Leo Varadkar (Dublin West, Fine Gael)

Perhaps the Government is not sincere about doing that. It may be the case that it does not plan to do an efficiency review.

Citizens information centres advise people to whom they should go when they have complaints. They go to NERA when it comes to employment regulation orders, minimum wage, pay slips, protection of young workers and employment permits. They go to the rights commissioner if the issue concerns other minimum wage issues, unfair dismissal, working times, failure to give written terms and conditions, fixed-term work, part-time work and so on. They go to the Employment Appeals Tribunal on different items such as rights having been breached with regard to redundancy, unfair dismissal and minimum notice. They go to the Labour Court on other matters. On employment equality matters they go to the Equality Tribunal. On some issues they go to the Health and Safety Authority and on others they go to the Department of Social and Family Affairs. The Government has an opportunity now to get this right rather than simply set up a new agency, review its efficiency, effectiveness and necessity after a period and then redefine it.

One of the major changes in the Bill is the difference between the rights commissioner system and NERA. If I do not get my holiday pay or my holidays, for example, the current process is that I go to the rights commissioner. The rights commissioner investigates it and sorts out the problem. The rights commissioner system works very well and the Labour Relations Commission, of which it is a part, works very well. That can now change. Instead of going to the rights commissioner I can now go to NERA and instead of NERA sorting out the problem in the way the rights commissioner can do, NERA can then prosecute the employer. Instead of trying to sort out the problem in the way it was always done in the past, the Minister will make a dispute that could have been sorted out in the normal way, and always has been sorted out, a criminal matter for which the employer could be prosecuted, bear the cost of the prosecution and potentially be fined or even imprisoned. That is not the right approach. I realise I will be accused of right wing tendencies for saying that but the logic of the argument is clear.

Regarding the position of the director, we should cap the remuneration of the director in the Bill. We should make it clear in the Bill that no bonuses will be paid to the director. The fact that the director of the National Consumer Agency got a €25,000 bonus today is appalling and is an indictment on the Government. It indicates where it stands on public sector pay, which is to give bonuses to those who are already overpaid and to punish those who earn under €15,000. That is a disgrace. We must set clear provisions in this Bill that bonuses will not be paid or if they are, that there are clear criteria as to the purpose of those bonuses. Rising prices and people crossing the Border to go shopping should not be the reason for getting a bonus.

I have concerns about the advisory board. NERA is already operating; it does not need an advisory board. This appears to be an attempt to create another FÁS type board. It will have three representatives from IBEC, three from ICTU, and three from Fianna Fáil or people known to Fianna Fáil, all of whom will get remuneration. They will be down in Mount Juliet eating foie gras. If they are as shameful as some of the IBEC and ICTU people who have served on FÁS they will fly first class to Florida in contravention of Government guidelines and then refuse to repay that money.

The last thing the country needs is for the Minister of State to create another FÁS board. If we are to have a board it is important that we require that the people appointed to that board are vetted by an Oireachtas committee and that the three independent representatives, and their qualifications, are clearly defined. That is the type of role that should go to, say, a legal expert in employment law and not necessarily to a political appointee. We should also ensure there is no remuneration for the board members and that they do not engage in the type of practices that have become typical of State boards established under this Fianna Fáil partnership structure, which I believe people have lost faith in given what they have seen in FÁS and other boards.

On the new powers being given to NERA, I am happy enough with some aspects of the Bill. The joint investigation unit is a good idea and I support the protection for whistleblowers. I have problems with the provision for the new criminal offences of which there are 23 according to the count of IBEC and the Small Firms Association. I counted 15 but that can be clarified later.

I am against one of the provisions in section 36 and I will not support the Bill if it goes forward. It concerns the power to raid businesses, secure them as if they were a crime scene, and take away any documents NERA wants without any allegation being made, any suspicion or any court order. It is similar to what the Competition Authority has done where it has abused its powers. It can go into a small business and declare it a crime scene, take all the books away, prosecute the people involved and send them to jail. That provision must go. I do not mind the idea of a business being raided or documents removed but there must be a prima facie basis for doing so. There must be an allegation or a suspicion. We cannot treat businesses in this way. There is no way this party, or any party that purports to be in favour of small businesses, could support such a provision.

