Willie Penrose (Longford-Westmeath, Labour)

I welcome the opportunity to speak on the Employment Agency Regulation Bill 2009 and to indicate our broad agreement with and support for it. As Deputy Varadkar said, we have significant amendments to table on Committee State to ensure the Bill is strengthened and made fit for purpose. It is no use allowing legislation to meander its way through here, we should all make a contribution to ensure its purpose is effected in a real way and that its objectives are secured.

The Bill aims to regulate and supervise the provision of employment agency services and, as stated, it repeals the Employment Agency Act 1971, providing for a system of licensing for employment agencies that more aptly reflects the current labour market activities and circumstances. It provides for the establishment of a statutory code of practice setting down the minimum standards for employment agencies and for the setting up an advisory committee to oversee the sector in an advisory capacity; a cynic might say "Not another one". I wonder about all these advisory committees. These are a way of saying that those charged with the initial responsibility for legislation have no input. It is as if there is a vacuum. The Government is always collecting advice but when legislation is brought forward, there should be clear intent and purpose about its objectives and there should not be any need for advisory committees.

The Bill also makes provision for prosecutions to proceed in absentia in certain cases. That provision, under the Brussels convention, makes for the facilitation of enforcement, a critical element for prosecutions and the enforcement of results. The Bill will enhance and strengthen the regulatory framework for the operation of employment agencies in Ireland and the Labour Party endorses the introduction of this modern legislation. We have significant issues, however, with certain aspects and will submit amendments to address them.

We welcome the significant change that will require any employment agency offering a service in the State, wherever it is based, to be licensed in Ireland, unless otherwise licensed and registered in a member state of the European Economic Area. This is further strengthened by the provision to revoke the licences of employment agencies and prohibit them from operating in Ireland for stated and specific reasons. The licensing of employment agencies is an important issue for workers and indeed trade unions, particularly where significant numbers of new jobs are filled by employment agencies. This issue was discussed by ICTU it has expressed concerns about it.

The licensing system will not be a problem for the many employment agencies that operate to the highest standards here but once this legislation is put in place it will ensure every agency that operates is fit and proper. The trade unions have been concerned to ensure the protection of vulnerable agency workers and modernisation of the relevant legislation was a commitment made in Towards 2016, the review and transition agreement referred to by the Minister of State in his opening speech. While the legislation incorporates a number of the commitments made in the Towards 2016 review and transition agreement, ICTU and the Labour Party have noted significant commitments that were given have not been included in the Bill. We will pursue those.

In section 8(6) of the transition agreement, a commitment was given that would prohibit the use of agency workers to replace striking workers. In July 2009, the Government gave a commitment that it would bring forward an amendment to make it unlawful for employers to use agency workers for this purpose. The Minister of State's answer is that the Government is approving the drafting of a provision along those lines for inclusion in the Bill. I am worried about this. The commitment was given seven months ago. Why is the text of it now here before us so we can scrutinise it and indicate our support or opposition to it?

The advisory committee will prepare for the Minister's consideration a code of practice to guide behaviour in the sector. It is important that compliance would be required with a statutory code of practice as a condition of licensing and would establish those operating agencies are fit to do so. This was another commitment given to the unions in section 21(2) of Towards 2016.

A further issue that has arisen is that amendments are needed to provide for a complaint and redress mechanism for employees. There are all sorts of areas included in the Bill but there are also others that are not covered. The Minister of State will claim that section 30 provides for redress but I do not see that engagement in trade union activity or the recognition of the right to be involved in the trade union movement are included.

It is critically important to the trade union movement that the legislation would give an entitlement and a way for workers to recover money when they have been unlawfully charged fees by the agency or employer. What is the position the terms of registered employment agreements and employment regulation orders that we discussed at length recently? Will these agreements and orders apply to employment agencies and agency workers? That is a vital matter that must be clarified to our satisfaction. We will be tabling an amendment to ensure their inclusion otherwise the legislation we discussed previously will be left to one side.

We are confronted frequently with the question of who is the employer of the agency worker. It is important to everyone concerned that the legislation clarifies who is responsible. Legislation arose from a High Court case in 1986 about end users and employers. It is easy to shift responsibility from one person to another.

