disimprove the conditions of fixed-term contracted employees, but what is the legal basis for that assurance? The fact that the provision has been replicated in previous legislation does not make it right. Having introduced legislation to the House as a Minister, I am aware that empowering sections can give broad-ranging secondary legislative powers to Ministers. This suits departmental officials because it gives them the scope to make law without reference to the Oireachtas. When I read the subsection, it was not clear why this power was required. How can we be certain that it will be delimited, as the Minister of State has assured us? What compelling legal basis is there for his assurance?
It is a standard provision in legislation and in implementing a European directive one cannot lessen the rights of workers, they can only be improved.
I will take the Minister of State's word for that.
Amendments Nos. 5 and 7 are related and may be discussed together by agreement.
I move amendment No. 5:
In page 9, subsection (1), line 4, to delete "subsection (2)” and substitute “subsections (2) and (5)”.
As a consequence of amendment No. 7, it is necessary to include a reference to section 6(5) in line 4, page 9. Amendment No. 7 would prohibit a part-time employee from comparing himself or herself to a full-time employee for pension purposes, if he or she has worked less than 20% of the hours of a full-time employee.
The view expressed by the Department of Finance and the Department of Social and Family Affairs is that a part-time, fixed-term employee could compare himself or herself to a full-time, permanent employee, in which case it would be necessary to limit comparison regarding pensions to those who work at least 20% of the hours of their comparators.
To be consistent with the part-time work Act 2002, the new section 6(5), as drafted by the Office of the Parliamentary Counsel to the Government, provides for the avoidance of doubt. The new section 6(6) is a consequential amendment to the new section 6(5) and is also in line with the Protection of Employees (Part-Time Work) Act 2001, where obviously the protection of employees provision is always comparing himself or herself to the employee who works more hours than he or she does. In other words, thepro rata principle would become applicable in respect of pay or other conditions of employment dependent on hours worked. This is covered by the new section 6(7).
Section 6(8) provides for the avoidance of doubt that Part III of the Organisation of Working Time Act 1997, relating to public holiday entitlements, is not affected by the provisions of this Bill.
I am concerned about the Minister of State's proposals, particularly subsection (5) in amendment No. 7, which states:
Subsection (1) shall, in so far, but only in so far, as it relates to any pension scheme or arrangement, not apply to a fixed-term employee whose normal hours of work constitute less than 20 per cent of the normal hours of work of a comparable permanent employee.
I am advised that there is no provision in the directive that permits the exclusion from the pension scheme of fixed-term contract workers who work less than 20% of the normal hours of work of a comparable permanent employee. There is no provision in the directive that allows the Minister of State to do what he wishes to do in this case. There is nothing in the part-time work directive that permits that exclusion. The Minister of State says that these subsections mirror those in the Protection of Employees (Part-Time Work) Act 2001, and so they do because they are similar. It is the view of the Irish Congress of Trade Unions that both pieces of legislation may be in breach of the provisions of both directives. I would welcome the Minister of State's response to that point because the ICTU has very long experience in analysing and monitoring the legal impact of directives. It intends to challenge the Government if it persists in regard to this matter.
As I stated on the Order of Business, it has been difficult to check the legality and constitutionality of this important legislation or whether it complies with the directive, given the rush to pass it through the House. I am interested in the Minister of State's reply to Deputy Howlin's point but I would go slightly further. Are we in danger, regardless of the Bill's legality or compliance with the directive, of encouraging employers towards part-time employment for which pension entitlements are different? This tendency is evident in the economy as it develops. Should we be careful in terms of pointing employers in this direction, which may lead to flexible employment arrangements but may not necessarily be in the best interest of individuals?
This legislation relates to fixed-term contracts, not part-time employment. While concerns were expressed by congress, they were not pursued in the manner outlined by Deputy Howlin. However, given that this provision was included in the legislation on part-time work, it is only correct that it should apply in this legislation.
That is no answer. The Protection of Employees (Part-Time Work) Bill 2000 has been enacted and congress expressed concerns about the exclusion, which the Minister of State wishes to replicate in this legislation. I only referenced the 2001 Act because he did. I am concerned he is inserting a provision that was not envisaged by the European directive. It is the view of congress and independent legal professionals, to whom I have had limited opportunity to speak today, that the provision is wide open to challenge. Has the Minister of State checked this matter? Did he receive advice from the Attorney General? If so, will he give it to the House?
The Commission has not responded to this issue and, until such time as it does, the position remains that a complaint has been made. While congress expressed its unhappiness in the discussions we had, it understood our position in respect of this legislation. We negotiated and agreed many aspects of the legislation. This provision largely applies to the part-time work Act, which is unfinished business in terms of the concerns of congress. The Departments of Finance and Social and Family Affairs felt a part-time worker could not compare himself or herself with a full-time employee.
I am opposed to the Minister's amendment.
I move amendment No. 6:
In page 9, subsection (2), line 9, to delete "objective" and substitute "exceptional".
Section 6(1) is the key provision of the legislation, as it prohibits the less favourable treatment of fixed-term employees. Section 6(2) sets out the exceptions to section 6(1) in an unduly wide manner. The subsection is a model of ambiguity because it refers to two vague and unidentified concepts. First, it refers to “a less favourable manner”. This term is not defined and is, perhaps, impossible to define. Second, section 6(2) refers to “objective grounds”, which it attempts to define in section 7. My amendment proposes to delete “objective” and insert “exceptional” to ensure the non-application of this section can only be justified on the basis of rare and exceptional circumstances.
I do not propose to accept the amendment. The words "objective grounds" are necessary and more accurately reflect the wording of the directive. The word "exceptional" would be more vague than the term "objective grounds" and would leave a rights commissioner in a difficult position to adjudicate in favour of the worker.
What is the Minister of State's definition of "objective"?
A rights commissioner would be able to rule on a case on "objective grounds", as defined under section 7. The legal advice is that "objective" is a much better ground than "exceptional".
Is "objective" not a broader term than "exceptional"?
Section 7 refers to "objective grounds for less favourable treatment" and the matter is spelled out there.
I move amendment No. 7:
In page 9, between lines 19 and 20, to insert the following subsections:
"(5)Subsection (1) shall, in so far, but only in so far, as it relates to any pension scheme or arrangement, not apply to a fixed-term employee whose normal hours of work constitute less than 20 per cent of the normal hours of work of a comparable permanent employee.
(6) The extent to which any condition of employment referred to insubsection (7) is provided to a fixed-term employee for the purpose of complying with subsection (1) shall be related to the proportion which the normal hours of work of that employee bears to the normal hours of work of the comparable permanent employee concerned.
