National Minimum Wage Bill, 2000: Committee Stage (Resumed).
Debate resumed on amendment No. 40:
In page 13, subsection (1), line 30, before "hourly" to insert "average".
-(Minister of State at the Department of
Enterprise, Trade and Employment.)
The main point is probably encapsulated in amendment No. 41a. Apart from being constructed in an attempt to get around the prohibition of it not being permissible for Opposition to table an amendment that would constitute a charge on the Exchequer, the purpose the amendment is to deal with the issue of the Schedule, which seeks to set down what may and may not be taken into account by an employer in calculating the minimum hourly rate. As I understand it, the amendment, to which Deputy Owen and Deputy Stanton have also subscribed, would have the effect of removing service pay, shift premium, unsociable hours premium, piece work and incentive rates, commission, bonuses and allowances for special or additional duties, as well as tips and gratuities paid in a certain fashion, service charge and holiday premium and transferring them into Part 2 of the Schedule, the non-reckonable components. I understand the Tánaiste has since tabled a new amendment in which she agrees with part of the Opposition case, thereby transferring into the second part of the Schedule service pay, unsociable hours premium, tips or gratuities administered through the pool, public holiday and week-end premiums, which would no longer be reckonable for the purposes of calculating the minimum hours. Deputies Higgins, Owen and Stanton will speak for themselves. We want to concentrate on two major problems arising from that, shift premiums and service charges.
In regard to the original amendment No. 40, I would like to hear the Minister's response on the purpose of the insertion of the word "average". Why change "hourly rate" to "average hourly rate"? What are the implications for section 19 and the amendments we are discussing.
From my point of view and that of colleagues in the trade union movement with whom I have spoken, to seek to exclude shift premium from the calculation could cause serious problems in certain cases. For example, in the discussions so far we have identified certain elements of the rag trade, especially outside Dublin, as areas where this legislation may have some impact. There is a formula for shift working in the rag trade which can go as high as 33% for continuous cycle shift working. To seek to include the shift premium in the manner of reckonability makes a nonsense of the notion of a national minimum wage because, by my calculations, one could earn as little as £3 per hour, and yet the employer would comply with this Bill by including the premium payment as well as a couple of other items. How does the Minister justify the transfer of the unsocial hours premium to the non-reckonable category and not the transfer of shift premium? Shift premium is a synonym for unsocial hours working. If a factory ticks over during the night and a person works two or three shifts, that constitutes unsocial hours working and the premium is a compensation for such work. It is not the basic rate. While the Minister has come some of the way, we are still schizophrenic about the Bill in that we do not know whether we are talking about a national basic minimum wage or a hybrid of national minimum earnings. To leave "shift premium" in Part 1 of the Schedule would impact adversely on the category of workers that are in most need and would undermine the principle of a national minimum wage if allowed stand.
I have difficulty understanding No. 9 of Part 1 of the Schedule, the service charge, in terms of the logic of the paragraphs now transferred to the non-reckonable category. I presume we will hear argument from the Minister on that, but it seems unfair to the workers concerned. However, I emphasise that I am most concerned about the shift premium because it would mean the Bill would have minimal impact for many workers.
I am pleased the Minister has delivered on her commitment to insert some of the reckonable elements in the non-reckonable area. I have difficulty understanding why there is a reckonable list and a non-reckonable list. People's understanding of the concept of a minimum wage is that there will be a minimum wage and any payment over that for other types of work will be extra. I realise the commission set up to examine the introduction of a national minimum wage commented on the inclusion of some areas as reckonable items. It is a long way from people's understanding of a minimum wage if an employer can include all the remaining reckonable items to calculate the minimum wage. It is a sleight of hand. I am not saying employers will do this illegally, but the mindset may be to calculate all the extras to end up with not a minimum wage but a pay level that has been arrived at by calculating all those extras. ICTU would argue that shift premium should not have been included in the reckonable elements. I do not believe anybody argued that tips or gratuities should be included in the reckonable category and that is welcome.
The unwieldy procedure of tabling an amendment to allow the Minister to come to her senses, as Deputy Stanton and I have done in amendment No. 78a and Deputy Rabbitte has done in amendment No. 41a,, to which we put our names, is a Mickey Mouse way of going about it. We had to state that the list in the Schedule had nothing to do with the public service, it covered only the private sector. That is not what I wished to do. Legislation should not separate the private and public sectors, but we were forced into it because of the way in which the rules on imposing costs on the State operate. To build in this kind of inadequacy is not a good way to go about writing legislation.
In regard to the service charge, No. 9 on the reckonable components list, has the Minister husbanded any better arguments than she put forward at the last meeting for leaving it in that list? I have done some work on this since that meeting. It is not for me in Opposition to put forward arguments as to why it should be included, but strong arguments have been made to the Minister's Department that it is logical to include the charge in that list. However, I have yet to hear that logical case. Will the Minister describe the service charge and the way it will be spread among staff? For example, if employees get a share of the service charge do they pay tax on it, is it calculated from the percentages of PRSI and so on and does it form part of their basic salaries?
Can the Tánaiste tell me if people who are now getting the service charge as part of their wages are above or below the minimum wage before the service charge is distributed among staff and will this inclusion make any difference? These are the answers we need if we are to understand the raison d’être of leaving this paragraph in. At first glance, removing paragraph 8, which refers to tips and gratuities, seems illogical if paragraph 9 is to remain. I believe the Minister may have some explanation of why this is being done but on the face of it, it seems illogical. Perhaps the Minister can give us her reasons. The Minister of State, Deputy Kitt, seemed to be very wedded to the retention of the service charge. I have been given some examples of how the service charge could be beneficial to people but I would like to hear the Minister’s reason for leaving it in.
The provisions regarding what an employer may include as part of the legal minimum wage are dismaying, from the point of view of low paid workers. We are talking about the most vulnerable sector of the workforce, the lowest paid, people who survive on poverty wages and for whom every few pounds which can be added on to the basic salary makes a difference.
It is incredible that the Government would seek to include in the reckonable component anything other than the basic wage or salary. When the concept of a national minimum wage was first mooted every working person understood that it would relate to the basic salary or wage. People see that as the foundation on which their income is based and everything else that follows is an extra that is put there for very important reasons relating to the conditions of employment and the difficulties of the workers concerned.
In the Government's proposal there is a major contradiction. Under pressure, the Minister has withdrawn, for example, unsocial hours premia from the calculation of the mimimum wage but retains shift allowances. Shift allowances are intended to be a form of compensation to workers for the difficulties involved in shift work which in many cases, particularly on the three cycle shift, is very detrimental even to the health of workers. Studies have shown that the human metabolism is conditioned over millions of years to rest during the hours of darkness and to work and be active during the hours of daylight. Therefore, when workers have to go against the natural human body clock it is damaging to their health. That is one of the reasons extra payments are given for shift work. Shift work also means the dislocation of social and family life. In the modern Ireland of the so called Celtic tiger the pressure on families where both spouses, whether parents or not, are working is immense. Spouses complain that they rarely see each other. This is why shift premia were forced into being by workers seeking monetary compensation for that situation.
The Government has included those premia in what an employer may calculate as the minimum wage. To say that this is mean minded would be very lenient on the Government. As Deputy Rabbitte has said, an employer could pay a basic wage of £3.30 and a shift premium of £1.10 and meet the conditions of the national minimum wage legislation. That is quite shameful. I ask the Minister to explain the logic of withdrawing the service pay, unsocial hours premium, public holiday premium, and Saturday and Sunday premium while retaining the shift premia. That is not logical. All these payments are intended to compensate workers for conditions of employment and for difficulties incurred as a result of unsocial hours, working weekends or working around the clock. We would like to hear arguments from the Deputy Prime Minister, the Tánaiste.
I find the fact that the Government is taking a hard line on the service charge issue quite incredible. I would have thought that, having heard the discussion on this question, the Government would have changed its position on it. The Government was forced by pressure from the Opposition to withdraw "tips and gratuities to be paid into a central fund managed by the employer and paid through the payroll" from the reckonable components of the minimum wage. To withdraw those payments while leaving in "the amount of any service charge distributed to the employee through the payroll" is window dressing. The Government is pretending to give way in relation, for example, to the low paid section of the workforce who are waiters and waitresses in restaurants. This sleight of hand by the Government will mean precisely nothing. Any employer who allowed tips or gratuities to be thrown on the table at the wishes of the customer may now change to the service charge system which may then be included as part of the minimum wage. The restaurant trade, one of the main areas where this measure will apply, is made up of part-time workers many of whom are women who are trying to augment an already meagre household income. For them, this is one of the unkindest cuts of all. We should hear a reasoned argument from the Minister why she feels the Government must treat low paid workers, part-time workers and women workers in this way.
Sections of the employers have been quite vocal and the Minister and the Government seem to be listening to them as opposed to people who do not have a strong voice. In other words, the people we are trying to represent. The businesses which will implement this service charge proposal include the Doyle Hotel Group which made a retained profit of £14.1 million last year or almost £8,000 profit per employee. Granting an extra £1,000 or £2,000 to each of its 1,796 employees might reduce its profit to £10 million, which in anybody's reckoning is still a substantial sum. What the Government is doing in this arrangement in terms of what employers may include in the reckonable pay component hugely favours employers such as the Doyle Hotel Group to the detriment of their low-paid workers. This is inexcusable.
While I oppose the section completely - in other words, only basic salary should be included - I will be very happy to support amendment No. 41a which would have the same effect. Having listened to the debate the Government should admit that it has made a miscalculation and state that it will come down on the side of those employed in the hotel and catering trades, as well as low-paid factory workers who find themselves in a vulnerable position in terms of their conditions of employment, by shifting everything with the exception of basic pay and, possibly, board and lodgings from the calculation.
This discussion must come as a disappointment to low-paid workers on the bottom rung of the ladder whom we are hoping to protect by introducing a minimum wage. To put it bluntly, the Minister is nitpicking. There are two elements involved - shift work premium and service charges, which were generally regarded as tips.
Five to ten years ago the normal working week was 9 a.m. to 5 p.m. Monday to Friday. One was lucky to be given the opportunity to work overtime. The position has changed dramatically. Within a stone's throw of where we are sitting hundreds, if not thousands, of young people are employed by multinational computer companies. They have been prepared to adapt to meet the needs of these companies which operate 24 hours a day, 364 days of the year, in two 12 hour shifts - 7 a.m. to 7 p.m. and 7 p.m. to 7 a.m. That is a difficult time schedule, a matter to which Deputy Higgins referred. Staff are required to work overtime, flextime, Sundays and bank holidays and they should be rewarded and encouraged, not penalised, for adapting to meet this schedule. They often miss out on sporting and other activities in order to be available to their employer. This is rewarding for the companies concerned, not so for employees whose wages are not huge but at least it is a job.
Those who work in bars and restaurants such as barmaids and the little girls and boys who provide a waiter service on minimal wages are dependent on tips left by generous patrons. It has been brought to my attention, however, that instead of the little girl or boy who is generally pleasant and courteous receiving £1 or £2 or whatever one believes is appropriate in the circumstances, in some establishments there is basket beside the counter, the contents of which are divided by the employer and included in the wages of staff. They have to be accounted for and taxed. It is time a more generous approach was adopted. The business, which has taken off in a big way, is thriving which is great to see. It should be remembered, however, that if the young people concerned were unavailable the experience would not be as enjoyable for patrons.
The nitpicking and nonsense should stop. Those at the top of the ladder are on £100,000 a year and can avail of all sorts of tax breaks and benefits. Can we not encourage those who are trying to get off the ground and have savings accounts with the credit unions to build a future for themselves and make provision for their parents? Are they not entitled to a little whiff of the Celtic tiger about which we all talk so much? Employees are entitled to whatever perks are available over and above the proposed minimum wage of £4.40 per hour.
I am pleased to advise the committee that I have received confirmation from the General Office regarding parliamentary questions tomorrow. Questions in the name of Deputy Owen are now in the name of Deputy Stanton. Questions in the name of Deputy Upton are now in the name of Deputy Rabbitte.
Does that include priority questions?
There are approximately 14 amendments. Each speaker so far has concentrated on the reckonable components. There are other matters however which need to be teased out.
As the Deputy is aware, in ensuring we adhere to the proper procedure, I try to be as fair as possible. The normal procedure is to group amendments for discussion. I appreciate what the Deputy said in relation to amendment No. 41a——
I am not asking you to depart from normal procedure. I am just drawingyour attention to the fact that aspects of the amendments being discussed have not been addressed.
What we should be doing is discussing groups of amendments together and asking the Tánaiste to respond.
It would probably be more practical to deal with them individually.
I appreciate what is being said. For the benefit of the committee I have received the following communication which may indicate the reason I want to stick to the appropriate procedure:
Re National Minimum Wage Bill, 2000
As you know, the Government has given a commitment to have the above Bill enacted by 1 April next. With this in mind it is imperative that the Bill proceeds through Committee Stage with minimum delay.
It is essential that Report and Final Stages are taken in the Dáil on 28 March, which is in fact one week later than was hoped, leaving the way clear for the Seanad to take Second Stage on 29 March, and Committee, Report and Final Stages on 30 March in order to ensure our commitments to both Employers and Employees alike are met.
I require that the Enterprise and Small Business Committee completes its deliberations by 23 March 2000 at the latest. Please confirm as a matter of urgency that you have opposition agreement to this schedule.
Seamus Brennan T.D.
Government Chief Whip and
Minister of State to the Taoiseach
We need to bring in that nanny straightaway.
You should not have read that letter, Chairman; it was not helpful.
I think I might have got myself into trouble afterwards.
