The purpose of the amendment is to define more clearly all types of work. It is to remove any doubt as to whether temporary help agencies would be included or not. Some of those agencies would be the type where persons are kept on a panel or in a pool of employment and hired out at intervals on casual work to others.
Employment Agency Bill, 1971: Committee Stage.
Government amendment No. 1:
In subsection (2), page 2, line 23, after "from" to insert "or render services to".
I should like to ask the Minister to explain this a little bit more fully. It seems to me that one of the complaints as regards this Bill is that the net which the Minister is casting in his definition of an employment agency is far too wide. I think that criticism was made very reasonably and very fully on the Second Reading of the Bill. I may be reading it wrongly, but it seems to me to be that the Minister is further widening the scope of the Bill and extending the definition of an employment agency. The last few remarks the Minister made possibly explain the reason for this, but I certainly argued on the Second Stage — and Senator Alexis FitzGerald, if I remember his contribution correctly, argued even more fully than I did — that there were certain types of — I am trying to avoid using the word "agency" because they are not really agencies — services rendered which should be excluded from the provisions of the Bill and which fitted into the definition of "employment agency" in the Bill as proposed. Whatever doubt there might have been about whether they did or did not come into the Bill seems to me to be removed by the Minister's amendment by inserting the words "or render services to".
Ordinarily speaking, I think most of us would regard an employment agency as an agency which is in business for the purpose of finding employment for applicants or finding employees for employers who turn to them; and we would not regard ancillary services provided by firms that are not, ordinarily speaking, employment agencies but which, ancillary to their business and to the service which they seek to give their customers, also deal with the question of employment. Am I right in thinking that the insertion of these words "or render services to", apart from other considerations that the Minister may have in mind, put it beyond doubt that management consultant businesses and that kind of thing are being brought clearly within the scope of the Bill?
The Senator is right in his assumption. This defines more clearly what agencies may come within the ambit of this legislation. I should like to point out to the Senator that definition is all important here if we are to cover any of those institutions or agencies that do a service, even ad hoc or on a temporary basis, because they may be the people that we are really most anxious to control. Indeed, I would say that it is also in the interests of the legitimate agencies. It is of importance to them too that we take power to control any type of employment agency either on an ad hoc or temporary basis or of the type I mentioned here where there is a pool of labour retained for the purpose of being hired out at intervals or for short periods. This may be where control is most needed and I do not think the legitimate agencies would quarrel with that at all.
I just want to know what we are dealing with. The Minister may recall that on the Second Stage I suggested, for example, that under the definition as it then stood, it might even be possible that the Incorporated Law Society would be regarded as an employment agency. I think some Senators felt that I might have been stretching my imagination somewhat in making that suggestion. It seems to me that this amendment, in any event, would clearly bring them in. Since I spoke here on the Second Stage I have got the Incorporated Law Society Gazette for the month of February. I see here that reference is made to the Society's introductory service. This is in connection with solicitors' amalgamations of partnerships, but so long as there is even an introductory service carried on by the governing body of a profession, such as the solicitors profession, it does seem to me now that it is put beyond doubt that the running of such services is being brought within the scope of the Bill. I propose to argue later on that, if they are in it by reason of the definition section, these kind of services which clearly, I would submit, do not need control under this Bill should be excluded under the excluding provisions of the Bill. However, that is another day's work.
Amendment agreed to.
Section 1, as amended, agreed to.
Section 2 agreed to.
SECTION 3.
Question proposed: "That section 3 stand part of the Bill."
There is a reference in subsection (3) (b) to the prescribed standards of suitability and fitness of applicants for a licence. I should be interested to hear if the Minister could give us some indication of what are likely to be prescribed standards of suitability and fitness. It seems to me that this is an extremely difficult area because I think the range of employment agencies — and something of the range has been indicated during the Second Stage, debate — can go from someone who is in effect a managerial consultant to someone who is simply almost a clearing house dealing with straightforward vacancies for labouring or unskilled work.
This seems to raise all sorts of problems. In one sense the only qualification for acting as an employment agency is literally to be able to bring people together to find the people who are looking for work and to say to the potential employer: "I think I have got someone suitable". That is putting it at its lowest. In other cases an employment agency may bring to bear a great deal of skill in the situation, they may advertise and charge fees according to the skills they have to offer, doing substantial tests on the people who are looking for jobs, screening them in special ways and so on, and making very detailed confidential reports to the potential employers which, in some cases, may even include interviews with the applicant's wife, if it is a situation in which his wife is considered to be part of his assets in seeking employment at a high level with a particular firm where social contact or entertaining may be part of the requirement.
I should be interested to know how the Minister will deal with what seems to me to be a genuine problem of setting some standard of suitability and fitness for applicants for licences because of the range of the work. Also, I take it that much of the impetus for this Bill has come from people who have been disturbed about what fate may overcome young girls applying for positions overseas. It might possibly introduce moral considerations. The Minister might feel that he might have to take regard of the possibility of a criminal background of an applicant or something of that kind. Personally, I would find it helpful to know what is in the Minister's mind in this regard since he has these powers to prescribe standards of suitability and fitness where applicants for licences are concerned.
I would also be interested if the Minister could give some picture of what is intended about prescribed standards of suitability and fitness. It would be helpful.
Would the Minister regard the agencies operating under his own Department as having a requisite standard? If he does I, for one, would disagree with it. Some of the premises throughout the State leave a good deal to be desired. We would be acting rather hypocritically in this House if we are legislating for private employment agencies and at the same time excluding agencies under the Minister's own Department from coming up to a required standard. The question of standards, as has been raised by other Senators, is very pertinent to this Bill.
The question of standards will be prescribed of course and will include the usual stipulations with regard to particular classes that would be considered unfit — persons with criminal records, undischarged bankrupts, persons giving misleading information in their applications and persons whose licences have been revoked. These would be specifically set down. The premises will be required to conform to certain standards. I am not too sure what Senator Russell has in mind, whether he is referring to the personnel of the employment agencies or the quality of the buildings. He is, I am sure, aware that the Department of Labour has established a new placement service where separate offices conforming, I hope, to high standards will be at the disposal of the officers in the new placement service.
Unfortunately, employment exchanges have come to be looked upon as agencies for payment of benefits rather than for recruiting for employment. Perhaps they require, in some instances, a good deal of improvement. Many of these are on a contract basis where we have branch managers and it is their responsibility to provide premises of decent standards. As far as the Department are concerned there is a programme set on foot for the improvement of some of the existing offices. These are not the offices which will be used in our placement service.
Question put and agreed to.
SECTION 4.
Question proposed: "That section 4 stand part of the Bill."
This is the section which deals with the revocation of a licence and it empowers the Minister to revoke a licence in certain circumstances. The section states:
Where the holder of a licence under this Act has been convicted of an offence under this Act or has given false information in an application under section 3 of this Act or where in the opinion of the Minister —
(a) the holder is no longer a suitable person to carry on the business of an employment agency, or
(b) the premises where the holder is carrying on the business of an employment agency no longer conform to the prescribed standards,
the Minister may revoke the licence.
The case has been made that essentially the Minister's power of revocation here refers to the suitability of the person or the suitability of the premises. The suggestion has been made to me that this section could be strengthened by specifically adding a subparagraph (c), including as a ground for revocation of the licence if the employment agency is being conducted in an improper or illegal manner having regard to the provisions of the Act. That proposal has probably been discussed with the Minister or his officials because it was made by the Irish Federation of Employment Agents. I should like to hear the Minister's view on it.