(7) The condition of employment mentioned insubsection (6) is a condition of employment the amount of benefit of which (in case the condition is of a monetary nature) or the scope of the benefit of which (in any other case) is dependent on the number of hours worked by an employee.
(8) For the avoidance of doubt, neither this section nor any other provision of this Act affects the operation of Part III of the Organisation of Working Time Act 1997.".
I move amendment No. 8:
In page 9, line 23, after "treatment" to insert "or failure to offer a contract of indefinite duration".
The amendment relates to the section the Minister of State referenced in response to Deputy Murphy, which refers to "objective grounds for less favourable treatment". The section states "A ground shall not be regarded as an objective ground for the purposes of any provision of this Part unless it is based on considerations other than the status of the employee concerned as a fixed-term employee and the less favourable treatment. . . ". I propose the addition of the words "or failure to offer a contract of indefinite duration", which would be involved for the employee.
The amendment is important because, while section 8 provides a definition of "objective grounds for less favourable treatment", no definition is provided for objective grounds justifying the renewal of a fixed-term contract. Section 9 provides that where an employer proposes to renew a fixed-term contact, the fixed-term employee must be informed in writing by the employer of the objective grounds justifying the renewal of a fixed-term contract and the failure to offer a contract of a more indefinite duration. The amendment would broaden the legislation and would be a welcome addition. I hope the Minister of State will accept it.
The amendment is not appropriate as there is no obligation on an employer to offer a contract of indefinite duration. Section 8(2) only obliges an employer to make a written statement of objective grounds for such failure. That does not extend to an obligation to offer a permanent contract where there are no objective grounds. Accordingly, I do not propose to accept the amendment.
I will not pursue the matter because I want to get my teeth into other issues.
I move amendment No. 9:
In page 9, line 24, after "employee" to insert "(which treatment may include the renewal of a fixed-term employee's contract for a further fixed term)".
The amendment is self-explanatory. It seeks to provide, for the purpose of greater clarity, what constitutes "objective grounds" for renewing a fixed-term contract on a fixed-term contract basis only under section 8(2) or the new section 9(5). The amendment had been sought by the ICTU to provide greater clarity.
I move amendment No. 10:
In page 9, between lines 26 and 27, to insert the following subsection:
"(2) Where, as regards any term of his or her contract, a fixed-term employee is treated by his or her employer in a less favourable manner than a comparable permanent employee, the treatment in question shall (for the purposes ofsection 6(2)) be regarded as justified on objective grounds, if the terms of the fixed-term employee's contract of employment, taken as a whole, are at least as favourable as the terms of the comparable permanent employee's contract of employment.”.
This amendment proposes to insert a new section 7(2) to cover situations where the terms of a fixed-term employee's contract of employment, taken as a whole, in relation to conditions of employment are at least as favourable as the terms of the comparable permanent employee's contract of employment. This provision was sought by the Department of Finance to provide flexibility to employers who might want to provide an attractive package of entitlements in order to attract certain employees to work on a fixed-term contract basis. This amendment follows a similar provision to that in the UK's equivalent legislation on fixed-term work, namely, the fixed-term employees' prevention of less favourable treatment regulations 2002.
I have some concerns about the amendment because the terms are not clear. The new subsection (2) would read as follows:
Where, as regards any term of his or her contract, a fixed-term employee is treated by his or her employer in a less favourable manner than a comparable permanent employee, the treatment in question shall (for the purposes ofsection 6(2)) be regarded as justified on objective grounds, if the terms of the fixed-term employee's contract of employment, taken as a whole, are at least as favourable as the terms of the comparable permanent employee's contract of employment.
I suppose that explains why we have lawyers. How will it be determined that the fixed-term employee's contract of employment, taken as a whole, is at least as favourable as the terms of the comparable permanent employee? Those who are dealing with industrial relations on a professional and permanent basis are very concerned about the import of this provision. They believe the new subsection will complicate the relationship between employer and employees and could be used in an attempt to by-pass section 6, which prohibits less favourable treatment. Let us think of concrete examples. One could say, "I am giving you something else instead of", therefore, one is not getting the same conditions of employment but one has access to a company car or whatever. It complicates the business of clear legal rights to treatment. As other speakers said, we have just seen the Minister's amendment in the last 24 hours. The best advice I could get from people who deal with this issue is that it is extremely ambiguous, will complicate employer-employee relationships and bring great uncertainty to the legislation and the rights bestowed within it.
I support Deputy Howlin's view that good industrial relations practices work principally on the basis of flexibility. The Minister is failing to accept the definition of objective grounds being quite harsh, changing to something more soft, and adding this subsection, including words like "the treatment in question shall be regarded as justified on objective grounds" rather than using a word like "may". The section provides an absolute defence to employers in these situations. I ask the Minister to try to make the grounds on which fixed-term contracts can be judged as flexible as possible, particularly the flexibility required to resolve disputes. Most of the disputes, in terms of the definition of fixed-term contracts, will revolve around how employees will be dealt with on the definition of objective grounds. The Minister will make progress if he includes words like "may" rather than "shall".
This provision seeks to protect the situation where employees – they are not the normal employees – could cherry pick between a pension scheme, a car and a house. We are largely talking about chief executives or people at the top of the pile.
They will not be a problem. It is the bottom of the pile I am concerned about.
Not too many people at the bottom of the pile will have a pension, a car and a house. Therefore, it was felt that in order to stop people at the top level cherry picking and making comparisons between another person's pension, where there are other elements to the package, the issue should be dealt with as a package. If normal employees are affected, the rights commissioner must adjudicate on the matter. I have no doubt that a rights commissioner would ensure the rights of an employee are protected in such a situation.
Will the Minister accept that the ambiguity I instanced in my initial contribution exists? Will he accept there is a potential to have conflict arising from this new provision and that the professionals involved on a day-to-day basis in industrial relations have advised today that this is the case? In those circumstances, will the Minister look again at the proposal? It appears to me that section 7(1) is sufficient and to add this new subsection will provide uncertainty where there is reasonable certainty and conflict where we do not need any.
I accept there is room for conflict but there is room for conflict in many aspects of labour law. It is a tribute to our labour law that we have a set of industrial relations machinery in place to deal with these issues, which we deal with every day. Any conflict which might exist is a matter for the rights commissioner to decide upon. I do not have a difficulty with that. I take the point the Deputy is making. On balance, however, and given that we are talking about people at the top of the pile, the package regime is the most acceptable. I take the point made by the Deputy – congress have argued this – that it may in instances give rise to conflict which may have to go to a rights commissioner.
I oppose the amendment.
Amendment No. 12 is an alternative to amendment No. 11 and amendment No. 14 is related, therefore, amendments Nos. 11, 12 and 14 will be discussed together.
