Leo Varadkar (Dublin West, Fine Gael)

When it comes to hairdressing it is even more complicated because the minimum rate which a hairdresser gets is €0.06 an hour more if he or she is cutting a woman's hair than if he or she is cutting a man's hair, but if he or she cuts unisex hair he or she is paid the male rate. I do not know what unisex hair is or whether there has to be a particular balance in terms of how many men or women one sees in a salon or barbershop, but that is the law. The Minister of States wants such a law to be made by this House. Whatever about the Labour Court making stupid laws, I hope this House does not make a law like that.

As I said, it only applies in some parts of the country and not in others. It gets even stranger. There is also the retail and grocery employment regulation order which applies to the retail, grocery and allied trades. What is retail? It does not include a lamp shop or a clothes shop. It only includes shops where food is sold, but not all types of food. If the only food one sells is bread or confectionery made only from bread, then the order does not apply. If one sells beef it does not count. If one is a beef butcher, one is not covered by the regulation, unless one sells pressed beef. If one does not sell beef but sells pork, fish and venison it does not apply. After 30 years the Government might have come up with a Bill which might address something like that. It applies to tobacconists, cigar, cigarette and cigarillo sellers, snuff sellers and sellers of smokers' requisites, but not to independent off-licences.

Needless to say, there are some strange regional variations and some very strange rules as to where it does apply. In the case of Butlers Cafe it did not apply when it was selling chocolate because apparently that is not food, but when it had chairs to allow people to attend the cafe it then became a cafe and fell under the catering order. It does not apply to pubs which do not sell food but it does apply to pubs which do sell food, unless it is a sandwich which one eats at the bar, in which case it does not apply.

There are similar issues regarding petrol stations. If it starts serving food and allows people to sit down it becomes a catering establishment, and that also applies to people who only sell petrol. There are other examples. There are different rates for tailors and dressmakers compared to shirtmakers. I will not talk about the butcher, the baker and the candlestick maker because the butcher and baker do not come under this system unless they sell beef - I do not know where the candlestick maker falls but I do not think he or she is involved.

The system does not deal just with minimum pay rates. There has been a focus on pay rates in this matter, which is not the issue at all. By and large the minimum rates are not much above the existing minimum wage with, perhaps, the exception of the security industry. They apply to various areas involving terms and conditions, which is where things get quite complicated. It is not clear to me - the Minister of State might explain this at some point - if the ability to pay clause will apply to the minimum rates or if it will also apply to premium pay, overtime and the fact one can only work every second Sunday after St. Swithin's Day and before Christmas Day. Those aspects of the EROs and REAs are what really cause the problems, with the exception of some employers who do not want to pay their workers anything at all - I have no sympathy with them. I am interested in knowing whether the inability to pay clause or the hardship clause, as the Minister of State is now calling it, will apply to that.

It also applies to other issues such as representation. Some EROs give workers the right to be represented by their union, as they should be allowed to do, and is the case for that covering agricultural workers. Others do not say anything about representation. The case of electricians is the most bizarre. I appreciate it is an REA and not an ERO, but the REA for electricians requires that they must be members of the TEU and that the employer must collect their dues. It is one thing to prevent people from being a member of a union but it is another to say they cannot work unless they are a member. That issue needs to be addressed in this Bill.

Some EROs and REAs give people the right to compassionate pay, others do not. Some allow sick pay, others do not. In the case of sick pay in the retail sector, one has to give notice of an hour and a half, but in hairdressing one has to give notice before noon. Some deal with breaks, others do not. Some ensure that workers have pensions, others do not. Some deal with the issue of premium pay. For example, the retail sector gives anything between time and a third and time and a half but hotels give only time and a third.

Others deal with working times. For example, the hotel regulations prevent anyone from working more than 12 hours in one day even though he or she may wish to. Many of us have done it. It might suit one to work a 14 hour day one day and nothing the next day, but that is illegal. This Bill does not change that. It also requires that hotel workers get every second Sunday off during the off season. It might suit somebody to be a hotel worker who only works Sundays and does so during the off season, yet we are saying that should be a crime in this State. I do not see why we would ever want to enforce a system like that. Others deal with annual leave and facilities. For example, the security ERO requires that the employer provide access to a canteen, stove or the means of heating food, which is a very good thing but I am not sure if employers who do not provide it should be prosecuted. However, they should be under the existing law.

