Amendments Nos. 1 and 2 are related and will be discussed together.
Payment of Wages (Amendment) (Tips and Gratuities) Bill 2022 [Seanad]: Committee and Remaining Stages
Section 1 agreed to.
SECTION 2
I move amendment No. 1:
In page 3, between lines 29 and 30, to insert the following:
“(c) is paid with the intention that it is a gift from a customer to a server(s) intended for the benefit of the server and other employees;”.
I apologise, because I do not have numbered amendments. I sincerely hope I am talking to the right one. This is the amendment that relates to the gift. The purpose of this is to ensure that service charges are paid as a gift to workers. It is not for employers to add on additional charges. If a business wants to charge extra for a meal, it can add it to the price of the meal or drink. The business should not include this as a stealth charge. I specifically submitted this amendment in order to put on the record my concern with regard to a tweet from the Restaurants Association of Ireland, which was put out just after the Bill was in the Seanad. It sounded as though it was attempting, or thought there would be some way, for it to be able to circumvent this legislation. One of the tweets read that its understanding was that businesses are still permitted to apply a group booking charge as part of the new legislation. This looks as though some businesses might be trying to evade or avoid it or get around it.
I believe that the intention is to ensure that cannot happen. I would have thought that the wording was robust enough but, given that the tweet was put out as the Bill was being discussed, I naturally have concerns. I imagine that the Tánaiste will also have concerns, if he thinks someone will circumvent his legislation. It does a bit of a disservice to us, as legislators, if we are very clear about what the intention is. To be fair to the Tánaiste, he has been very clear. The ink was not even dry on the legislation before this tweet went out. That is where my concern comes from.
Do I have it right in that this is the grouping of amendments Nos. 1 and 2?
Yes.
As I understand it, this group of amendments seeks to classify tips and gratuities as a gift from a customer. The Deputy's purpose is to extend the tax treatment of personal gifts to tips and gratuities received in the course of employment, which would mean that they would be liable for capital acquisitions tax, rather than income tax. Having considered this issue and consulted with the Revenue Commissioners, while a tip may be perceived as a gift in the sense that it is a voluntary payment, it is in fact a reward for good services rendered during the individual's employment. This is a key legal distinction between a personal gift and a tip.
If the individual is not working in that position, they would not have received a tip. Tips are explicitly linked to the service being provided by the recipient in the course of their employment. They are not made on grounds that are purely personal to the individual, in the way that a birthday or wedding gift would be. They are inextricably linked to the person's employment. Therefore, I am advised that, for these legal reasons, a tip could not be classified as a gift. I am advised that this interpretation is supported by case law and recent determinations by the Tax Appeals Commission.
With regard to a group booking charge, it is possible for a restaurateur or hotel, or an events organiser, to impose a group booking surcharge. Sometimes, that is necessary, because extra staff have to be taken on and perhaps paid premium pay. What is very clear from this legislation is that the surcharge could not be described as a service charge. It would be very clear to the customer that this was not a service charge and was not going to staff in addition to their wages.
Whether it is a big booking or a small booking, the people coming in are all paying for their service and the food. If one has a restaurant that has 30 seats, it is the same if those 30 seats are full by way of a group booking or 15 individuals picking up the phone and booking a table for two. The restaurant is getting the money, in any event. I do not accept that they have to put on more staff. If there are more people and more bookings, there is more staff. It does not matter whether these bookings are made up of three ten-person bookings, 15 two-person bookings or, indeed, 30 one-person bookings. The same number of staff will be required.
It has been a long time, but I worked in catering and hospitality for a number of years. The boss would always know in advance if there would be a big booking in. I have a concern. I accept what the Tánaiste is saying with regard to the case law. That is fine, but I have a concern that calling it a group booking charge is just like a service charge. We would have always understood, where if one is booking a table, it says service charge will apply for bookings over six or eight. I am sure the Tánaiste understands the concern I have. It relates directly to the tweet that I felt was an attempt, before the ink was even dry, to try to circumvent what I believe is the intention of the legislation.