I move amendment No. 11:
In page 9, subsection (1), lines 28 and 29, to delete "as soon as practicable" and substitute "in advance of the commencement date of the contract".
This amendment deals with section 8 (1) and the written statements of an employer. The current section reads "Where an employee is employed on a fixed-term contract the fixed-term employee shall be informed in writing as soon as practicable by the employer of the objective condition determining the contract whether it is—." I admit that my amendment was suggested to me by FLAC. It says section 8 (1) obliges an employer to inform an employee who is engaged in fixed-term work in writing as soon as practicable of the objective condition of determining the contract.
Surely it is the nature of fixed-term specific purpose contracts that they should be put in writing in advance of the contract beginning and not issued retrospectively as is implied in the section. Otherwise – this appears to be a possibility given the way the section is drafted – an employer could decide some time after the contract what was the objective condition for determining what the contract might be, which seems grossly unfair. It is a legal submission from FLAC and I ask the Minister to give it fair consideration.
My amendment No. 12 deals with the same situation.
Section 8 obliges the employer to provide a written statement to the employee stating the date on which the contract will end. However, there is no deadline by which the employer must do this and the words used, "as soon as practicable", are too vague. This amendment proposes to oblige the employer to provide this information within two months of the commencement of employment and this proposal is consistent with the existing requirement in section 3 of the Terms of Employment (Information) Act 1994, which obliges the employer to provide the employee with the terms and conditions of employment within two months of commencing employment.
I thank Deputies Murphy and Howlin for their amendments, which are related. By doing nothing we are doing what Deputy Murphy suggests.
I consider the wording in section 8(1), "as soon as practicable", will ensure timely notification of fixed term employees of the objective conditions determining their contracts. In any event, the eight week requirement set out in the Terms of Employment (Information) Act 1994 in relation to the provision by employers to their employees of written statements of the terms of employment of an employee will apply to fixed-term employees in the same manner as it does to all employees employed on contracts of employment – permanent, part time and fixed.
I do not propose to accept Deputy Murphy's amendment regarding the insertion of a new section 8(4)(b) after 8(4)(a). It is not appropriate that the rights commissioner and the Labour Court should draw an inference from the mere late submission by an employer of a written statement under section 8. Accordingly I do not propose to accept amendment No. 14 as proposed by Deputy Murphy.
Do I not get a mention at all?
The main body of my response addressed Deputy Howlin's points. We do not want a situation where permanent and part-time employees would be treated differently to fixed-term workers. They are covered by the 1994 legislation and this is the same situation.
I am concerned because while the Minister is saying we cannot make a change, it is not for objective reasons but because the 1994 Act has fixed the situation for one category of workers and we cannot therefore make an improvement for another category of workers. That is what I discern in the reply.
People should know the objective terms of their contracts in advance of signing. Does that not sound logical? The notion that it should be provided as soon as practicable thereafter or within a two month time frame seems less than acceptable and less than good practice. If we need to amend the 1994 Act subsequently, so be it, but let us make the best law we can now for the category of workers we are dealing with in this instrument.
The Minister should give an objective reason my amendment should not be supported other than simply saying there is a different provision in a different Act, enacted nearly a decade ago. Alternatively, he should give a commitment that the whole matter will be addressed when more comprehensive legislation dealing with labour law is before the House.
Why discriminate against full time and part time workers?
It improves their conditions as well.
It does not do so necessarily because the existing legislation works well and there are no complaints about it. "As soon as practicable" means what it says and the situation that pertains in the workplace is that employers act as soon as is practicable. This works well with the 1994 legislation and if there were complaints we might change it, but that is not the case.
I will not change the Minister's view.
I move amendment No. 13:
In page 9, subsection (4), line 42, after "Act" to insert "or in proceedings under an enactment referred to insection 18”.
Section 18 provides for a situation where proceedings can be taken under certain other Acts but which arise in the same circumstances as might give rise to proceedings under this Bill. Procedural matters such as failure to give notice should be relevant to section 18 proceedings as well as under this Act. The addition I propose to subsection (4) will improve the Bill and I hope the Minister accepts it.
This amendment aims to require employers to provide written statements for the purposes of proceedings taken under the Unfair Dismissals Acts 1977 to 2001 and the Protection of Employees (Part-Time Work) Act 2001. There are no provisions under those two Acts comparable to those set out in sections 8(1), (2) and (3) requiring employers to provide written statements. It would therefore not be appropriate under this amendment to provide in effect for amendments to the Unfair Dismissals Acts 1977 to 2001 and the Protection of Employees (Part-Time Work) Act 2001. For that reason I do not propose to accept the amendment.
On more than one occasion with this Bill we have not had an objective critique of the amendment as opposed to being told it is inappropriate. We have labour law compartmentalised into different categories of workers and different types of legislation afford different types of protection. The Minister is keeping them almost in separate boxes but it is appropriate with legislation, as it is in other areas of Government, to make general improvements when we can. If the Minister is of the view that the amendment is a general improvement he should accept it, notwithstanding the fact that he feels it has implications beyond the narrow focus of the Bill.
The difficulty I have is that there is no call for the change the Deputy is recommending. Why try to fix something that is not broken?
Because it is a good idea.
Amendments Nos. 16 to 19, inclusive, are alternatives to amendment No. 15 so all these amendments may be taken together by agreement.
I move amendment No. 15:
In page 10, before section 9, to insert the following new section:
"9.–(1) Subject tosubsection (4), where on or after the passing of this Act a fixed-term employee completes or has completed his or her third year of continuous employment with his or her employer or associated employer, his or her fixed-term contract may be renewed by that employer on only one occasion and any such renewal shall be for a fixed term of no longer than one year.
(2) Subject tosubsection (4), where after the passing of this Act a fixed-term employee is employed by his or her employer or associated employer on two or more continuous fixed-term contracts and the date of the first such contract is subsequent to the date on which this Act is passed, the aggregate duration of such contracts shall not exceed 4 years.
(3) Where any term of a fixed-term contract purports to contravenesubsection (1) or (2) that term shall have no effect and the contract concerned shall be deemed to be a contract of indefinite duration.
(4)Subsections (1) to(3) shall not apply to the renewal of a contract of employment for a fixed term where there are objective grounds justifying such a renewal.
(5) The First Schedule to the Minimum Notice and Terms of Employment Acts 1973 to 2001 shall apply for the purpose of ascertaining the period of service of an employee and whether that service has been continuous.".
