Willie O'Dea (Limerick City, Fianna Fail)

I move: "That the Bill be now read a Second Time."

I wish to share my time with Deputies Browne and Dooley. I would prefer not to have to introduce this Bill. I have plenty of other things to be doing rather than sitting down preparing legislation, but the Minister, Deputy Bruton, gave a solemn commitment, on the morning of the High Court decision on 7 July last, to senior representatives in the trade union movement that he would introduce emergency legislation, which commitment was subsequently publicised in the media. It was not fulfilled and here we are.

This is not an anti-employer measure. I have the greatest respect for employers throughout this country, especially small employers and those trying to survive running small businesses. Without their ingenuity, drive, capacity and willingness to take risks, this economy could not function. However, as in any large group, there is a certain small minority who are not prepared to play the game on the same level playing pitch as everyone else and the difficulty is that there is a serious danger that they, by their actions, may drag their counterparts into a race to the bottom.

I asked the Minister last week at the committee why the Government did not simply appeal the decision of the High Court and use that request to ask for a stay of execution. He gave me two explanations. First, the advice from the Attorney General was that an appeal would be very unlikely to succeed, and second, also on the advice of the Attorney General, the National Employment Rights Authority, NERA, would be wary of bringing anyone to court for any alleged transgressions during that hiatus.

Both of those explanations are less than compelling, to put it at its mildest. On the first point, the Government could simply have lodged a notice of appeal as a tactic. It would not be the first time that was done and it would not be the last. I was not suggesting the Government take it to appeal as such and go all the way to a Supreme Court hearing because I happen to agree with the Attorney General. I think the chances of success would be minuscule. However, it would be well worth putting in the notice and not advancing it, which would mean the Government would have plenty of time to give thought and preparation to more comprehensive legislation. Second, regardless of what NERA decided to do or not to do in the interim period, the fact the legislation which would allow joint labour committees, JLCs, to be recreated was passed would be a deterrent to anyone who might be tempted to interfere with workers' present contracts because they would be put on notice that the system was coming back.

The decision of the High Court was based on Article 15.2.1°, which, in summary, provides that the power of making law is reserved exclusively to the Oireachtas. This Article has fallen for consideration in many cases. The courts have recognised the fact that sometimes rules are to be so detailed that the Oireachtas cannot possibly sit down and legislate for every conceivable situation. The JLCs are a perfect example. Another example that immediately springs to mind is the Private Residential Tenancies Board, which has been given certain powers, also by primary legislation. However, the courts have also decided that when power making is devolved from the Oireachtas to a subsidiary body, such as a joint labour committee of the Labour Court, the body cannot exercise that power unless there is a set of principles and policies set out in the primary legislation under which it must operate. Those principles and policies were not set out in the Industrial Relations Act 1946 which provided for the system of JLCs, which is why, in the opinion of the High Court, the system was unconstitutional.

Counsel for the State argued, cogently in my view, that it was not necessary to set out the principles and policies quite specifically, that from a general reading of the legislation one could deduce these principles. My view of the judgment, for what it is worth, is that the High Court took the view that in certain cases one can do that. It depends on the extent and the consequences of the exercise of those powers given to the subsidiary body.

In this case, the court pointed out that one of the consequences for non-compliance with an employment regulation order was a criminal conviction, which is a fairly serious matter. Another provision in the 1946 legislation was that there was no appeal from the decision of a JLC and it had to remain there in stone for six months even if it was obviously flawed, which is fairly serious. They also pointed out that there was nothing in the 1946 legislation to provide for any supervision by the Oireachtas or by the Minister. The court took the view, given all those serious consequences, that the principles would have to be set out specifically in order that anyone could refer to them.