The Government Whip cannot dictate from his office how the committee should do its business. It seems to me that everything is under control, but the Government Whip deciding to treat us as a rubber stamp for an agreement between the social partners is not calculated to get the Opposition enthusiastic about meeting his deadlines. I find it interesting. It is the first time I have heard a Minister concede that we can conclude the Bill. God help the poor Seanad. Whatever say we may have, they are not certainly regarded as major players in the drama. However, it would appear that it is possible to conclude a Bill on 30 March and it is law from 1 April.
I presume you have the President's appointment book, Chairman, you know exactly when she is available to sign it and you automatically assume that she will not send it to the courts. Is that the case?
As I say, I am not charged with any responsibility of that nature other than to chair the committee. Having received this communication, I thought it was important to relay it to my colleagues on the committee. Otherwise should it appear at a later stage, no doubt I would be criticised for not relaying the content of the communication.
I have never come across such a letter. I have heard Ministers plead that their Bills would be completed, but it is way outside the normal procedure for the Government Whip to write to the committee. How the Minister implements the legislation is not his business. It is his job to get business through the Dáil but, once it comes before the committee, it becomes the property of the committee. If the Government wants to guillotine the Bill, it must bring in its huge number of members, who are here every day dealing with the Bill, to vote it through - I acknowledge that Deputy Lenihan is present - and that is a tactic which is sometimes used.
Arising out of that letter, it would be important to ask the Minister a straight question. On the matter of avoiding the impression that this will be rubber stamped by the Seanad, supposing the Seanad comes up with a clever amendment and the Minister accepts that it is a good amendment, she is completely tying her hands from the democratic process of sending the Bill back to the Dáil with an amendment from the Seanad. If I was a Senator, I would be extremely angry with that power being taken away but I am sure they themselves will make that argument.
I want to know the Minister's legal advice regarding implementing this legislation on the basis that it will come into effect on 1 April, perhaps containing an amendment which states that no prosecution will be taken against any employer until 1 May, by which time all the procedures for paying the minimum wage should be in place back dated to 1 April. That would give us a little breathing space. It would mean that employees on low wages would still receive the minimum wage from 1 April, but at least it would recognise that there are certain procedures to be gone through.
I have not seen the regulations about training and do not know what they contain. I do not know how an employer will know what is a prescribed training course. If the legislation is signed on 31 March, how will they know about it on 1 April. The Minister can only make the regulations the following day, which will be the actual day of implementation, and the employers will be obliged to pay the full minimum wage even if they think they have employees on the 75%, 80% or 90% rates. The employers may have an idea of the regulations from a draft copy, but the Minister will have a very busy weekend signing all these regulations and circulating them to the employers. I am sure the Minister has taken advice, which is important to the committee's proceedings. Has she taken advice on whether she can introduce an amendment to the Bill which states that the minimum wage shall apply from 1 April but the sections dealing with offences under the Bill would not come into play until 1 May, by which time she would have given people the time to put the procedure in place and pay the back money? The employers are ready to pay from 1 April, but they may not have the mechanisms in place.
As I indicated, I want to ensure that the Minister will be able to reply comprehensively to the group of amendments; therefore, I will take contributions from members who want to discuss related amendments.
I wonder how meaningful that contribution is. Does "comprehensively" mean "terminally" because this encompasses a great deal? For example, we would not have agreed to sit tomorrow if our purpose was to filibuster, but there are matters which must be teased out. I do not think the Minister can reply comprehensively. We have not dealt comprehensively with some of the matters encompassed here.
Levity apart, it is not just that the communication from the Government Whip is not helpful here but that it is a dangerous precedent. There have been a number of controversial issues in this Dáil where the Taoiseach has told the Opposition Leaders in the Dáil that it is not a matter for him what happens at a committee or how a committee arranges its business. There are precedents for Ministers writing to the Government Whip and contacting Opposition spokespersons stating that the following imperative is on him or her to do this, that or whatever. However, if the Government Whip is going to say that you are either going to fall into line on this or something else, it makes a farce of the scrutiny of legislation on Committee Stage and raises certain questions. I was in favour of social partnership before I came into the House and remain in favour of it, but because the social partners have entered into an agreement of a kind, although one does not hear them say that it includes this and they do not boast about it anyway, that does not mean the Parliament may only rubber stamp it.
It is not a matter for us to raise the issue of the Seanad here, but it is extraordinary that the Seanad is being made an offer it cannot refuse. On 29 March the Seanad must deal with Second Stage and on 30 March it must deal with Committee and Final Stages. The Seanad is being told that it may not make any amendments to the Bill, which then must be signed by the President.
We want to see the Bill passed but it ought to be recorded that if the committee were to permit the Government Whip to tell us how we do our business, that would apply to every other committee of the House.
I presume the Government Whip is relaying the Government decision.
The Minister could do that.
I am dismayed by the letter from Deputy Brennan. The committee is paying the price for the late introduction of the legislation by the Government. The Bill should have been in the hands of the committee months ago. It was not an excuse that there were talks on so-called partnership. If there was genuine partnership, there would be no need for a minimum wage Bill because there would be decent wages for all workers anyway. We do not have partnership; it is a con. However, that is another discussion.
The only thing that was being discussed between the Government and the so-called social partners was the level of the minimum wage and the Government should have introduced the legislation months earlier so that the committee could have had time to go through all these matters, such as service pay, etc.
We find ourselves treated with contempt. The Government Whip is saying, if I get the dates correctly, that Report Stage will take place on Tuesday next from 4.15 p.m. until 7 p.m. In fact, it will not be taken at 4.15 p.m. because the Order of Business will be at 4.15 p.m. and, therefore, it will be taken from 4.45 p.m. to 7 p.m. As a result, Report Stage must be completed in a little over two hours.
There are many issues arising from Committee Stage which still need to be debated on Report Stage. This even treats with contempt the majority of Fianna Fáil members of the committee who, because of other commitments, have not been able to attend the committee meeting but, having heard from the low paid workers, waiters and waitresses, shift workers, etc., among their constituents, may want to table a raft of amendments on Report Stage to improve the Bill. They are to be told that the Bill will be guillotined after two hours. Frankly that is to treat the elected Members of Dáil Éireann with contempt.
We do not have a raft of amendments and I have not seen any Members, including those of Deputy Higgins's party, wielding placards on this issue. It seems to be overstating the level of opposition——
My understanding is that when a Bill is passed in the Seanad a message is sent to the Dáil. If the Seanad finishes on Friday, 31 March, the next day the Dáil will sit will be 4 April when I assume the Ceann Comhairle will read a message from the Seanad saying the Bill was passed by that House. How can the Bill be signed before the procedures of the House have been completed?
It is probably a matter for the Government Whip to ensure it goes through the appropriate——
It will be Friday, 31 March, before a message is sent from the Seanad. Maybe there is another way around it——
Regarding the grouping of amendments I have been asked that we break with precedent and allow the Tánaiste and Minister to Enterprise, Trade and Employment to speak on the important issue on which a number of Members spoke.
I am as anxious as others to progress business, but on what basis are we breaking with precedent? I regard it somewhat as a side issue given that we have amendments to deal with.
We are taking a large group of amendments together and there is agreement around the table that it is best to proceed in this fashion, if the Tánaiste and Minister for Enterprise, Trade and Employment agrees.
First, I wish to deal with the procedural issues. Naturally I have given some considerable thought to the issues which arise in relation to the implementation of the legislation and the introduction of the national minimum wage. My intention is to seek Government approval next week for an earlier signature motion by the President. As Members are aware, the President is expected to sign legislation five to seven days after the Oireachtas has passed it. To move earlier than that requires an earlier signature motion to be passed by the Government and communicated to the President, and it is my intention to do this next Tuesday at the Government meeting.
We have spent ten hours on Committee Stage and are on section 19, which is not even half way through the Bill. However, I accept we have reached the core issues in the Bill. The Finance Bill, much more complex legislation, was dealt with over 11 hours on Committee Stage, the average time spent on Finance Bills over the past number of years. We have devoted a considerable length of time to a Bill which is by no means complex. In the main it is an enabling Bill and does not have the complexity of a Finance Bill.
It is true that we could have published the Bill before Christmas when it was finalised by the Cabinet, but I had discussions at that time with ICTU. I told them of the Government view in relation to the hourly rate and we had some discussions on it. If I recall correctly, Deputy Rabbitte made a statement on those matters at that time. Because the matter was going to be raised in the partnership talks, something which was made clear, it would not have been helpful to have proceeded with the legislation while the talks on a new agreement were ongoing as the rate is central to the issue. It would not have been fair to the social partners who wanted the opportunity of seeking——
The rate is not in the Bill but it is central to the legislation. I do not think I could have progressed the Bill through the House or the committee making reference to the principle while not referring to a rate. I asked the Government Chief Whip to facilitate the Government's wish and the agreement reached with the social partners and to have the provisions of the Bill introduced on 1 April. The advice of the Attorney General was sought in relation to retrospectively introducing the minimum wage, but that is not legally possible and cannot be done. We cannot retrospectively impose a financial liability and, as Deputy Owen has acknowledged, one cannot retrospectively make somebody a criminal as a result of not doing something. Therefore, there are a number of legal issues which rule out the possibility of passing the legislation subsequent to 1 April and back dating its introduction to that date.
Regarding the issues raised today, this is not providing for a basic income, which is a very different concept to a national hourly wage. The Bill does not say a person must earn so much per week, per month or per year. It says that over a reference period the average hourly rate of pay must be £4.40 from 1 April. This is all that is being provided for in the Bill. The social partners have recommended subsequent increases in the rate for next year and the following year, something on which I have previously expressed my views.
Discussing what is reckonable can lead one to asking why certain things are not reckonable. Initially we established a commission to examine the issue of a minimum wage because, while the principle seemed good, there were issues as to how and when it could be introduced, etc. The commission had three employer representatives, including a person from the Doyle-Jury Group, to which Deputy Higgins referred. The commission recommended that we provide for a national hourly minimum wage and I was very happy to accept its recommendations. Many details had then to be worked out regarding how this could be done. The report of the commission says:
The legislation to introduce a national hourly minimum wage should take account of pay and other forms of remuneration on the lines of the practice of the joint labour committees. Where no definitions exist under the joint labour committees, secondary legislation for particular sectors may be required. It is recommended that the definitions adopted for particular sectors be sufficiently flexible to accommodate current pay arrangements.
To a large extent we are seeking to take on board in a balanced and fair way current pay arrangements.
The issue of tips has arisen. It was never the attention that a tip would be calculated as part of the £4.40. It was the case in the Bill as presented that where tips went into a central payroll pool and were divided they would——
No, not the basket. It was proposed to include tips which went into the central payroll pool, for example, tips paid by credit card which went into the till and were divided among employees. On reflection and having heard a number of the comments made by Deputies I did not think it was tenable and that on reflection it was mean minded or mean spirited. The way in which companies or restaurants treat tips varies from place to place. Some people give a higher proportion to staff who are out front and a proportion to behind the house staff. To a large extent one tips the person one sees, but their performance is often related to how fast the chef or their assistant can get food to the waiter. It is only right that behind the scenes staff should get a portion of tips, and I understand this is fairly normal practice. Where it does not exist as a formalised practice I think most waiters or waitresses, if they are decent and sensible, will give a proportion of their tips to the behind the scenes people.
Many years ago I worked in this area in the US and I earned substantially more by way of tips then from my pay packet. I was happy to depend more on tips and worked for that reason. That was the practice in the US in the early 1970s, and I think it is still the practice. There may be mean employers who keep tips for themselves but, in general, I think they are divided among staff. Tips left on the table or given to staff in a basket are handed over voluntarily. It at the discretion of the client or customer to give what he or she believes is reasonable or they can afford. A service charge on the other hand is not discretionary and is part of the operating income of many restaurants. The higher the standard of service, the greater the number of employees. One is served immediately upon entering certain establishments and the speed with which this is done on occasion is such that sometimes one would prefer if there were fewer people. The service can be quite poor in other restaurants because there are not enough workers. To a large extent the service charge is related to the level of service or the number of workers. If that were removed from reckonable earnings, fewer people would work because if it is part of operating income people will try to maintain this income by reducing service and employment and I do not want to see that.
I refer to the distinction between shift premium and unsociable hours. Unsociable hours are time related and generally apply to hours of work which are not generally agreed to under contracts of employment. These hours are worked on an irregular basis. One is asked to work in the evenings occasionally, etc., and that is not part of one's regular work arrangements. On the other hand, shift work is included in a worker's contract. Everybody assumes that it always involves night work and unsociable hours but on many occasions day work is included. It is the ideal form of work for many people because working couples with young children, for example, can combine their work arrangements to suit their domestic arrangements. Many married women seek this form of work. Employment on this basis forms part of workers' contracts and it is reasonable, therefore, that shift premia should be reckonable. Working unsociable hours is not part and parcel of one's normal working pattern and it is reasonable that one should be paid extra and that it should be calculated as part of the average hourly rate of pay.
We are also excluding public holiday and Sunday premia and service pay whereby an individual's hourly rate is increased on the basis of service. It is not reasonable to include that on reflection. I discussed some of these issues with my officials shortly after the publication of the legislation and we came to a number of conclusions. However, because I believe in meaningful parliamentary debate as opposed to the House rubber stamping legislation, in the context of social partnership, which I favour, there is a democratic deficit. While the initial national agreement was a pay agreement, such agreements have broadened to include social and economic policy. There are huge issues for those who are elected through the democratic process to address about our role in this regard.
A Government negotiates a deal and its successor honours it. That has been the pattern and it is right that that should be the case. I do not have any magic answers to the problems which arise but I understand the concern of Members and why they do not want to merely rubber stamp an agreement reached with the social partners. I also do not wish to do so but because of current pay and practises in the economy, to which the commission referred in its report, it was reasonable that many of these issues were discussed and negotiated by the social partners. They did not agree on everything and I sought a balance throughout the debate. Both employers and employees do not like many aspects of the legislation. It favours the low paid and those who are likely to be exploited in the economy and that is right. It is not a panacea for all our problems. We would like everybody to earn more. Ireland is becoming a high income economy but we must ensure that it develops in a competitive manner because the greatest form of exploitation is not having a job or a wage. Most people share that view.