I picked that tweet up in exactly the same way. I would have been one of the people to assume that, for example, a service charge was the same as making it easy to give a tip. I think many people have been under the same impression. I picked that tweet up in exactly the same way, in that it was a loophole. It is important that there is the prospect of reviewing this. I also would have thought that every restaurant wants to be full. They only have so many tables and chairs. I would have thought it was an advantage to have a booking for 30 people. One would nearly give a discount to fill the restaurant, if one was to be guaranteed that.
There can be no-shows and things like that and it is a whole other day's work but I would hate to think this would be trying to get around that or be a loophole, and that was how I picked it up as well.
I thank the Deputies. We made a very significant change in this legislation as it developed on foot of the debate in the Seanad in particular but also the debate here. The original plan was proprietors or employers would just need to be clear about what a mandatory service charge was and where the money went. We have changed that now in this law. When this law is passed and fully commenced, a mandatory service charge must be treated in the same way a tip or gratuity would be. It cannot be used to make up basic wages. It must be given to staff as though it was a tip. That is very important because for years people have been not leaving a tip because they thought the mandatory service charge was the tip. In fairness, it is something I have been asking about every time I have gone to a restaurant or a bar for the last year or two. In almost all cases that is the case but not always. Once this legislation is enacted and commenced it will be very clear a mandatory service charge is the same as a tip. That is increasingly important because now more and more people leave the money electronically as they do not carry cash the way they used to, and this will do that.
However, the legislation is not intended to abolish all surcharges and there will be occasions where proprietors impose a surcharge. It might for example be an energy surcharge, which you see being applied in some places now, or be a group booking surcharge. I am told if you have a very large booking of 30 or 40 people there are additional costs and you need to take on additional staff to those you would need if there were the same number of people in different groups. It could be for a party for example, and there are additional costs associated with that. This is why I cannot accept the amendment tonight. There is a one-year review written into this legislation and I am keen to see how it operates. If we find it is being abused or manipulated in some way, the option is there for us to come back to it in the House.
Amendment put and declared lost.
I move amendment No. 2:
In page 4, between lines 10 and 11, to insert the following:
“(c) made with the intention that it is a gift from a customer to a server(s) intended for the benefit of the server and other employees;”,”.
Amendment, by leave, withdrawn.
Section 2 agreed to.
SECTION 3
Amendment No. 3 is in the name of Deputy Catherine Murphy. I ask her to move and address the amendment.
I withdraw it.
Is this not my amendment?
I apologise, it is Deputy Paul Murphy's.
I appreciate we have the same last name and it is a common name. It happens.
Mea maxima culpa.
I appreciate Deputy Catherine Murphy thinking on her feet and deciding she had no idea what this is so she had better withdraw it.
Is the Deputy withdrawing it in any case?
I move amendment No. 3:
In page 4, lines 19 to 26, to delete all words from and including “(1) The” down to and including line 26 and substitute the following:
“(1) Sections 4B to 4F shall apply to all employers carrying on a business in the State in relation to which the payment of tips or gratuities by customers typically applies.”.
I am not, I am just joking.
At the moment in section 4A, which is proposed to be added to the principal Act, there is this big long process about the things the Minister should take into account in terms of whether the essence of what we are passing here applies to an employer or a class of employers. He or she must take into account "whether or not employers to which the regulations relate are carrying on a business in the State in relation to which the payment of tips or gratuities by customers typically applies". I agree with that. It is the provision that makes sense but then there is a whole load of other stuff and I do not understand why it is there. For example, the second provision refers to "the likely impact of such regulations on employment, either generally or in the particular economic sector to which the regulations relate". Let us say we have an emerging sector where tips are increasingly being paid, which can happen, that is, tips become normal in an area of the economy where they were not normal before. Does that raise the possibility employers' organisations can say if we had everyone paying tips here, or if we ensured everyone could not steal the workers' tips, then we would have to let workers go and employment could be affected?