It may be that the opening sentence in the section contemplates that what the Federation proposed should be inserted. In other words, the Minister may feel that the section as it stands meets the point of view being put forward. I do not think it meets it fully because, under the section as it stands, to revoke a licence on the grounds that there has been an offence under the Act, would certainly require the offence to be proved and that the person charged with the offence has been convicted.
There does not seem to be any discretion left to the Minister. If the agency itself is carried on in an improper manner, even though there has been no charge made and no conviction secured, the only grounds on which the Minister could revoke, in those circumstances, would be because he comes to the conclusion that the holder is no longer a suitable person. It may be that that is strong enough, but I am not sure and I would like the Minister's views on it.
I have a feeling that that may be covered elsewhere in the Bill; we will see as we go along. I know it is appropriate to other sections. If it is necessary to add a subsection to that I would favourably consider it.
The Minister could amend it on Report Stage.
Yes. In any event, paragraphs (a) and (b) are essential. This section really seeks to ensure that the standards which are required on the granting of the licence are maintained, that if at any time they fall below the required standards the licence may be revoked. The person could fall below the standards required but at the same time conduct a business in a suitable manner. If further powers are to be taken here with regard to the conduct of the business, I would favourably consider adding the paragraph.
Could the Minister elaborate on the words "suitable person"? If a person becomes unsuitable for, say, health reasons or some similar reason, is there any appeal to the Minister?
There is in the next section. The reference to the standard of suitability here would not particularly apply to health.
Question put and agreed to.
SECTION 5.
Question proposed: "That section 5 stand part of the Bill."
I think that what I want to say on section 5 would possibly be more relevant on section 6 and I will argue it there, if necessary. However, I am mentioning it here because section 5 is the section which provides for appeals against the Minister's decision to revoke or refuse a licence. It was suggested, I think very reasonably, by Senator Alexis FitzGerald on the Second Reading that similar powers of appeal should apply in cases where an exemption has been made by the Minister and the Minister proposes to withdraw the exemption. The question of exemption would arise under section 6 but the question of appeals arises under section 5. I am simply mentioning the matter on this section in order to keep the door open with a view, possibly, to putting down a Report Stage amendment to section 5 dealing with or providing for appeals in the event of the exemptions being withdrawn.
Question put and agreed to.
SECTION 6.
I move amendment No. 2:
To add to subsection (1) the following new paragraph:—
( ) Any firm or company of industrial or management consultants or any firm of accountants which:—
(i) merely incidentally to other services which it provides for clients also provides the service of advising them on, or assisting them in, the selection of managerial, professional or senior executive or senior administrative staff, and
(ii) does not accept any fee or payment from applicants or candidates for employment but is paid exclusively by the client interested in recruiting such managerial, professional or senior executive or administrative staff.
Section 6 is the section which sets out the various cases to which the Bill will not apply and I want to add to this section a paragraph to provide that the Bill would not apply in the cases provided for in the amendment.
The Minister will recall that this case was argued fairly fully on Second Reading and the point was made that a number of distinguished and expert professional firms are engaged here in consultancy business and that this is in addition to those who are industrial or management consultants. You also have the type of work which is mentioned in the amendment undertaken by some eminent firms of accountants. The case was made that, dealing with staff of this sort — professional, senior executive and senior administrative staff — a very high degree of confidence is required. It was pointed out, and argued fairly fully, that the actual work of securing employment or placing people is very much subsidiary to the general work of these business consultants.
I am quite sure that the Minister is well aware of the kind of work done, the kind of advice and expertise that is applied by these firms. I feel sure also that he is aware of the overriding need in many cases of absolute confidence in the dealings of the firms, both with the prospective employees and the prospective employers. It might be suggested that the kind of firms I have in mind and which are referred to in the amendment could be dealt with by exempting them from the provisions of the Bill. But there is a feeling, and I venture to say that it may be well-founded, that it is not going far enough, that what is required in order to keep the degree of confidence necessary for these firms to conduct their businesses, as they have been conducting them, in a very excellent manner, is that they should be excluded completely from the provisions of the Bill, should not be interfered with by the Bill and should not be put in the position that they would have to apply for exemption from the terms of the Bill. The amendment I am proposing poses that question to the Minister.
Business suspended at 6 p.m. and resumed at 7.30 p.m.
I think I have given most of the reasons why I am moving this amendment. With regard to my proposal that we should exempt bodies of the type contemplated in the amendment or that we should exclude them from the Bill, it may be said in reply that this would not be necessary because the Minister has powers of exemption and that if there are bodies which are proper to exempt from the provisions of the Bill under section 6, subsection (2), the Minister can make an order exempting them. I want to suggest to the Minister that bodies of the type I am speaking about would not be properly dealt with merely by exemption and that they should be excluded from the provisions of the Bill. I have already mentioned the type of work they are engaged in and the absolute necessity for a very high degree of confidence in their work — the material they gather with regard to applicants and so on is of a highly confidential nature — and I do not think that the same degree of confidence would exist if there was an exemption order made.
Apart from other considerations, under the Bill as it stands at the moment the Minister, under section 6, subsection (3), may by order revoke or amend an order made under this particular section. If the Minster was to grant an exemption order, the firms in question would never know when that exemption order might be revoked. Remember, under the Bill as it stands there is no appeal from a decision of the Minister to revoke an exemption order. There is an appeal from a decision of the Minister not to grant a licence, or to revoke a licence, but there is no appeal against a decision by the Minister to revoke an exemption order which he might have made. Consequently, there would be a very unsettled state of affairs so far as these firms are concerned. Having regard to the need for absolute confidence as regards the information they get, the fact that an unsettling situation would arise — they would not know whether an exemption order was going to be withdrawn — would, in my judgment, be bound to have a very bad effect as regards the applicants with whom they are concerned.
I do not think it is necessary to paint the picture in any more detail except to make this point, which I think is a valid one.
The type of positions with which these firms are concerned, and with which this amendment is concerned, are positions of managerial, professional, senior executive or senior administrative staff. Very often, in relation to posts of this description, the number of possible candidates will be comparatively limited. This is a small country and it is very easy for information to leak. Unless the high character of the confidential nature of the information that is given is completely preserved it is going to have grave ill effects so far as the provision of this type of service is concerned.
I know it may be argued, and it may be argued sincerely, by the Minister that nothing he intends to do under this Bill is going to cause any breach of confidence. He is not going to take any action under section 8 or any other section of the Bill which would require information given in confidence to be disclosed. It is one thing to say that and mean it but it is another thing to have that accepted by people who feel sensitive about making inquiries regarding change of employment, for example, and about that fact being disclosed even inadvertently. For those reasons I would strongly urge the Minister to accept this amendment.
I wish, briefly, to support the case made by Senator O'Higgins. It is self-evident that there are two categories of employment agencies. There are the employment agencies where fees are taken from those seeking employment and in respect of which there must be control and the Bill rightly seeks such control. Then there are the agencies where recommendations and so on are incidental to their other functions and where no fee is taken from the applicant. Whatever cost is involved is paid by the group being advised. There is a need to make a clear distinction between these two.
I would appeal to the Minister to accept the amendment. The Bill is not the last word and, as with other Bills, we will have revised legislation in five or ten years. If it is necessary to increase the scope of the initial Bill in years to come, that can be done. At present there are bodies doing a satisfactory job and fulfilling a valuable role in management selection and so on in our industry. This work has been acknowledged and the Minister has received no complaints about these bodies. I suggest to the Minister that it is wrong to classify these bodies with the other more mundane type of agency which is open to all sorts of dubious practices. For instance, they take fees from applicants without guaranteeing results, and this applies especially in recruitment for work abroad. The Minister should recognise this distinction at this stage.
