Billy Kelleher (Cork North Central, Fianna Fail)

I am delighted to have the opportunity to reply to the debate on this legislation. There was much interest in the Second Stage speeches inside and outside the House. They were followed closely not only by interested employer representative groups, but also by the trade union movement and Deputies who did not have an opportunity to contribute in the House.

There is no doubt but that there are varying views — to put it mildly — on whether this Bill will be of benefit to employees and employers. Having listened to the Second Stage debate, I learned of the concerns causing difficulties for some Deputies. It is certain there will be strong and robust debate on Committee Stage. While the basic tenets and principles of the Bill will stand, I am sure we will consider as favourably, sympathetically and flexibly as possible all amendments that might make the Bill more beneficial to employees or employers, or both.

I accept the bona fides of Deputies who have commented on numerous occasions on rates of pay. If this Bill became law by midnight, not one provision would change the lives of employers tomorrow morning. NERA has all its investigative powers only because it is enforcing the employment rights legislation on the Statute Book. It is important that this is said because there is an incorrect view that NERA is setting the rates. It is only enforcing the employment conditions agreed in the context of discussions involving joint industrial councils and joint labour committees. It is basically enforcing the de facto law of the land and does no more than that. I have read the Bill, including its explanatory memorandum, from start to finish on a couple of occasions and cannot find any statutory provision giving responsibility for the setting of rates to NERA. Rate of pay are set by joint industrial councils and they become registered employment agreements, which are enforced by labour inspectors and are to be enforced by NERA.

I hope this will be reflected in the statutory provisions when the Bill is passed, but there will be no change in the context of daily policing of breaches of employment law raised with labour inspectors by trade union officials, employees or employers. Cases have been raised by employers. If one has a hotel in one end of a town and is paying the de facto statutory pay rates but one's competitor at the other end of the town is not, one is put at a very serious commercial disadvantage. It is important to get the balance right. There are certain areas where the joint labour committees and joint industrial councils must become more responsive to needs that arise and to the commercial reality of a given sector or the workplace in general. This point was made by Deputy Connick.

I ran into hot water with an individual some time ago over the minimum wage. Deputy Clune raised this issue today. At no stage did I say the minimum wage should be reduced or increased. I was just making the point that the Labour Court adjudicates on the minimum wage and when it has made its final determination, it presents it to the Minister, who can either accept, reject or amend it. He or she can have it adjudicated upon by external consultants or expert bodies, such as the ESRI or NESC, to determine what would happen if the minimum wage were raised, lowered or amended in any way. That was the only point I was making.

I stated in respect of joint labour committees and joint industrial councils that there is a new reality. We know some companies and sectors are under enormous pressure, as highlighted frequently by Deputies on all sides, including today. The catering sector, for example, falls into this category. Deputy Connick is correct that it took a long time for the joint labour committee to acknowledge there was a discrepancy pertaining to rates of pay during Sunday trading in Dublin and elsewhere. Eventually, it discussed the issue under an independent chairman and reached an interim agreement. Such an agreement is subject to a statutory process and must be lodged before the Labour Court. Submissions are sought from interested parties and, ultimately, if the rate is agreed upon, it becomes the law of the land. NERA will have no hand, act or part in making such decisions and will only be involved in their enforcement.

I will probably read of cases of exploitation. Deputy Costello pointed out that there are genuine cases of exploitation of workers. There is not much point in deluding ourselves into believing every individual is the nicest person in town. There are cases of genuine exploitation and we must put in place some mechanism so the authorities of the State can say there is an inspectorate with statutory powers that can enforce the laws of the land.

We have already taken on board some Members' views on the criminalisation of employers and we will table amendments in this regard, which I hope will receive broad approval on all sides. We wanted to have legislation which would be supportive of, and supported by, employers and employees and which would have broad support in the House. This would send out a very strong message because not only do we want compliance through enforcement, we want to have compliance through education and encouragement. We want the employers, trade unions and employees to buy into this in order that we have a stream of information on people's rights, entitlements and obligations, which would be very welcome.