The amendment is very simple in the sense it removes all the other things that must be considered and simply says this should "...apply to all employers carrying on a business in the State in relation to which the payment of tips or gratuities by customers typically applies". Surely that is the thing. What matters is that this is a sector of the economy where tipping exists, is common etc. as opposed to all the other things that are referenced.
I thank the Deputy for explaining the intention of the amendment. My understanding is it would place an obligation on employers to comply where it may not make sense to do so. The provisions of the Bill will be applied by means of ministerial regulation where it is appropriate to do so and in consultation with representative organisations representing both employers and employees. The regulations will apply to sectors where tips and gratuities are a regular feature and where there is often significant customer uncertainty as to what a service charge is for.
As drafted, the Deputy's amendment would have the unintended effect of removing the protections this Bill intends to create for platform workers. This is because if the amendment were accepted section 4F would only apply to an employment relationship. The fact is platform workers generally are not employees and indeed the same could apply to some self-employed people. We have ensured the protections of the Bill as currently drafted will extend to them and that customers will be entitled to know whether the tips they intend to direct to those workers will actually reach them. The amendment would remove this protection and based on legal advice I cannot accept it.
Is the Deputy pressing the amendment?
I get another go, do I not?
He does if he wants to. He may have as many goes as he likes.
Thanks very much, a Cheann Comhairle, or you could give it to the other Deputy Murphy if you want.
I will have to read carefully around section 4F when the Tánaiste is next speaking, given the points he has raised. He is saying the regulations will apply in circumstances where the payment of tips typically applies in a section of the economy, but that is not the case, or not necessarily, as it is currently written. That is one of the things to be taken into account by the Minister in deciding whether he or she will use regulations to make it apply here but it is not definitely the case. It is one of the things to be taken into account. That is a problem. He or she can have regard to the fact tips are normally paid here but look at all the other factors that are referenced and say that on balance he or she does not think these should apply. That is a weakness in the Bill as proposed.
If I can give reassurance to the Deputy, I hope and anticipate I will be the Minister who is signing these regulations in a few weeks' time or a few months' time. I want to be very clear the regulations will apply to the hospitality sector, including restaurants, hotels, cafes, pubs etc. I also intend they should apply to personal services where people often leave a tip, for example a barber, hairdresser or beautician, and also to platform workers. That is the intention here. Of course, future Ministers could extend it to other sectors.
The concern my officials have is this amendment would have the unintended affect of applying the protections only to people who are formal employees and could take it away from people who are not employees and are contract workers or self-employed. That is why I am advised not to accept it.
Okay. I will withdraw it.
Amendment, by leave, withdrawn.
Amendments Nos. 4, 5 and 7 to 9, inclusive, are related and may be taken together.
I move amendment No. 4:
In page 6, lines 18 and 19, to delete “by an electronic mode of payment” and substitute “, including by an electronic mode of payment”.
The purposes of this - there are a number of amendments that are very similar - is to say this should not just apply to tips that are paid by electronic modes of payment, in other words, credit or debit cards or whatever, but should apply to all tips. Tip theft happens with cash tips. You can have a situation where there is a glass beside the cashier that people put money into and the employer can take half of it out and leave it so only half of it is to be doled out between the workers. It is a significant enough weakness. In general, this legislation is very welcome but it is a problem that it does not cover this potentially substantial area of tip theft by not including it. It is pretty basic.
It would be good if the Tánaiste would agree to take on board any one of these amendments. There are a few different ways we could word it; I am not precious in that regard. Tip theft is not only a problem in the context of electronic payments; it also applies to cash payments. Workers need protection. That is an important issue.