What I am doing is setting out those principles. The previous Government anticipated the problem. Obviously, someone advised it there was a problem in this regard. It brought forward such legislation, the Industrial Relations (Amendment) Bill 2009. The relevant section was contained in that Bill, which, unfortunately, lapsed with the calling of a general election. I put that section into this new legislation. Instead of it leading automatically to a criminal conviction, I also provide for a civil remedy as an alternative, as suggested by the Duffy-Walsh report. I also provide that these provisions can be changed, even within six months, if the circumstances warrant. We also provide that the Minister would be the final person to sign off on an employment regulatory order, ERO, and before doing so, he or she would have to place it before both Houses of the Oireachtas for the requisite period, thereby introducing ministerial and Oireachtas supervision.

The Taoiseach stated this afternoon that this legislation was not robust enough and that it does not achieve what he thinks it should achieve, but he is not absolutely clear on what it should achieve. In view of the Government's failure to appeal the matter and ask for a stay, no one can bring legislation into this House that will magically make constitutional what has been declared unconstitutional. One cannot do that. I suspect that is what the Attorney General told the Government.

However, the Bill puts in place new legislation which is constitutional which allows the process of setting up JLCs and getting EROs to start immediately. In doing that, it gives reassurance to up to 250,000 workers and their families who are anxious, worried, upset and facing a summer of uncertainty. It also puts on notice the small minority of employers who might seek to change contracts unilaterally that they are wasting their time and that the system is coming back. In case the Minister refers to it in his reply, by putting in place legislation to enable the system to be recreated I do not suggest for one moment that the old, unreformed present system should be reconstituted. Had I more time I could have written into the legislation the changes from the Duffy-Walsh report. Unfortunately, the time was not available to me. However, if the Minister accepts this legislation and allows the process to start under it, he could stipulate that he would not sign off - as he must do under the legislation - on any employment regulation order, ERO, unless it contained changes or reflected the changes set out by the Duffy-Walsh report. In other words, we would have employment regulation orders and the joint labour committee system but we would sweep away all the old anomalies and inequities of which the Duffy-Walsh committee recommended reform. We do this not for any personal gratification or glorification. As I have stated, I would prefer not to have to do this at all. We do this because there are several hundred thousand families who are very concerned by the vacuum.

Let us focus for one moment on the sort of people we are talking about. Those working in the joint labour committee, JLC, sector are, generally speaking, part-time workers, women who work in hotels or shops because their husbands have lost their jobs, migrant workers, young people, people who work in fast food restaurants and people who are extremely vulnerable and badly paid. If anyone doubts my final assertion, let us consider the figures produced by the Central Statistics Offers recently in respect of pay levels in Ireland. Currently, the average rate of pay in the country, including the public and private sectors, is €675 per week gross. In the public sector, it is €871 per week gross and in the private sector it is €602 per week. This is an imbalance in itself. However, let us consider the sectors typically covered by the JLCs, including the hotel and accommodation areas and so on. The average wage in these sectors is €288 per week. These are the type of people with whom we are dealing and whom we are discussing.

Let us consider the situation they are in. As a result of the High Court decision, anyone coming to a JLC area after 7 July has no protection. The only protection he or she has is under the National Minimum Wage Act. Earlier, the Minister referred to other legislation. However, there is a great deal in JLCs which are not covered by primary legislation at all. Basically, such a person's entitlement is the minimum wage. In the case of people already in the system, if they change from one job to another within a given sector and start afresh, they have no protection. For an employer so minded, there is an obvious opportunity to remove protections which people allegedly have. However, the greatest canard of all is the idea that people in the system are protected by their current contracts. Some of these contracts are verbal and not written down at all. The argument on the Government side is that the terms of the employment regulation orders are imported into the contracts of people who are working in the sector and, therefore, any interference with these would be a breach of contract and would make the employer liable for breach of contract. I am unsure about this and I call on the Minister to clarify in his reply whether this applies to unwritten contracts. Even if it does, the difficulty is that up to 7 July, if a person's contract was interfered with and if a person was not getting what he or she was entitled to under his or her contract, he or she could simply make a complaint to the National Employment Rights Authority and the State would enforce the contract for such a person. Now, the National Employment Rights Authority is out of the equation and each of those vulnerable, low-paid workers has the responsibility of vindicating his or her own rights.