On 26 June 2003, during Second Stage in the Dáil, and on 10 June 2003, during Committee Stage in the Seanad, section 9 which deals with the use of successive fixed-term contracts, was a major issue. Senator O'Toole tabled an amendment which in effect would cap the total aggregate period of fixed-term contracts at four years. On Committee Stage in the Seanad, my colleague, Deputy Michael Ahern, undertook to have the amendment examined in detail and report back on Committee Stage in the Dáil. It will be necessary, as a courtesy to the Seanad, to report back to the Upper House on 4 July if the proposed Government amendment is accepted on Committee Stage here. My Department has been in consultation with the office of the Parliamentary Counsel to the Government as well as the ICTU and IBEC. In addition, a number of Departments have also been consulted. As a result of these discussions, the Office of the Parliamentary Counsel to the Government has drafted a revised text for section 9, which is currently set out in amendment No. 15. I will outline the intent of the next text.
Section 9(1) provides that subject to section 9(4), where a fixed-term employee completes or has completed three years continuous service with his or her employer, or associated employer, that fixed-term contract may only be renewed once more by the employer for a period of no longer than one year.
This will mean that when the Bill is passed, existing employees on fixed-term contracts, who have completed three years continuous service with that employer, may have their contracts renewed once more by the employer and for no longer than one year following which the next renewal shall be deemed to be a contract of indefinite duration, namely, a permanent contract.
Section 9(2) provides that where a new fixed-term employee is recruited after the passing of the Bill, a fixed-term employee is employed by his or her employer or associated employer on two or more continuous fixed-term contracts and the date of the first such contract is subsequent to the date on which this Act is passed. The aggregate duration of such contracts shall not exceed four years. Section 9(3) provides that where any term of a fixed-term contract purports to contravene subsections (1) or (2) of section 9, that term shall have no effect and the contract concerned shall be deemed to be a contract of indefinite duration.
Section 9(4) provides that the above subsections shall not apply to the renewal of a contract of employment for a fixed term where there are objective grounds justifying such a renewal. Section 9(5) provides that the First Schedule of the Minimum Notice and Terms of Employment Act 1973, relating to continuous employment, will determine whether the continuous employment referred to in section 9(1) and (2) is continuous. This is a standard provision in employment rights legislation. This provision in section 9(4) is in line with the equivalent legislation in the UK, namely, the Fixed Term Employees Prevention of Less Favourable Treatment Regulations of 2002. These regulations provide that following a period of four or more years of continuous employment, the next renewal takes effect as a permanent contract unless there are objective grounds for justifying a further renewal.
While I acknowledge the ICTU has reservations about allowing for the renewal of a fixed-term contract after four years' continuous service on objective grounds, I stress, however, that the Bill provides for fixed-term employees to take a complaint to the rights commissioner service of the Labour Relations Commissioner if they consider the objective grounds given by the employer do not meet the requirements of section 7, as amended. The various decisions which a rights commissioner can take in such circumstances are set out in section 14(2).
In addition, the Government's proposed amendment to section 13, which I will address later, may prevent an employer from dismissing an employee by not renewing a fixed-term contract for the main purpose of avoiding the employee becoming permanent. That is a significant amendment.
The objective of amendments Nos. 16, 18 and 19 are met by my amendment No. 15. Amendment No. 17 is a drafting amendment but I prefer the wording of the parliamentary counsel's office. As the text of my amendment improves the provisions in section 9, as drafted, I support it and reject the Opposition amendments Nos. 16, 18 and 19. However, I thank the Deputies for their suggested amendments which were all aimed at improving the text. However, the new text provided by the Office of the Parliamentary Counsel is better and meets the concerns raised by the Opposition.
I welcome the fact that the Minister of State has addressed the issue. It is a little difficult to go through his amendments in detail in the short time we have to see if they meet the issues we addressed on Second Stage and by way of our amendments. Obviously, the Minister of State's amendments will be passed and will improve the Bill, which I welcome.
In regard to subsection (1) of the Minister of State's amendment No. 15, it seems he intends to provide for one more renewal at the end of a continuous three year employment – in other words, one more renewal of a fixed-term contract. The Irish Congress of Trade Unions believed that where there was a continuous three year employment, including numerous renewals, the next one on offer should be a permanent and not a fixed-term contract. This does not go as far as it would have liked, but it is not a matter on which I would go to war.
I am more concerned about subsection (4) of amendment No. 15, and perhaps the Minister of State will give us some further insight into the reasoning behind it. Amendment No. 15 will, in essence, be the new section 9 of the Bill. Subsection (4) states "Subsections (1) to (3) [the protections I just welcomed] shall not apply to the renewal of a contract of employment for a fixed term where there are objective grounds justifying such a renewal.” What exactly does that mean? Does it negative, or give the potential to negative, subsections (1) to (3)? Will subsection (4) drive a coach and four through the provisions in the previous subsections? At the very least, this paragraph should be subject to the provisions of subsection (3) of amendment No. 15.
As I said, section 9(4) provides that the above subsections shall not apply to the renewal of a contract of employment for a fixed term where there are objective grounds justifying such a renewal. We are trying to provide for the provision of one contract after another.
Will the Minister of State explain that again?
We are trying to provide for the provision of one fixed-term contract after another.
Surely the objective should be for people to be afforded the right to have a permanent contract. Does section 9(4), which the Minister of State proposes to insert in the Bill, objectively dismantle that right?
As I said, we are trying to stop the provision of successive contracts.
Will the Minister of State give examples of such types of employment contracts? As I understand it, he is arguing that there may be certain instances in which there may be objective grounds for offering somebody a contract each year for five years in a row? Those objective grounds may relate to the nature of the employment or the employer-employee relationship. Will he give examples of the type of employment contract which would provide objective grounds for permission for multi-annual fixed-term contracts?
Where there are objective grounds for an employer giving a fixed-term contract, we do not have a problem. The problem is with the roll-over of successive contracts and the abuse which would occur in that situation.
Will the Minister of State give an example of where it would be possible to issue a series of one year contracts?
I find it difficult to give an example. If money was provided for a particular scheme and people were taken on but the money then ran out, those would be objective grounds.
Will the Minister of State run that by us again?
If, for instance, people were taken on because money was provided for a particular programme or scheme but the money ran out, those would be objective grounds for the contract being concluded.
Those would be objective grounds for the contract being concluded, but I asked about objective grounds for allowing the contract to continue. Is that not the import of this provision? We are not talking about grounds for dismissal but grounds for issuing successive fixed-term contracts.
There is a difficulty finding examples which would make this clear. That is one of the reasons I wish to speak in favour of Deputy Howlin's amendment, which brings clarity to the matter. Although there are often legitimate reasons for employing people on a fixed-term contract for specific purposes, we must recognise that there has always been a tendency towards a high level of abuse of that type of contract. Therefore, the amendment is considerably tighter than the Minister of State's suggestion, particularly given that it is so difficult to find anywhere one could justify it, unless one is a TD perhaps.