I share the concerns of Deputies Paul Murphy and Catherine Murphy. I also have a further concern. The mechanism for redress is through the Workplace Relations Commission, WRC, but that would not apply in the case of cash tips. I am sure we all do the same thing in restaurants. If we are tipping, we ask the people serving us if they get to keep the tip if it is in cash. They will say "Yes" or "No". In some instances, the server will say the tips go into a glass behind the counter and are distributed. The intention behind the Bill is to end tip theft, which is theft of money from workers who are on very low pay. Let us not forget why we are here. It is just as wrong for employers to skim money off credit cards and take it as it is for them to take it out of a jar intended for the workers individually.
I appreciate that there is provision for a review after 12 months. I am conscious that for workers on very low incomes, a year without protection in the context of those cash tips could be problematic. However, redress is not available even if that is happening. We are all deciding that is not a good thing and it should not be allowed for an employer to rob tips from workers. However, employers can do that if it is a cash tip and the WRC redress would not be open to the employees. It seems to me a bit of a loophole which would be open to exploitation. It is important to say that these complaints do not apply to every employer. We do not need to legislate for those employers who always do the right thing. We are here to legislate for the ones who do not. Cash tips should also be covered.
I acknowledge at the outset that tip theft is a problem. It is real, and we would not be introducing this legislation if it was not. We do not have reliable data as to how common it is or if it is more common in the case of electronic tips or cash tips but we think it is more likely to be common in the case of electronic tips because they go through the books, if you like, of the employer and proprietor who controls the money. When a tip is in cash, it is controlled by the staff most of the time and never goes through the company books. Tips are divided among the staff, and it is left to them to decide whether or not to declare tips as additional income.
The amendments being proposed would extend the provisions of the Bill relating to tips and gratuities to payments made in cash as well as by electronic means. Deputies are keen to extend the Bill in full to cover all cash tips and gratuities, and I have sympathy with that proposal. There is a general prohibition on making deductions from an employee's tips but the full regime governing electronic tips cannot be extended to cover cash. The reason for that is simple, that is, cash left voluntarily is not traceable. It may never even come under the control of the employer, as I said earlier, so there is no evidence on which to base enforcement actions. Electronic payments, however, create an evidential trail that can be examined if there is a complaint. We should recognise that most payments are now being made electronically and that fewer people are using cash on a regular basis. We make a considerable proportion of our purchases, including in-person purchases, through electronic transactions by means of debit or credit cards, e-wallets and so on.
Enacting this Bill can also give consumers the confidence to tip electronically, knowing that if they do so, it will definitely go to the staff. When they add an electronic tip, they will know that it is required to be distributed to staff and that those staff have access to the WRC if they have a complaint. I assure the House that in a case where a customer pays a bill that includes a mandatory service charge, the bill and receipt leave an evidential trail whether the payment is made electronically or in cash. This means that if there is a complaint about the distribution of the mandatory service charge, the WRC can consider that complaint and adjudicate on it.
I hear what the Tánaiste is saying and I do not dispute it. It is overwhelmingly likely that the majority of tip theft occurs on electronic payments. It is much easier for that to happen. The vast majority of bills these days are probably paid by cards rather than cash. However, the theft of cash tips definitely still happens, and the Tánaiste has acknowledged that. He suggested that we cannot legislate for it because it would be difficult to prove and I do not fully understand the logic there. One can definitely think of circumstances in which it would be impossible to prove. In such a case, there might be paper evidence but an offence cannot be proved. It is also feasible to think of circumstances in which it could be proved. A series of employees might be willing to testify that every single night, the employer comes in, goes through the tip jar and takes half of the money in it. That is very conceivable. Surely a right of redress must be provided for those workers who are affected. We can understand that it might be difficult to prove in some circumstances but let us give them the opportunity to go to the WRC and prove their case as opposed to admitting defeat before we start by saying we cannot possibly legislate for those whose tips in cash form are robbed.
