Leo Varadkar (Dublin West, Fine Gael)

I welcome the Bill and I offer my broad support for it on behalf of the Fine Gael Party. This legislation updates the 1971 Act. I have been in contact with most of the stakeholders, including unions, employer bodies and employment agencies and there is broad support for the Bill, although a number of provisions may need to be refined or amended on Committee Stage.

The purpose of the Bill is to require employment agencies to operate under a licence either from Ireland or another recognised EEA state. It provides for the Minister for Enterprise, Trade and Employment to make codes of practice, establishes an advisory committee and provides for the protection of whistleblowers, the prosecution in absentia of employment agencies and the enforcement in other EEA countries of the decisions of rights commissioners, the Labour Court and the Employment Appeals Tribunal. It does not deal with the temporary agency workers directive, which has not been transposed into domestic law yet but I imagine that will be subject to legislation at a later stage.

I am slightly concerned that some of the Bill's provisions may be contrary to the provisions of the Single Market and the Internal Market. The Minister of State referred to this in his contribution and I am sure he has advice on this but I have not seen it, as I am never given access to such advice. I will seek my own legal advice on these provisions.

Section 12 is a little strange. It allows the Minister to designate certain EEA states but not others for licensing. It is not clear how the Minister intends to exercise those powers. I do not fully understand how, in a Single Market, some states can be designated and not others. For example, a number of states have a licensing regime and others do not. The UK does not have such a regime for licensing employment agencies and, instead, supervision is used. Does that mean it will not be possible to recognise the UK? I can understand how another state with a licensing regime could be identified and its licences recognised but how does that apply to EEA states that do not have such a regime? Will they be excluded from participating in the Irish market? Will they have to apply, therefore, for a licence in Ireland? Will countries that do not have a licensing regime be recognised anyway because of European Single Market legislation? Ireland could up end recognising all employment agencies based in Romania because it only has a supervision system and not a licensing system, in which case nothing at all would be achieved. I would like clarity on this issue.

Section 13(1)(b), according to the explanatory memorandum, will allow the Minister to refuse a licence to an employment agency on the basis that offences were committed in another state that would have been illegal in Ireland. That is a strange provision. An employment agency operating entirely within the law in another state but doing something that would be illegal if it happened in Ireland can be refused a licence. I find it difficult to understand how that would stand up in the courts if anyone were to challenge it. For example, in this State it is illegal to sell fireworks but it is legal to do so in other countries. This is similar to saying to a retail outlet such as Spar, which might sell fireworks in Germany, that it cannot operate there because they do something that is legal in Germany but illegal in Ireland. Such a provision will not stand up in court if it is challenged. I would like to see the legal advice on that if the Minister of State is willing to make it available to my office.

Section 3 defines the terms "employee" and "employer" and then it refers to worker hire agencies. This issue of defining "workers" and "employees" separately in legislation has been raised previously but if references are being made to employers and employees in the Bill, would it not make more sense to refer to an employee hire agency or to define "worker"?

Section 10 provides that for an agency to be eligible to apply for a licence, a person must be established in the State or in another EEA state. However, it does not set conditions regarding what kind of person may establish an employment agency. It might be appropriate to consider this in the legislation. For example, it does not require that the person should have a qualification such as a human resources or business degree. They must be persons of good standing but no requirement is set that they should have the ability to run an agency. It is strange that this would be not the case in a licensing regime. If one applies for a licence to drive a car, for instance, one must pass a test to secure a qualification. The section permits individuals to establish a worker hire agency or a placement agency without any qualifications or without passing a test. That is a potential deficiency in the legislation.

The UK has a supervision regime rather than a licensing regime. Will that be considered to be acceptable by the Minister? Does she consider supervisory regimes to be the equivalent of a licensing regime? Section 10 also uses the term "established in the State". I do not know what that means in law. I have never seen it defined in law, particularly not in regard to employment agencies. I am not a lawyer but Deputy Penrose is and perhaps he can advise the House but I have never seen the term used before. Why is it not defined? Will the Minister of State clarify what it means in order that the good justices when they deal with matters under this legislation will be able to read the Second Stage debate to ascertain what the Minister of State meant by "established in the State"?

Section 21 prevents a placement agency from being guilty of an offence if it charges a jobseeker a fee for providing services, including training. I question whether this is necessary. I do not doubt placement agencies charge people when they should not and that should not be tolerated. The licence of an agency that does this should be revoked. However, if an agency provides training, I do not see why it should not be able to charge for this. The jobseeker does not have to take up the training and, therefore, pay the fee. Why should it be illegal for a placement agency to provide training? Why should a training and placement agency in the State be an illegal entity, which it would be under this legislation? For example, if a placement agency reviewed and improved a person's curriculum vitae, which is often done, it cannot charge for that service and I do not see why that should be the case. It is up to the individual whether he or she wants to pay for the service and I do not see why it should be an offence. The same applies to interview preparation. We have no difficulty with agencies charging large sums to do interview preparation for job applicants. I do not fully understand why it should be illegal for agencies providing this service to charge for it.

It is a step too far to make it an offence for the employer to knowingly hire somebody who was charged for such a service. Ultimately, these things are the responsibility of the person and of the service provider. If the person pays for it, it is his or her own business; if the provider charges for it, it is its own business. The last thing we should do is to criminalise a third party, which this Bill would do. It would criminalise an employer who hired an employee while being aware that he or she had some exchange of moneys with the placement agency, even if it was for something as simple as a fee for interview preparation.

Section 24 provides for the appointment of authorised officers by the Minister for the purpose of the Bill. I would be interested to know exactly which officers will be enforcing this Bill. Will they be officers of the Department or of NERA? The legislation also allows the Minister to appoint an agency to do this job, although it does not specify the agency. Will it be NERA or another agency? Should the agency not be named? Will there be a number of different agencies? The Minister might clarify that. Section 25 gives these authorised officers from the mystery agency extensive powers, to which I might return on Committee Stage.

Section 30 deals with penalisation. There is some concern about the definition of penalisation and I know the Minister will receive a number of submissions with regard to how the term "penalisation" is defined. The Minister of State may wish to consider this. It is all very well to have protection against penalisation, but they do need to be well defined. There is also no protection from penalisation for involvement in trade union activity; this is something that could be included in the Bill. People who are being hired through employment agencies will probably not be unionised, but I do not see any reason they should not be permitted to join a union if they so wish. This is different from obliging the employer to recognise a union. There may be a case for rewording the definition of penalisation to explain it better.

Section 33 provides for the establishment of an advisory committee, for which I question the necessity. I know Ministers love setting up boards, advisory committees, task forces and so on; there is nothing they like more. They are the international masters. If there was an Olympics of setting up committees, Fianna Fáil would win it every time. If it is necessary to set up an advisory committee, I do not think it should be set up on the FÁS model, as provided for in the Bill. The committee will consist of two employee representatives, two employer representatives, two civil servants, two people representing employment agencies, and two cronies. This is not the way it should be set up. We brought legislation through the House to change the way the FÁS board was appointed and, although the positions should have been scrutinised, Fine Gael supported the Bill in principle and did not vote against it. I do not understand why the Minister is now going back-----

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