In four or five years time, if any abuses come to light and if there is need for any amendment of this legislation, that is the time to face up to it. At the moment, why not leave the bodies doing a good job to continue with their work and tackle instead the real problem, which is the core of this Bill. The granting of exemptions under section 6 is not too arbitrary and they can be revoked as easily as they can be granted.
Why should the Government interfere between an agency and their clients? The scale of fees is determined by the amount of service required, the amount of exploratory studies, of surveys or whatever else are required to arrive at the ultimate recommendation. We think competition is the spirit and it is everyone for himself, as it were. I cannot see how the State can regulate that type of service.
I would appeal to the Minister to meet the Seanad in this amendment and accept it.
I see a certain amount of logic in the argument made by the Senators regarding this amendment, but if this Bill is to be what it sets out to be I could not possibly accept it. To draw the line of demarcation between what Senator Quinlan described as the more mundane agencies and those carrying out the sophisticated work of acting as consultants for the recruitment of executives would be difficult. I could see some difficulty, after I precluded an agency from operating, in their setting up as consultants and proceeding with the usual personnel recruitment as they had been already doing.
I would like to have power to control all recruiting agencies and depend on my powers of exemption to leave any agencies out which might not be properly regarded as agencies and which should not be licensed. We have branded all these agencies as doing some type of nefarious work, whereas in fact the number of agencies operating who might not qualify is very small. Many employment agencies give an excellent and highly selective service. To ask me to discriminate between that type and the others who call themselves consultancy agents or otherwise is asking too much and would be defeating the whole purpose of the Bill.
It would not be fair to those agencies who will not get through the net but who will continue to do a good job to press these amendments. Better to depend on the good sense of the administration to ensure that there will be no undue obstacles placed in the way of anybody applying for exemption. In order that the Bill operates as it is intended, I would much prefer to leave no opportunity for loopholes or for anybody to opt out and thereby defeat the purpose of the Bill.
A point was made in regard to accountants. If an accountant is a member of a firm and is employed by that firm, he has a perfect right to recruit staff. That is not an employment agency by any definition. If an accountant sets himself up to engage in recruiting staff for other firms, he cannot obtain any specialised treatment under the terms of this legislation. We will have to hold ourselves free to decide whether he is exempt.
I am sorry that the Minister does not see his way to accept Senator O'Higgins's amendment. As I understand the purpose of the Bill, and the Minister has confirmed this, it is to bring into line a minority of employment agencies who, through improper or unsuitable personnel and unsatisfactory premises or for some other reason, are not operating their agency in a manner that would safeguard both the interests of the applicant for employment and the potential employer. Every member would agree wholeheartedly with those objectives.
Notwithstanding what the Minister has said, there is already in existence a line of demarcation. The Minister is now seeking to bring within the ambit of the Bill a section of employment agents, or perhaps consultants is the more correct term, who conform to the Minister's stated requirements, because if they did not they could not carry on their type of agency or consultancy. In fact, they tend to err in the other direction. Their type of employment agency is based, firstly, on the expertise of the individual or individuals concerned and, secondly, on the type of premises they use. Senator O'Higgins and Senator Quinlan both pointed out that it is quite impossible for these people to regulate their fees in a manner similar to the ordinary employment agency. The fee alters with almost each individual case. If I understand section 7 correctly, this would mean that they would need to apply to the Minister in each case where they take on an assignment for an individual client or a corporate body. For this reason they are in a particular category. Management consultants of this type fulfil a very useful need, particularly when we are so anxious to attract the best personnel to industry.
We have had management consultants who have come and gone. However, the really first-class consultants who know their job and do a good job, are still in existence and are now household names in industry generally. It would be a mistake for the Minister to bring them within the ambit of this Bill, as apparently he is going to insist on doing, and he might do more harm than good.
I should like to join with the Senators who have already appealed to the Minister to exclude these particular consultants from the ambit of this Bill. The Minister might indicate that these are the type of agencies he has in mind in subsection (2) of section 6, and that might go some way to meeting Senator O'Higgins's point. The Minister has been quite coy in regard to the type of agencies he has in mind in this subsection. If he does make an exemption, and something goes wrong, he is covered under subsection (3) of section 6, because he can withdraw or revoke any exemption he grants. He is therefore already covered, except to make the necessary provision to include the amendments suggested by Senator O'Higgins, or a similar amendment, if it would suit him better.
The difficulty I see about this amendment is this. It would be extremely difficult to frame an amendment which would provide no loopholes and which would eliminate the possibility of certain agencies having certain consultative activities which would enable them to remain outside the ambit of the Bill. On the one hand, there would be the difficulty that this amendment could be used to get round the Bill in order to avoid the controls which are obviously necessary in the Bill. On the other hand, there is the possibility that, no matter how well this amendment was framed, certain agencies which should be exempt from the Bill would not come within the amendment.
The Bill as it stands, with the benefit of the Minister's experience, is a much more flexible and more satisfactory way of dealing with this position. In due course the Minister can see what kinds of firms should be exempt from the Bill and he can make the necessary Orders in accordance with the section as it is now provided. There are two objections to this kind of an amendment and on both scores the section, as it stands, is more satisfactory.
There might be objections to the amendment. However, there are a great many objections to leaving the position whereby firms that are contemplated by the amendment are not excluded from the Bill. Of course there will be objections to the drafting of any amendment. It has always been the practice — from an Opposition point of view — to make it clear that what we are concerned with is the principle enshrined in the amendment, rather than the actual wording of it. If the weight of the objection to the present amendment is that advanced by Senator Eoin Ryan I do not think that there is any insuperable difficulty at all. As far as I am concerned, I am quite prepared to leave the drafting of the amendment to the Minister and his parliamentary draftsmen. If the Minister would like to approach it from that point of view it would be possible to have his amendment on these lines for Report Stage.
I do not insist on the wording here but the objection that the Minister put forward, as I understood it, was the difficulty of differentiating between these management consultant firms. Firms of accountants, as part of their business, have an advisory service which entails selection or recruiting for senior management positions. There is a difficulty in differentiating between these and what might be regarded as the ordinary employment agencies. The differentiation is quite clearly set out in the amendment, even though I do concede that if there was a better wording I would accept it.
As I see it, the differentiation is threefold. Firstly, the employment content of the work should be merely incidental to the other work of the firms in question; secondly, it should deal with senior staff and the senior staff in question is spelled out in the amendment; thirdly, there should be no question of fees being accepted by the applicants or candidates for employment.
I would suggest that those are three vital distinctions which can be made as between these business consultants and the ordinary type of employment agency. There is no great difficulty in arriving at and seeing exactly what the differentiation should be. If it is a question that the real difficulty of the Minister is the difficulty referred to by Senator Eoin Ryan — that is, the question of the phrasing of the exception or the exclusion from section 6 that I want to see in the Bill — I am not going to press this particular wording. But I would strongly urge on the Minister that this is likely to be a very serious matter. I accept without question the good intentions of the Minister in relation to these management consultant firms but I would ask him to accept that there is real danger that by refusing to exclude them from the operation of this Bill he is going to disrupt their work and to rob our community of a very valuable service, a service which has its impact on the business life in this country and thereby on the economy of the country.