I am having difficulty in understanding what exactly the Deputies are getting at. Perhaps they could explain it a bit better.
My understanding of subsection (4) is that it, in a sense, waives the rights that we are setting out in subsections (1) to (3), inclusive, which try to discourage or limit the ability of employers to issue successive one-year fixed-term contracts. I very much welcome that provision in the Bill. Subsection (4) waives that right, as far as I understand, where there are objective grounds for justifying such a renewal. It is hard to understand this without getting into legal technicalities, but it would be useful if an example was provided to demonstrate what is meant by this.
For example, would there possibly be objective grounds within the education sector for a series of one-year contracts beyond the provisions set out in subsections (1) to (3), inclusive? Any examples would help us to understand what exactly the Minister of State's amendment to waive the powers on objective grounds means in practice. It is hard for me to understand the basis of those objective grounds if I do not have one example to help me.
One cannot give—
The Minister of State asked for clarification of my argument. The Minister of State has managed to confuse me because my understanding is straightforward and my legal adviser examined this. The Minister of State sought, in this new section, to deal with issues that were raised both in the Seanad and on Second Stage in this House relating to the application of successive fixed-term contracts. He has, in a number of subsections, dealt with those issues, but then he comes to subsection (4), which negates the first three subsections.
Subsection (4) states that "subsections (1) to (3) shall not apply to the renewal of a contract of employment for a fixed term where there are objective grounds justifying such a renewal." In plain English, this is the reverse of what the Minister of State said in terms of dismissal in the case he outlined in which the money ran out. This provides that where there are objective grounds for giving somebody another one-year fixed-term contract, that is allowable and the protections offered in the previous subsections do not apply. The question I posed at the start is why that provision is there. Is it not a mechanism that will allow a coach and four to be drawn through the provisions we want to insert?
No, it is not. This arises only if the employer has a proven case and puts that case to a rights commissioner.
It is fair to ask what the Minister of State thinks would constitute objective grounds.
In trying to provide legislation, one is providing for a general set of principles. It is very hard to go into detailed examples because every case is different and—
What was the Minister of State thinking of when he drafted that?
The purpose of subsection (4), as I said already, is to provide for cases where there are objective grounds for justifying such a renewal. As I said, the onus is on the employer to show that he has a proven case. He has to put that to a rights commissioner who adjudicates on the matter.
We do not have an example though. There is no case that we can think of where such grounds would exist at present. There was no such experience in the past and no employers have approached us expressing concern that the legislation might affect their current employment conditions. We do not have a particular example of where objective grounds would apply.
Therefore, the amendment provides clarity.
As the Minister of State said, is there any need to fix what is not broken?
These amendments were only circulated today, Chairman. I ask, therefore, if it is in order for me to propose an amendment to the Minister of State's amendment?
Not unless it is a drafting amendment.
There is consensus in the House to support the bulk of the Minister of State's amendment but not subsection (4). Am I in order in proposing an amendment to the amendment we are now discussing that would delete subsection (4)?
The Deputy is in order.
I propose an amendment to the amendment, to delete subsection (4).
With due respect, I think there is a misunderstanding on the part of Deputy Howlin. He has even confused me. We have brought in a four-year maximum clause, which has been the subject of much negotiation. Therefore, we must have some balance. The legislation provides for a period of four years so if an employer feels that the four years should be exceeded—
Is the Minister of State talking about four consecutive one-year contracts?
Yes. There must be some balance, and the purpose of the amendment is to allow that balance where an employer wants to exceed that period and can improve his case by going to a rights commissioner. That is the essence of—
The employer has to prove that there is some very good reason for having a further one-year contract after four years. As I understand it, the proposal Deputy Howlin has just made would have an effect on the four-year maximum that we have provided for.
Deputy Howlin's proposal would simply prevent the waiving of that provision. On a point of order, we would have to amend subsections (1) and (2) of this new section, obviously deleting the comment "subject to subsection (4)" if we accept the deletion of subsection (4). I suggest to Deputy Howlin that his amendment to the amendment would also require those two other deletions to be effective.
I think that can be picked up on Report Stage.
I have no doubt in my mind that the amendment we have proposed is the right one.
I move amendment No. 16:
In page 10, lines 1 to 5, to delete subsection (1) and substitute the following:
"9.–(1) Where an employee has completed one year of continuous employment with his or her employer or associate employer—
(a) his or her fixed term contract may be renewed on only one occasion, and
(b) where the combined period of the fixed term contracts exceeds 4 years,
the contract shall be regarded as being a contract of indefinite duration.".
I move amendment No. 18:
In page 10, lines 9 to 12, to delete subsection (3) and substitute the following:
"(3) The First Schedule to the Minimum Notice and Terms of Employment Acts 1973 to 2001 shall apply for the purpose of ascertaining the period of service of an employee and whether that service has been continuous.".
I move amendment No. 19:
In page 10, between lines 12 and 13, to insert the following subsection:
"(4) The dismissal of an employee followed by his or her re-employment by the same employer not later than 26 weeks after the dismissal shall not operate to break the continuity of service of the employee with the employer if the dismissal was wholly or partly for or was connected with the purpose of the avoidance of liability under this Act.".
I move amendment No. 20:
In page 10, subsection (1), line 14, after "to" where it firstly occurs to insert "all".
Section 10(1) obliges an employer to inform an employee of vacancies that arise. To what kind of vacancies does this refer? There are vacancies which are suitable in the mind of an employer, vacancies requiring a particular level of skill or vacancies that an employer would have a discretion to offer to an employee. That is why we recommend that all vacancies should be offered to employees.
This amendment is not necessary and, therefore, I do not propose to accept it. It is implicit in the current wording of section 10(1) that an employer shall inform a fixed-term employee of every suitable vacancy, that is, every vacancy relevant to the qualifications of the fixed-term worker which arises in that employment.
Amendment No. 21 has been ruled out of order as it involves a potential charge on the Revenue.
I move amendment No. 23:
In page 10, line 32, to delete "expressly provided otherwise" and substitute "otherwise provided".
This amendment proposes a suggested improvement in the wording of the section.
I am not inclined to accept the amendment as it does not add anything to the import of section 12 as currently drafted.
I move amendment No. 24:
In page 10, lines 34 and 35, to delete "the provision concerned of".
As this Bill does not contain a commencement provision under the Interpretation Act 1937, it commences in its entirety on its passing. This amendment proposes to delete some of the surplus wording from section 12.
I do not propose to accept this amendment as it brings no added value to the meaning of section 12 as currently drafted.