Perhaps the Tánaiste could explain the situation. The intention behind the Bill is to ensure people do not have their tips robbed from them. I get that. It is why we are all here. We accept it is a problem that needs to be dealt with. Not every case that comes before the WRC has a paper trail or includes absolute proof. Sometimes a union official will only have the evidence that his or her own members can bring and that is enough. One might not be able to put a hand on a receipt or some kind of electronic trail but there may be evidence from workers. One will hear that from workers. The Tánaiste has met with workers so he will know that. How would it work in that case? Would such a case be precluded from access to the WRC even if there is some evidence? I understand the issue around evidence and the fact that we cannot legislate for situations in which there is no evidence. If there were sufficient evidence to sustain an industrial relations case, which I acknowledge is not the same threshold of proof that would apply in a court, would the Tánaiste envisage access to the WRC being possible under the terms of this legislation? If that is precluded completely, there is a problem. There is not going to be a paper trail when a cash tip is left, but how would it work in a case where a number of workers are capable of saying that tip theft happens every evening, every second night or whatever? Those staff should somehow come under the jurisdiction of this legislation. If they are left out, all cases are going to be left out. As I said, cases before the WRC, the Labour Court or wherever else do not always include a paper trail. Sometimes the evidence of the people who are experiencing the issue is sufficient.
I thank the Deputies for their contributions. I have some sympathy with the arguments being made. I have given this matter some consideration and discussed it with my officials and advisers. The advice I have is that it would not be practical to enforce this particular provision. I refer to the report of the Low Pay Commission in that regard. It is also possible that the circumstances the Deputies describe where people would be willing to swear an affidavit to say that money was stolen from them is already covered under larceny provisions. Even with those sworn testimonies, it would still be hard to prove without other evidence.
As I have said, a one-year review is built into these provisions. I would be happy to consider the matter again at that point.
Amendment put and declared lost.
I move amendment No. 5:
In page 6, line 18, after “by” where it secondly occurs to insert “means of monetary payment and/or”.
Amendment, by leave, withdrawn.
Amendments Nos. 6 and Nos. 10 to 16, inclusive, are related and will be taken together.
I move amendment No. 6:
In page 6, between lines 19 and 20, to insert the following:
“(1A) (a) An employer to which this section applies shall, within 6 months of the entry into force of this Act, negotiate an agreement with employees providing for tips or gratuities to be distributed in a fair manner.
(b) An agreement under subsection (a) can be reviewed upon the request of twenty percent of the relevant employees.”.
The purpose of amendment No. 6 is to compel employers to negotiate an agreement with their employees about the distribution of tips. This amendment applies to the section of the Bill which deals with a situation where tips are distributed between employees. This is the worker's money. It is not the employer's money. Therefore, the employees should have a decisive say in how the money is distributed between them. There should be a negotiation between the employer and the employees within six months of this Bill coming into force to agree how tips are going to be divided up. The amendment would also legislate for that to be reviewed at the request by one fifth of the relevant employees.
The other part is adding in the possibly of a review coming on the back of a workplace inspection as to whether a fair distribution of tips is taking place. We are removing the reference to the fact that whether the employee is on full-time or part-time contract of employment is something to be taken into account, given that section 4B(4)(c) includes the proportion or number of hours worked by the employee. It is entirely reasonable that would be taken into account in terms of how tips are divided. Once you are taking that into account, then there is no need to separately consider the point of full-time or part-time.
Third, in relation to what is currently in section 4B(4)(e), "the role and influence of the employee in providing service to customers", I do not understand what the meaning of “influence” is. I do not see why we need to have “influence” referenced here and therefore can delete it.
The next point is, again, to prioritise the question of an agreement, that where you can prove that you have an agreement that is not manifestly unfair, that takes priority.
I think the other amendments are Deputy O’Reilly’s.
Amendments Nos. 6, 13 and 16 would require the employer to negotiate and obtain an agreement of employees on the matter of the distribution of tips and gratuities. As it stands, the Bill provides that the employer must consult their employees. It also establishes a legal entitlement for workers to receive their tips and gratuities paid in electronic form with the provision that these tips and gratuities should be paid out to workers in fair and transparent manner. Requiring the employer to obtain the agreement of the employees is a high threshold for the employer to meet and is not within their control.