After 30 years of court cases and a period of time in which the Government could have addressed this issue we should not be discussing a minimalist Bill which will just about get the Government around some court cases which are currently taking place. There should be a total overhaul of the ERO and REA system. If it did not happen 30 years ago it should at least have happened in 1997 when the National Minimum Wage Act was passed. Let us not have people in five years time saying a Bill went through the Dáil five years ago and it did not deal with it. Why do we not deal with this Bill now?

If I had been asked a question on EROs and REAs two years ago I would have had a different opinion. I probably would have said JLCs should be abolished, there should be no system and we should just have a national minimum wage and various other protections, and leave it at that. I no longer take that view because, with the exception of REAs which, by and large, cover very well-paid workers, the EROs cover workers who are generally poor, uneducated and unorganised, and many of whom are foreign nationals. There is a necessity to have a supplementary means of protection for such workers to ensure they are not exploited, as they would be if we reduced them to the bare minimum rights allowable by law.

The system does not work and needs to be radically overhauled. First of all, it should be genuinely representative. With all due respect to the officials who sit on JLCs, they are officials, and very often they are union officials who represent workers who are not unionised and who were not elected by them. There are officials from the employer organisations who have never run a hotel or restaurant in their lives but who are just officials. JLCs should be properly representative. 6 o'clock

The chairman should not have voting rights. I appreciate the Minister of State's statement that he has made the point that on many occasions in recent times the chairman's casting vote was not used, but there is a dynamic in all of this. This is not my view, rather, it is that of the people who have researched this area, namely, O'Sullivan et al. There is a perception that many of the chairmen tend to favour one side rather than the other and that, of course, changes behaviour because people will not push their case if they think the chairman will come down against them. If one had an independent chairman who was a conciliator, rather than a judge, one would have genuine agreements rather than ones that are imposed, sometimes because one side fears the potential bias of a chairman.

We should require that the chairman be professional and qualified. That is not provided for in the legislation. Essentially it is an appointment that is in the Minister's gift. That should not be the case. There should be criteria requiring that they have some qualifications, possibly a former rights commissioner, but that is not in the legislation. They should have a national application. As I mentioned earlier I do not understand why they apply to some parts of the country and not to others, sometimes to parts of counties and not to others. I think they should be limited in their remit. In some cases they cover areas that should not be legally enforced. It may be well to say that things should be done by agreement but making it legally mandatory that somebody has certain things in their toolbox should not be the law.

This legislation should be amended to define more tightly the areas to which an ERO or an REA may or may not apply. All of this should form part of an overall modernisation of our labour law. We should have a consolidated employment law Bill which would be much easier to compile than the consolidated company law Bill. The Minister can take as long as wishes to do that so far as I am concerned. The employment law Bill could be done quite quickly. That consolidated Bill should enhance the existing body of rights that are currently applied to all employees. For example, everyone should have sick pay; everyone should have access to a pension; everyone should have some form of break system. Arguably, everyone should receive some form of premium pay on Sundays. New legislation should be introduced to provide those rights that are currently enjoyed by some people, covered by EROs but not others, to everyone. We need to consolidate all those different structures to which I have referred, the alphabet of agencies rather than the alphabet of orders and agreements as there are too many of them. It is not in anyone's interest, other than the people who are on them, to have so many. There should be major consolidation in that area. The Minister is probably looking at the UK model as an example of how to do it more efficiently. Above all, we need to fit this into a new social contract, one that says to everyone in society that they will have access to health insurance and to a defined benefit pension. That is the kind of reform, if one goes back to 1946, that after 64 years, we should be introducing today.

In regard to the inability to pay clause, I support it but I have concerns about it. As I mentioned, it is not clear whether it will apply just to rates or to all those other aspects such as premium pay, overtime, how many Sundays one can work in a row, whether one has to be a member of a union whether one wishes or not. I would like to know if the inability to pay clause or the hardship clause will apply to those issues as well as to the minimum rates. I am concerned that the Labour Court will find itself inundated by cafes, restaurants, hotels who will come to it with their books stating they are making a loss and cannot afford to pay. That would put the Labour Court in a position where it would have to grant them a hardship clause which will then create an unfair competitive disadvantage for those who are just getting by or turning a small profit. In many ways that has the potential to undermine the whole system. Perhaps it is the intention of the Government that this vision is a Trojan horse through which it will bring down the whole system but it will do it by stealth. If that is the Government's intention why not withdraw this Bill, start again and address not just this one issue, that is before the House because of what is going on in the courts, but all the issues I have mentioned in my contribution and overhaul these industrial relations Acts? I think we have some time at least to do that.

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