Does the committee wish to return to the core of the legislation, excluding amendments Nos. 40 and 41 and the other amendments, or to concentrate on this issue which the Tánaiste has addressed?
It is hard to separate them. The point I was making to your predecessor, Sir, was that he seemed to invite the Tánaiste to make a final reply. Life is not as easy as the Chairman sometimes thinks. The Tánaiste stated that the Bill is not about basic income. She is right if it is not about basic income á la Fr. Seán Healy but she is not right if she means that it is not about providing people with a decent basic income. That is the thrust of the legislation. I remind the Tánaiste that before she tabled amendments, the legislation was entitled the National Minimum Wage Bill, although in her contribution she described the Bill as being about the introduction of a national average hourly rate, which was more than subtle but nevertheless important.
It is about average earnings as opposed to pay.
They are two different things. Trade unions, such as Mandate, the man or woman on the street and young people who are interested thought they were getting a national minimum basic wage. I do not object to the mechanism which calculates an hourly rate by reference to a given period, but "average" is a different concept altogether. I refer the Tánaiste to amendment No. 79. For example, why does she want do delete "minimum" and substitute "average"? The original Schedule covered reckonable and non-reckonable pay components in calculating a minimum hourly rate of pay. No Opposition Member objects to that. We accept that a national minimum wage must be calculated on an hourly basis and so on. However, the Tánaiste is seeking to calculate the average hourly rate. Will she relate that to Part 1.6 of the Schedule which refers to allowances for special or additional duties, including those of a post of responsibility? How is it fair to allow an employer to take such a post into account? If one is a bright kid working in McDonalds and is promoted to supervisor, how is it fair that McDonalds will be allowed to take that stipend into account in terms of calculating the minimum hourly rate of pay? A post of responsibility is an addition to the basic work of handing out burgers and chips or whatever. A gaffer does a different job, and I am sure when the Minister got those tips in the United States her potential to be a gaffer some day was recognised. If she had stayed in the United States she would have been offered that promotion very quickly, but I am sure she would not have regarded it as being part of the minimum hourly rate for the job. I can see the Minister is persuaded by my argument so I ask her and her diligent officials to come back to us on this issue because we do not have much time to make those changes if we are to comply with the dictates of the devotional Government Chief Whip.
To be helpful, and people are trying to be helpful, I agree with the Deputy.
I have always regarded the Minister as a rational person.
It might have passed over Deputy Lenihan's head, but it is important.
He never got to be a gaffer.
Nor does Deputy Lenihan necessarily have any great empathy with people on minimum pay, but c’est la vie. The Minister is a rational politician and I accept and welcome that point.
Going back to the substantive point on the shift premium, I cannot agree with the improvisation of definition that has emerged. The Minister said unsocial hours are not part of a person's contract of employment but are "add ons". It is fair that a person should get something extra if asked to work unsocial hours whereas shift work is part of the contract of employment and does not necessarily imply working in the dark, as Deputy Higgins said. I do not agree with that definition. For example, if one talks to MANDATE about thousands of their workers, in today's more flexible environment as part of their contract, written or unwritten, they are expected to work some unsocial hours. The Department officials and the Minister will know that MANDATE in particular made a major issue of paragraph 4, the unsocial hours premium, because it affects so many of their workers who are expected to do that kind of work. When employment levels were not as high, employees got short-change from Dunnes Stores when they refused to work unsocial hours. They were expected to be at the end of a telephone, before mobile phones became the plaything of everybody, and if they did not turn in, they got the chop. I will not personalise the issue but, thankfully, times have changed. That is the reason MANDATE made a particular issue of this aspect.
The Minister is right when she said shift work can be part of the employment contract but if a bus driver works the 7 a.m. to 2 p.m. shift, that does not mean he or she will work that shift forever. He or she could end up working the 4 p.m. to midnight shift and so on. It is distinctly an additional payment for signing on for that cycle of shift work and is not part of the basic pay. I do not want to go on too long and I thank the Minister for taking on board the thrust of what is an important point in respect of six, average, etc. The shift premium remains a major bone of contention between us and we want to make haste on it.
How does service charge differ from tips and gratuities paid through the pool? The Minister is right that this is a device, as it relates to paragraph 8, whereby back staff and front of house staff were getting a bad deal. One would be almost knocked down with the service one gets from the head porter or head waiter in some hotels but the back staff, who work in less congenial surroundings, are not recognised. The idea of the pool, as I well recall from a previous existence, was to give them compensation. Both Government and Opposition are agreed on that. How does that differ from constructing a menu in such a fashion that it has a built-in service charge? The purpose is the same and, therefore, if there is a built-in service charge, and consumers fully understands that 7.5%, 10% or 12.5% is added to the bill, that connotes to them that they do not have to put their hands in their pockets, as Deputy Boylan suggested, and put a tip on the table because they are paying a service charge. I am not sure I understand the logic that suggests we should exempt the pool from the calculations but not the service charge.
I am alarmed by the Minister's statement to the effect that the purpose of the Bill is not to ensure a basic income. She then went on to make a technical pronouncement as to what the Bill represented. Everybody understood that the purpose of this legislation is to improve the conditions of low paid workers, to guarantee them a more satisfactory basic income. If there is any rowing back from that, we need to know the exact purpose of the Bill.
The position the Government is taking, and the Minister did not resolve it in her reply, is not consistent or logical. She instances the case of workers on a normal pattern of work who are required occasionally to work unsocial hours.
We agreed to deal with the shift premium issue. The Minister was called to respond to that and she has done so. Just to be clear, we are now dealing with all the other related amendments. The Minister has responded on the issue of the shift payments.
She has, but most unsatisfactorily.
The Deputy is entitled to say that, but can we move on to the related amendments?
Yes. The Minister responded unsatisfactorily and provided we get more than an hour or two to deal with this issue on Report Stage I will demonstrate to her the way employers in restaurants simply include a service charge in the bill to save them having to increase the wages of their staff from their profits. This measure is illogical.
In regard to the post of responsibility, I agree with the position as put forward by Deputy Rabbitte.
Five down and two more to go. The Minister has removed five of the reckonables. If we keep going we will get two more.
Another one is gone and perhaps by Report Stage we will have dealt with one or two others.
I want to ask about amendments Nos. 86 and 96 in this grouping. Deputy Rabbitte will forgive me because amendment No. 86 is his amendment which seeks to delete paragraph 7 and move it over to the non-reckonables; that is about the board and lodging. I am not as engaged with the removal of this one as I was about a number of the others the Minister has now agreed to remove. However, I will ask some questions, given that these amendments have been tabled. We must meet the timetable set down by the Chief Whip. I still do not know anything about a great deal of this.
The Minister and her officials might know what agreement has been reached on the value of board and lodging. As she said, part of this legislation is enabling. I hope she will be able to tell us. It strikes me that the JLC system is already in place for a number of these low paid industries. It has already put a value on board and lodgings or getting meals while at work. I have a certain sympathy towards allowing board and lodgings as reckonable components. Employees often know they are getting better value by receiving such services instead of wages because their wages might not be enough to pay for lodgings or food. However, the Minister has not given us any indication of the value.
For example, a colleague received a letter from someone who does eight to ten weeks of summer work. Her accommodation is linked to her job because she works in a hostel. The hostel owners have told her they will not pay her the minimum wage because they provide her with accommodation. Under the Bill, an employer will be able to include an element of accommodation in the calculations for the minimum wage. However, employers are frightening workers such as this woman, who does not understand how much of the value of the hostel accommodation she will be allowed or whether her employer will pull the wool over her eyes and only pay her £2 per hour because she is receiving the rest of her wages in kind, in terms of having a bed, duvet, blanket or sleeping bag in the hostel. Will the Minister give us some indication of the value that will be put on board, lodgings and food?
To clarify the point made by Deputy Rabbitte, I have huge empathy with the low paid. In fact, I called for a £5 minimum wage but the Government decided otherwise.
People are becoming rather alarmed at the use of the phrase "national average hourly rate of pay" but that is a more accurate description of what we are doing. There is no point in calling it a national minimum wage when we are talking about a national average hourly floor which people are not allowed slip below. If anything, the Minister is being punctilious in requiring accuracy in the Bill. It is hardly a major debating point. It accurately reflects the different factors that come into play, such as board and lodging and extra payments, such as overtime. It is helpful to be accurate in the legislation rather than describing something in a folksy manner as a minimum wage Bill. The concept of wages was invented 50, 80 or 100 years ago and has hardly any relationship to the modern workforce and nature of remuneration.
I want to speak on amendment No. 86.
I will return to Deputy Higgins. It might help if I clarified what Deputy Owen said about the girl working in the hostel. We will follow the employment regulation order for the hotel and catering sectors. These rates will be provided for in regulations. The rate for board and lodgings will be £6.09 per day, the rate for board only will be £3.62 per day and the rate for lodgings will be £32.47 per day.
The rate is £6.09 per day for food and lodgings.
That is £42.63 per week. The rate for board only is £3.62 per day or £25.31 per week. The rate for lodgings is——
What is the difference between board and lodgings?
——£17.32. Board means bed.
Lodging is £2.47 per day or £17.32 per week. Board is food and lodging. Board and lodgings is food and bed, board only——
Is bed. What is lodgings on its own?
The term "lodgings" implies that one lodges one's body on something.
Board is food and lodging is bed.
So board means food. There is £25.31 for food.
That is under the agreement reached on the employment regulation order for the hotel and catering sectors.
Is that what the Minister intends to introduce?
That also covers hostels.
I take a similar view on that amendment. I do not have an issue with it, once it is provided that that is prescribed.
The issue of board and lodgings is important. Many people would prefer to get board and lodgings in the hotel where they work. The Department has taken a stand in regard to permits for non-EU nationals, in that permits are not being allowed where the minimum wage is not paid. I have had a couple of cases of this. I agree with the Department's stand. However, this is a very important issue for many employees, particularly those who are not from Ireland, in the hotel and catering industry. Why has the Minister taken that stand prior to the Bill coming into operation?
In view of what landlords and speculators have done to the cost of accommodation for low paid workers, the present reckoning of the board and lodgings element could be seen as favourable to low paid workers. However, the situation where board only is provided is a different matter and can be subject to abuse. For example, I know workers in a particular hotel which I will not name. Given the figures the Minister read out, they are entitled under their agreement for board to lunch only, which amounts to £21.72 per week. They cannot depart from that. Lunch consists of a few reheated, shrivelled up sausages left over from breakfast and a few dried up chips. The workers have told me they would much prefer to bring in wholemeal brown bread and healthy accompaniments and be paid the £21 by their employer.
It is a weekly rate of £25.31.
That is for seven days but they work five and a half days. That would be £1,000 per year, which would make quite a difference to a low paid worker. That should have been left out of the reckonable components. I know it is the subject of the JLC agreements. However, in many cases they are tying the workers in where they do not want to be tied in. This is giving the employer more leverage in that regard. That should be looked at again.
I am anxious to conclude this section, which we have spent more than an hour and a half discussing.
It is very unfair to castigate all hotels and restaurants and to say they are taking advantage of staff to that extent. The Deputy referred to one hotel but I know a number of establishments which treat their staff very well. While I welcome the minimum wage, we must be extraordinarily careful in this debate to give balanced recognition to employers who provide an invaluable service and training. It is not all exploitation as some Members might think.
I thank the Deputy for his fair and balanced comment.
Yes, we will be prescribing this in the regulations but Deputy Higgins raised an interesting point. Apparently, the JLCs do not define "board". In other words, they do not specify one meal, two meals or three meals. Clearly it would vary. A lunch is reasonable for a day time worker but for an overnight person living in, it is reasonable to assume it should include all meals. We must specify that in the regulations so that it would not just be a case of one meal plus a bed and one would have to buy one's meals oneself. That would not be fair. After these regulations are made it will apply to all cases where board and lodgings form part of the calculation for the hourly rate or where board only forms part of the calculation or lodging only. The rates are reasonable in the modern context given the cost of accommodation, whatever about the cost of food where lodgings are involved.
I am not certain I understand the point made by Deputy D'Arcy but if it is what I think, I have taken a fairly liberal view of the work permit regime because the idea of asking an employer to prove that he or she cannot find anybody in Ireland, Europe or the EEA area and that he or she must show several advertisements that have been placed and so on takes forever and is unreasonable in the current context. Therefore, we have granted something like 95% of applications. The areas in which I have tended to take a conservative view are where somebody wants to bring in a person to look after children or to be a housekeeper and where they propose to pay them £50 per week. They argue that is a reasonable rate because they are giving them board and lodgings and we have refused the applications on grounds of discrimination.
From here on, we will be applying this kind of regime to work permits because there are people who have come from foreign countries working in certain families and they are being exploited here. We must continue to take a hard view of that matter. Is that the issue raised by the Deputy?
That is not quite the issue I raised. There were some restaurant owners who applied for permits and they were offering both board and lodgings. In the Minister's calculations in respect of the minimum wage she stated - I have been dealing with her Department on this matter for the past month and we have to sort it out - as a result of not paying the equivalent of what is now the minimum wage, she is not prepared to give them the permit.
Do you mean we were not allowing anything for board and lodgings?
The Minister was allowing a certain amount for board and lodgings. In some cases, the employees concerned were very glad to have received good board and lodgings.
If the Deputy is referring to a particular case I am not familiar with it. Certainly we would apply this regime, in other words, they would have to pay.
I am satisfied with the Minister's explanation.
If that is not happening and if the Deputy brings a case to my attention I will deal with it.
How stands amendment No. 40?
