Leo Varadkar (Dublin West, Fine Gael)

It is not but it is a relevant point. I do not have an objection to people being members of trade unions. I was a member of one in the past. Where disputes arise and unions are recognised by the employer, resolution through it is a logical course to follow. In many ways, NERA will supersede that. Employees will go straight to NERA to have the employment policeman sort out their criminal complaint against an employer instead of resolving it through the normal industrial relations processes in existence.

Dr. Tony Dobbins, in an article on compliance in employment law, states there are two approaches, the Anglo-Saxon and the Latin. This Bill, he argues, adopts an Anglo-Saxon model where six separate agencies behave like policemen in enforcing the law in businesses. The Latin model, on the other hand, which is used in most of Europe, is more holistic, giving most functions to the one authority and a real degree of discretion to the labour inspectors to work with employers and employees to deliver a desired outcome.

I accept NERA is just doing its job in enforcing the employment regulation orders in the catering and hotel sector. It has been established as a policeman to prosecute employers who are criminals and deal with them in the way it has. I believe that is not the right approach. NERA should be able to have a more holistic approach in dealing with labour inspections and to show some degree of discretion and leniency where appropriate. I regret the Government has not opted for that approach.

I have no objection to the joint investigations units. The IBEC submission on the legislation stated:

The Bill is supposed to recognise the central obligation on employers and employees to attempt to resolve workplace disputes. This is to be welcomed and enforcement is always to be a last resort. However, the Bill does not effectively enshrine that obligation in statute.

The Minister of State did not refer to any amendments that would ensure enforcement is a last resort and not the first action to be taken.

The director of NERA will have the power to issue compliance notices without having to go to a court which allows him to decide what is the law. Essentially, the policeman is being given the powers of the court. I accept that is how the planning system worked but I am not sure that is appropriate to employment law.

At a recent conference, Tom Mallon, a barrister who specialises in employment law, pointed out that a situation could arise from this legislation that if an employer dismissed an employee because the employee refused to transfer from full-time work to part-time work, then the employer would be guilty of a criminal offence. Can the Minister imagine how many employers are now criminals because of such requests with the recent economic downturn?

This is a flawed Bill. NERA, as an agency, did not have to be established separately to the labour inspectorate. It is a typical Government response to establish an agency for every problem that emerges. The labour inspectorate could have easily been properly resourced. This legislation will create new layers of bureaucracy and duplication with a new board similar to that of FÁS being established. It also gives extraordinary powers to NERA to raid businesses, take away documents and criminalise and prosecute employers. The fourth issue is the absence of a proper impact analysis.

This Bill is disproportionate and heavy-handed. It will fundamentally change the relationship between employees and employers and will potentially criminalise people just for taking staff on and giving them a job. We do not need this in the current economic context.

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