Section 32(6)(b) denies the right of silence to an employer. Essentially, if an employer does not respond to a question, that can be inferred by the director as an admission of guilt. We do not take away those kind of rights from murderers yet we intend to take them away from an employer. That is unacceptable and I reject a Bill that includes such a provision.

Section 59 includes fines of up to €5,000 and terms of imprisonment of up to three years for potentially minor offences. What would happen in the current labour law context is that an inspection will be carried out, the employer will be told they must rectify the position and, if they do not, a prosecution may follow. This provision could allow a prosecution to occur without any opportunity for the person to rectify the position. For example, the inspectors could seize documents without giving the employer an opportunity to put the documents together. Essentially they become evidence, and that must be examined.

As I mentioned in my statement today, I have a serious problem with section 61, which deals with the fixed payment notices. Again, it involves the inspector going in and behaving like a garda or a clamper by accusing an employer and imposing fines Nos. 1, 2 and 3. The employer ends up being fined several thousand euro.

The approach we should take when it comes to employment law is to give employers an opportunity to comply. For example, if the employer does not have the required notice displayed or if it is not in the correct language, they should be given an opportunity to comply. We should not simply fine them on the spot as if this was a litter offence. That is not the right approach to these issues. I note the Minister proposes to table an amendment to that section, and I look forward to the detail of that.

The fine for not keeping records is €250,000. That is extraordinary. If someone violates a tree protection order the fine is €65. If, like Kimpton Vale Limited or Larry Keegan, one knocks down a convent in south Dublin the fine is €1,000 but the maximum fine for not keeping records is €250,000. We must have some proportion in that regard.

Section 51 deals with the penalisation of workers. Depending on who one believes, the legal advice we have from the people who essentially wrote the book on employment law is that under this system an employer would not be able to transfer an employee from full-time to part-time work as that could be considered penalisation. The obligation would then be on the employer to prove that was not penalisation.

In the context of the current economy where people are moving from full-time to part-time work or working a shorter week because there is not enough work to be done, we should not create a new legal obligation on employers to prove that they have to do that. That is not something that is appropriate to employment legislation.

The Minister of State said there may be an amendment to the section relating to statements of service which I would welcome. As drafted, the Bill would make it a criminal offence if an employer did not give a statement of service to a departing employee, even if he or she did not ask for it. This is an insane provision. It is one matter if an employee asks for a statement of service, another if he or she does not. Statements of service should become a standard feature of people departing employment but should include information, such as attendance and punctuality, which would be of interest to future employers in assessing an employee's work record. I will be introducing amendments on Committee Stage in this regard.

I have a difficulty with the provision of multilingual notices. The official languages of the State are Irish and English. Putting the onus on employers to decide in which languages they have to post notices could lead to difficulties. For example, in an Indian restaurant there may be employees from India or Pakistan who speak six different languages. Will it be incumbent on the employer to publish notices in all six different languages? Is he supposed to know the notice is meant to be in Tagalog and not Telugu, Malayalam instead of Hindi? This provision could create an unfair burden on employers when the official languages of the State are Irish and English. It would be better if NERA could assist employers in this regard. It has already done some good work in producing information on labour rights in six different languages. To impose a criminal sanction on an employer if notices are not produced in the correct languages is both onerous and unfair.

I am glad the Minister of State intends to remove the provision about retaining a copy of an employee's passport. I would love to meet the muppet who wrote this Bill. I cannot understand why this provision was included. Why would an employer want a copy of an employee's passport and retain it for three years? I appreciate this will be amended. Section 54 relates to the return of private property to employees. That is contained in existing legislation and I do not understand why it needs to be included in employment legislation.

To the best of my knowledge no proper regulatory impact assessment has been carried out on this legislation. Those done by the Government are poor and do not contain any figures on costs. I have been informed the reason a full assessment has not been carried out is because the Government believes there will be no costs for business. That is rubbish. This legislation, when enacted, will have a significant cost impact on business. A regulatory assessment must be carried out. It is not good enough for the Government to say it has decided there are no costs. I cannot support this Bill unless a regulatory impact assessment is carried out.

An article I read suggested the role of the trade unions could be undermined by this Bill. Due to the relationship of the employee and employer becoming more one of a victim and a criminal, the employee will go to NERA to enforce his or her rights instead of going through the normal process of industrial relations with a union representative. One section creates the primacy of the latter approach. However, the rest of the Bill does the opposite.

See this speech in context