Joe Costello (Dublin Central, Labour)

I am delighted to have the opportunity to speak on the Employment Agency Regulation Bill. I commend Deputy Naughten for the interesting points he made during his contribution and I wish to take up his final point. We must review and regulate the matter of students. We are getting a tiny fraction of the international student cohort that travels around the world. Part of the reason for this is that we do not have a proper policy to attract the student cohort or to make provisions to deal with that cohort when it arrives here. As an international student venue Ireland should be in the top range of the world. That would provide considerable employment and would provide us with a major education reputation in that respect. It should be seriously considered.

Deputy Naughten also referred to finding out where we are in respect of foreign workers. We would like to see an updated situation in respect of people here with or without permits, the proportion they represent of the existing Irish workforce and how things have moved over the period since the boom. One factor that is becoming evident is the number of people who apply for social welfare benefits and are refused because they do not conform to the habitual residency clause. The figure in 2005 was fewer than 5,000 whereas the figure in 2009 was more than 10,500. The squeeze is on and people in part-time work or agency work, which may be less than three months in duration, may be caught in a pincer movement so that they do not qualify for the expected benefits.

Irish citizens coming from abroad find themselves caught in the same net, even if they come from Britain with which we have a free trading area. There are many things that could be put together in order to get a proper picture of where we are. Approximately 40,000 people emigrated last year and it would be interesting to see the number of people who are Irish citizens emigrating, Irish citizens who came back and are leaving once again and short-term immigrants going back to their country. We do not have these figures available but they would be useful.

The legislation is welcome in so far as it goes. It is not timely because it was promised in 2006 and we are receiving it in 2010. A major mistake was made not delivering it in 2006, 2007 or 2008. We had bitter debates about workers' rights in the run-up to the first Lisbon referendum. The most crucial issue was temporary agency workers. They were not getting equal treatment and there was a perception abroad of exploitation hand over fist. Some 650 agencies were operating at the height of the boom in 2007. They were unlicensed and unregulated and there were no inspectors to keep tabs on them. Despite the major demand at the time, the standing joke was that there were more dog wardens than inspectors. We have not reached the required quantity but the boom is over so the quantity required is not what it was. At the time we had six or eight inspectors; there are now 72. There is a major improvement in that respect but they were not available when they were needed.

One of the major reasons people voted against the Lisbon treaty, given by over 40% of those who voted against it, was the concern about workers' rights in this country. We might not have needed a second referendum if the legislation promised in 2004 and 2005 in the social partnership agreement Towards 2016 had been put on the Statute Book in time. There was major concern that neo-liberal practices were coming from the European Union. There was a view that the Commission of the European Union was neo-liberal and that the Government was not taking action to protect people from exploitation. It is ironic that the Commission was doing its best to ensure all workers travelling from abroad received fair treatment.

Ireland, the UK and Hungary held out to the very end to prevent the temporary agency workers directive being adopted. The Minister of State will say they were very good reasons for this but it was not until the Slovenian Government pulled the plug in 2008 and managed to get Hungary offside so that the United Kingdom was not sufficient to create an blocking mechanism that we could get the temporary agency workers directive through. It became operational from December 2008 and must be implemented before December 2011 despite the fact that Ireland opposed it totally. That gave rise to anger, unrest, dissatisfaction and frustration among workers in this country. It contributed greatly to the defeat of the first Lisbon referendum.

The Employment Regulation Act was passed in 1971 prior to joining the European Union in order to protect Irish migrants going abroad, particularly to the United States, so that agencies from the United Kingdom or elsewhere would not recruit Irish workers and have them exploited. It is ironic that this was the basis for the initial regulation in this area. Unfortunately, when the situation was reversed and we had foreign workers coming to Ireland, we did not put the necessary protections in place to deal with the situation. That failure is particularly unfortunate given that after 1973, when we joined the European Union, we were signed up to the free movement of workers, goods and services across the Union. There was a clear need in the 1970s, 1980s and 1990s to act on this requirement of European Union membership. However, it was not until the last ten years or so, after the issue was flagged consistently by SIPTU and the ICTU, that the Government agreed to act. I recall that the Immigrant Council of Ireland also campaigned strongly on the issue.