The Minister, I am sure, has from time to time had occasion to appreciate the kind of work that is done by these firms. Let me give a simple example. There may be a particular business or venture either in difficulty or considering whether or not a particular expansion should take place. They go to these firms of business consultants, who have the expert knowledge and the personnel and expertise to advise and they get their advice. They are advised as regards the running and the management of the business, the prospects for expansion, the necessity, if it should be the case, of retraction; and in the question of running the business it may be a question of setting the entire business properly on its feet. They get advice as to the type of control and supervision and management that is required and the type of personnel that is available to do the job. By reason of the fact that they have been dealing in a completely confidential way they are in a position to give information as to the availability or non-availability of the type of management personnel required. If these firms are to be debarred effectively from gathering that type of information of a highly confidential character, and if prospective candidates and applicants are going to fear that in a small country and in a comparatively small city there might, because of any regulation the Minister might make, be disclosure of the fact that they were applicants or of what their qualifications are and what their personal history is, then these business consultants will simply not be in a position to provide that part of the service which they have been able to provide up to now. I think it would be a very serious dislocation of their work.
I accept fully the Minister's good intentions in the matter. I accept that, as far as the Minister is concerned, he does not want to see any slow down in the kind of service that is being provided. But I do not think it is enough, quite frankly, for the Minister to appeal to us on the basis that the problem which I foresee and am formulating now should be dealt with by an appeal to us to accept the good sense of the administration. Different people will have different views as regards the good sense of this administration or any other administration. Certainly, I do not think that that is an answer to the problem.
There is a problem here. My solution may not be the ideal one, but it is no answer to it, and certainly it is no solution to it, to say you have got to rely on the good sense of the administration. If the Minister would agree to have a close look at this as regards wording between now and the Report Stage I will not press the position further at this stage.
I should like to follow more or less the last speaker on this and ask the Minister to have a good look at section 6 between now and the Report Stage. To my mind, section 6, as it stands especially subsection (2), is very bad legislation. Subsection (2) states:
The Minister may, if he so thinks fit, by order grant exemption from this Act or a specified provision thereof in respect of the carrying on of the business of a particular class of employment agency.
Surely it is our job here in examining this Bill to try and define "particular class". What does it mean? There is nothing in the Bill which tells us what "particular class" means. We have in mind here a number of agencies that can be fitted quite definitely into a particular category; and the Minister I think, by and large, agrees. I agree the Minister should have the power, as in subsection (2), to grant exemptions to a particular class. But if there are classes that we feel should not be brought within the scope of this Bill at all, if we are agreed on what these are, then we should spell these out in section 6, while at the same time leaving the Minister the power to deal with other classes that we have not thought of here. Surely those to which it is obvious to us the Bill should not apply should be spelled out? To my mind, that is the major decision we are called on to make here. Otherwise, what are we debating at all except simply what could be put into three lines: that the Minister shall control all employment agencies, shall give whatever exemptions he chooses and shall revoke any he chooses? That is purely arbitrary legislation and very bad legislation.
Therefore, I think that the Minister should study it very carefully between now and Report Stage. I think a compromise could be arrived at by which the exemption, once we have enumerated the classes that are entitled to it, could still be by way of order of the Minister and could still be subject to revocation if he wishes to go that far. We must do a far better job in spelling out what is meant by that strange phase "a particular class of employment agency"; or could somebody tell me what that means?
I would appeal to the good sense of the Minister. His is a new Department, one which we have always found quite co-operative and anxious to do the reasonable thing. Now I ask them to join with us and before we send this Bill as a Seanad Bill to Dáil Éireann let us do a better job in saying what is meant by "particular class".
I can assure the House that I came here with my mind perfectly open in regard to particular things and to co-operate as far as possible, but I am afraid I cannot quite agree with the Senators who have spoken regarding exemption in relation to these industrial management consultants. I am in no way trying to denigrate the tremendous work of national importance which they are doing. I would be the last person to do so. I have the IMI attached to my own Department. I am well aware of many other industrial management agencies or institutions who are doing very good work. I would be the last to do anything to disrupt the good work they are doing.
We cannot leave the opportunity open to people to call themselves another name and opt out of the legislation. I would not like to have one set of rules for one class of workers and another set for another. I should like to fight this as far as possible. I not think that this more sophisticated type of employment in the executive class should appear to be given some special exemption different from agencies that are recruiting highly technical staff, such as typists and second level executives — and indeed top level executives for that matter — without referring to themselves as management consultants. We must avoid any class distinction whatever in the Bill. I should hope that the Bill will not impede the good work of anybody. We must, in all legislation, use the element of commonsense. There must be like coverage for everybody. The exemptions should be used, as I would expect they would be, according to commonsense.
Senator Quinlan asked about exemptions. Organisations such as the rehabilitation board for the mentally handicapped immediately spring to mind. One could hardly bring these in. People, like charitable institutions, who do certain placings would be exempted. It is right that they should be exempt.
I believe that the general tone of the Bill should encompass all in the beginning. Let those who may be entitled to exemption be let out but I do not think that we should have different sets of rules for different types.
Would the Minister explain how one could avoid having class distinction when one is dealing with different classes.
It depends on what you mean by distinction.
It is the Minister's phrase.
There will be class distinction, in the ugliest interpretation of the phrase, if we say: "Top management, you are exempted from being licensed under this legislation because you are important people" and "Lower level, you must be licensed, you must be controlled."
Surely the Minister is misunderstanding the purpose of his own Bill when he puts up that argument? The Bill, as I understand it, is being introduced for the purpose of protecting the applicant. Relating it to the Minister's argument, what I am saying, in effect, is that you give the protection to the workers but you do not give the protection to the management class.
I would not agree. It would make the workers feel that they are people who need protection because they are incapable of looking after themselves, but these others can be allowed free. It would not eliminate the discrepancy. That is only one point, but I think it is well worth considering.
The only question of class distinction which does arise is the exclusion that the Minister has written into the Bill himself — that is, the employment agencies administered by or under the direction of a Minister of State, the Civil Service Commission and the Local Appointments Commission. I do not think they would like to be accused of class distinction.
Nobody would expect me to bring in the Civil Service Commission.
Because they are classless.
They are already under very good——
The Minister ought to accept the good faith of the people who endeavour to make the Minister's Bill as effective as possible. That is the only reason and no other.
I said I accept there is a certain amount of sound logic in this — I concede that point — but I could not accede to the request. I would rather you did not push me. I gave this deep consideration before I came here. I examined all the possibilities that it would open to others. If somebody puts up a sign stating that they are management consultants must I take it that they do not come under this Bill? We must include them first.
May I put one direct question to the Minister on this? In regard to the classes mentioned in Senator O'Higgins's amendment, provided these are bona fide as described there, does the Minister agree that these should be exempted by him under section 6? He mentioned a few that have not occurred to any of us, such as the mentally handicapped and all the rest, but I am asking him does he not agree that the two mentioned there would be foremost for exemption?
On the basis that they are bona fide?
Yes.
I could not undertake to make a decision on which should be exempted, even though I mentioned a few examples there. They might have to be examined critically, too.
Does the Minister not see our difficulty here as legislators? We are asking for legislation under which the Department of Labour will be all powerful in dealing with these agencies but there are certain unspecified exemptions. Surely our job here is to list those we consider should be exempted and let the Minister have discretion in exempting others afterwards?
I do not agree that they are all that more important than the girls in the typing pool who will go out to do confidential work for specific firms at intervals and must be recruited through an agency. There is not all that much difference between top management and the personnel who are working on the confidential records of some firm and who have to be vetted and recruited by an agency.
