Seán Fleming (Laois-Offaly, Fianna Fail)

——two, if the legislation makes it out of the House in a reasonable period, any commencement orders for the majority of sections should be held off for as long as possible until economic reality prevails.

We all know why this employment rights organisation was set up. We heard about Gama and about people not being paid properly and the various investigations under way. When the Irish economy was booming, there was certainly abuse. Many Irish and non-Irish workers were not paid what they were entitled to. I do not refer to the minimum wage but rates that prevailed in the construction industry at the time. People did not receive these rates and there was abuse. These matters were investigated and people are much wiser. There are many statutory bodies, agencies and resources of the Department to investigate these matters. The idea was to set up an agency, and this was done with a budget of some €14 million. Then it was decided to put the agency on a statutory footing. This occurred a few years ago but times have changed. The reality of the economic situation has changed. I do not refer only to the downturn in the national finances but to the whole perspective of Irish people.

I have never seen such a negative item of legislation. Almost every sentence in the explanatory memorandum is out to do an employer or someone. If the Department is producing legislation, it should be about promoting employment, but this is guaranteed to lose employment. The activities of NERA have cost more people their jobs than assisted people in getting their rights in recent months. I speak from practical experience of cases I have heard about. We all know of hotels and restaurants which have stopped serving lunches on Sundays. This is a mishmash.

JLCs are part of the core problem. I accept that NERA has a job to do, that it was given a brief by the Oireachtas and this is the statutory legislation for the agency. I have never spoken directly to the agency but I know people involved in it. It is close to my constituency as I live quite close to Carlow. I have refrained from raising this matter because the obvious answer is that the agency is only implementing what it was told to do by the Government. This is the case, but much of what we are dealing with is so minute and detailed that we need perspective. Having been a member of the Committee of Public Accounts, one must see the introduction of this legislation, setting up the agency on an interim basis and then passing the legislation for the statutory existence of the agency as a project. When a project takes a number of years, the first thing one must do is to have a built-in review mechanism and ask whether the objective on the first day is still valid. Times change and I do not believe this legislation will pass that test if there is a review. It was initiated with good intentions and was needed when it was introduced, but it is not needed now.

I listened to a taxi driver on national radio during the week. There may be all sorts of innuendo behind this. He had a matchbox-sized Irish flag on the taxi sign on his roof. An inspector from the taxi regulator told him he would be prosecuted if he did not take down the matchbox-sized flag. He said that he was Irish and asked what was wrong with it. If we have regulatory authorities, such as the taxi regulator, with staff to do this, then we have lost the plot. I would prefer to see resources in such a Department made available for training those who are stranded someway through an apprentice programme rather than in situations as I have outlined. This concept must be reconsidered.

We have had good discussions with the Minister of State, Deputy Kelleher, who inherited this legislation. The agency was part of the Department before he was appointed. People referred to new legislation and new quangos. An authority has been set up by statute, a director is being set up by statute and advisory boards are set up by statute. I question why these cannot be done by the main Department.

I have a bee in my bonnet about JLCs. They should all be dissolved for the following reason. Somebody somewhere meets intermittently in order to set a rate, which goes to the Labour Court, which has a mechanism for dealing with it. I was contacted by employers at several hotels and restaurants in my constituency in south Leinster. Perhaps we are unfortunate to be within driving distance of the NERA headquarters in Carlow. None of these employers had heard of the JLCs and none of them knew they had a representative on it. I do not believe the employers who participate in JLCs are representative of the people they purport to represent. They are a fraud. They are not operating in a democratic manner.

I am equally critical on the other side of the equation. I do not want to single out any trade union. The ballpark figure for the Irish workforce is 2 million, of which 300,000 people are in the public sector. All of these are unionised and the total number of unionised staff in Ireland is 600,000. Over 1.7 million people are in the private sector and some 300,000 of them are in a union. This means that over 80% of the workforce in the private sector are not in a union. Unions do not have any mandate to represent an organisation where the majority have little or no membership. The employer side of the JLCs is unrepresentative of who they purport to represent and the union representatives are equally unrepresentative because they are not their members. The JLCs process is a fraud and should be declared null and void.

I refer to the idea of these groups of people making recommendations to the Labour Court. It would be different if employers in hotels and restaurants had been in contact with representatives and had attended regional or national executive meetings. None of the hotel and restaurant employers knew who was the regional representative on the JLCs. People have got into positions, are sitting there and they are getting rights. There are remnants of FÁS attached to this, where there are tripartite advisory boards, soft handed jobs for IBEC, ICTU and a few people in the Departments. These people sit in the quango but they are not elected or representative. We must be careful about new tripartite bodies because they are not as representative as they purport to be.

I would prefer to see more accountability of this organisation to the Oireachtas. As a member of the Committee of Public Accounts, section 25 is hopelessly insufficient. This section is the standard section written by those setting up bodies by Departments to ensure there is no accountability to the House.

Section 25(1) states:

The Director shall, whenever required to do so by—

(a) a committee appointed by either House of the Oireachtas, or

(b) a committee appointed jointly by both Houses of the Oireachtas,

the business of which committee includes examination of policy relating to employment legislation, attend before such committee to discuss his or her general activities.

The word "accountability" does not appear in that. If we are setting up bodies such as this, the director of such organisations must be made in law what we all understand a Secretary General to be — the Accounting Officer. The buck should stop with him or her, but it does not as this stands. He or she is only required to attend to "discuss general activities". That is not reporting; it is a con job that makes little of this House if that is all a committee can do.