I spoke to NERA on numerous occasions. It has been brought to my attention, and I accept, that some labour inspectors are what I term "overenthusiastic" and what others might term "heavy-handed". We will bring forward an amendment on a code of practice for labour inspectors. This would be fair because we do not want people hounding employers by, for example, having labour inspectors arriving to do a full audit at unearthly hours or during difficult times when two or three weddings or functions are taking place on the premises. These can be done at normal times with notification.

If a labour inspector, however, has a genuine belief that there is exploitation, not only in the context of wages and conditions but also with regard the Employment Permits Act, he or she might have to arrive unannounced, as otherwise a second lot of books might come out as opposed to the first lot. As this can happen, we must provide for it. In general, the code of practice will be meritorious of support from all Deputies. We must have broad understanding that these are public sector workers going about their lawful duty to ensure there is compliance. They do no more nor no less.

However, if heavy-handed tactics, as were described by some Deputies, are being used, we must take this on board and this is why we will bring forward an amendment on the code of practice. At least the inspectors will know they have obligations just as we expect members of the Garda Síochána to behave in a courteous and professional manner when dealing with the public. We do not expect anything less of any other person dealing with the public on behalf of the State.

I hope the commentary on the legislation outside the House in the coming days will take account of the fact that nothing will change in the context of employers' obligations to keep records. There is already a corpus of legislation under which they are obliged to keep records and pay rates and conditions agreed under employment regulation orders and registered employment agreements. If this Bill were not passed employers would be still obliged to deal with these, and this information must be repeated on occasion.

We have had cases where labour inspectors went into hotels, requested the books for audit purposes and found people were not paid double-time for Sundays. It is a fact that many people were not paid double-time for Sundays in rural Ireland. Employers are legally obliged to pay double-time for Sundays but it was not enforced. Backdating these arrears put much pressure on people. The issue is that this money is not that of Deputies Billy Kelleher, Seán Connick, Joe Costello or Leo Varadkar, it is the employee's money and he or she is entitled to it. We cannot negotiate people's rights on a daily basis. They are entitled to these arrears and if they wish to seek redress we must uphold and vindicate their rights and entitlements. The concern was with regard to rates of pay and not enforcement of those rates.

This Bill was a key commitment of Towards 2016 and the social partners were insistent on this. It was broadly discussed with the social partners and the Bill has been in gestation for a long time. There were much toing and froing between the social partners in this area. The Bill was published last year and was slow to come to the Dáil simply because the social partners wanted clarification on issues. It is hoped the social partners will see as genuine our commitment to protect workers and to ensure their rights and obligations. Under the Bill, employees have obligations. If everybody adhered to the law of the land on rates of pay and conditions it would not give advantage to those who exploit or underpay workers and undermine businesses which lawfully pay workers. This issue has been raised with me by many hotels and restaurants which pay the rate but know a business down the road does not. We must ensure we have clarity on this issue.

This was a genuinely interesting debate. We can accept that nobody in Dáil Éireann wants to see workers exploited and, equally, they want tacit acceptance that businesses are under pressure. If a business is under pressure and it has cut its cost to the bare minimum in terms of overheads, commercial rates and costs to banks and Revenue and the only variable remaining is wages, at what stage does one state enough is enough? One cannot keep trading on the backs of workers. There comes a time when a business is just not profitable and one cannot expect workers to go to the nth degree and work for nothing to keep a business going.

This is a challenging time but the country should be proud of what we achieved with regard to the minimum wage which is €8.65, the second highest in Europe. We as a society, a Government and a Parliament have stated that we value fair remuneration for a fair day's work and that we accept this as a modern standard belief. We should be proud of this. I would have concerns about any undermining of this. How far does one go towards a worker effectively working for nothing? We can discuss this issue on Committee Stage.

Deputy Varadkar raised the issue of NERA costs and benefits in the context of the regulatory impact analysis which was carried out and has been available on the Department's website since the Bill was published. If the Deputy clicks into it he will have seen it before I am finished to see whether it is of benefit to him.

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