Surely there is this difference, that the number of posts in question at any given time is likely to be comparatively small? That is a very distinct difference as between what the Minister refers to, and I accept his description of top management and other types of employment. The Minister himself mentioned the question of typists or, if you like, manual workers. The latter two categories are very much more vast in numbers than top management.
Secondly, I do not think I am slighting in any way or appearing to dignify one class and lower another class if I say that the type of information and the confidential character of the information required in relation to top management will be vastly different from the type of information required and the degree of confidence in relation to other posts. If I want to engage a typist probably all I am concerned with is whether she is able to do her work and is honest. If I want to employ someone in top management I may have to find out a great deal more about him, as to whether or not he is the type of person who is capable of running the place on his own, how he mixes with others, whether he is a person who is too arrogant in dealing with junior staff and so on. I may have to get psychological reports and this kind of thing. There is a big difference and it is not an answer to say: "We cannot have class distinction."
If I understand Senator Quinlan correctly he wants to have the particular class of employment agencies defined more accurately and to have in particular the type mentioned in Senator O'Higgins's amendment included in this class, but he is still willing to leave the Minister the power contained in subsection (2) of the section. This is quite inconsistent. If he were to go the whole hog and say that we insist in this House on defining exactly who will be covered by the Bill and who will not, he would be consistent. But to add a third category of agencies which should be exempt and still leave the Minister quite free to pick and choose those who should be given exemption by order seems to leave us in much the same position as when we started and seems to me to be quite inconsistent. Either you insist on having everything clearly defined in the Bill and no discretion left to the Minister or, in my view, what is here is the most satisfactory way — allow the Minister discretion, by order, to exempt certain categories in the light of experience gained when this Act is operating.
An Leas-Chathaoirleach
Amendment, by leave, withdrawn?
We will not meet until after Easter, so maybe the Minister will reconsider our point?
I will certainly examine everything that has been said about it. I will not promise anything further beyond that.
The Minister will appreciate that our anxiety, as a legislative body, is to try and define as far as we can the classes that should be exempted. After that, if the Minister wants a marginal discretion it is only good legislation to give him that, but a blanket discretion is something we as a legislative body should be very slow to give. It is just a lazy man's legislation if we approach it in that way.
There are many safeguards.
Amendment, by leave, withdrawn.
Question proposed: "That section 6 stand part of the Bill."
I raised on section 5 the question of an appeal in the event of an exemption order being granted and the Minister deciding to withdraw it. I should like to hear the Minister's comments on that.
An appeal?
The Minister will appreciate that section 5 does set out a procedure for appeal against his decision if he refuses to grant or revoke a licence. I am suggesting that, if the Minister makes an exemption order and then subsequently decides for some reason to withdraw that exemption order, there should be some provision in the Bill to enable some type of appeal to be made against the Minister's decision to withdraw it.
If that is not already adequately covered, I will have a look at it.
Under section 11 every regulation made under this Bill must be laid before each House of the Oireachtas. The White Paper issued describes section 11 as "a general provision for the laying of orders before the Houses of the Oireachtas". Is there a distinction between "regulations" and "orders" and are the orders made under section 6 to be governed by section 11 and laid before the House?
No. They are one and the same thing and this actually occurs in legislation frequently.
But generally you say "orders and regulations". Is there any difference between the two?
I cannot visualise any difference, but if I think there is I will be quite prepared to examine it, but I do not think it is necessary.
Order or regulation. Will the Minister have a look at the question of some form of appeal here? I do not ask him to give an answer at the moment.
Exemptions may be appealed against. I will have a look at it.
From the point of view of information, I would find it helpful if, on subsection (2), the Minister could give me some idea of what the procedure would be for a particular body making an inquiry about exemption. Should a body which feels it may be entitled to an exemption and should seek an exemption be making inquiries at this stage, or will there be some general invitation, when the Bill becomes law, to people? Is this something open to them, or how does the Minister envisage this working? He did not mention it this evening, but on a previous occasion he did mention the particular situation of the university appointments office, for example, and also of careers teachers in schools who may, in effect, be acting as an employment agency. These seem to me to be bodies which should appropriately be added to the list of candidates for exemption. It might be helpful if the Minister could explain how if they feel they should be exempt, they should go about making their application for such an exemption?
There will be prescribed forms to suit all these purposes. Of course, with regard to the Senator's question whether a firm or an agency or institution of any type that might suspect they come under it should take an interest in the provisions of the Bill from now on, they would be well advised, when the Bill becomes law, to make the necessary contact with the administrative staff and find out the regulations and the requirements of the exemption order. I would not say anything more than that at this stage.
Question put and agreed to.
SECTION 7.
Government amendment No. 3:
To add to the section the following new subsection:
"(2) A person carrying on the business of an employment agency shall not charge any fee solely for agreeing to seek employment for another person or solely for agreeing to seek persons who will give or accept employment."
The purpose of this amendment is to clarify the situation with regard to fees. On the last section Senator Quinlan mentioned the fixing of fees. We do not propose to fix fees, only to approve of them, but we do indicate in the legislation our opposition to charging the clients fees.
Is the registration fee covered by the amendment?
Representations have been made to me by the federation in relation to this amendment and I see no objection to clearly setting out that the job seeker is not to be charged a fee. That was the original intention. I thought it was already reasonably well covered in the Bill but this spells it out quite clearly.
I do not follow this. Do I understand the Minister to say that this amendment is designed to prevent any agency charging a registration fee to a person who comes in seeking work and is entered in a register? I would support banning registration fees of that sort, but I do not follow the Minister's amendment. It seems to me that the secret of this lies in the word "solely". Offhand the amendment would seem to exclude the charging of any fees whatever by an employment agency. The amendment states:
A person carrying on the business of an employment agency shall not charge any fee solely for agreeing to seek employment for another person or solely for agreeing to seek persons who will give or accept employment.
"Agreeing" is the paramount word there. I would agree with that as excluding the registration fee I am talking about. If the Minister tells me that it does not refer to registration fees then I do not know what it refers to.
It explicitly prohibits the charging of registration fees.
Probably I took the Minister up wrongly. When I asked him if this related to registration fees I understood him to say "no".
I said the job seeker. Some employment agencies — in my opinion not the better-type employment agencies — charge a fee immediately a person presents himself to the agency.
I am sorry. Apparently I misunderstood the Minister. It does refer to registration fees. I am quite happy with the amendment on that basis.
On a point of clarification. It seems to be quite obvious that this subsection prevents any agency from charging a registration fee to a job seeker. My interpretation of it, however, is that it does not prevent an agency from charging a registration fee to an employer. Is that the Minister's reading of the amendment?
The amendment applies to fees charged to people seeking employment and those who will give or accept employment.
Amendment agreed to.
Question proposed: "That section 7, as amended, stand part of the Bill."
On section 7, there was a point of view expressed on the Second Stage debate to the effect that it might be better if this question of fees was dealt with on the basis of notification to the Minister rather than that the Minister should be put in the position, under the Bill, of being able effectively to fix the fees. I should like to hear the Minister on that point. It seems to me that the effect of the provision in section 7, which says that a person should not charge fees "save in accordance with such scales as may from time to time be approved by the Minister", will mean that once a scale of fees has been approved by the Minister that fee and no other must be charged in every case. While I would agree that fees in excess of a particular amount, whether it be notified to the Minister or be approved by him as provided in the Bill, should not be charged, I am not sure that it is wise to legislate that any particular agency may not, in any circumstances, reduce its fee below the scale approved by the Minister. I would like to see liberty allowed at least to reduce fees below the scale.