Now we have a situation where the temporary agency workers directive will have to be transposed into Irish law by 2011 but we do not have the core tenet of that legislation in place, namely, equal treatment as between temporary agency workers and permanent workers. We have no choice but to transpose the directive by the end of next year. I cannot understand why this legislation was not introduced as it should have been in 2006 and instead is only brought forward now when it is too late, with the boom over and very little recruitment taking place. We have an obligation as members of the European Union to introduce much tougher legislation in 2011 but the provisions of that directive are not incorporated into this Bill. Will the Minister of State explain why this is so? I am greatly concerned that an opportunity is being lost to go the whole hog and do this business properly.

Apart from the requirements of the directive, the Minister will also have to look at the Lisbon treaty in its fullness. The Charter of Fundamental Rights is quite specific about workers' rights, and the right to collective bargaining and action is sure to be a hot potato in future discussions. It is a right that is subject to the European Court of Justice for its implementation. This means that if a case is taken, there is a right of appeal to that court and a requirement on the Government to ensure such appeals can take place. Provision will have to be made for the rights of workers to information and consultation in their place of work. Legislation is already in place offering protection against unfair dismissal but it will have to be reviewed to ensure it is adequate. The requirements under the charter regarding the right to fair and just working conditions and the prohibition on the exploitation of all workers will have to permeate all legislation. As I said, the Government must take cognisance of the fact that these matters will be justiciable to the European Court of Justice. It would be useful to go through the existing legislation and the treaty with a fine-toothcomb to ascertain the obligations that will inform all legislation into the future.

During the boom years we attracted much employment to the State, particularly after the major expansion of the European Union from 15 member states to 25 in 2004, and eventually to 27. However, the down side of those boom years was the exploitation of workers that took place, as I know well from my own constituency. It has taken until now, when the country is bust, to deal with the matter. Figures show that while there were 4,000 agency workers in the State in 1999, this number had increased to 35,000 ten years later, the majority of these on short-term contracts of up to three months and one quarter on contracts of less than one month. For persons employed on that basis it was difficult to determine the identity of their employer because they were recruited by an agency before being transferred to an employer with whom their contract rested. That situation gave rise to exploitation in terms of pay and conditions and fixity of tenure. The National Employment Rights Authority, NERA, did not come into operation on a non-statutory basis in 2007 and there were too few inspectors to prevent that type of exploitation. Therefore, there were no mechanisms in place to determine, other than on an anecdotal basis, what was happening during the great years of the boom. I hope this information will be freely available in the future.

The major provision of the Bill is well worthwhile, namely, the requirement that an employment agency based in another EEA country can only operate in this State if its licence or other regulatory status is recognised by the Government. That will go a long way to putting a system in place that can at least be supervised and controlled. It is a question of how well it will be controlled and how well the code of practice will operate. A code of practice should always be statutory if it is not to be open to being broken, but I am not sure to what extent we have that in the Bill. Nor am I sure to what extent employment rights are protected in terms of a clear definition of the tripartite relationship between agency worker, employment agency and employer. That must be clarified because the body of existing legislation relating to these issues is complex and cumbersome. In regard to registered employment agreements and employment orders, it is extremely important that all of these would apply across the board in regard to temporary agency employment and placement employment. These are the matters that will give rise to difficulty, controversy and exploitation and we must be especially careful to ensure that they are dealt with effectively.

The proposal mooted by Deputy Naughten for a cross-departmental investigation team is valuable. Teams of that nature should be put in place. We have seen how successful the Criminal Assets Bureau teams have been in terms of dealing with drugs and assets not within the compass of the person who holds them. This proposal should be examined in the context of the huge amount of information available in the Department of Social and Family Affairs that might not be as readily available to the Revenue Commissioners or the Departments of Finance and Enterprise, Trade and Employment. We need to put in place, in areas no longer under pressure to the same degree as they were in the past, mechanisms that will ensure we have an industrial relations structure, in regard to employment procedures and so on, that does not require the use of industrial relations machinery given it is efficient, effective, well supervised, modulated, regulated and licensed. This is what needs to be done. It has been done in respect of the NERA legislation and is being introduced in this legislation, which I welcome in so far as it goes. I would have liked if the full directive in regard to temporary agency workers had been included in this legislation. Perhaps the Minister of State will, even at this stage, examine that directive to see whether the core elements of it could be included in this legislation by way of amendment.

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