I move amendment No. 25:
In page 10, subsection (1), line 38, to delete "penalise an employee" and substitute "subject an employee to discrimination within the meaning of section 6 of the Employment Equality Act 1998".
"Penalise" is a vague and undefined term. The intention of this section might be best implemented if the word "discrimination" were used instead. Discrimination in an employment context has been well defined and is a widely established concept.
I do not propose to accept this amendment. Section 6 of the Employment Equality Act 1998 deals with discrimination on a number of grounds which are not appropriate to this Bill, which deals exclusively with discrimination against fixed-term employees as compared with permanent employees in relation to conditions of employment such as pay, pensions, holidays, etc.
I move amendment No. 26:
In page 10, subsection (1)(c), line 46, after “(b)” to insert the following:
(d) by dismissing the employee from his or her employment if the dismissal is wholly or partly for or connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under section 9(3)”.
The purpose of this amendment is, in effect, to insert a new subsection 13(d) in order to prohibit the penalisation of a fixed-term employee to include dismissal wholly or partly for the purpose of avoiding the contract of the fixed-term employee being deemed to be one of indefinite duration under section 9(3). The text of section 13(1)(a), (b) and (c) is the same as the text of the Bill passed by the Seanad. By allowing an employee to take a complaint to a rights commissioner, this amendment may prevent an employer from dismissing a fixed-term employee by not renewing his or her contract in order wholly or partly to avoid that employee becoming permanent under the contract of indefinite duration under section 9(3).
Amendment No. 28 is an alternative to amendment No. 27 and, therefore, the amendments can be discussed together.
I move amendment No. 27:
In page 11, lines 8 to 10, to delete subsection (3).
The purpose of amendment No. 27 is to delete section 13(3) as currently drafted. I am advised that this provision is not necessary but was included originally for the sole purpose of allaying fears that the Unfair Dismissals Acts have been affected in any way. However, a view has been expressed by the ICTU that an impression could be given that the Unfair Dismissals Acts are in some way subject to section 9 and section 13(1). The provision is, therefore, being deleted to prevent any confusion or misapprehension arising. Deputy Howlin's amendment No. 28 appears to have the same objective.
It seems to address the matter better in my view.
I prefer my amendment.
I genuinely disagree with the Minister of State on this. The Minister included subsection (3) in the original Bill which states that subject to section 9(1) nothing in this Act shall affect the application of the Unfair Dismissals Acts 1977 to 2001 to fixed-term employees. He wanted to state that explicitly. It caused doubt because the Minister wanted to be explicit that the Unfair Dismissals Acts were in no way subservient to this provision. Such doubt would be dispelled by acceptance of my amendment. Removing the subsection entirely adds nothing to the Bill. However the insertion of the words "For the avoidance of doubt, nothing in this Act affects the provisions of the Unfair Dismissals Acts . . . " would be an addition to the Bill. Members will be aware of the principle of an abundance of caution for the avoidance of doubt.
The amendment I propose causes no damage to the Minister's proposal. It is crystal clear and it is something I have been strongly urged to submit by congress. I understand from congress that throughout the consultation process it sought the inclusion of a provision to ensure the protection from unfair dismissal provided for under the Unfair Dismissals Act was in no way compromised by this Bill. At no time did the Department indicate that there was any intention of attempting to make the unfair dismissals legislation subject to the provisions of this Act. I do not believe that was ever the Minister of State's intention. It is clear from the amendment I propose that the Unfair Dismissals Acts apply and are not compromised in any way by these provisions. That is a positive assertion rather than simply deleting a subsection, which the Minister of State acknowledged creates ambiguity. I ask him to provide some jot of comfort to those of us on this side of the House who work on legislation that when we do come up with a proposal, which I believe is objectively better than the Minister's, he might accept it.
The Parliamentary Counsel prefers deletion of the subsection because the two Acts stand side by side – they are not in competition with each other. Despite the case the Deputy makes, I do not believe his amendment adds anything to the amendment I propose.
The Minister of State's amendment proposes to delete the subsection.
Those of us on this side of the House would not regard it as an oversight on the part of either the Minister or the draftsmen if they were to accept Deputy Howlin's amendment which is considerably clearer than just a deletion and deals specifically with an issue that undoubtedly needs to be dealt with very specifically. It is a laudable amendment and should be accepted.
That is all very fine but it is not needed.
There are many things put into legislation that are not needed. I have given the Minister of State two principles that often apply to legislation: the abundance of caution principle is one. It is just a matter of stating something even if it is understood. The deletion of it might be wrongly construed. I do not see any damage that can be done by the acceptance of the amendment. Some Ministers are more objective in these matters than others but there is a principle that if an amendment comes from the Opposition it is not to be accepted. That is a daft set of attitudes. I think a Minister is all the stronger when he or she does not automatically turn to his or her officials but rather decides that acceptance is the right and objective thing to do.
This was the subject of prolonged discussions with ICTU. It did not like what was there and that is the reason we agreed that deletion of the amendment was the best action.
I move amendment No. 29:
In page 11, subsection (1), line 15, to delete "employee's".
This amendment is a suggested improvement. I will withdraw the amendment.
Amendments Nos. 30 and 38 may be taken together by agreement.
I move amendment No. 30:
In page 11, subsection (1)(a), line 19, to delete “be heard by” and substitute “make submissions to”.
This amendment is a suggested improvement. The use of the word "heard" could be construed as being limited to oral submissions. I propose this amendment so as to include written submissions.
I do not propose to accept either of the amendments as I believe they are unnecessary. The phrase, "give the parties an opportunity to be heard by the commissioner", encompasses the making of submissions by the parties to the rights commissioner.
I move amendment No. 31:
In page 11, between lines 23 and 24, to insert the following subsection:
"(2) Where an employee has completed at least one year of continuous employment with his or her employer or associate employer, a complaint to a rights commissioner undersubsection (1) may, in the case of a renewal of a fixed-term contract or where there is a material change in circumstances, include a complaint that the employer's objective grounds justifying the renewal no longer exist or are not objectively justified grounds, and in either case the rights commissioner may require the employer to give the employee concerned a contract of indefinite duration.”.
This amendment is to insert an amplified new subsection (2) into section 14. I know the Minister of State has had the opportunity to read the amendment. It adds to the protections afforded to employees and I hope the Minister of State will be willing to accept it.
A rights commissioner has jurisdiction only in respect of a contravention of an obligation set down in the Act. There is no obligation on an employer to justify a renewal at any point after the renewal. There must be objective grounds for renewing at the date of the renewal. I am advised that it would beultra vires for the rights commissioner to hear or determine such a complaint as it does not refer to any obligation of the employer under the Act. Accordingly, I propose to reject the amendment.