It seems to me there is a certain amount of ambiguity about the wording of this section. To say that "an employment agency shall not charge any fees or expenses in respect of services rendered in the course of the business save in accordance with such scales as may from time to time be approved by the Minister", could mean, on the one hand, such scales as each individual agency submits to the Minister and receives his approval for or, on the other hand, that the Minister would approve of a scale of charges and fees to apply generally to employment agencies. If this was the interpretation which was put on the provision, it would, of course, be one which would be very undesirable.
We have been speaking, on the last section, about the kind of agencies and the kind of firms which should be covered by this Bill and the kind of agencies and firms which should be exempt. No matter how hard the Minister tries to exempt certain agencies or firms which should be exempt, he will still be left with a fairly wide variety of employment agencies, some of which would give a very expensive service and some of which would give a very inexpensive service. Consequently, if there is any probability that this section could be interpreted in the sense of a scale of charges to be approved by the Minister covering all agencies it would, in the circumstances, be a very undesirable interpretation. I assume the Minister means a different scale of charges for each agency. However, in order to clarify that, I would suggest to the Minister that he look at this section again to see whether this could be set out more clearly.
If there is any ambiguity in this section I would be quite pleased to have it clarified to mean what I intend it to mean. It is not intended that one should be held to be in breach of the section by charging less than the scale, but technically I think the Senator is right.
If the Minister would accept the words "in excess of"?
Yes. "Not more than" or "not in excess of". I want to assure Senator Ryan that we do not propose to have anything to do with fixing scales but will merely approve of them. I accept that different agencies may have different scales, depending on the type of work. Indeed, a single agency might possibly have different scales for different clients according to the amount of work that was necessary.
I would be very slow to interfere with scale-fixing when a good job is being done. There is such a variety of interests involved here in the type of work which one agency does as compared with another, that they must be given a good deal of freedom in the matter of the scale of fees which they will submit for approval. I would be prepared, if necessary, to allow the draftsman to have another look at that and see if it is sufficiently clear.
May I suggest a reasonably simple way to secure this point which Senator Ryan raised and which is a very valid one? There could be a reference to scales made which would be from time to time submitted to and approved by the Minister. Something on those lines would leave it clear that the scales were suggested by the agency and are only subject to the Minister's approval.
Question put and agreed to.
SECTION 8.
Government amendment No. 4:
In subsection (2), page 4, line 39, after "employment" to insert "or the name and address of the holder of a licence under this Act".
Amendment No. 4 is also the result of representations from employment agencies. This is to enable an employment agency holding a licence under the provisions of the Bill to advertise vacancies abroad under its own name. Any agency which failed to act in a responsible manner in connection with the assessments could run the risk of losing its licence. This is an essential amendment and one which seeks to get to the root of what the Bill is intended to do.
I have no objection to the name of the licence holder being inserted in the advertisement, but am I right in thinking that that would still leave a possible obligation to name the person offering employment? What we are dealing with are regulations which will be made by the Minister. It seems to me that, under the terms of the Minister's amendment, he is saying: "I may make a regulation which will provide either that the name of the employer must be given or that the name of the licence holder will be given." If the Minister were saying "I will make a regulation which will provide for the giving of either", in which event I suppose normally what would appear would be the name of the licence holder, that would be a different matter. I do not think that is what is happening here.
The "or" in this sense seems to me to relate to the Minister's regulation or it may be related to the Minister's regulation. The principal point in this is that the federation feel very strongly that they should not be obliged to publish the name of the prospective employer. This is not due to any sinister reason but simply because the employer may not want his name known until he has decided what applicant he will interview, etc. It would be against the confidential character of the work from the employer's point of view if there was a requirement that his name be published. I think the Minister is endeavouring to meet this, but I am in doubt as to whether in fact it does.
Surely it does? The subsection will read:
Requiring...the inclusion in the notice of the name and address of the person outside the State seeking a person for or offering employment; or the name and address of the holder of a licence under this Act.
It seems to me that these requirements can now be met by merely inserting the name and address of the holder of a licence under this Act who would not be the employer.
Yes. If this were so I would be happy, but my point is that this is setting out what the Minister may do by regulation. I would be afraid it might be interpreted as saying that the Minister's regulation may do one or the other.
This has entirely to to with publication of the name in the newspapers. I have discussed this with the newspaper people and they welcome it because they say it will strengthen their position in trying to control advertisements inserted in respect of employment abroad and it is not known what the destination is. This is one of the purposes of the Bill in the first instance. The amendment here is merely an extension of that. It is more acceptable to the licence holder to have his name inserted.
Is it intended to have the alternative, to do either one or the other?
Yes.
There will not be a regulation which will say in relation to such-and-such it must be the employer's name but in relation to something else it would be——
Or the name and address.
I am clear on the Minister's intention.
The words which it is proposed to insert after the word "employment" at the end of subsection (4) (h) are clearly stated: "or the name and address of the holder of a licence". So there is a definite choice.
The semi-colon should be left out to make it clear.
The purpose behind this — and I am actually acceding to the request of the Federation of Employment Agencies — is that many good firms seeking personnel do not wish their name to be published for obvious reasons. They prefer to recruit personnel through an agency rather than have people making direct contact with them or using influence.
Amendment agreed to.
Question proposed: "That section 8, as amended, stand part of the Bill."
This is exactly the type of section I do not like. The Seanad should realise that subsection (2) does not mean anything, that subsection (1) contains the whole subject matter of the section. Subsection (2) is the sort of thing which keeps cropping up in legislation. It was in road traffic legislation; it was in the diseases of animals legislation. The latter had, I think, 67 sections and we were informed that once we accepted subsection (1) of section 3 of that Act, the other sections were not needed. The Dáil and Seanad wasted their time discussing the 64 sections, but the full powers for the Minister were included in subsection (1) of section 3 of that Act.
This is much the same. If you read subsection (1) it says: "The Minister may make regulations for giving effect to this Act"—that is fair enough; he requires that power; but then it goes on —"and generally for controlling and supervising the carrying on of employment agencies". Under that he can do anything he considers necessary by way of controlling and supervising. The Attorney General will find that and the law officers will back him up. They have already done it in relation to other legislation. The rest would be better in a Schedule, rather than set out as if it really meant something of statutory importance. They are all without prejudice to the generality of subsection (1) and this secures that the Minister may, under subsection (1), do anything he likes to control and supervise the carrying on of employment agencies. I doubt if it is even clear that he is bound by the Act. If you liked to be really narky, you could read it that "and generally for controlling and supervising" is in addition to giving effect to the Act. I do not know if a court would so hold, but I have heard legal arguments put forward which seemed to have a great deal less to hang on than what I am suggesting.
My chief interest in this is that it has become increasingly popular to attempt in legislation to do what was suggested by Senator Quinlan — I would have disagreed with him if he had pursued the matter — in defining the precise classes of agency or people who are to be involved. The more you define, the more you exclude. Afterwards you find that people have been left out and, because certain things were specified, others that should have been included were excluded. The Minister or the draftsman will not be caught in such a position. Subsection (1) is so widely drawn that subsection (2), except as a matter of general information, does not really exist at all. Is there anything in subsection (2) which is not covered by subsection (1)? I doubt it very much. Subsection (1) is so very wide that you could nearly stop there and not bother about the rest of the sections in the Bill.
I would not agree that the words "controlling and supervising" mean that the Minister can do anything.