Some matters have not been touched on. I refer to my amendment No. 41a. I suggest to the Minister, whatever about the substantive argument, that for Report Stage this would more properly be worded as follows: “Piece and incentive rates, commission and bonuses which are productivity related”, rather than as it is worded here.
Has Deputy Rabbitte an amendment on this?
No I do not. I have an amendment to excise it which is the substantive point.
If the Minister is not minded to excise it, that is a more tidy framing of it. On the substantive point, these are plus payments whether they are bonuses or piece rates because particular productivity targets are met and, therefore, unfairly included as reckonable. Clearly from what the Minister is saying, she is not minded to assent to that. I give notice of the other suggestion if that is her position. Will the Minister remind us of the subject of paragraph 11?
Is that in the main section 19?
It is on sections 11 and 19.
We will deal with the amendments and then with the sections.
It is included in my amendment. I am trying to find out——
It is included in amendment No. 41a.
How stands amendment No. 40? We can go through it and then take the section.
On a serious note this is the Bill and the Chairman is pushing our hand a little.
I appreciate that but in fairness we have spent over an hour and a half on it.
I appreciate this is the Bill.
For example if the Chairman wants to press amendment No. 40——
No, I do not want to press it.
There is a serious point raised in amendment No. 40. Deputy Lenihan, who has been unable to retain himself here long enough for me to reply to him, reckons that the notion of a national minimum wage is "folksy". Somebody should tell the Attorney General, former Deputy McDowell, and the parliamentary draftsman that Deputy Lenihan considers the idea "folksy" because there are certain conventions applying to the title of a Bill. Since the Deputy is unhappy, as Government Whip, with the title and thinks that it is only for "folksy", colloquial use, the Minister should correct it before she goes to the Seanad or she will be late. Why did the Minister change her view at this stage? Why make it average now rather than minimum? If the thinking related of the range of matters for reckonable inclusion and as many of them are now gone, does she still think average is the correct term rather than minimum?
It was done for technical reasons rather than any policy change. It has been done to bring more clarity to what we are doing. We are agreeing to pay somebody a particular hourly rate on average for the hours they work during the reference period. That is not to say they have to receive this for every hour. It has to be the average rate for the hours worked over the reference period. If the hours worked were 20, 100 or 1,000 hours, the average must be £4.40. The term "average" is included for technical, legal reasons, not for any policy reasons.
In view of the fact that the Minister's amendments Nos. 40 and 41 will insert "in calculating the average hourly rate", will the heading of that section which reads Calculation of Minimum Hourly Rate of Pay have to be amended to Calculation of Minimum Average Hourly Rate of Pay and will the little paragraph in the margin also have to be changed?
Will there have to be amendments for that too? Do they automatically change?
The Bills Office automatically does that.
If a descriptive term in a Bill is changed——
That office deals with it.
It deals with each place, including the side paragraphs and the italicised parts?
Yes. Deputy Rabbitte asked me about subsection (11). Section 18 of the Organisation of Working Time Act requires an employer to pay compensation to an employee who is required by the employer to be available for work but is not given work lasting at least 25% of the time the employee is required to be available. The compensation payable is expressed to be a payment equivalent of 25% of the employee's contract hours over the period concerned or 15 hours, whichever is less. Any such payment made by an employer to an employee is reckonable. It is obviously to make sure that one is not expected to be available for work for endless hours and yet will get nothing unless one works. This is saying that one must get a minimum of 25%. If one is available for work for ten hours and is not called to work, one must get paid for at least two and a half hours, as if one had worked.
It is like being on stand-by.
It is to get over this zero contract where one is available in theory, but because one is not called one gets nothing. That is what is agreed under the Organisation of Working Time Act and this brings it into the minimum wage concept where it applies to a minimum as well.
Yes, but I thought the reference period here related only to the period an employee worked.
It includes the 25% in order to be compatible with the Organisation of Working Time Act. To be fair, if somebody is hypothetically available for work for 40 hours per week but is not called for various weeks, he or she must at least get paid the minimum rate for 25% of those hours, which would be ten hours, regardless of whether he or she works.
Ambulance drivers are required to be on stand-by practically all the time, as are firemen in rural areas. Will they qualify in respect of this provision?
I think they are probably paid above the rate.
The regular drivers are but stand-by ambulance drivers are not. They are paid X amount per hour for being on stand-by. Will they qualify for this now?
Will the same apply to temporary firemen?
Yes, if they are employees.
The temporary firemen's position is slightly different. Unlike in Dublin, in rural areas they are all temporary but are on stand-by practically all the time. Will they qualify?
Deputy D'Arcy is posing a good question. As things stand, part-time firemen are given a roster and are told that if the bells ring they must present themselves. They do not get paid, however, unless they are called up, or else they get a certain amount of pay for the hours worked.
They will have to get 25% under the Organisation of Working Time Act.
My understanding is that stand-by ambulance drivers are getting it but I am not sure whether temporary firemen are.
I will clarify the matter for the Deputy later.
Both temporary ambulance drivers and firemen are on stand-by. They are called at the flick of a button.
They cannot go off for a weekend to Wexford if they happen to be on stand-by.
Volunteers might be in a different situation because they are not employees.
I am not talking about volunteers.
It depends. In some rural areas I understand there are different categories, but the Minister has indicated she will come back to this matter.
If by virtue of one's employment, one is required to be available, the fact that one is not called should not mean that one gets nothing. One has to get the minimum hourly rate for 25% of the time. That must be what was written into the Organisation of Working Time Act and it is what we are writing into this legislation as well. I think it is fair.
Amendment agreed to.
I move amendment No. 41:
In page 13, subsection (2), line 37, before "hourly" to insert "average".
Amendment agreed to.
I move amendment No. 41a:
In page 13, subsection (2), line 39, to delete "included." and substitute the following:
Provided that, for the purpose of calculating the hourly rate of pay in a specific reference period of an employee who is not remunerated out of public moneys, the said Schedule shall be construed and have effect as if paragraphs 2 to 6 and 8 to 10 of Part 1 of the Schedule were deleted from that Part and were inserted in Part 2 of the Schedule.”.
This relates to the premium and the service charge. I thought the Minister was acknowledging the logic of the service charge following the tips and gratuities. I do not know where we stand on that one. Is she minded to change her view on that?
Deputy Rabbitte raised an issue a few moments ago in relation to productivity related payments and I will agree to change the phraseology or the manner in which it is defined. In relation to the principle, however, it is common in many sectors that workers are paid on the basis of performance or output. On the last occasion I was here we discussed the fact that now they will have to be paid at least a minimum of £4.40 per hour. Therefore, there will have to be a relationship between output and hours to make sure everybody is getting that hourly rate. I could not agree, however, that we should remove that totally from reckonable earnings. Likewise, with shift work, one contracts to do it and it does not always involve unsociable hours. Many workers work a week on followed by a week off or four days on and three days off. There are many such arrangements which suit people's lifestyles. It is reasonable to include that.
Because service pay is such a fundamental and important part of the operating income in the catering sector, I do not believe it should be excluded. I have agreed to change five of the nine elements as well as changing the manner in which number five is defined. We have all agreed that what is proposed for board and lodgings is reasonable. Therefore, there are two outstanding issues and I am not in a position to accept the amendments.
Will the Minister make some provision regarding tips and services?
I have put the question to Deputy Rabbitte in relation to the amendment. We have already discussed it so we cannot have further discussion on it. I must ask Deputy Rabbitte what he is doing in relation to the amendment.
I know that but I literally have ten seconds to say this because the Minister might wish to assist in the matter. Will she at least bring in a regulation whereby employers cannot now shift from having tips at the discretion of the customer to being included on the bill? That is what they will do to the detriment of the waiter or waitress. If a worker is paid £3.50 per hour by the employer, the tips make up the rest.
Employers are now required to pay £4.40 per hour so instead of leaving the tips at the discretion of the customer to the benefit of the employee, they will put on the service charge and the waiter or waitress could be worse off than previously.
The Minister has indicated that she will look at that.
We have tabled an amendment concerning these anti-avoidance measures.
Is Deputy Rabbitte pressing amendment No. 41a?
It clearly says "shift premium" which is a plus or add-on payment. It is not basic pay. The Minister is misdirecting herself in terms of her understanding or advice on shift premium. It is a premium payment, not basic pay. It goes to the kernel of the Bill. We are excluding a whole raft of workers in, for example, the rag trade, to whom this would apply. I suspect the Minister has an economic argument behind this, although we have not heard it. It is not fair for us to proceed on the basis that "shift premium" is just another method of describing basic pay when that is not the case.
How stands your amendment, Deputy Rabbitte?
There are huge economic arguments behind it as well. I acknowledge that it would fundamentally affect a substantial number of employees, employers and the competitiveness of some sectors. That is a fact.
This is fundamental to the Bill. I have to press the amendment.
The Select Committee divided: Tá, 7; Níl, 8.
- Boylan, Andrew.
- Creed, Michael.
- D’Arcy, Michael.
- Higgins, Joe (Dublin West).
- Owen, Nora.
- Rabbitte, Pat.
- Stanton, David.
- Ahern, Michael.
- Ardagh, Seán.
- Callely, Ivor.
- Harney, Mary.
- Lenihan, Conor.
- McGuinness, John.
- O’Flynn, Noel.
- O’Keeffe, Batt.
I move amendment No. 42:
In page 13, lines 40 to 47, and in page 14, lines 1 to 3, to delete subsections (3) and (4).
The amendment seeks to delete subsections (3) and (4). Subsection (3) gives the Minister, by way of regulation, the power to delete or alter the schedule, but only after consultation with representatives of employers and employees of the State as the Minister considers appropriate. There is no role for the Dáil in this. This is fundamental and goes to the core of the Bill. I do not recall any similar precedent whereby such power is conferred on the Minister of the day. This is not the Minister of the day making a regulation that makes a minor alteration to the Bill which brings it up to date, it has to do with section 19 which is the heart of the Bill. Therefore, the Minister of the day, for example, could bring back into the reckonable category the matters we have just excluded from it. It is a far-reaching power by the Minister and I ask, if she intends to persist with it, that at least the Parliament be given an opportunity to say "yes" or "no". This is extraordinary because it is the core of the Bill.
As Deputy Rabbitte said, it is extraordinary that a Minister could confer by way of regulation. It is not a ministerial order, therefore, I do not think it has to be laid before the House. There is a mechanism whereby if it is laid before the Library of the House and a motion is not tabled within 21 days, it becomes automatic. I am also concerned that the schedule can be amended but only after consultation with such representatives of employers and employees in the State as the Minister considers appropriate. My concern is that many low paid workers do not have representatives, as such. Very often they are not members of unions and are not a cohesive grouping. The people who will benefit from the legislation are very often part-time workers, people like the lady I mentioned who works for eight to ten weeks in the summer. This person is not part of a representative group which would talk on her behalf.
I wonder how the Minister envisages herself having this consultation with representatives of a couple of people in a particular category who would not have union representation. Would she consult with them individually or would she consider it appropriate to have consultations with the representatives? This is very open-ended. It is qualified to some extent by proposing that the Minister must be satisfied that the payments or other forms of remuneration in the case of an amendment are likely to arise, or in the case of an amendment to Part 2 are not likely to arise in the context of the normal working hours. Will the Minister give us an example of what exactly subsection (4) means and how and why she would intervene to change by way of regulation the schedule as set out in the legislation?
I am concerned that this provision seems to turn the democratic process on its head whereby employers and employees of the State are consulted, and that is as it should be, but elected representatives should also be consulted. This gives the Minister of the day the power to totally upend the legislation as he or she considers appropriate. This is a dangerous precedent and I ask the Minister to accept the amendment.
This provision gives incredible powers to the Minister of the day and is not acceptable in the present bald fashion in which it is posed. We have had a long and tortuous discussion on what should and should not be reckonable. Under pressure, the Government has grudgingly conceded to exclude a number of items from what may be reckoned as part of the minimum wage. However, within a number of days, months or weeks of the Bill being enacted, the Minister of day could reverse the whole thing simply by way of one decree. This is not acceptable. The Minister will protest that she has no intention of going back on what she has agreed to exclude from the reckonable components. However, Governments, economic conditions and the level of the minimum wage will change. Therefore, one could foresee a circumstance in one, two, three or four years' time where the level of the minimum wage is increased to a more realistic level and employers in a particular category will either beg the Government or scream blue murder about the level of the minimum wage and seek relief for their own purposes. This could then be secured by the Minister, including what was not reckonable into the reckonable components. The Minister has the power to take this action without reference to Dáil Éireann, following consultation, which could mean anything. This power makes a nonsense of the long discussion we had on what should or should not be reckonable because, at the whim of a Minister of the day, this can be changed.
There is some misunderstanding. Obviously every order or regulation made by the Minister and laid before the Houses of the Oireachtas can be annulled within the 21 day rule. This is provided for in Part 4 and is subject to Oireachtas scrutiny. It is not the case that the Minister can, after consulting representatives of employers and employees, do whatever he or she wishes. The Oireachtas has the power to annul regulations or an order if it is not satisfied it was appropriate.
This power seeks to ensure that the Bill, when enacted, deals with the realities that will develop in this whole area. In approximately one year's time it may be desirable to have some of the issues discussed earlier removed from reckonable earnings. We must be able to keep pace with the changes which are taking place in relation to how pay is calculated and so on, therefore, it is correct to have a provision such as this rather than have to amend the primary legislation. We all know how difficult and cumbersome it is to have legislation drafted. We are also aware of the difficulties in having it amended and the time it takes to have it passed. That a single change to the Schedule would require amending legislation is unreasonable. We have the best option in that power is being given to a Minister to do what is practical and sensible and to modernise the legislation in a reasonable manner and on the other hand to ensure it is done subject to Oireachtas scrutiny because section 4 applies to every order made under the Bill, other than an order made under section 1(2). Deputy Owen asked for an example.