We also believe the amendment is impractical, as it would require the consent of all employees before a change in policy could be introduced. Even one employee, or a minority of employees, could prevent a policy change against the wishes and interests of the majority of employees and the employer. This would be profoundly undemocratic. Seeking to introduce some form of qualified majority is equally likely to be impractical but would not be impossible.
An important requirement of the new Bill is that the employer must provide a statement to workers showing the amount of electronic tips obtained in a period and the portion paid to individual employees for that particular period. This will ensure transparency.
Amendment No. 10 seems confer a new function on the WRC adjudicators of inspecting workplaces and determining whether the distribution of tips and gratuities is fair. It is difficult to justify carrying out inspections in circumstances where nobody has made a complaint and would not be a good use of the WRC’s resources. Employees can have recourse to the WRC if they have a grievance and make a complaint. I am satisfied that this will provide ample protection for them.
Amendments Nos. 11, 12 and 14 seek to amend the factors that a WRC adjudicator can consider in determining an employee complaint on whether tip distribution is fair. I think the factors in the Bill as it stands are well balanced. They are relevant and, crucially, they are not restrictive. The adjudicator can, of course, consider other factors where they consider them to be relevant.
Amendment No. 15 would be a disproportionate intrusion on an employer. Employees in small business where employers also do work will usually have a good understanding of the level of work the employer does. They also already have the protection that they must be aware of the tips and gratuities policy. They can have recourse to the WRC if they have a complaint. This amendment would require employers to send out their personal financial information to their staff on a regular basis. This would even include staff who may be employed on an only occasional or part-time basis and every employee would then become a data processor under general data protection regulation, GDPR. I understand the intention behind the amendment is to ensure that staff are informed if their employer is taking a proportion of the tips. That is an understandable request or desire and we do not want to let abusive employers off the hook. However, we think it will be disproportionate and intrusive in this regard and would leave employees in the position where they would become data processors under GDPR.
We need say this out loud. We are dealing with vulnerable workers, very often migrants and part-time workers, as the Tánaiste said, and people who do not have much power at the level of the workplace. Of course, the only way to increase that power is to join a union, get active in it and not wait around for legislation.
The purposes of these amendments is to balance it in favour of the employees. I accept what the Tánaiste said in relation to data control or a data processor. However, there needs to be some level of transparency so that a worker – and we know these are low-paid workers – would have some sort of knowledge as it whether the employer is taking something. The Tánaiste said that in smaller employments there is usually a good understanding of how much work the employer is doing, and there is. However, equally, the employer might not be doing half the work, but taking half the tips. I am not saying all employers would do this, but we know that it happens and we would not be here if it did not. There is a balance to be struck. Clearly, people are entitled to some privacy in relation to personal information. However, there is, equally, the right of the worker to know. If you are already only getting a share of half because half has gone to the employer, you will not know that from the statement that you get. There is an unfairness in that. This set of amendments is just to bring a little bit more transparency, particularly for the workers who, as we all know, are very often vulnerable or low-paid workers who do not have that power at the level of the workplace.
I understand and appreciate the intentions behind the amendments. However, I cannot accept them for two reasons. The requirement that the consent of all employees would be required for a change in policy is too onerous. We are not talking about a majority here; we are talking about unanimity. I just do not think that is a practical provision when it comes to amendments Nos. 6, 13 and 16, to have a situation whereby the employer and the vast majority of employees want a certain policy and a blocking minority or even one individual could block a change to that policy. I am sure that was not what was intended by the amendment. However, the Office of the Parliamentary Counsel said that would be the effect.