I am glad that Senator Sheldon appears to have read my Second Reading speech.
No. This goes much further than this Bill.
I made this point on it. Generally with regard to the provisions of section 8, I agree, by and large, with the view expressed by Senator Sheldon that subsection (1) gives virtually all the power that the Minister could wish for. What I am concerned with in relation to this section generally is the possibility that regulations may be made by the Minister in connection with the controlling, supervising and carrying on of employment agencies which may lead to the disclosure of information which was given in confidence. This may be done — although I see that the Minister has an amendment down which may qualify that to some extent — by the disclosure of information given in confidence, either by inspection of records or by some other requirements under a regulation made by the Minister.
In my own simple way as a lawyer it seems to me that, if a person gives information to another person in confidence, that confidence should be respected. There should not be any risk whatever under our legislation that the Minister, or any future Minister, may make a regulation, the effect of which will be to impose a legal obligation on an employment agency to act in breach of confidence with a candidate for employment, or with an employer seeking a person for employment. If this section remains as it is, I am afraid that the position may very well be that an employment agency may find itself legally compelled, under the penalties imposed in this Bill, to break a confidence which has been given to them by a person seeking employment or a person seeking an employee. I therefore suggest that between now and Report Stage the Minister might ask his advisers to consider drafting a further amendment to this section which would make it clear that under no circumstances would there be a requirement to disclose information given in confidence without the consent of the person who had given that information in confidence. That is of vital importance.
On the point raised by Senator O'Higgins with regard to the Minister's regulations, there is a provision in the Bill that any regulation made by the Minister must be laid before both Houses. I presume that, if a regulation was made to which there was serious objection, it would be within the power of either House to have the regulation referred back to the Minister or possibly have it defeated in either House. I would not be afraid of the making of regulations because they still come under the scrutiny of both Houses and they could be rejected at that point, if there was anything that was considered dangerous or obnoxious in them.
That is all right if you do not have a position where the Minister is able to count heads in the Division Lobby and control the "Yes" or "No" decision. Obviously, if a Minister with an overall majority behind him in either House of the Oireachtas decides that he will not accept any motion with regard to a regulation, it will not be accepted. I do not want to allow the situation to arise where a Minister, under this Bill, can enforce on an employment agency the disclosure of information given to them in the strictest confidence and on the understanding that it will not be disclosed. It seems to me that under this Bill, it is open for that to be done. I recognise the argument of Senator Honan but I do not think that it meets the case.
Section 9 deals more specifically with this question of records.
I do not want to disagree with the Minister because I have studied section 9 from that particular point of view. Can the Minister assure me that section 9 provides that under no circumstances may the Minister make a regulation requiring an employment agency to disclose information given in confidence without the permission of that person? If he does, I shall leave it until section 9 arises, but I do not think that section 9 goes that far.
Amendment No. 5 deals with that.
I did refer to that and it does modify the position slightly, but only slightly. Copies can be taken, under the amendment, if there are reasonable grounds for thinking that the Act is being contravened. That is the extent of the amendment.
Surely the Statute Book is full of legislation which enables officers of the various Departments to get confidential information for the purpose of carrying out the Minister's duties under the various Acts? Under any Act it is specifically set out that the officer of the Minister must not disclose to the public any information obtained. Is it understood that any information obtained by officers in the course of carrying out various acts is confidential?
That is beside the point; in fact, it is a completely different point. I agree that information which the Minister or his officers may obtain by virtue of his regulations should be regarded as given in confidence and I would be appalled to think otherwise. What I am concerned about is that, if I go into an employment agency and I give information in confidence to that agency, the Minister would then be in a position to require the agency to pass on the information to him, or to anyone else. There are two steps here.
Paragraphs (a), (b) and (c) of subsection (2) of section 9 deal with this.
I do not think so. All subsection (2) of section 9 does is that, in order to get the information, you must have a warrant. I do not want to get the information, warrant or no warrant, without the consent of the person who gave the information in confidence.
Subsection (3) of section 9 states——
I thought the Minister said subsection (2)?
——that an authorised officer may at all reasonable times:
(a) enter and inspect any premises in which the business of an employment agency is being carried on or in respect of which an application under section 3 of this Act has been made,
(b) inspect such books and records relating to the business of an employment agency as are required to be kept under this Act, and take copies of any entries in such books or records.
The Minister may, if he likes, read my remarks in relation to section 9, but I think they are relevant on section 8.
I am not denying they are relevant, but they are more appropriate to section 9.
Provided the Minister agrees with me in principle I do not mind whether he deals with it on section 8 or section 9.
I should like to say that I regard this as the most important section in the whole Bill and, as Senator Ryan has said, it is the one that gives any teeth to the legislation as far as these agencies are concerned. While we must retain the power to do the things we have set out to do in the Bill, we would like to have them so set out that we would infringe and trespass as little as possible on the work of decent agencies and indeed not at all on agencies except those about which we had reasonable doubt. I think we have spelled that out. Only such books as they are compelled to keep under the Act will be examined. They may have other records which we would not have access to. We would merely be concerned that the agency was being run as an agency should, and not to find out about the holiness and virtues of persons who were seeking employment through that agency. Therefore, only some books or records would be required to be kept by the agency. This leaves it fairly safe with regard to the likelihood of any confidential matter being copied by the officers who carry warrants from my Department and are authorised to do this. I think it is the most important section in the Bill.
I agree with the Minister. There is no doubt that section 8 is a very important section. There is just one minor point. When Government amendment No. 4 was being discussed Senator O'Higgins did not seem to be very happy about the phrasing of it. It might be improved if, instead of saying "or the name and address of the holder of a licence under this Act" or — the operative word is "notice"—"notice of the name and address of the person outside the State" to say "or of the name and address of the licence holder". I think that would improve the English anyway, because it might read "seeking a person for or offering employment" before "or the name and address of the holder of a licence". It would not read very well but I think the inclusion of "of" after "or" after the semicolon would improve it. I presume it will turn up at the end after the word "Act" instead. I think putting "of" in would help the understanding of it anyway.
Question put and agreed to.
SECTION 9.
Government amendment No. 5:
In subsection (3), page 5, line 3, after "and" to insert ", where he has reasonable grounds for believing that this Act is being or has been contravened,".
This amendment was anticipated somewhat in our discussion on section 8. In my opinion it would help to put it in plain language that the inspector or the person so entitled to investigate the records out of any employment agency, cannot do so unless he has reasonable grounds to suspect that the Act is being contravened. That is added by way of a further safeguard. As I said, these are the important provisions in the Bill. These are the provisions which give it all its teeth; but we do not want them to be used, or appear to be used, in any way that would trespass on the privacy, confidence and proper working of a decent employment agency. I should like to have the views of Senators on this.
There is general agreement that a Bill of this sort should be introduced; and the federation, I think, specifically agreed that some controlling Bill of this nature would be a good thing. I would not like the Minister to feel that I was unnecessarily trying to diminish the powers of control which the Minister and the Department think is necessary, but I think we have got to try to keep a balance in these things.
As regards this amendment the modification which the Minister proposes to insert by the amendment only governs the taking of copies of entries in books or records. It does not govern the actual power of inspection. The inspection can take place whether or not the authorised officer has reasonable grounds for believing that the provisions of the Act are being contravened. I really do not know what particular safeguard is constituted then by saying in effect that authorised officers may inspect such books, records, et cetera as are required to be kept but that they could only take copies of these if they think the Act is being contravened. Possibly the reason for that would be that by taking copies they can then furnish evidence in court to substantiate a charge that might be brought under the Act. That does not seem to me to constitute a safeguard. I may be a prudent step to take with a view to being able to prove a case in court.