First, one must bring a case to the Rights Commissioner, whose decision is not binding, and from there on appeal to the Employment Appeals Tribunal. At issue are migrant workers, part-time workers and people earning approximately €200 per week. The first thing such a person would be concerned about is that they would be faced by a heavy duty lawyer, whether a solicitor or barrister, working on behalf of the employer when they go before the Employment Appeals Tribunal. Second, there is a dreadful labour market which is very difficult. Such a person would have no wish to get on the wrong side of their employer because, ultimately, if they are forced out, they would have no wish to have the name of being someone who brought an employer through the system because that would be a black mark, especially in small towns. The bargaining position between such workers and employers is grossly unequal. It is utterly unfair for any Government to expect these people to vindicate their own rights when previously it was done by the State. In the sectors covered by JLCs there is now no effective mechanism to enable employers and employees to engage in collective bargaining at local level on equal terms. The Duffy-Walsh report states the position well. Page 49 of the report states:

Trade unions and bodies representing the interest of workers contend that in the absence of any statutory framework in which collective bargaining ... can take place, JLCs provide the only mechanism by which the interests of workers can be protected and advanced in the sectors concerned. They say that the rates and conditions prescribed by EROs reflect what is regarded as reasonable in employments at the lower end of the labour market in which collective bargaining takes place. They say that the openness of our labour market makes this form of regulation particularly necessary and relevant. The unions also pointed out that many downward adjustments in rates and conditions of employment have been agreed in many JLCs, including deferral of increases in pay, adjustments in Sunday premia and lower starting rates.

There is also a good deal of evidence to support the unions' fears that those currently in employment could be pressurised into accepting lower pay and conditions from some employers or could be displaced by new employees on reduced terms. The discussion relates to extremely vulnerable people. As it stands, a return to individual bargaining could have some considerably unwelcome commercial implications. For example, with regard to internal competition in the sectors concerned, it is impossible to envisage how individual local bargaining could take place without putting those employers prepared to engage in good faith at a commercial disadvantage relative to those who are not. In other words, if there is a system in place that protects the good employers who have no wish to break the law and who wish to do right by their employees, it protects them because other people who are not similarly minded cannot undercut them.

One advantage of accepting this Bill is that the process of recreating JLCs and the EROs which come from them can start immediately. This would remove the fear and anxiety of employees in these sectors and it would put employers on notice that a robust system was in the process of being recreated. It would deter anyone who was so minded from acting to the disadvantage of their workers in the meantime. The Government can direct that any new ERO must accommodate the changes outlined in the Duffy-Walsh report. The Bill gives the Government the ideal sanction to ensure this can take place and the Minister need not sign off on any ERO which does not incorporate such changes.

The Government can amend the Bill as it wishes. It can introduce more complex and detailed legislation later when it is ready and such legislation has been properly prepared and thought through. However, it is vital from the point of view of these vulnerable, low-paid employees not to allow a period of uncertainty. If the Minister refuses to accept this Bill, having already refused to ask for a stay of execution in respect of the High Court decision, the prospects of some of the lowest paid and most vulnerable workers in this country are ominous. They would be right to feel a sense of foreboding. I know of many JLC workers in my constituency and in the past many of them have voted for me. I could demonstrate by reference to the different areas that many of them voted for the Labour Party at the last election. They expected the Labour Party to stand by them and to protect their interests. I call on the Labour Party not to abandon those people to a summer of fear, anxiety and uncertainty in addition to all the other problems they must contend with in this era of unprecedented austerity.

There is an old adage which perhaps applies to my own party in the case of what has happened in the past. It holds that if one stands for everything, then one stands for nothing. I advocate a simpler adage: if one does not stand for something, then one stands for nothing. If the Labour Party does not stand for the poorest, the lowest paid and most vulnerable workers in this country, then I cannot know what it stands for.

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