Again, we need to bear in mind that sometimes the employer is a worker too. You will often see in a small restaurant or small café, the person who is the employer – the owner – is very busy on the shop floor, taking orders, delivering meals and behind the till. The employer can be a worker as well. Under amendment No. 15, you would see employees getting financial information about the employer or another worker, and that is private information. I would have real concerns about that being done. If it is the case, for example, that the worker-owner, if you like, is taking half or even a quarter of the tips, that would be known because there has to be a tips and gratuities policy, and it would have to be made clear in that policy that a certain worker or someone was somehow getting a disproportionate share of the tips. I think if I saw that policy, I would be very suspicious. Therefore, I think it is covered in that regard.
Amendment put and declared lost.
I move amendment No. 7:
In page 6, lines 21 and 22, to delete “by an electronic mode of payment” and substitute “, including by an electronic mode of payment”.
Amendment put and declared lost.
I move amendment No. 8:
In page 6, line 21, after “by” where it secondly occurs to insert “means of monetary payment and/or”.
Amendment put and declared lost.
I move amendment No. 9:
In page 6, line 23, after “by” to insert “means of monetary payment and/or”.
Amendment, by leave, withdrawn.
I move amendment No. 10:
In page 6, line 35, after “fair” to insert the following:
“or in considering on foot of a workplace inspection whether or not a distribution under subsection (1) of tips or gratuities to an employee is fair”.
Amendment put and declared lost.
I move amendment No. 11:
In page 7, to delete lines 3 and 4.
Amendment put and declared lost.
I move amendment No. 12:
In page 7, line 5, to delete “and influence”.
Amendment put and declared lost.
I move amendment No. 13:
In page 7, line 11, after “distributed” to insert the following:
“where such an agreement is deemed to have been negotiated fairly with employees and is not itself manifestly unfair, it shall take precedence over other factors and circumstances”.
Amendment put and declared lost.
I move amendment No. 14:
In page 7, between lines 11 and 12, to insert the following:
“(h) a general principal that tips, gratuities, and service charges are especially valuable for low-paid workers.”.
Amendment put and declared lost.
I move amendment No. 15:
In page 7, line 17, after “relates” to insert the following:
“, including the share of tips, gratuities, and mandatory service chargers distributed by the employer to themselves”.
Amendment put and declared lost.
I move amendment No. 16:
In page 7, line 31, to delete “consult” and substitute “reach agreement”.
Amendment put and declared lost.
Amendments Nos. 17 to 19, inclusive, 22 to 24, inclusive, 31 and 32 are related. Amendment No. 18 is an alternative to amendment No. 17. Amendments Nos. 17 to 19, inclusive, 22 to 24, inclusive, 31 and 32 are related and may be discussed together.
I move amendment No. 17:
In page 7, to delete line 34, and substitute the following:
“offence and shall be liable on summary conviction to a class A fine, maximum of twelve months’ imprisonment or both.”.
This grouping is crucial in terms of the penalty for a breach of this legislation. The current proposal is for a class C fine of €2,500. That is completely inadequate. The risk for employers is not very high but the reward can be very high. It was reported that The Ivy restaurant was taking in €3,000 in electronic tips that were being taken by the employer, yet the Government is saying the maximum that employers who continue to engage in that illegal practice can face is a fine of €2,500. It is completely inadequate. It is a very soft-touch and light-handed approach to employers for what is theft or robbery of workers' money. It should not be treated as a small matter; it is a big deal. It is the same thing as going into a person's house and robbing his or her money. It is theft and it should be treated as such. Amendment No. 17 proposes the imposition of a class A fine, a maximum of 12 months' imprisonment, or both. That is treating it with the seriousness it deserves.
We need to be clear that what we are talking about is money being robbed from people. The sanction on the employer should be stronger. I appreciate there is an opportunity to revisit it. I am not saying that it would be worth an employer's while to break the law in this regard. I do not think people necessarily set out to do that. However, in the past decade the WRC has recovered €18 million in what it referred to as "unpaid wages" but all present know it is money that was robbed from workers. We know there are issues in respect of workers getting what they are entitled to in terms of what could be called wages, never mind what is in that grey area of tips. A stronger fine would send a much stronger message to an employer that this is not worth the risk.