It may well be decided, perhaps in the near future when we see the effect of this legislation on those in employment, to remove some of the elements from reckonable earnings. We may well get to a stage where the basic minimum hourly rate will not take into account some of the elements provided for in the Bill. Originally there were 13 different items but five have been removed to the non-reckonable category so that six items will form component parts for reckonable earnings. One, two or three of those may be removed over time as developments take place in this area. The commission said we should keep in mind JLC or ERO practices or other developments in the context of pay agreements. That is why a provision of this kind is necessary. Every Minister has, from time to time, to avail of a provision of this kind. For example, after a national wage agreement it might be decided to calculate in a different way. If employers and employees reach agreement this gives one the opportunity to do that.
The Minister said she is bound by section 4. It provides for the laying of orders and regulations "before each House of the Oireachtas as soon as practicable after it is made and, if a resolution annulling the order or regulation is passed by either House within the next subsequent 21 days on which that House has sat. . . ". If the Minister made a regulation in July, when the House was in recess, would the 21 days run from the first sitting day in, say, September or October, rather than July?
I wanted to be absolutely sure.
It is to avoid calling everybody in and the thing would be a farce.
How stands the amendment?
What does subsection (4) mean?
Given that we have made so many changes to the Schedule we probably do not need it if it is constructed in the context of having all the component parts. We can have a look at it on Report Stage. This subsection specifies that the Minister may only amend Part 1 of the Schedule if satisfied that generally the payment or benefit-in-kind is likely to arise in the context of the normal working hours of employees or amend Part 2 of the Schedule if satisfied that generally the payment or benefit-in - kind is not likely to arise in the context of the normal working hours of employees. I think we do not need that subsection.
I do not understand it. It is to prevent the Minister from amending the Schedule unless generally satisfied the payments are likely to arise or in Part 2 they are not likely to arise? I am trying to parse and analyse it.
I am advised it is to ensure that any of the payments were linked to normal working hours.
In other words if there are alternative types of remuneration they have to be a regular occurrence as opposed to being irregular.
It is linked to normal working hours and is not something that is irregular.
Like some of the ones removed.
Yes. We still have some left.
Can we have an example of what the Minister means?
Would we be talking about wet time, that one would not get it if it was not raining?
Or, say, for example, the 25% one has to be paid when waiting for——
It does not include things such as that because that is not part of one's normal working hours.
Subsection (4) ties the hand of subsection (3) because it is a safeguard. I do not understand what punishment it places on the Minister. Subsection (3) gives the Minister an all-encompassing power to change the Schedule and subsection (4) ties the Minister's hand by providing that she may not amend the Schedule unless satisfied that generally the payments or other forms of remuneration, in the case of an amendment, are likely to arise.
It is obvious what that means, or, in the case of an amendment to Part 2 of the Schedule, are not likely to arise in the context of the normal working hours.
Why does that subsection have to be there?
We have to make it clear.
I just do not understand it.
I am advised it was put in at the request of the parliamentary draftsperson. We will have to clarify with the parliamentary draftsperson the reason this was considered necessary but I agree it is difficult to understand. The purpose of this section is to give the Minister power to change the Schedule in the light of developments and so on, but the power is subject to section 4. That means the benefits have to be linked to what is called the normal working hours of employees.
Is that the kernel of subsection (4)?
On amendment No. 42, Deputy Rabbitte has heard the Minister's response. In order to proceed will the Minister come back to it on Report Stage?
I think I know what it means. I will come back to it on Report Stage. I will seek clarification and if it is not necessary we will take it out.
If Deputy Rabbitte withdraws the amendment we would allow——
On the basis of what the Minister has said, I will withdraw it.
Amendment, by leave, withdrawn.
Question proposed: "That section 19, as amended, stand part of the Bill."
On a point of order, I assume the Minister will tell the Minister of State, Deputy Kitt, of her comment that it is always important to anticipate something which might happen in the future when drafting legislation. I am reminded of the droit de suite provision which we asked the Minister to include in the Copyright and Related Rights Bill on the basis that it might be agreed by the European Union. He did not agree to do so and it has now been agreed by the EU. I assume the Minister will give him that lecture when she meets him later.
I am not sure how I should respond to that. I have heard much comment on the Copyright and Related Rights Bill and our slow parliamentary process. We receive 40% of US software investment in Europe. I am told this matter has been raised in the House.
I am absolutely satisfied that the Americans now run the world. We would be as well to take our laws from the Penatagon and get on with matters as the 51st state.
Will the Minister explain subsection 5 which relates to board and lodgings? Even when one re-reads section 11 it is difficult to understand.
I think that matter has already been covered.
I wish to register my strong opposition to this section. We accept that the Government has conceded on a number of issues after varying degrees of struggle. However, it is quite wrong that it maintains a tough position on the question of shift premia. The Minister's arguments are not at all convincing. It is shameful that the Government should hold to a situation where an employer can use a shift premium to bring the minimum wage up to £4.40. This should not even be thought about.
The Minister went on to argue that there are different types of shift, which of course there are. Perhaps some do not involve the same degree of hardship as others but if that is the case a distinction should be made between them. It is not logical to remove payment for anti-social hours while not removing shift premia from the reckonable components of the minimum wage. It would make more sense to remove those people who have the most difficult shifts rather than those who work unsocial hours, which occur from time to time. The hardship accruing from working unsocial hours from time to time is less than the constant pressure on the shift worker and his or her family, if a family is part of the equation. I also strongly oppose the measure regarding service pay. I absolutely oppose this section.
We have substantially changed this section. We have removed five items and agreed to change another. I have agreed to re-examine the subsection we have just discussed which makes no sense to any of us. There is no point going over the arguments made earlier. The purpose of this legislation is to introduce a national hourly minimum wage, not to guarantee someone a particular amount of money per week, per month or per year. Its purpose is not to introduce a basic income, it is to ensure that the average rate paid for an hour's work over a reference period is no lower than £4.40. It is a positive start in the direction of protecting vulnerable categories of employees, particularly women and young people. We will now have statutory protection for the first time. According to the ESRI, the legislation will benefit 163,000 workers and it is something we can build on in the future. It is not a panacea for all the problems that exist and will not guarantee that everyone has a high income, although we would love to do that. Taking all factors into account, particularly the recommendation of the minimum wage commission regarding the impact on the economy, this is balanced and fair legislation and section 19 is the core of it.
I cannot agree with Deputy Higgins that the legislation will have a negative impact. Many of these elements are negotiated at national level by the social partners. That is the regime which is in place in our economy. It has its drawbacks but it has had huge positive effects on the economy and has seen an average increase of 30% in the take-home pay of Irish workers over the past 12 or 14 years, which is substantially higher than has been granted throughout Europe or in other places such as the United States. We have to do more than simply pay an average hourly rate. We must also look at the taxes which apply to those on low pay because we are all concerned with what people actually take home. It is no good applying the principle of a national hourly minimum wage if a large proportion of it is taxed. We must move rapidly in that direction also.
The question regarding board and lodgings was explained earlier.
Yes. I think we have deciphered that matter for ourselves. The estimated minimum tax take for next year is £77 million, according to the Minister for Finance. This is quite an amount.
That is according to a reply given to a parliamentary question yesterday. As a result of the introduction of the national minimum wage, £77 million will accrue to the State.
We raised this matter. We estimated this tax take as being somewhere between £50 million and £100 million. Deputy Stanton submitted a parliamentary question yesterday on this matter and the reply received was that the increased tax accruing because of the introduction of the national minimum wage is estimated to be £77 million. This measure can hardly be described as generous if the Government is to gain £77 million in extra taxation. It is not exactly Santa Claus time.
The Select Committee divided: Tá, 13; Níl, 2.
- Ahern, Michael.
- Ardagh, Seán.
- Boylan, Andrew.
- Callely, Ivor.
- D’Arcy, Michael.
- Harney, Mary.
- Lenihan, Conor.
- McGuinness, John.
- O’Flynn, Noel.
- O’Keeffe, Batt.
- Owen, Nora.
- Perry, John.
- Stanton, David G.
- Higgins, Joe.
- Rabbitte, Pat.
Question declared carried.
Question proposed: "That section 20 stand part of the Bill."
The section refers to aminimum hourly rate of pay. Is there aclash with the words "average hourly" which the Minister has included elsewhere in the Bill?
I am informed that is not the case.
Amendment No. 44 inserts the word "average" before the word "hourly" in section 23. It may have been missed in this section. It is a good point.
We will include the word "average" on Report Stage.
I understand the parliamentary draftsman makes necessary corrections.
Question put and agreed to.
Sections 21 and 22 agreed to.
Amendment No. 43 is in the names of Deputies Owen and Stanton. We will also discuss amendments Nos. 45 to 48, inclusive, 48a and 49 as they are related. Therefore, amendments Nos. 43 and 45 to 49, inclusive, may be discussed together by agreement.
I move amendment No. 43:
In page 14, before section 23, to insert the following new section:
"23.-(1) An employee shall be entitled to a written statement, within 4 weeks of a request, of the employee's hourly rate of pay for any pay reference period (other than the employee's current pay reference period) falling within the twelve month period immediately preceding the employee's request. Such written statement shall be based on the obligations set out in section 22. An employer shall notify all employees that they are entitled to a written statement and such notification shall be in such form as to ensure that all employees have access to such notification.
(2) An employee shall be entitled to a written statement under subsection (1) whether or not that employee intends to challenge their employer through a rights commissioner as set out in section 24 or whether an inspector has been appointed by the Minister for the purposes of this Act under section 32.
(3) A statement under subsection (1) shall be signed and dated by or on behalf of the employer and a copy shall be kept by the employer for a period of 15 months beginning on the date on which the statement was given to the employee.
(4) An employer who without reasonable excuse fails to comply with this section or a request under this section, or who provides false or misleading information to an employee in a statement under subsection (1) shall be guilty of an offence and be liable on summary conviction to a fine not exceeding £1,500.”.
Sitting suspended at 6.01 p.m. and resumed at 6.57 p.m.
Section 22 puts an obligation on employers to keep records etc. The emphasis of the Bill should be to ensure employers and employees know their rights and obligations. It is clear from the report of the national minimum wage commission that one of the issues the commission addressed was information and ensuring employees are aware of their rights "by placing the onus on employers to inform employees that their pay rates comply with minimum wage legislation as a condition of their terms of employment". A subsequent chapter on cheap and simple enforcement refers to recovering arrears without lengthy or costly procedures. The emphasis of the commission's thinking was that the legislation should make it easy for employees to know what was happening. Obviously section 23 as worded puts an obligation on employees as it provides that they are not entitled to information about their pay rate etc. unless they request it. I wish to amend the section so that employees are entitled to this information whether they make a complaint, so that at any time an employee can receive a written statement within four weeks setting out how much they are earning and how it is calculated. The Minister may say that this puts a terrible onus on the employer. If section 22 was not included, a difficulty would be created for the employer, but he or she has no choice but to maintain up to date records under this section. It states that "An employer shall keep . . . such records are as necessary to show whether this Act is being complied with in relation to the employee . . . and those shall be retained by the employer for at least 3 years . . . ". On any given day an employee should be able to access his or her record. The section is unduly onerous on the employee. He or she must make the request in writing and identify the pay reference period or periods to which it relates. It is very specific and prescriptive. My amendment seeks to provide that an employee shall be entitled to a written statement within four weeks of a request and it should be based on the obligations set out in this section.
I also want to ensure, in keeping with the minimum wage commission's report, that there should be an onus on the employer to notify all employees that they are entitled to a written statement and that such notification will be included in their pay packets or put on a notice board. In amending section 22(2) I am trying to quash the notion that the only reason an employee would want to have such a record is if he or she wants to complain to a rights commissioner. I foresee employees being victimised because the act of seeking a copy of their records is seen as a precursor to taking a case against their employers. They will show their hand to the employer that they are unhappy. I do not say that employers should be kept in the dark but employees should have a right to the information privately because they might not take a case to a rights commissioner or the Labour Court. If they wish to make a complaint, the normal procedure is that the employer would be notified that a complaint has been made.
The procedure is skewed such that it is difficult for the employee to obtain the information needed for an appeal to the rights commissioner. I am sure the Minister does not wish to make the legislation more onerous on the employee. In a later amendment she refers to employees not being able to claim their legal fees. That is not in keeping with the emphasis of the commission's report which refers to making the procedures simple, understandable and cost and time efficient. The Minister might inform me that the manner in which the amendment is drafted is incorrect but it will make it easier for employees to access this information. I hope she understands my intention.
Deputy Owen's amendment is good. We touched on this issue in a different context a few weeks ago. The onus in this section is reasonable, especially having regard to the category of employee involved. Amendment No. 48a relates to section 23(6) which provides that where an employer fails to comply, he or she is liable to a fine not exceeding £1,500 on summary conviction and the Minister purports to insert “knowing it be false or misleading”. We had the same discussion on section 9.
We agreed to change that.
I did not know that but I suggested that the same wording should be inserted in that section.
What is good for the goose is good for the gander. An amendment to section 9 will be introduced on Report Stage.
I support amendment No. 43. It is good to provide employees with the right to information so that it is not provided only when there is acrimony or a legal dispute. It does not put an onus on the employer. It is a simple, straightforward request which the employee can make and to which he or she should be entitled. The Government should not have a difficulty with it.
I am also in favour of amendment No. 43. It might be useful if, on a regular basis, employees could receive a statement. Perhaps that would be too onerous on employers, but if it were done simply it would prevent the employee from having to show his or her hand, as Deputy Owen said. That might be worth examining.
Amendment No. 49 provides a mechanism for the employee to act where the employer fails to produce the written statement. The Bill is weak in this regard. How does the employee avail of his or her rights? This new section attempts to use the Labour Court. The employee could make a complaint to the Labour Court under the section and it would be up the court to take it from there. It is not clear in the legislation what an employee can do if the employer fails to produce a written statement. Perhaps, the Minister will advise me if I have missed something in the legislation.