I will not repeat my arguments, but I would like the Minister to consider again this question of legally compelling an agency to disclose information given to them in strict confidence. It is not fair to put an agency in a position where they risk quite heavy penalties under this Bill if they do not disclose information, if it is required under section 8 or section 9 by the authorised officer of the Minister or by Ministerial regulation. I should like the Minister to have another look at that.
One of the occasions when an authorised officer may inspect such books is stated to be where an application under section 3 of the Bill has been made. Surely when a person carrying on the business of an employment agency applies to the Minister for a licence he cannot reasonably object to an authorised officer having a look at the books to see if it is a bona fide agency? This does not suggest that there is anything wrong with the agency. It is merely to enable the Minister to ascertain if it is a genuine agency and one which should be licensed.
That is only paragraph (a) but there are also paragraphs (b) and (c).
An Leas-Chathaoirleach
I would direct Senators' attention to the fact that we are supposed to be discussing an amendment at this particular stage and I think the discussion is wandering on to the section and to parts of the section other than the lines it is proposed to amend.
I am quite happy to accept the Chair's ruling. Senator Ryan was referring to paragraph (a) but I am referring to paragraph (b) which is the subject of the amendment.
An Leas-Chathaoirleach
The Chair is urging Senators to discuss the amendment.
If I may say a last word on this, I would try to impress on the Senators who have any fears about this section or about unnecessary intrusion by the authorised officer, that we have tried to write a protection into the Bill. I think this goes a good way. Senator O'Higgins, or anybody who has experience in the law courts, must know that an officer who would have to show he had reasonable grounds for suspecting that an agency was not being run properly before he could take records, would be very slow to take records in any other circumstances. This is a very good legal safeguard. The wording there is "as required to be kept under this Act". No doubt there would be many other confidential records which would not be required to be kept. The Bill does not propose the perusal of these.
I have no objection to the amendment, but not on the basis, with respect, that it is a safeguard. It seems to me that what the amendment does is to limit the right as regards taking copies of entries to cases where there is suspicion. I have no objection to that but I do not think that it constitutes any great safeguard.
Amendment agreed to.
Question proposed: "That section 9, as amended, stand part of the Bill."
It might now be relevant to reply to Senator Ryan. Section 9 (3) (a) deals with the power of an authorised officer to enter and inspect premises. It is limited to the entry and inspection of premises in respect of which an application is made. Paragraph (a) does not deal with the question of records, books or information at all.
Paragraph (c) also applies.
Senator Ryan made the point that it was reasonable in the case where an application was made under section 3 of the Bill that the power of inspection should exist. The point I am making is that that power of inspection is limited to the premises and presumably it is proper to check on the suitability of premises. The other matters in relation to the inspection of books, taking copies of entries in the books, and in relation to the giving of information are contained in paragraphs (b) and (c). There is no safeguard against the disclosing of information without the permission of the person who gave that information.
It cannot be regarded as an essential feature of the working of this Bill that the Minister's officers should have the right to demand information which was given in confidence. I agree with an earlier point made by Senator Ryan that if they get information it should be treated by them in confidence.
I do not see how Senator O'Higgins can possibly object to subsection (3) (c).
I have no objection to that.
Although it may not specifically say so, I think, as 3 (a) or 3 (c) cover the situation of a person applying for a licence, that the inspection of books under 3 (b) must also cover that situation as well as a situation where an official is inspecting an existing employment agency because he feels it is in need of inspection for some reason.
This proves my point that I was really relevant when I raised this on section 8 and not section 9.
I should like to make a number of factual points which seem to me to arise from the powers of inspection and the work of these authorised officers which, it seems to me, will be extremely important. Apart from the matter to which Senator O'Higgins has referred — the possibility of confidential information being seen — it also seems that the amendment which we have accepted also raises another possible area of delicacy because it introduces this concept of an inspector having reasonable grounds for believing that this Bill has been or is being contravened.
I have had some experience in this type of field and one possible source of information or complaint regarding the working of an agency is not only the clients of that agency but possibly junior staff in the agency. For example, an immature young typist who came into an office and saw some of the records might easily get misled about the work of an agency and the activities of the proprietor.
If I could give an example of what I mean, it is quite likely that the format used for interviewing will be a form which can be placed on a desk so that the person interviewing can read everything off the form while interviewing the person. It is quite possible that the comments of the placement person or interviewer, whoever it may be, in the employment agency, may be written on the face of the form in a special section just below the data on the person concerned. In an agency where large numbers of people may be interviewed during the day it is important that the interviewer should have some little word-picture so that when he looks at the form again he will recognise the particular case, remember the particular person. This may lead, for example, to the appearance on forms of such comments as "This man is swarthy looking" or "This girl is a sexy looking girl"— something of this kind.
There have been cases of this in Britain where typists working in employment agency offices have seen forms, have drawn completely the wrong conclusions because of seeing this type of material on a form, and in some cases serious difficulties have arisen for the people who conducted the placement interviews because of the complaints made. I am making this point as an example of the delicacies involved, many of them unexpected by people who do not fully understand the background of interviewing or who have no experience of placement work, and the sort of notes made on forms such as I referred to.
Whilst I accept that the powers are important I think that, when it comes to the actual administration of this section and section 8, the training and role of the authorised officers will be extremely important. It is also important that whatever regulations may be made for prescribing the form of records and the entries to be made in them will take account of the actual physical business of an agency keeping its records, how forms are most handily laid out, how comment should be separated from factual information and so on. I thought these practical points might be worth making.
In regard to this whole question of inspection and entering premises, the authorised officer will be, I hope, the proper type of person, the type of person who will be committed to treating as confidential anything they may find. They will not normally be seeking information regarding individuals who have been interviewed in the office. They will be concerned with the lay-out of the premises, to see that they are up to the standards required regarding ventilation, heating and space and that the work of the agency generally is conducted in a manner that would comply with the general requirements of the Bill as enacted? It would not normally be part of their duty to inquire about individuals or the curriculum vitae of an individual. The manager of a good employment agency would not have the confidential records of a private individual thrown on the desk for anybody to read. Our officers would only be concerned to see that they keep the required records.
Question put and agreed to.
SECTION 10.
Government amendment No. 6:
In subsection (2), page 5, line 25, after "any" to insert "wilful".
This amendment actually arises out of a suggestion made by Senator O'Higgins on the Second Reading of the Bill when he suggested that the subsection was drawn in rather wide terms and could have the effect of rendering a secretary or another officer of a firm guilty of an offence although he had not knowingly contravened the Bill. We saw some validity in this argument and, in order to obviate any doubt or any likelihood of that happening, the amendment by inserting the word "wilful" as suggested by Senator O'Higgins, is proposed.
I am greateful to the Minister.
Amendment agreed to.
Section 10, as amended, agreed to.
Sections 11 to 15, inclusive, agreed to.
Title agreed to.
Bill reported with amendments.
Next Stage?
I have undertaken to look at a few matters in the Bill and have the draftman's advice as to whether certain sections may be technically improved. I should like at least three weeks.
Not less than three weeks.
Next sitting day or three weeks, whichever gives most time.
Acting Chairman
When is it proposed to meet again?
I think it is quite possible that the Seanad will not sit again until this day four weeks.
Report Stage ordered for next sitting day.
The Seanad adjourned at 9.30 p.m.sine die.