I hear what the Deputies are saying in respect of this being about theft and robbed money. I agree with that assessment, by the way. If money is intended for a person but another person takes it, that is larceny. I would be curious to know whether any complaints have been taken to An Garda Síochána or whether there have been any investigations under larceny provisions and what the case law is in that regard. I do not know if there have been such cases.
What we are dealing with here is employment law. In the context of this legislation, the amendments would change the penalties for breaches from a fine of up to €2,500 to a fine of up to €5,000. That would be out of line and inconsistent with penalties included in the Payment of Wages Act 1991, which the Bill amends. That Act provides for fines of up to €1,000. The WRC can also impose fixed penalty notices of up to €1,500. If these amendments were accepted, breaches of the Bill would have the most serious consequence of any offence under the Payment of Wages Act, and that does not seem proportionate.
Amendments Nos. 17, 19 and 22 propose the introduction of prison sentences for breaches of the Act. By way of example, an employer who fails to give an employee a statement of his or her tips and gratuities and the total tips and gratuities received would be liable to up to 12 months' imprisonment. To clarify that, even if an employee got all his or her tips - every single euro and cent - if the employer did not for some reason give him or her the paperwork, the employer could go to prison for 12 months. That seems somewhat draconian. It certainly would not protect the employees if their employer had to cease trading because he or she was sent to prison having paid every cent of wages and tips but not provided the right sheet of paper.
Amendment put and declared lost.
I move amendment No. 18:
In page 7, line 34, to delete “class C” and substitute “class A”.
Amendment put and declared lost.
I move amendment No. 19:
In page 7, between lines 34 and 35, to insert the following:
“(9) An employer who contravenes subsection (1) shall be guilty of an offence and shall be liable on summary conviction to a class A fine, a maximum of five years’ imprisonment or both.”.
Amendment put and declared lost.
I move amendment No. 20:
In page 8, to delete lines 1 and 2.
Amendment, by leave, withdrawn.
I move amendment No. 21:
In page 8, to delete lines 3 to 5.
Amendment, by leave, withdrawn.
I move amendment No. 22:
In page 8, between lines 5 and 6, to insert the following:
“(iii) an employer who contravenes paragraphs (a) or (b) shall be guilty of an offence and shall be liable on summary conviction to a class A fine, a maximum of five years’ imprisonment or both.”.
Amendment put and declared lost.
I move amendment No. 23:
In page 8, line 18, to delete “class C” and substitute “class A”.
Amendment, by leave, withdrawn.
I move amendment No. 24:
In page 8, between lines 18 and 19, to insert the following:
“(3) An employer who contravenes subsection (1) shall be guilty of an offence and shall be liable on summary conviction to a class A fine, a maximum of five years’ imprisonment or both.”.
Amendment, by leave, withdrawn.
Amendments Nos. 25 to 27, inclusive, are related and may be discussed together.
I move amendment No. 25:
In page 8, line 21, to delete “a notice” and substitute “notices”.
This is the last substantial grouping of amendments. The key amendment is No. 26, which proposes that it is not sufficient to have one notice displaying the policy, as is currently the case under the Bill, but that as many notices as are required to be clearly visible to customers should be displayed. An employer should not be able to just put it on the website; it should be on menus and publicly displayed so that it is clear for those going into an establishment what is its tips policy.
The time permitted for this debate having now expired, I am required to put the following question in accordance with an Order of the Dáil of 12 July: "That in respect of each of the sections undisposed of, the section is hereby agreed to in committee, the Title is hereby agreed to in committee, the Bill is accordingly reported to the House without amendment, Fourth Stage is hereby completed and the Bill is hereby passed."
Question put and agreed to.
A message will be sent to the Seanad acquainting it accordingly.