Perhaps we should be more explicit in giving such a right to the rights commissioner. Since the Minister of State believes there is no specific legal provision to give the rights commissioner that right, I will not pursue the amendment.
I move amendment No. 32:
In page 11, subsection (2), lines 38 and 39, to delete "person who, by virtue of the change, becomes entitled to such ownership" and substitute "transferee, within the meaning of S.I. No. 306/1980 European Communities (Safeguarding of Employees' Rights on Transfer of Undertakings Regulations) 1980 (as amended)".
Section 14(2) seeks to cover a situation where there is a change of control or transfer of undertakings. This concept has been comprehensively addressed in the context of EC regulations made here in 1980. My amendment proposes the adoption of the meaning of "transferee" as used in that legislation.
I do not propose to accept this amendment. The text as currently drafted by the Office of the Parliamentary Counsel to the Government which the Deputy proposes to replace is consistent with the language used in employment rights legislation and is more user-friendly than the wording proposed by the Deputy.
Amendments Nos. 34 to 36, inclusive, are related and may be discussed together by agreement.
I move amendment No. 34:
In page 11, subsection (3), line 43, after "relates" to insert "or the date of any material change for the grounds for renewal after the renewal to which the complaint relates, as appropriate,".
Subsection (3) states that the timeframe for lodging a complaint with the rights commissioner should be clarified to ensure that in a case where the grounds for renewal of a fixed-term contract rather than a contract of indefinite duration are no longer valid, should also be ones that can be addressed by a rights commissioner. That is the import of the amendment.
Amendment No. 36 proposes to delete the words "whichever is the earlier". That arises from a submission I received from the Irish Congress of Trade Unions dealing with cases relating to termination of employment. The Minister of State will be aware of the views of ICTU on that matter.
Section 14(3) effectively sets a six-month deadline within which a complaint must be made. This is unduly restrictive. An employee may not be immediately aware that his or her rights are being breached. If he or she does not become aware of the breach within six months, his or her rights of complaint will have been defeated. Other legislation provides for a limitation period which only begins to run from the date of discovery of the contravention. My amendment proposes to introduce this employee-friendly date of discovery concept into the legislation.
Amendment No. 34 is an attempt to purport to give jurisdiction to the rights commissioner regarding a right which is not conferred by the Act. The rights commissioner's jurisdiction is circumscribed by the rights obligations imposed by the Act. An employer is not obliged to justify a renewal after the event. Under section 8(2), he or she is obliged to give a written statement of the objective grounds under section 9(4). There must be objective grounds to avoid an employee being deemed to be permanent under section 9(3).
Amendment No. 35 attempts to put a six-month deadline after the discovery of a contravention for bringing a case to the rights commissioners. It would be unreasonable to provide such a timeframe as the discovery of a contravention could, for example, occur two years after it has taken place and in a situation where the fixed-term employee involved may have left the employment.
Section 14(3) as drafted, is similar to the other employment rights legislation. Accordingly, I do not propose to accept amendment No. 35, as proposed.
With regard to amendment No. 36, the Office of the Parliamentary Counsel drafted an amendment on Committee Stage in the Seanad to include the phrase "whichever is the earlier" in order to deal with the concern of the Department of Finance that pension claims could be made by an ex-fixed-time employee against his or her former employer many years after he or she had left the employment. This amendment would prevent such claims arising and means that section 14(3) of the Bill will be on exactly the same lines as section 16(3) of the Protection of Employees (Part-Time Work) Bill 2001. Accordingly, I do not propose to accept this amendment.
I will not argue with the Minister of State regarding amendment No. 34. He is talking again in terms of explicit legal provision not being made for the rights commissioner to take the action that I propose. I have difficulty regarding his rejection of amendment No. 36. The notion that he would act on the advice of the Department of Finance to circumscribe the rights of workers to access pension entitlements on a time basis, causes me some concern, if that is what I heard. Why would the right to a pension, if a pension is accrued, not quite validly be acted upon at whatever time after the cessation of employment?
It would not be appropriate that an employee could make a claim many years after he had left the employment.
For a variety of reasons.
Give me one.
For one thing, one could not have retrospection.
Why? I see no problem in this regard with individuals who have discovered pension entitlement after many years. Why should we circumscribe the rights of someone who has actually worked if they have accrued a pension entitlement? Why should there be any delimitation of their right to claim that pension?
I think the only concern the Deputy has is the fact that it was a concern of the Department of Finance that perhaps caused this to come through.
That rang the first alarm bell.
I move amendment No. 36:
In page 11, subsection (3), line 44, to delete ", whichever is the earlier".
I move amendment No. 39:
In page 13, subsection (5), line 5, to delete "Minister may, at the request of the Labour Court," and substitute "Labour Court may".
In my view it should be the for the Labour Court to decide whether to refer a question to the High Court. This is the position as stated in some other labour legislation, although it is fair to say that most labour legislation follows the model proposed by the Minister in this particular enactment. Nonetheless, as a general principle, the model the Minister proposes in this enactment is wrong. I am not being personal with regard to the present incumbent, but it should not be a matter for the Minister to block a reference to the court if the Labour Court itself wished to make such a reference. It is a matter of principle that should be accepted by the Minister.
The purpose of the amendment is to provide that the Labour Court rather than the Minister may refer to the High Court a question of law arising from proceedings before it under this section of the Bill. It would be inappropriate from a policy perspective that this should happen without the prior knowledge and consent of the Minister, and could lead to confusion.
This provision is a standard provision in employment rights legislation generally. Accordingly, I do not propose to accept the amendment.
The Minister of State has not given any fair consideration to amendments coming from this side of the House. It is depressing to put an effort into analysing the legislation and seeking counsel and legal advice, when the Minister is not open to any suggestions coming from this side of the House. Hispro forma reading of standard responses is unfortunate. Different ministerial styles are applied to different pieces of legislation and it would make this House much more productive if suggestions from this side of the House were engaged with more productively than has happened in this area.
There is a simple but important principle at stake, namely whether a referral of a point of law about an issue from the Labour Court directly to the High Court should be capable of being blocked by the Minister. The Minister's only objective response to my assertion that it is wrong in principle is that it might cause confusion. Who might be confused?
The bottom line is that the Minister should not be able to block such a reference. If the Labour Court wants to do so, it should have the statutory authority to do it. The Minister is not correct to say that this is the normal standard. I indicated in my first interjection that it is the pattern in most labour legislation but not in all. The model I propose is used in some labour legislation. It is a better, more progressive model, and it takes the Minister out of the loop, which would be a good thing. The Minister should reflect on this, and this would be one amendment which he could usefully accept; it is a principle that does no damage to the Bill and one that would then be a model for future labour legislation. As we improve and consolidate other legislation, we could include this provision as the norm.