Section 25(2) indicates that the director should not discuss any information relating to a specific inquiry or do anything to express a comment on the policies of the Government or Minister of the day. The attendance of the director will not even amount to a talking shop and there will be no accountability. With FÁS, the Committee of Public Accounts found it could not name an individual because there was no Accounting Officer. There is a beautiful term out there where a public servant is called an "accountable officer" rather than the Accounting Officer. It is a new phrase heard in this building recently. I do not know what it means but I know it means nothing, as it does not amount to an Accounting Officer.

There is no accountability to this House by the director, so the person will be able to act unilaterally and come here to discuss general issues. I am not satisfied because there is no accountability in that. We should not set this up but if we must set up some of these bodies, the accountable officer should be made accountable and personally responsible to the House not just for doing his or her duties, but in the case where he or she does not carry out his or her duties.

If we have learned anything in public life in the past few months, it is that people can walk out of the public service with grand payments that are driving the country mad. Such people may not have done anything wrong or illegal, but they may not have done their job either. There should be a requirement in the legislation that the director do the required job. I consider not doing one's job — malfeasance or whatever — as serious as doing a job badly. There is no requirement in the legislation for the director to do the job to an acceptable standard but we should learn a lesson from recent times.

There will be different views on this legislation but all new bodies should be subject to freedom of information provisions from the start. It puts in place a proper culture of accountability for actions. Those in the organisation should know from the first day that they will be made account for their actions under the Freedom of Information Act. There is no suggestion in the legislation that it will happen in this case and that seems to be the format. Perhaps people do not like freedom of information and it may suit the system, but it would help make an organisation a little more open in its work if the people in it knew they would be subject to the Freedom of Information Act as well.

I am here after months of frustration hearing about this National Employment Rights Authority, NERA, in Carlow. I had not paid much heed to it until I started getting phone calls from various hotels and restaurants. These businesses wanted to operate on Sundays with employees who wanted to work on the weekends. They may have been students who wanted work for Saturdays and Sundays and were happy to work for €10 or €12 per hour. Some JLC, which neither the employer nor the employee knew about, dictated that certain persons cannot be employed at certain times. NERA's job is to enforce that legislation, which has caused enormous difficulty.

I was in a restaurant last Saturday night — St. Valentine's night — for a quiet meal with my wife but the restaurateur rightly took advantage of me being on the premises to give me a lecture about NERA. Only a few weeks earlier some of its representatives had arrived on the premises at approximately 8.45 p.m on a Saturday when the entire restaurant was full. The inspector told the head chef and proprietor that food could not be served until she had finished her paperwork. For 45 minutes the manager had to go around plying people with drink trying to ameliorate them. He explained there were inspectors on the premises and assured customers there was nothing wrong and the food was safe. He was not allowed budge until the paperwork was cleared. That was on the busiest night of the week.

Another hotel in Laois specialises in Saturday weddings, with some dragging on until 1 a.m. or 2 a.m. on the Sunday morning. The NERA inspectors came and although no staff would be brought in on a Sunday — the hotel does not do Sunday lunches — they wanted to check the Saturday records to see who came in for the wedding on a Saturday afternoon but had not left the premises by midnight. They wanted to see the records of those people on the premises at 1 a.m. or 2 a.m. on Sunday, although there was no further work. The employer had no option but to pay up and staff who had left long before had to be contacted and told they were due a refund.

In another restaurant in Portlaoise, the lady who runs it has a great interest in people with disabilities, if I can put it that way. As she was friendly with two people who were on a disability allowance, she employed them on a part-time basis for rehabilitative purposes. These people have Down's syndrome and were able to clean tables — I have a sister with Down's syndrome and there is nothing wrong with that. The people in question worked to their ability and were not allowed handle hot water, tea or saucepans because they were incapable of doing so. NERA instructed her to pay these people the full rate or they had to leave her employment; the lady in question was almost obliging the people by giving them whatever payment they were getting.

Those two people with Down's syndrome had outlets for a couple of hours for two or three days in the week, doing a bit of work which made them feel worthwhile in their lives. They were deprived of this by NERA, which does not care about such issues. Perhaps it is the job of the organisation not to care. Our job as legislators is to ensure that we do not create legislation which facilitates this, as the body only implements legislation.

I do not normally criticise Government legislation to this extent but times have changed. I do not want people to think I am not in favour of employees getting a fair rate — I am all in favour of that. However, in the current climate, I would like to see the emphasis of everybody involved in setting up NERA working towards the creation of employment rather than over-regulating compliance.

There are a number of other aspects of the legislation that I will mention. I know it is standard practice in legislation that when a director leaves a public sector office, they cannot take up a position in the private sector for 12 months following cessation of appointment in case of conflict of interest. There are mixed views on this, but such a provision enshrines in legislation that the public sector is one thing and the private sector is another, and we dare not have proper cross-over and cross-fertilisation of good practices in both sides. Having legislation which dictates that when a director leaves a public sector job, he or she cannot contemplate taking a job in the private sector in the foreseeable future almost indicates that those in the public sector are above working in the private sector.

I know there can be conflicts of interest but part of the problem is there is too much demarcation between the public and private sectors. Most families in Ireland have public and private sector workers and they get on, yet we continue to enshrine this demarcation line in legislation. It is unnecessary and perpetuates a difference in opinion between public and private sector.

I mentioned earlier the question of advisory boards for Ministers but I do not know why we need such an advisory board if we are to have a board of the agency. It is a duplication to which I cannot see a benefit.

Part 5 of the legislation has a provision for legal protection of those people who make a complaint in good faith. It is indicated that is an offence for anybody to report in bad faith. Perhaps there is a shortcut in the explanatory note but there appears to be details of penalties for the protection of people but I do not see any penalties for people reporting in bad faith. Will NERA be as diligent in prosecuting employees with bad-faith reports to the agency as it is with employers?

See this speech in context