Amendment No. 47 relates to section 23(4) which provides that "the employer shall, within 4 weeks after receiving the employee's request, give to the employee a statement in writingsetting out in relation to the pay references period . . . ". If the employer and the employee could agree a longer period instead of four weeks, a certain amount of flexibility could be introduced which might be helpful to both sides. It is a small change which the Minister might take on board as it might improve relations between workers and employers.
Would the Deputy repeat that point?
It is in relation to amendment No. 47 to section 23(4). It provides that the employer shall, within four weeks after receiving the employee's request, give the employee a statement. I am suggesting that that be amended to provide that the employer shall, within four weeks or such later time as may be agreed between the employee and the employer etc., after receiving the employee's request. It allows for a certain amount of flexibility in case of difficulty. The employee could agree with a request from the employer to allow five weeks. If something happened, for example, sickness, an accident, and relations are cordial, the employer could get a stay of execution, an extra week or two, provided the employee agreed to it. It is a small amendment but, in a limited number of cases, it could make a difference.
Lest the Minister think we are contradicting ourselves, we tabled an amendment to try to change section 23 altogether, but we have hedged our bets too in case the Minister does not accept that. If she decides to leave the section as it is, we have tabled amendments to try to improve it.
In relation to a dispute, if an employer does not give the employee a statement of earnings it is possible under section 24 to go to a Rights Commissioner. It is a dispute under the Act, and one initiates the dispute resolution mechanism.
Regarding the idea of putting an onus on every employer in respect of every employee, if I could limit this to the category of workers affected and require——
One cannot bring the dispute unless one has the document. This is about getting the document. Section 24 does not come into play and the employee cannot take any dispute to the Rights Commissioner unless he has the document in his hand; a dispute cannot be referred unless the employee has obtained a statement of earnings under section 3.
It would be a good idea if we could ring fence this around the category of employees who will be affected, in other words, those at the bottom, and find an easy mechanism to encourage a pro-active approach on the part of the employer without bureaucracy for the sake of it, which nobody would favour. The idea is to bring up the earnings of those at the very bottom but in a way that is not cumbersome or bureaucratic and which does not involve a paper chase. I do not see how we could do that on a pro-active basis.
Equally, in relation posters, one of the Government Deputies suggested on Second Stage, and I thought it was a good idea, that this should be ring fenced around those areas where it would be effective. However, having to have a poster in every place of employment when workers are not much affected is clearly bureaucracy for the sake of it and I do not favour that.
I am taken with what Deputy Stanton said about amendment No. 47, which was to the effect that if there is agreement between the employer and the employee the deadline for giving the statement could be extended. That is something we might look at on Report Stage. Among large employers this is not an issue because they have huge payroll offices and human resource departments dealing with issues of this kind. However, we all remember the Task Force on Small Business which highlighted the disproportionate effect all regulations and requirements have in one-to-one situations or where there is a small number of employees. There is no point in introducing bureaucracy for the sake of it.
Obviously there has to be a sense of responsibility here. Employees generally will not be unaware of what it is they should get. The intention is that they will be aware. There will be a public information campaign. The Irish Congress of Trade Unions intends to have a very pro-active campaign. However, many workers do not belong to trade unions. Of the 1.7 million workers, about 500,000 belong to a trade union. If we exclude the public sector from that 500,000, a relatively small number of employees in the private sector belong to a trade union. Therefore, we have to go beyond the trade union movement's own campaign to make sure people are aware of their rights. The intention is to ensure that everybody is aware of their rights and of what it is they should get. I do not believe the answer to informing employees is to make it a requirement on every employer. I will try to see if there is some way to ring fence it around those who will benefit. I cannot immediately think of a way other than to make it a requirement in certain vulnerable sectors. Otherwise it would be bureaucracy for the sake of it. If an employee requests information, there are strict provisions within the Act that have to be fulfilled by the employer and it will be an offence to knowingly not comply. As I said to Deputy Rabbitte, that will apply where the situation is the other way around and the record is kept by the employee.
The bit about giving information to the employee is only a part of my amendment. The main thrust of it is to change the wording of section 23 to provide that an employee shall be entitled to rather than that an employee may request. I worded this carefully. The entitlement I want the employee to have is based on the fact that under section 22 employers should have all this information at their fingertips or else they are breaking the law.
Section 23 as drafted gives them entitlement.
It does not. It provides that they may request. That implies an onus on employees to know what it is they want. They cannot make a request if it is frivolous or vexatious. Who is to decide whether a request is frivolous or vexatious? If there is a bit of needling going on between an employee and an employer and the employee makes a request under section 23 of the Act, the employer might say he considers the employee is just cross with him and trying to get it up for him and refuse to listen to his request. Then the employee has to go to the Rights Commissioner and make a claim about a request for information about his own salary. It is information about his salary that the employee is looking for, not information about the employer or whether or not the company is viable. It is not secret information about share prices the employee wants, but information about his own personal records. Is the Minister in any way breaching the terms of the freedom of information legislation? Employees are entitled to information about their own personal records. The section provides that an employee may request information but that seems to be predicated by the rest of the wording.
The obvious change to make is from "may" to "shall". That would mean that the employee has to——
If I am reading Deputy Owen's amendment correctly, it says that an employee shall be entitled to a written statement within four weeks of a request, and so on. I do not see how that is different from providing that an employee may request.
The difference is that the employer does not have any judgmental right to decide whether or not the employee can have it. With the Minister's wording, the employer can do that.
He cannot. That would be an offence.
He can if the request is frivolous or vexatious in his view.
It is a matter for the Rights Commissioner to decide.
An employee would have to go and get the Commissioner to make that judgment.
That is why I concentrated in my response on the question of putting the onus on everybody. I thought that was the main purpose of the amendment. Otherwise I do not see the difference between what is there and what the Deputy wants to achieve other than a difference in the wording. I do not see a difference in the substance, unless I am not seeing something that should be obvious. There is a threshold of £1.50 between the £4.40 and the £6.60. People on the margins can also request it so that there is a reasonable threshold as with the employee on the other side. I do not think there is much between us on this except that I do not want to put the onus on every employer in every situation. The area in which I would like to do something, if I could, is in that of one employee and one employer. It can be difficult if the onus is on the employee to ask the other person. If I could ring fence it around such a situation on Report Stage I would like to do it but to put that into legislative language may not be easy. Those are the areas in which people will be vulnerable. If somebody is working in one's home it can be awkward to ask for details of earnings for the past year, such as the hourly rate of pay or whatever.
Perhaps I am not explaining the difference of interpretation I see between "an employee may request" and "an employee shall be entitled". An employer reading the Bill would assume the reason the employee makes a request is that they are entitled to make the request and they want the document for the hearing of a dispute, as covered in Part 5. If it was amended to "an employee shall be entitled to . . . " in the same way as one is entitled to holiday pay, there would not have to be a linkage between that request and taking a dispute to the rights commissioner, the Labour Court or whatever. I am trying to ensure it is a right, as opposed to an onus, of the employee to make the request for the document. If the employer knows that an employee shall be entitled to this, he will keep his records, under the provisions of section 22, in a way——
Am I right in saying that an employee does not need to have the statement to trigger the dispute mechanism?
Yes. A dispute cannot be referred or dealt with, because the Minister is going to put in a new amendment to a rights commissioner, unless the employee has obtained, under section 23, a statement of his or her hourly pay, etc., having requested it. There is an onus on the employee to request it.
Under the Deputy's amendment the onus would still be on the employee within four weeks of a request.
Yes, but my amendment provides that an employee shall be entitled to it, to have it in his or her pocket.
Am I right in saying the Deputy would be happy if every employee knew they were entitled to it and the employer told them so?
That they were entitled to it but that they may not necessarily trigger off the request mechanism?
Yes. I am trying to prevent the legal need——
I think that is reasonable.
——to have this statement and for the employer to know they will make a complaint about it. I would like them to have it in the event that they are discussing it with friends, family, etc. I am trying to make it less onerous on them. Deputy Stanton suggested that, if an employee is employed for a year, automatically every six months a document might be placed in their pay packet stating their average hourly rate.
If their pay was below a certain level.
If their pay was below 150% of the national minimum hourly rate of pay.
I was reading the section in the context of the pay commission report which stated the onus is on the employer to inform the employee. There is nothing in the Bill that puts that onus on the employer. The employee is the one who has to make the request. The employer has to keep records only for the sake of a labour inspector calling in.
There is no doubt that where there is one employee and one employer it would be awkward for the employee to ask for details. If I could do something to change that I would like to. When people are not unionised and are vulnerable, how are they to get the information to which they are entitled?
Certainly I would like to coverit -
Can we come back to it on Report Stage?
We will look at that on Report Stage. I would like to cover it without introducing a whole bureaucracy that would be of no benefit to most people.
Amendment, by leave, withdrawn.
I move amendment No. 44:
In page 14, subsection (1), line 40, before "hourly" to insert "average".
Amendment agreed to.
Amendment No. 45 not moved.
I move amendment No. 46:
In page 14, subsection (2), line 46, after "150 per cent" to insert "calculated in accordance with section 20”.
Amendment agreed to.
Amendment No. 47 not moved.
I move amendment No. 48:
In page 15, subsection (4) (a), line 9, before “pay” to insert “reckonable”.
Amendment agreed to.
I move amendment No. 48a:
In page 15, subsection (6), line 27, after “subsection (4)“ to insert “knowing it to be false or misleading”.
Amendment agreed to.
Section 23, as amended, agreed to.
Amendment No. 49 not moved.
Amendment No. 50. Amendments Nos. 51 and 52 are related. Amendments Nos. 50 to 52, inclusive, may be taken together by agreement.
I move amendment No. 50:
In page 15, before section 24, but in Part 5, to insert the following new section:
"24.-Any step taken by an employer with the primary aim of avoiding this Act shall be void and any dispute as to any such step or the redress to be given to an employee if such a step is taken may be referred to a Rights Commissioner under this Act.".
The purpose of this amendment is to provide a resolution for a situation where an employer might be engaged in efforts to avoid the terms of the Bill. I do not know if I am required to make a long speech about this. I thought the Minister of State, Deputy Kitt, indicated a willingness to take this amendment on board. If that is the case I do not want to go into it. It is a weakness in the Bill that there is no anti-avoidance protection for workers because there are various means open to employers to manipulate its terms. It does not take much ingenuity to understand how employers could make various changes, the only purpose of which would be to avoid or evade the terms of the Bill. Some system of redress has to be provided for the employee. That is what my amendment seeks to achieve.
I agree with much of what Deputy Rabbitte has said and I think I indicated on the last occasion that we are having anti-avoidance amendments along these lines drafted for Report Stage. If the Deputy leaves it with me until Report Stage I will be happy to take on board the substance of what he has said. It is a wording issue which we have not been able to clear.
It would not have happened during the Minister's term in office, but section 13 of the Protection of Young Persons (Employment) Act, 1996, prevents an employer from reducing the wages of an employee where they are obliged to reduce their working hours in order to comply with the maximum hours provision. While the Minister has moved unsociable hours premium to non-reckonable components, it is possible for an employer in some convoluted way to call unsociable hours working, shift pay. Given that it is shift work and also unsociable hours, I could envisage someone manipulating it in that way. An employer could also reduce the number of working hours of an employee. That is what I was trying to address with amendment No. 52. However, in view of the fact that the Minister will try to address it, I will withdraw my amendment.
How stands Deputy Rabbitte's amendment No. 50?
Based on the Minister's assurance, I will withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment No. 51 not moved.
I move amendment No. 51a:
In page 15, subsection (2), line 42, after "referred to" to insert "or dealt with by".
Amendment agreed to.
Amendment No. 52 not moved.
Question proposed: "That section 24, as amended, stand part of the Bill."
There is a difficulty with this section and I wonder if my interpretation of it is correct. It appears that if a rights commissioner is investigating a dispute arising from a complaint made by an employee to the labour inspectorate and an inspector has proceeded to investigate the matter or a prosecution of the employer, there is a possibility that both could not be done at the same time, or one rules out the other. I just want to refresh my memory on this matter. The section allows an employee or an employer to refer a dispute to a rights commissioner to decide whether they are in receipt of the appropriate entitlements but an employee cannot refer it unless he or she has the document under section 23——
If they have no document they can refer it.
Can a rights commissioner investigate a dispute where a complaint has been made already by an employee to the labour inspectorate? Is there something that rules a person out from taking one course while the other isstill in place? Perhaps I am thinking of another section.
The Deputy should read subsection (4) which states that an inspector shall advise a rights commissioner, on request by the rights commissioner, as to whether the inspector has investigated or is investigating an alleged under-payment the subject of the dispute.
Can an employee take a complaint to a rights commissioner while a parallel prosecution or investigation is taking place? Essentially that means that the employee will always suffer while the matter is being investigated or while a prosecution is taking place.
If they have not been paid the full rate.
They have to get redress. They have to get the money, plus reasonable expenses. In other words, somebody could not delay payment by initiating an investigation. They would have to be paid subsequently. Equally, a rights commissioner——
If the inspectorate is investigating a complaint and decides not to prosecute the employer, can the employee then go back to the rights commissioner?
They can start the whole procedure again with the rights commissioner?
Question put and agreed to.
Amendment No. 54 is related to amendment No. 53, in the name of Deputies Owen and Stanton, and they may be discussed together, by agreement.
I move amendment No. 53:
In page 16, subsection (2)(a)(ii), to delete lines 43 to 45 and substitute “with the dispute and any professional legal representation of the employee at the hearing of the dispute or otherwise where it can be shown that such an employee must pay such expenses personally,”.
