Willie Penrose (Longford-Westmeath, Labour)

That is fair enough. I am sure there will be more accommodation when we get down to business. One of the big problems was the lack of inspectors. There were only 30 or 35. Like the acorn seed becoming an oak, it took a long time to increase the number of inspectors to 90. We now have an inspectorate but it should be under the umbrella of the Department of Enterprise, Trade and Employment. That is important.

This is the second in a suite of employment rights and compliance measures which were negotiated during the partnership agreements. When enacted the Bill will modernise the labour inspectorate and establish a national employment rights authority, NERA, which has a long-winded name. It will strengthen the inspection and enforcement powers of NERA, which will include the power to issue compliance notices and the ability to prosecute summary offences.

The Bill strengthens the obligations of employers with regard to statutory record keeping and introduces whistleblower protection for employees who report breaches of employment law. There is also protection from penalty when claiming employment rights. It increases the penalties for breach of employment law up to €5,000 and-or 12 months in prison for summary offences, or up to €250,000 and-or three years in prison for indictable offences, along with the use of name and shame provisions.

This could be done without setting up another structure. One other problem is that we have too many structures. We have very fine labour dispute resolution mechanisms, including the Employment Appeals Tribunal and the Equality Authority. That has been subsumed and is now gone. There is also the Labour Court in Tom Johnson House. We have fine structures in place.

NERA has already had an impact and the report of proceedings during 2008 will be available next week at a briefing by the Minister of State. It is noticeable from perusal of the Bill that there is a failure to set out a role for trade unions within the compliance framework. It does not provide for the conclusion of a memorandum of understanding between NERA — assuming the Government goes ahead with it and ignores our advice to keep it as part of the Department of Enterprise, Trade and Employment. The concept is very important and I should underline our support for this. It is to ensure people's rights are protected and underpinned, although we believe it could be done within that Department.

The Bill does not provide for this memorandum of understanding between NERA — or whatever concept we have — and unions such as ICTU. The employment regulation order referred to is one area where we can see this working, particularly with difficulties bedevilling the hotel and restaurant industry. People who wanted to can have a JLC. They came into place in the 1940s, when it was important to have them, particularly in the agricultural area. They were very important but now we have partnership agreements, wage agreements and a plethora of employment law. In that context it is important to note employer and trade union interests are working together in the catering sector to deal with a set of uniform terms and conditions. There was one for Dublin and one for outside the Dublin area. They dealt with minimum pay rates, which is very important, and the Sunday pay rates.

This led to division and the trade has almost collapsed, from what I hear on the ground. It is important that unions understand the position and that is the reason it is important to include such considerations in the legislation. The Minister of State will move to accommodate this position.

I have also noted an employment regulation order relevant to the security industry. It came into effect on 1 January 2009 and allows increases of approximately 10% to 13%. The association involved is part of the security industry's joint labour committee that agreed the package in 2006. In light of the current economic turmoil, however, things have changed. There will be little receptivity among customers in respect of being asked to pay up and cover the costs. Many customers, including State and semi-State organisation, gave a commitment in respect of this matter but then flatly refused to allow the fees to be passed on to them. The HSE was one of the customers mentioned in this regard.

If State and semi-State bodies must, in conjunction with the unions, given consideration to this matter. NERA will be involved and will be carrying out inspections of companies. It will be subjected to a blank response from customers. When the package was negotiated in 2006, the economy was in a different state.

It is important the rights of workers be respected. However, I am concerned there is an insistence that the provisions in the package be honoured. It will further exacerbate the position with regard to unemployment in an industry which is now regulated and within which proper structures are in place. There should be a consultation process and a memorandum of understanding should be in place to allow matters of this nature to be thrashed out. No one can be indifferent to the conditions in which people are obliged to operate.

In the Labour Party's view, it is important the solutions to issues that arise be provided in the first instance at the level of the workplace. However, this does not appear to be affecting the agreement and I note the Minister of State is to correct the position. I am of the opinion that employers and employees would be very eager to see a provision in this regard being included. If the Bill is not amended in respect of this matter, then NERA will be obliged to operate in a vacuum. The question of how NERA will interact with unions, employers and those in the workplace must be addressed. I believe the Minister of State has accepted that if the position is not changed, the results could be disastrous. If the Bill, as it stands, is enacted, will NERA be obliged to have due regard to the agreed disciplinary procedures to which employers and employees already subscribe?

A core principle of Towards 2016 is that initiation and ownership of cases will rest with the complainant in so far as is possible. This is important because it will allow complainants to consult their union and ascertain their statutory and contractual rights. It will also allow for workplace solutions to be achieved. Trade unions and employers or their representatives have extremely important roles to play in this regard. As the Bill is currently drafted, employees will have no role whatever in decisions affecting them which are taken by NERA. There is a lacuna in the legislation in this regard which must be addressed.

A commitment was given in Towards 2016 to the effect that every employee must have an identifiable employer in the State who is legally responsible for compliance with all aspects of the applicable employment rights legislation. Section 46 of the Bill allows for co-operation with other member states but it does not require that statutory records must be kept in this State. As a result, a sizeable number of employees will remain outside the protection of the legislation. ICTU has made the point that such an approach would be inconsistent with the posting of Workers Directive 96/71/EC, which places a duty on member states to guarantee to all EU workers posted in their territories the same protection under labour law as applies to local workers. In the absence of such a provision, a question arises as to how such a posted worker might recover moneys owed to him or her. Perhaps the Bill can be amended in order to ensure records identifying legally responsible employers are kept. If the Government does not move an amendment in respect of this matter on Committee Stage, my party will do so.

Section 47 of the Bill confers on inspectors the power to impose penalties when they issue compliance notices. Deputy Michael D. Higgins has been very much to the fore in respect of this matter. He inquired on the Order of Business last week as to when the Bill would be introduced because he is particularly concerned with regard to migrant workers.

The definition of an "employee" appears to be restrictive. The body might find itself restricted from investigating and enforcing employment rights and some workers might well be effectively excluded from existing rights because they will be unable or will find it difficult to have themselves included under this definition. In the Industrial Relations Act 1946, the term used is "worker". Under that legislation, a worker is "any person of the age of fourteen years or upwards who has entered into or works under a contract with an employer whether the contract be for manual labour, clerical work, or otherwise, be expressed or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or a contract personally to execute any work or labour". That is a far more wide-ranging definition.

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