Seán Fleming (Laois-Offaly, Fianna Fail)

I welcome the opportunity to speak on the Industrial Relations (Amendment) Bill 2011. I compliment Deputy O'Dea for being so quick to introduce this legislation. One section is based on previous legislation but much of it is new and was put together in light of the recent High Court judgment.

I commend him for moving so quickly on the issue to protect people's rights. It is not only a question protecting the pay rates of employees but also the businesses of the employers. It is important people recognise this is not an employee versus employer situation. Everyone must be balanced in our discussions. There are benefits in this legislation for employees and, equally, there are benefits for employers in the short term.

Without this legislation there is a gap in the system and those good employers who want to pay people the rates that had already been agreed and who want to tender for a contract on the basis of those rates could find unscrupulous employers submitting a tender based on lower wages that are not covered in previous agreements. Good employers with long-term employees could find themselves losing business because they are being undercut by those who will take advantage of the lack of legislation or an appeal to the Supreme Court.

The situation was so serious following the High Court decision that the Government should have lodged an appeal. That would have bought time to draft legislation and, in the meantime, the existing regime would have remained in place. By the time we return in autumn, the legislation could have been finalised to deal with these issues and could have overtaken the appeal. I see no reason why the Government will not lodge an appeal on this issue in the morning to show it is committed to protecting the agreements. That does not prevent it from coming forward with new legislation to improve the situation.

People have claimed the legislation is not perfect; they agree with the principles but they have found areas where the phraseology is not sufficient. That is the purpose of this House. The legislation can be published then teased out on Committee Stage, with amendments made, so that by the time it completes its passage through the Oireachtas, it will be better. If Deputies on the Government side refuse to support legislation at Second Stage because there are some imperfections in it, no Bill will ever be passed because I have never seen legislation passed being the same as legislation initiated. That is the essence of a democratic parliament, that it would make changes to legislation. Anyone who had an issue with the Bill would have been able to deal with it on Committee Stage.

People understand the gist of what we are talking about but I got an education in employment regulation orders, registered employment agreements and joint labour committees when issues arose in the catering trade when lots of hotel and restaurant owners in the midlands come to me to complain about NERA inspections. If a wedding took place on a Saturday and it spilled over until 12.15 a.m. on the Sunday morning, NERA said those staff must be paid the Sunday rate because they had been there for half an hour after midnight. In some cases the employees had left the business three years previously and the employers were told to find those people wherever they were in the world and to send them cheques. Employers were made to feel like criminals because they had not paid people their proper wages but those were the wages that were agreed and understood.

I accept some of the legislation was drafted by the last Government but the current Government and its legal advisors should have been ready for this decision. The Duffy Walsh report had been published and the review was underway. The Government should have drafted legislation on that basis and should have been ready to move the next day if it did not want to go to the Supreme Court.

It decided to do neither, not to appeal to the Supreme Court and not to introduce amending legislation in the meantime that would meet the constitutional requirements highlighted in the High Court. That is why so many workers are in this difficult situation. This was struck down for constitutional reasons but I do not hesitate to say that the legislation, had it been tested with the full rigour of the law, would not have stood up in any court of law and the Department must have known that for a time and should have been ready to bring forward legislation.

Owners of hotels and restaurants, in particular, came to me in the last couple of years and when I pointed out their sector representative had approved of the wage agreement at a JLC, some of them who were new in the business did not know there was a JLC covering it and did not know there was a representative for them on a JLC. If this had been tested, the practicality of implementing these agreements would have been utterly, 100% defective. They were not representative bodies because the majority of people allegedly represented by the employers' representatives were not represented by them. Representation should mean that people are being represented and not that representatives are there in name only. It would have been struck down on that point.

The Government has choices to make and has made a choice concerning these particular workers. The Government came in with a pension levy, which is fine. It was their decision, as it was to reduce VAT, which is fine also. It also increased the minimum wage, but it has decided not to do anything for this group of 200,000 workers. One must ask therefore why the Government is singling out this group of workers to be left high and dry over the summer months.

If the Government wanted to deal with this matter it could have done so, but it has made choices. Neither the IMF nor anyone else is stopping the Government from doing this, so all it takes is the political will. It is a pity, however, that in this case it is not in evidence today.

I am also concerned about the pension schemes that are now only one step away from being struck down by any challenge, say, in the construction industry. A lot of work has gone into that over the years whereby employers in the construction industry contributed to a pension fund for their employees. People contributed to those funds over a period of time, but the same threat hangs over those pension schemes as with other agreements that have not been specifically brought before the courts. People therefore have a legitimate concern about current and future contributions, as well as the management of those pension schemes, especially in the construction sector. That matter has not been highlighted to any great extent, however.

I accept that the overwhelming majority of employers are good business people. They create jobs and most of them are responsible, but there is an unscrupulous element who will try to win a contract at a lower price by undercutting, getting out of their pension liabilities and avoiding paying traditional industry rates. In addition, such employers may use foreign nationals to clean local authority and government offices.

Where contracts are being paid for by public funds, whether it is to build a school or pay catering staff in a Government office, agency or local authority, there should be some method of on-site inspection to ensure staff in those areas are being paid the proper rate along with proper social welfare deductions. It is important to give fair play to good employers.

I compliment Deputy O'Dea for bringing forward this legislation. I acknowledge the Government's goodwill in not voting it down, but I would like them to follow through by letting the Bill progress to Committee Stage.

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