I am surprised this subsection is included in the Bill because it is clear that if an employee wins a case arrears, etc. are included as well as reasonable expenses in connection with the dispute, but not in respect of any professional legal representation. The recommendations in the commission's first report state that complaints procedures should be cost-free and easy for the employee, but disallowing any professional legal representation for the employee would not mean it would be cost-free for the employee. If the employee is in a low paid job, he or she will find it difficult to prepare a case. It can be quite intimidating to take a case to a rights commissioner. I have about five items of legislation on this desk and if I were going to a rights commissioner I might bring them with me to quote from them but an employee in a low paid job will not have that sort of expertise.
Deputy Rabbitte will talk on his amendment - he seeks to remove the subsection. I have been less generous perhaps by saying that the cost should be paid once it has been shown that the employee has to pay it personally. If the employee's trade union were paying the costs, one could argue it was covered by that. I am sure part of the fees people pay to their trade unions are used to cover the legal costs of cases taken, but if the cost is to fall on the employee the Minister should accept my amendment.
It is amazing that the Government would exclude from the competence of a rights commissioner the ability to award coverage of any professional legal representation of the employee at the hearing of the dispute. We are talking about very low paid workers and people in vulnerable positions. In complex disputes it is possible that in order to get a fair crack of the whip, an employee would have to have some sort of legal representation. Where an award is given by the rights commissioner, it is an immediate confirmation that the employee was correct and that the employer was in the wrong. Why, therefore, does the Government say that in respect of an action or lack of action by an employer which was wrong, the employee should be obliged to pay their own legal costs when simply trying to redress something that was not proper? It goes without saying that covering the costs of such legal services should be within the remit of a rights commissioner.
As Deputy Owen said, the amendment in her name and that of Deputy Stanton is less generous and is not really correct. Even if a trade union has to provide legal representation it will cost the union. If an award is made it is the employer who is in the wrong, so why should the union have to pay for legal representation from its funds which are accumulated from the dues paid by its members? In this case we are talking about low paid workers who pay their dues to theirtrade unions and such a distinction should not be made.
The Fine Gael amendment states ". . . where it can be shown that such an employee must pay such expenses personally,". That could be interpreted rather widely and wider than a trade union in terms of who might pay the expenses, but at least it acknowledges the key point that an employee should not be at a loss in order to gain a right that was removed from him or her or that was encroached upon in some way.
Legal aid is not available for hearings outside the civil courts. If employees have to pay a solicitor to represent them, the cost of legal representation would discourage them from bringing a case as they would be out of pocket. The Minister should consider that important point.
This is an important point in practice. I would prefer the wording of the amendment in the my name and in the name of Deputy Higgins, although amendment No. 53 in the names of Deputies Owen and Stanton is an improvement on the Bill.
The Minister earlier drew attention to the declining level of trade union organisation in the private sector. Notwithstanding what trade union leaders say, that is a fact. There are not 163,000 workers who will benefit from this, but that is a discussion for another day. There is a very high level of non-trade union organisation. A person who earns £150 a week will not be in a position to initiate an action such as this.
The Employment Appeals Tribunal has become what it was never intended to become, a regular meeting place for lawyers on both sides, and one would be surprised to learn that. Without disparaging any of their efforts, they make a handy living from it. Professional trade union officials and representatives of business were perfectly capable of interpreting the limited legislation that may be heard before the Employment Appeals Tribunal, but it has been taken over by lawyers. On the number of occasions that I have appeared before it on behalf of constituents or other workers, I am always amazed to find out subsequently the payment that was paid to lawyers on behalf of the other side.
The merit of my amendment is that it is silent on whether the issue arises. If the wording of the section was left on the basis that a decision may include an award of reasonable expenses of the employee in connection with the dispute, that is adequate without inviting legal fees. It is difficult to envisage a person earning £4.40 an hour being able to take the considerable risk of employing a solicitor to represent him or her when the quantum of benefit, even if that person was successful, is very small. The amount at issue is likely to be quite small in practice and, therefore, there is merit in the Minister accepting amendment No. 54 and not opening up this question. I am sure that those lawyers who specialise in labour law will get their paws on it quickly enough and I do not think that we should invite them to become too involved.
I have no problem if the Minister wants to accept amendment No. 54. She might tell us about any other labour law that precludes compensation for legal fees, if they are needed, given Deputy Stanton's point that legal aid is not available for hearings outside the civil courts.
On Deputy Owen's last point, the Employment Appeals Tribunal, which deals with a range of employment rights, including unfair dismissal, redundancy and payment of wages, does not award to either party before the tribunal, costs in respect of the attendance of counsel or solicitors.
The idea behind establishing the LRC and the Labour Court was to have a mechanism for resolving what I would broadly call labour disputes that did not involve the formalised adversarial court system. That has been a good development. In the context of our experience in recent years, we examined this area to ensure it is as modern, practical and as progressive as possible.
We would interfere with a good development if we introduced the notion that one can get compensation for legal costs. If we did that, everyone would seek them and the taxpayer would have to pay for them. The real beneficiaries would be the lawyers and not the unfortunate people who might need to bring a case before a rights commissioner and who are at the bottom in terms of pay and so on.
In resisting acceptance of these amendments, I am conscious of what the Labour Court said in its 1997 report which refers to the increased number of parties who brought legal representation with them to the courts. It indicated that the court does not welcome this trend, particularly in cases under the Industrial Relations Acts. It states that it not only subjects the parties to additional expense but may have the effect of prolonging the hearings. It further states that the services of the labour court are provided free of charge for the benefit of those who require them and it is the view of the court that the process should not involve unnecessary expenses for any of the parties. It also states that the court ensures it is informed of all the relevant facts in the course of the investigation of a case and it does not require nor encourage the parties to have any legal representation. It further states that there are circumstances, however, for example, in cases under the equality legislation where the court accepts that parties may consider legal representation to be necessary .
In the context of equality legislation, I appreciate that the court would state that. It will not be complex to establish whether a person is earning an average hourly minimum wage of £4.40 an hour or whatever the rate will be as time moves on. People would be able to put their case to a person who would be very much on their side. While the rights commissioner and the courts are fair and impartial, all institutions in this area are established with a view to having a balance between employers and employees, IBEC and ICTU, and having agreement in relation to the people who form the membership of the commission, representatives of the Labour Court and so on.
This has been a worthwhile experience and the consensus approach to national pay bargaining is also represented in that forum. We would move away from all of that if we introduced the concept of compensation for lawyers. On the other hand, I recognise that people will have expenses in taking these cases and that is why we provide that reasonable expenses would be paid to those parties who consider it necessary to bring a case. It is better to leave that in the general area of expenses rather than making provision for lawyers and legal expenses. I do not believe that is necessary, desirable or a good move. It does not apply to the Employment Appeals Tribunal which deals with unfair dismissals, redundancy and payment of wages. That is the precedent Deputy Owen asked about and it is a good one.
With respect, the Minister introduced the concept, not us. Why did she not finish the sentence at the word "dispute" if she did not want it to be considered one way or the other?
Does the Deputy mean not to have any expenses?
No. Leave in reasonable expenses as the amendment states. The Minister has argued well for amendment No. 54. The phrase, "but not in respect of any professional legal representation", leapt out at me and my reaction was that it was not fair, particularly given that the procedure should be cost free to the employee. If that phrase is removed, as Deputy Rabbitte suggests, the impression will not be given that somebody should get a lawyer. If they are planning to do that, they should ask if they are likely to get expenses for their lawyer. The reply might help them to decide whether they need one. Including the phrase, "but not in respect of any professional legal representation", is almost accepting that some people will want legal representation.
However, if that is not included, somebody will argue that it is a legitimate expense.
The rights commissioner should decide whether it is or is not. If somebody pays £5,000 for a highly paid lawyer, the rights commissioner will say: "That is not reasonable and I am only giving you £500". That is the response to that type of nonsense. However, somebody might pay £150 to £200 for help in preparing a case if they are running into difficulty. It is not just the rate they might be challenging. They might be alleging that the employer has treated them badly by putting them into the bowels of the company to work because they dared to ask for this document or for their pay. We must be realistic. Mean things happen in the workplace and people are victimised. The person might be in an extremely difficult situation. It could be verging on sexual abuse——
One is putting one's case to somebody who is an expert in the area. It is not a question of putting one's case to a jury of 11 average citizens. The people hearing the dispute are——
I know. They are sympathetic.
Obviously they are fair, impartial and knowledgeable. They are experts in this area. There will not be a need to educate them, as it were, or to marshall one's arguments in a way that impresses them. It is not like a court of law.
An employer might have a number of employees and something might be brought to a rights commissioner by one employee which could have implications down the line for all the employees. The employer might be aware of that and bring in heavy legal guns, regarding it as an investment in order to win or prove his or her point before the rights commissioner.
A worker who is unrepresented is at a disadvantage, notwithstanding the Tánaiste's comments about rights commissioners. The rights commissioner is there as a judge and there are two sides to every story. How the story is told and the points made to support the story can have an important bearing on the outcome. An employee in a case, where there is a possibility of winning it, will be more inclined to seek legal assistance if it is possible to get compensation to cover the costs.
The Minister, by specifically including it in the legislation, is coming down on the side of the bosses. In many cases they will not be subject to economic constraints in hiring lawyers but the low paid worker will. In fact, the Minister is inviting the employer to bring legal representation because they will know that the opposition will not get any compensation if they seek legal advice and that they will not be able to afford it. This makes the playing pitch unlevel and the Minister should change it.
I agree with the statement of philosophy outlined by the Tánaiste from the annual report of the Labour Court. That is right and as it should be. The unreasonable intrusion of lawyers into the industrial relations arena is not, generally speaking, a positive thing.
However, both sides of this debate are agreed that many of the workers to whom the Bill will apply are not trade union organised. It is not improbable, therefore, that in challenging a particular decision, the employee concerned might seek redress through a lawyer as distinct from through a trade union official or other such representative. The merit of amendment No. 54 is that it remains silent on the question of legal representation.
This is an odd place to insert an express prohibition on lawyers. It applies to workers who are paid £4.40 an hour or less. There are other areas where one might insert an express veto rather than starting here. The Tánaiste is correct to say that this is not complex legislation. It is not complex in comparison to the Copyright Bill. However, Deputy Owen spent some minutes querying what would happen if the document were refused. I am not implying that low paid workers have a lower IQ than anybody else. The contrary is the case. I am sometimes amazed at the lack of relationship between earnings and IQ.
However, it is expecting too much of these workers to be able to read this legislation themselves and proceed to seeking redress and so forth. The ideal via media is to leave the section silent on this issue and see how it works. What would be the quantum of damages, if one calls it that, under subsection (1)? The arrears might be £1 per hour. Even if it were £1 an hour for a year, what will that amount to? To have to pay £350 to a solicitor for putting in an appearance for that, one might be making a case for more workers than oneself in the employment.
I agree with the Tánaiste's philosophy on it. However, there should not be an express prohibition. There might be an argument for codifying labour legislation and looking at the issue of the involvement of lawyers but I would not start with the National Minimum Wage Bill.
I want to be reasonable. One half of me says that if somebody is at the bottom and they want to put forward their case, they might need legal support. That is why the phrase "reasonable expenses" is included. However——
Whatever the rights commissioner would decide.
How would they incur the reasonable expenses?
There could be travelling expenses, overnight accommodation, lost earnings because they could not go to work as they had to see the rights commissioner and so on. The idea is to leave the discretion with the rights commissioner. Perhaps, that is where we should also leave the other matter. I am inclined to say I will accept amendment No. 54 but I am making no reference to it.
Amendment, by leave, withdrawn.
I move amendment No. 54:
In page 16, subsection (2)(a)(ii), to delete lines 43 to 45 and substitute “with the dispute,”.
Amendment agreed to.
Section 25, as amended, agreed to.
I move amendment No. 54a:
In page 17, subsection (1), lines 12 and 13, to delete "within 6 weeks after being advised of the decision" and substitute "within 6 weeks of the date on which the decision was communicated to the party".
The reason for this amendment is to ensure, to the extent possible, that the wording of this subsection dealing with the appeal to the Labour Court from the rights commissioner's decision is consistent with the wording used in the Organisation of Working Time Act. This change has been requested by the Labour Court.
Amendment agreed to.
Question proposed: "That section 26, as amended, stand part of the Bill."
Under section 25, the rights commissioner decides that somebody is at fault and under subsection (2)(b) that must be remedied within a specified time. How does that tie in with the employer taking an appeal? Does the employee have to wait? The rights commissioner clearly cannot require the employer to remedy the situation in less time than the six weeks available for the employer or employee to lodge an appeal. Is that how I should interpret that?
I am dealing with other legislation from the Minister's Department, the Casual Trading legislation, and the wording in one section is so inexact that the time for an appeal is not clear. That is causing great confusion, which I am sure other Deputies have encountered.
The rights commissioner can decide that the employer owes the employee something and can require the employer to remedy within a specified time any matter, including the payment of any amount. If the employer is given four weeks to pay the amount, that is less time than the time available to take an appeal. Can an employer delay paying the employee until the six week period, during which the employer has the right to make an appeal, is over? Where does that leave the poor employee who has won his or her case but will not get paid for another six weeks or until the Labour Court makes its decision?
There must be at least two parties to a dispute. If either party is not satisfied with the commissioner's decision, they have six weeks to lodge an appeal. It follows that if the employer is not satisfied, the decision will not be implemented. One has six weeks within which to appeal. If the £4.40 rate has not been paid for six or 12 months and the rights commissioner decides that it and any retrospective pay must be paid within four weeks, the employer has six weeks to appeal that. The employee also has six weeks within which to appeal if he or she is not satisfied. That is the timeframe in the Organisation of Working Time Act.
The employee might have to wait for much longer than the time dictated by the rights commissioner.
Question put and agreed to.
Amendment No. 56 is related to amendment No. 55 and they may be taken together by agreement.
I move amendment No. 55:
In page 17, subsection (1), line 23, after "oath" to insert "or affirmation".