I completely reject the criticism the Deputy has made. I studied all those amendments carefully and went through them with my officials. If we had felt that in any case there was a proposal which would constructively add to the Bill, we would certainly have been prepared to consider it. With due respect to the Deputy, many of the proposals made here today would not improve the Bill. Indeed, some of them would be disastrous, and this amendment would certainly be a disaster. The Deputy is proposing that the Labour Court could go to the High Court without reference to the Minister. Surely, one of the things we are trying to do in this House is to prevent many organisations having to go to the Labour Court to improve or change legislation. Is it not normal practice that if the Labour Court has a problem with any aspect of the legislation, it brings it to the attention of the Minister in order that he or she might decide to change it? What would it want to go to the courts for? I do not understand the logic in this proposal any more than I did in some of the other proposals made by Deputy Howlin.
The Minister is being disingenuous.
I am not.
He cannot understand what I am saying in plain English.
The Deputy should examine the proposals he is making and consider their import.
The Minister is quite wrong, because the model I am proposing is already embodied in law. To say that it would be damaging is nonsense. The subsection proposed by the Minister states that "The Minister may at the request of the Labour Court refer a question of law", not an amendment to the Act, not a matter of legislation, which is the business of legislators, but "a question of law arising in proceedings before it to the High Court for determination by the High Court, and the determination of the court shall be final and conclusive." That is the section with which we are dealing.
I commented on the Minister's lack of engagement with the amendment because when I elaborated on the amendment, the Minister then read out a prepared speech which had no regard for the comment I made. A capable Minister such as Deputy Fahey should be open to amendments from this side of the House on the basis of the arguments made – not simply having read the amendments in advance, but having listened to the case we put as best we can with the very limited resources available to us on this side of the House. A small degree of such acknowledgement would be a more gracious way of dealing with the matter than what we have received.
The amendment I am proposing would be advantageous. It would allow the removal of the Minister from the blocking role he envisages in the provision with which he is persisting. That is unfortunate.
It is not a blocking role. There is no evidence to suggest that there is any blocking role, or has been any such role in the relationship between the Labour Court and the Minister. This is a standard provision in employment rights legislation. I have listened to what the Deputy has said. If there were anything in what he said that would merit further consideration, I would certainly be quite happy to give it that consideration. My officials too would be happy to do so, but frankly, this proposal does not make any sense whatsoever.
I move amendment No. 43:
In page 16, subsection (3), line 4, after "Act" to insert "of".
The purpose of this amendment is to amend a typographical error in section 19 (3) as passed by the Seanad.
An Leas-Cheann Comhairle
We now proceed with Report Stage in accordance with an order of the Dáil of today.
On a procedural point, since we have just concluded Committee Stage, it is in order to recommit on Report Stage any or all of our amendments that have not been dealt with.
An Leas-Cheann Comhairle
There are no amendments on Report Stage.
That was impossible, as we have just concluded Committee Stage. Will there be a general debate on Report Stage?
An Leas-Cheann Comhairle
There would be discussion on amendments and on Fifth Stage the contents of the Bill may be discussed.
Because 14 guillotines have been applied to Bills this week there patently cannot be Report Stage amendments if we have just completed Committee Stage and there is no time to submit Report Stage amendments.
An Leas-Cheann Comhairle
That is the order of the House.
I know it is the order of the House. However, I am saying it is quite wrong for us to do our business like that. I want to raise one or two issues, but I will leave it to Fifth Stage.
An Leas-Cheann Comhairle
Since there are no amendments on Report Stage, we will proceed to Fifth Stage.
In his wisdom the Ceann Comhairle ruled out of order amendments Nos. 41 and 42. Amendment No. 41 proposed to include trainee nurses in this legislation and amendment No. 42 proposed to include members of the Defence Forces and Garda Síochána. I would like to hear the justification from the Minister for excluding these three categories of workers, members of the Defence Forces and Garda Síochána and nurses from the provisions of the Bill. We did not get the opportunity to hear that, as the amendments were not in order.
By and large I welcome the passage of this legislation, which represents an improvement in labour law and an important advance. It is very belated because the original directive was passed in 1991. It was to have been enacted by 2001 and we may have applied for and received a derogation to 2002. We should have made the legislation retrospective to July 2002 to avoid any ambiguities concerning the legal terms of enforcement and to ensure the State is not open to an action due to the late enforcement of a legal and binding directive.
I hope this will now speedily pass through the other House and become law. I would welcome an assurance from the Minister that he is confident there is no risk of legal action or challenge due to our tardiness in getting it on the Statute Book. The Minister should explain why those categories of workers that I have indicated as being excluded, do not come within the compass of the Bill.
I am confident there will not be any legal challenge. While we have had a delay in the enactment of the Bill, which we would have wished to avoid, it is now being passed. It is exceptionally good legislation.
In answer to the specific question posed by Deputy Howlin, nurses in training or any form of vocational training or apprenticeship schemes do not form part of the directive. The directive was quite clear in stating that it does not apply to people in training or apprenticeships and this was why they were not included.
This Bill was the subject of very considerable negotiation and change since it was introduced in the Seanad. Much discussion took place and I thank my officials for the amount of time and effort put into changing the Bill to accord with concerns that were expressed in the Seanad and by ICTU. It is fair to say we also had some concerns about aspects of the Bill, which involved significant amounts of money. This Bill will cost about €50 million per annum.
We looked carefully at the amendments tabled today. I would not want Deputy Howlin to think that in a flippant way we did not consider those amendments. In view of the very comprehensive amount of change, I do not believe many Bills would have changed as much in their most significant aspects as this one has done from the Seanad to the Dáil orvice versa. Consequently I am happy this is excellent legislation.
It is complex legislation in that the checks and balances have been inserted to ensure it looks after the rights of workers in the first instance, because that is what it is about, but it also looks after the rights of employers. That was the essence of section 9(4), which the Deputy questioned. Having taken all that into account, this is excellent legislation and the fact that we have not accepted any amendments today has more to do with the fact that we accepted so many amendments from the time the Bill was originally published. As a result it is a much better Bill and I have no doubt that it will not be challenged by anybody.
I welcome this legislation. We are extremely fortunate in getting European directives that force us to introduce such legislation. The Government would not be unduly concerned with rushing through legislation like this if the directives did not need to be implemented and if we were not being threatened with massive fines from the European Union. As other directives are in the pipeline to deal with employment legislation, I urge the Government to be more diligent in future and try to introduce them on time.
An Leas-Cheann Comhairle
As the Bill is considered by virtue of Article 20.2.2º of the Constitution to be a Bill initiated in the Seanad, it will be sent to the Seanad.