There is a need for an explicit amendment to ensure observance of employment equality rights to prohibit employment equality avoidance practices such as profiling or other activities that undermine equality rights. In some EU states there is a requirement for agencies to place a bond analogous to that of tour operators. The Bill allows for this to safeguard moneys received by agencies for and on behalf of workers in the event that an agency goes bankrupt and to provide assistance to workers who are posted away and thereby ensure they are not left stranded and can be repatriated as quickly as possible. That must be clarified and must include measures to ensure people's money is safeguarded in the event of an agency going bankrupt.

The Labour Party is focused on the transposition of the EU directive. The Minister of State referred to it and I have spoken about it extensively in this House. I even introduced a Bill to achieve that some time ago. When implemented it would put an end to the situation whereby agency workers get less pay and are given worse conditions than permanent staff, and would guarantee agency workers are entitled to equal treatment, pay and conditions as permanent employees. The Minister of State is facilitating meetings with the social partners on that and I welcome that. I hope those negotiations will prove fruitful.

In response to a number of issues brought to my attention by the trade union movement, it was suggested that legislation should address other significant issues. The Long Title of the Bill should be amended to include a reference to the International Labour Organisation convention 181 on private employment agencies. The EU Commission has called on member states to ratify this convention. This Bill could offer an ideal opportunity for Ireland to ratify the convention because it is unlikely there will be a more advantageous point in the legislative calendar to pursue this.

The Bill states the Minister can bring into being any parts or sections at different times. What is the Minister's intention regarding these commencements? Sections could be left forever without there being an order for commencement, which means they would be ineffective. The legislation would be neutralised, lying on the floor.

Section 3 refers to two types of employment agency to which the Bill applies. Will the Bill capture all employment agencies' activities? It should not permit licensing requirements to be circumvented. It may be necessary to provide for some exemption in, for example, the local employment service, various not-for-profit organisations and transition year work placements in secondary schools, which constitute a new area that did not exist in our time. Taking account of these would be important.

Section 8 provides that a person guilty of an offence is liable for a fine of up to €5,000 and-or 12 months of imprisonment on summary conviction or a fine of up to €250,000 and-or three years of imprisonment on conviction by indictment. In 1971, the maximum fine was £50, so this level of deterrent to transgression is welcome and moving with the times.

Subsection 8(3) provides that only the Minister can prosecute offences under the legislation. Were there any prosecutions under the 1971 Act? I believe there were none. Who will be the prosecuting authority? What of the National Employment Rights Authority, NERA? I understand that the Employment Law Compliance Bill 2008 will be before the House next month. If NERA is to have a supervisory role in that regard, should it not also have a role in the enforcement of this legislation? Whatever authority will be set up under the compliance Bill should also have a role in initiating prosecutions in this regard.

Section 9 repeals the Employment Agency Act 1971, but the fact that the agencies licensed under that Act can continue for three years means there could be parallel licensing systems, namely, the 1971 system until 2013 and the 2010 system onwards. One must allow people to get their affairs in order, as no one wants to wave a baton at people immediately, but perhaps a year or 18 months would be sufficient.

I referred to section 10 in respect of the bond. It is important that there be a bond similar to the one imposed by the Commission for Aviation Regulation on all tour operators and travel agents, based on their turnovers, before they can be licensed. This matter should be considered in the context of this Bill.

Section 11 sets out the circumstances in which the Minister might revoke a licence. At least two additional grounds should be considered for the purpose of revocation, namely, where an agency fails to comply with a statutory code of practice or where there are consistent or serious breaches of health and safety or other employment rights. Their inclusion would strengthen the Bill.

Deputy Varadkar has addressed section 12, which provides that the Minister can designate a European Economic Area, EEA, state as one that satisfies the licensing requirements. Does this mean that agencies could operate in Ireland without the need for a licence under this legislation? The Bill sets out that EEA countries will only be designated if they have a similar licensing regime. This is a positive development, but it will not reduce the likelihood of forum shopping. Deputy Varadkar wondered how the Minister would establish the similarities between licensing systems' requirements. In England, the system is a supervisory one. Some work remains to be done to seek clarification in terms of how this provision will operate, as it is a cause for concern.

Under section 16, the Minister may direct an agency to provide him or her with information. I have a feeling about the word "may" in this context, in that it should be "shall". Providing the information should be mandatory. I remember working on this matter previously. Not only the Minister should be furnished with a report, though. A report would be useful and I welcome the thrust of the section, but regular annual reports should be made to the Minister and he or she should lay them before the Houses of the Oireachtas and their relevant committees. When we advocated such a system in respect of the Bill on financial services provisions that we discussed just before Christmas, the Minister of State accepted it. That provision should be included in this legislation. The same request applies to section 17, under which the Minister may make regulations to require an agency to keep records. Surely the Minister is obliged to require the keeping of records and the identification of an employer in the State.