I accept this amendment. I understand the meaning behind it.
Deputy Rabbitte is happy and smiling.
It is to insert "affirmation" instead of "oath". I understand one Deputy gave an affirmation instead of an oath to the Public Accounts Committee.
Deputy Rabbitte's amendment does not remove the word "oath" but adds "affirmation". Is the Minister going to change it to just "affirmation"?
I am not sure - it might be worth checking - about the use of the term "hearings". I think under the Oaths Act, 1888, "hearings" refer to judicial proceedings. I am sure if they refer to the Labour Court. However, I presume that point has been run past the parliamentary draftsman's office. I am merely trying to cater for the new polyglot society and all those low paid workers the Chairman is encouraging into his constituency.
Let us be clear about this. The Minister seems to be saying she is removing the word "oath".
Amendment agreed to.
I move amendment No. 56:
In page 17, subsection (2), line 26, after "oath" to insert "or affirmation".
I accept this amendment also.
Amendment agreed to.
I move amendment No. 57:
In page 17, lines 42 to 47, and in page 18, lines 1 to 7, to delete subsection (5).
I am sure I had a very good reason for tabling this amendment but that was a long time ago. The point probably concerns certificate evidence being sufficient in a criminal case. I think that overturns the existing law. The normal procedure is to have witnesses who would be open to cross-examination. However, we are accepting certificate evidence here. I think the decisions of the Supreme Court on the Equal Status Bill and the Employment Equality Bill - Deputy Owen probably recalls this - struck down similar provisions. I think the motivation behind the amendment was to check that this is not constitutionally infirm. The difference is that we are permitting the taking of evidence on certification.
The offence reads very seriously. A prosecution may be brought against someone who, on examination on oath or affirmation under this section, "wilfully and corruptly gives false evidence or wilfully and corruptly swears anything which is false". That is a very serious mouthful to be charged with. There is no provision for a prison sentence but a substantial fine is provided for. Perhaps the Minister will explain the rationale behind it. I do not like the idea of proving something by a document. It means the accused person is not on a equal standing. What happens if the document is challenged? The document shall, in a prosecution, "be evidence of the matters stated, without further proof". Does this mean that, for example, the people who presided over the particular hearings are not required to attend, or cannot be called to be cross-examined by a defendant? Does it mean that, therefore, a document stands against them because it is signed by the chairman of the Labour Court? Does this mean that accused persons do not have the right to challenge, and to have cross-examined, somebody whose evidence they may not accept? Does the prosecution only have to produce a certificate? There are implications here for natural justice.
This is one of the things that has caused a great deal of trouble in the Copyright Bill because for the first time the premise that one is innocent until proven guilty has been reversed. We are proposing that people who purport to own the copyright can do so by affidavit. We had much discussion on that point and this seems to concern the same concept, although in this Bill it refers to the Labour Court as opposed to other courts. I cannot pronounce any great wisdom as to whether this is against the law. I recall what Deputy Rabbitte said on the Employment Equality Bill and the Equal Status Bill, where there was a problem about people producing evidence by way of written documents.
We have taken this from the Organisation of Working Time Act, 1997, and also section 12 of the Unfair Dismissals Act, 1993, which has similar provisions. The purpose of subsection (5) is to avoid the necessity of an officer from the Labour Court attending a court hearing to confirm the informationwhich instead can be provided by a written statement signed by the chairperson of the Labour Court.
I recall that when I was Minister for Justice, I amended the law to prevent gardaí having to stand around the courts all the time, putting their hands on people's shoulders and saying "This is the person I arrested". They were then able to do this by affidavit and could stay at work rather than standing around the courts. The system whereby a garda can provide such a sworn affidavit has been challenged in the courts.
Clearly, if somebody is in breach of this Act the penalties will be imposed by the regular courts where somebody is required to attend. The Government will shortly be publishing the new legislation covering electronic commerce and encryption. That will provide for the admissibility of electronic evidence in civil cases. In relation to criminal matters, however, where somebody is prosecuted and may be convicted of a criminal offence, then clearly there is an onus to turn up, on those who have evidence. We are talking about the Labour Court here though, not the regular courts. It is removing this necessity for practical reasons.
It goes on in subsection (6) to say that the person has the same privileges and immunities as a witness before the High Court.
The legislation does not provide for prosecution, as in a court of law, as a result of having done something false or not having complied with provisions in the Labour Court. Unless I am wrong, we are talking here about a prosecution taken under this legislation in the law courts.
The Labour Court does not have the power to bring a summary conviction against somebody, does it? Deputy Higgins is right. It has to send them off to a court - moving from the Labour Court into a judicial court.
People are required to attend before the Labour Court.
Yes, but then it says "shall be guilty of an offence and shall be liable on summary conviction. . . ". The section starts in the Labour Court but then it moves elsewhere if somebody is found not to have complied with the provisions.
The Labour Court would love to have the power to make summary convictions. We would really have a problem then.
That refers to subsections (3) and (4). Subsection (4) refers to subsection (3) which concerns the Labour Court.
According to subsection (3), "the Labour Court may require a person to attend, at such time and place as is specified in the notice, to give evidence in relation to the hearing". It also states that "a person who has been given such notice and who refuses or wilfully neglects to attend, or having so attended refuses to give evidence, shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500". It is quite clear to me that subsection (5) moves from the Labour Court to the civil courts in the matter of a prosecution.
Then that document can be used to show that a person did not attend and do all these bad things that would make them liable to the summary conviction. All it needs is this document purporting to be signed by the chairperson and the hammer comes down and one is hanged. That is it and one does not have to produce any other proof.
Is the point of the Deputy's argument that it might be a false document?
No, but I am wondering if that is sufficient.
It was taken from two other Acts - section 30 of the Organisation of Working Time Act, 1997, and section 12 of the Unfair Dismissals Act.
And it has not been struck down.
There could clearly be a difference of perception between the Labour Court administrator and the person who becomes a defendant. Whether or not they attended is probably straightforward enough, but having so attended, refusing to give evidence or failing to produce a document could be the subject of dispute. The extent of the evidence, for example, might be that the responsible person in the Labour Court was not happy with the extent of the evidence for some reason. Does this mean the defendant will have a certificate thrown at him in the District Court? Whom may they cross examine if they believe they have a case to rebut what is in the certificate?
If the Labour Court asks somebody to come and they do not come, the Labour Court chairperson then signs a document.
That they do not come is one thing, but if——
The point that the witness would not be subject to examination by the court is a serious one. Even if the document is authentic and signed by the chairman of the Labour Court, the court would reserve its right and may on occasion overrule the chairman of the Labour Court anyway. The court may say: "That is the view that he formed but now it is here on appeal and the court thinks that, given all the circumstances, the chairman of the Labour Court misdirected himself", or whatever. It is a change in the normal administration of justice and obviously it is imported from other labour legislation. I am pointing, however, to similarities in the Irish Law Reports 97 in respect of the Employment Equality Bill and the Equal Status Bill where, subject to correction, I remember that the Supreme Court struck down the relevant sections.
Is the Deputy questioning the constitutionality of these provisions?
It may be that in this case it is considered that the matter is not of such moment, as it is in the Equal Status Bill, that it is permissible. However, it needs to be checked out.
Why is the word "purporting" included? Could the words not simply read "A document to be signed by the chairperson"?
It is because they like big words.
On earlier sections I said it is a mystery why some words appear and others do not.
It is in the Organisation of Working Time Act.
Only the legal experts and parliamentary draftsman know why. We have taken the wording from the Organisation of Working Time Act. Section 27(5) of the Bill states: "A document purporting to be signed by the chairperson of the Labour Court. . . ". It uses the same language.
It implies that it purports to be; it does not have to be. That is my understanding of the meaning of the word "purport". For example, I purport to be a very clever person, but I am not.
I will consult with the Attorney General and give the committee the wisdom of his thoughts.
Is it agreed that the amendment be withdrawn pending Report Stage? Agreed.
Amendment, by leave, withdrawn.
Section 27, as amended, agreed to.
Section 28 agreed to.
I move amendment No. 57a:
In page 18, subsection (2), line 23, to delete "point" and substitute "question".
This amendment is to ensure consistency with subsection (1). There is no difference between a point of law and a question of law. It is for the purpose of legal consistency.
What is the position here?
In one part of the Bill reference is made to a point of law while another part refers to a question of law. The purpose of the amendment is to ensure consistency of legal language. There is no legal or technical difference between the two terms.
I am willing to be persuaded of that. What happens where there is a referral to the High Court? Does the earlier prohibition on legal costs apply or is it presumed that the referral can only come from the Labour Court?
A party to a Labour Court determination may appeal the determination to the High Court, but only on a point of law. We all know what that means. Is the Deputy referring to the legal fees issue?
Yes. I am happy with the way we dealt with that. Let the Labour Court decide on the emerging pattern. However, suppose I am a low paid worker and in that situation. I am a party to the appeal under section 26 and I go to the High Court. Is it suggested that I pay the fees?
The High Court can award fees. It has the right to decide who will be paid the fees.
Even if it were prescribed in the Act?
The Act only prescribes with regard to the rights commissioner.
The Deputy is referring to somebody dealing with a point of law as opposed to the basis of the facts or the evidence.
That is dealt with in a different forum.
Why is the Minister restricting a person's appeal on a point of law?
It does not make sense to have a dual process involving, on the one hand, the Labour Court/LRC structure - a rights commissioner in this case - and, on the other, the regular legal process.
Presumably that is the same in a lot of labour law.
Yes. That is the purpose of having this separate jurisdiction.
Amendment agreed to.
Section 29, as amended, agreed to.
Ms Harney: I move amendment No. 58:
In page 18, subsection (1), line 29, after "brought" to insert "or if such an appeal has been brought it has been abandoned".
This is a drafting amendment. The effect of it is to provide that in the event of an employer appealing a decision of the rights commissioner to the Labour Court and such an appeal is subsequently withdrawn before any hearing of the court, the rights commissioner's decision can be referred by the employee to the court. The court will then be in a position to make a determination directing that the same redress decided by the rights commissioner be implemented by the employer without hearing the employer concerned. The wording of the amendment is consistent with the wording in section 31(4).
Amendment agreed to.
Section 30, as amended, agreed to.
I move amendment No. 58a:
In page 19, subsection (4), line 20, to delete "references" and substitute "reference in subsection (2)”.
The reason for the amendment is to clarify that the reference to a determination of the Labour Court in this subsection is to a Labour Court determination referred to in subsection (2).
Amendment agreed to.
Question proposed: "That section 31, as amended, stand part of the Bill."
Take the situation where the rights commissioner has, under section 25, made a ruling that the employer is at fault, the employer then takes an appeal within six weeks to the Labour Court and the court has made a decision. The section as worded implies that the Labour Court has the right to alter but not necessarily overturn the rights commissioner. Section 25(2)(b) provides that a decision of the rights commissioner may “require an employer to remedy, within a specified time or in a specified manner, any matter, including the payment of any amount, in respect of which the employer is in breach of this Act”. The Minister has referred to the Organisation of Working Time Act where, if somebody is owed money interest is paid, but there is no time limit on the Labour Court to determine an appeal. Section 28(1) of the Bill provides that the court “shall, as soon as practicable after hearing an appeal under section 26, determine the appeal by confirming the decision of the rights commissioner or substituting for that decision any decision of its own. . . ”.
Time passes. The first phase involves the rights commissioner, that could be followed by a six weeks gap during which time somebody has the right to appeal to the Labour Court after which the appeal takes another six months or a year. While the interest on what would be due may not be huge, does a point of equity not arise? If the employee has been denied money for six months or a year, it is conceivable that it could be well into a second year before his or her rights are vindicated. A sizeable sum of money could be involved, although perhaps not for the employer. Does the section allow the Labour Court to include interest on what the employee is owed?
On the question of interest, section 31(1) refers to a "specified time or in a specific manner".
The Labour Court cannot award interest on any arrears that might be due. I am advised that can only be done by the Circuit Court. None of the labour legislation provides for the payment of interest.
Question put and agreed to.
Amendments Nos. 59 and 60 are related and may be taken together by agreement. Do Members wish to hear the Tánaiste's comments on the amendments?
Does the Chairman wish us to comment on amendment No. 59 when it is moved?
Yes. There are approximately four or five minutes remaining.
I move amendment No. 59:
In page 21, subsection (8), lines 13 and 14, to delete ", if requested by a person affected,".
This section deals with the powers of inspectors. These people have quite an amount of power in that they can move into areas where people are employed to work, regardless of whether they have received complaints from employees. Amendment Nos. 59 is designed to ensure that an inspector arriving at a premises will be obliged to produce identification and that he or she should not have to be requested to do so while amendment No. 60 will ensure that if they are asked to provide such identification they will actually produce it. It can be quite intimidating when an official from a Department arrives at the premises for a small employer in a rural area. Such people should be obliged to produce their identification and state that they are an inspector. That is the way to proceed.
That has given us food for thought and the Tánaiste can reply to the Deputy's comments when we return to our deliberations on this section. Is it agreed that we adjourn until 1.30 p.m. tomorrow?
I would like my apologies to be recorded. I will not be in attendance at 1.15 p.m. tomorrow because I will be in Tipperary.
That is fine. Is it agreed that we meet at 1.30 p.m. tomorrow? Agreed. Is it also agreed that tomorrow's meeting should conclude between 3 p.m. and 3.30 p.m.?
Perhaps we could conclude at 3.15 p.m. because that would give Members a 30 minute break before the Tánaiste takes questions in the Dáil.
Is it agreed that I should make a provisional booking for the room in order that we might resume our deliberations at 5 p.m. or 5.30 p.m. tomorrow should they not conclude by 3.15 p.m.? Agreed.
The Select Committee adjourned at 8.35 p.m. until 1.30 p.m. on Thursday, 23 March 2000.