In the construction of legislation, "may" is sometimes read as "shall". This is an unusual aspect of interpretation. When legislation is being examined by the courts, there are schematic-teleological interpretations. They consider literal meanings first, then consider what is stated in the Chamber to ascertain the legislation's objective, as Deputy Varadkar said. The Minister of State could put the question beyond doubt and focus on setting a mandatory requirement for the maintenance of records.

Various sections make provisions in respect of the offence of carrying out an employment agency service without a licence. This is useful.

Under section 24, the Minister may appoint authorised officers. If NERA is to be a part of the Labour Inspectorate, could we not give it an investigative and enforcement role or will other agencies be involved? What officers will the Minister appoint? The Government is in the usual conundrum, in that the legislation will pass Second Stage but has not reached finality because it must still go to Committee Stage in the next month or so. As such, perhaps the Minister of State is not in a position to explain whether NERA will have a role. Could he clarify the situation for the House?

Section 29 is welcome. Indeed, the Labour Party, in particular Deputy Rabbitte while he was our leader, tabled whistleblower protection legislation. It lay moribund for a considerable period notwithstanding his efforts to have it promoted. In fairness, this legislation is the second Bill to take account of it. The Minister of State's Department has certainly taken it on board. For example, whistleblower legislation was introduced in the Labour Services (Amendment) Act 2009 and is now being included in this Bill. However, it is being restricted, as it only applies to informing the Garda and similar bodies. I could report a complaint to the body designated to enforce this legislation, be it NERA or another statutory authority, but the protection umbrella only applies to complaints to the Minister and the Garda. If I complain to an authorised body or officer, will that protection be extended to me? If the agency worker is a member of a trade union, which makes a complaint on the worker's behalf, does the protection extend to the third party? Those are the types of question I would like given some serious thought. The broad thrust of section 29 should be welcomed.

Section 30 provides that an employer shall not penalise an employee for blowing the whistle, which is important. There will be no recrimination against somebody who blows the whistle in good faith. I accept that the Minister has circumscribed it in the legislation that the action must be in good faith, and somebody cannot act in a fit of pique. There must be bona fide grounds for a complaint and I would not be very happy with any piece of legislation allowing untrammeled rights to make a complaint without any sustained or substantial basis. There should be a bona fide reason for a complaint. All types of blacklisting practices by employment agencies should be prohibited and set out thus in the legislation.

Section 33 refers to the advisory committee and Deputy Varadkar has spoken about that. I can understand that no members of the Dáil, Seanad or European Parliament can be part of the advisory committee, which is correct and accepted. Should being a member of a local authority preclude a person from being part of an advisory committee? Some members of a local authority may have a significant degree of expertise in the labour law area but would be excluded from participation in the committee as a result of being members of a local authority.

I will not hammer the issue at the Minister of State forever and a day but members of a local authority may have a degree of proficiency in the area that would be useful to an advisory committee. They could participate in that regard. I remember members of local authorities from all parties being appointed to various boards and they brought a significant degree of expertise to those boards and made significant contributions.

Schedule 1 contains the specified enactments applying to agency workers. I know the Irish Congress of Trade Unions was concerned about who was the legal employer of an agency worker. It is clear from this and by extension other legislation that an agency worker has virtually the full umbrella of protection from labour legislation and employment rights. There is no argument about that. The problem is who will be responsible, as the agency and end-user employer could both claim they are not responsible. It is very important that we clarify that point beyond all doubt. It is a simple formula in my view as whoever pays the wages should be responsible. It is sine qua non.

The Minister of State knows there are significant contractual extensions of the employment chain, and there may be cross-border posting and complex payment systems. Trying to get around to the person paying the wages can be quite difficult. An amendment to the legislation to provide that the end user is normally responsible should be considered.

I have already indicated that amendments are needed to ensure that equality avoidance in profiling and practice by employment agencies would not take place. The Minister of State should be eager to ensure this does not happen. Apart from those observations, this is important legislation and it has been set out clearly. I look forward to an amendment being tabled with regard to strikes, which will ensure that there cannot be substitution of agency workers in the case of a genuine strike where all the normal procedures have been gone through.

The Labour Party broadly welcomes the advent of this legislation and we will bring forward amendments to improve it. They will convey some of the views I expressed today.

See this speech in context