Peadar Tóibín (Meath West, Sinn Fein)

Ar an gcéad dul síos, ba mhaith liom fáilte a chur roimh an Bille seo. Is céim sa treo ceart é seo agus is iarracht é ceartanna fostaíochta a chosaint. Táimid ag maireachtáil in am atá an-deacair do fostóirí agus do fostaithe agus tá an-brú ar tuarastail agus coinníollacha fostaíochta. Ba cheart dúinn gach rud is féidir a dhéanamh chun comhionnanas a chur i bhfeidhm.

I welcome the Bill which is a step in the right direction with regard to safeguarding workers' rights. I support equal pay and conditions for workers who do equal work and have the same skills set, but I do not agree with my flexible friend that there should be a derogation with regard to time. If people do the same job as others, never mind whether they are of a particular race, creed or orientation or whether they are agency workers, they are entitled to the same pay and conditions.

There are many types of employers. Most employers in the State understand that treating their workers and employees well and with respect ensures cohesiveness, productivity and a successful workforce. However, some unscrupulous employers will seek to exploit workers for short-term gains. Some of these employers will seek to do so for profit and to undermine hard-fought rights and entitlements for workers which have been achieved. This happens particularly at a time of recession when some unscrupulous local and international businesses will, if they get a chance, ride roughshod over employee rights. These unscrupulous employers seek an unfair competition to gain advantage over decent employers. In effect, they force a race to the bottom in the market in general. In the long term this is counter-productive but in the short term and mid term it can cause hardship to employees. The Yanks have a phrase, "never waste a crisis". It is evident that some in our society are using this crisis to cut wages and drive down conditions. Those who can get away with it seek to pay different wages to workers for exactly the same job.

I am glad the Minister, who long sought a derogation from the EU directive that necessitates this legislative process, has experienced a volte-face and now sides with equality and the workers. He stated when publishing the Bill that it represents an important step for agency workers by guaranteeing equal treatment in terms of pay and basic conditions with directly-recruited workers. We now have detailed legislation and the Minister assures us there will be equal treatment. However, it is of concern that the Minister added that in these very challenging economic times the legislation is also designed to minimise the impact on competitiveness in the economy and keep employment costs to a minimum. I always find it very difficult when particular political parties look exclusively to wages and conditions, often of those at low and middle employment levels, to find competitiveness in the economy. On most occasions, they do not criticise senior executives on excessive salaries as this is considered to be the normal market.

The Government states that it is committed to enhancing competitiveness. However, as we have stated ad nauseam in the Chamber there are many other areas in which to seek this competitiveness. It can be sought through VAT or increasing the level of investment in education, telecommunications and transport infrastructure. Broadband, transport and energy are all issues central to competitiveness. We also have the issue of upward-only rents. Unfortunately, we will see a plethora of international and local retail firms leave the Irish market in the coming months and one of the reasons for this will be upward only rents. However, this is competitiveness the Government does not seek. The Government places landlords as a priority over tenants and bankers over small businesses. To read between the lines, commitment to equality can be pursued only if there is minimal costs.

I congratulate the trade unions who worked hard on this issue. It was only through the trade unions staying resolute that workers' rights were defended in this issue. The Minister was on record as seeking a derogation, extending the qualifying period and other diminutions of rights. I congratulate the trade unions for showing leadership on this issue.

My welcome for this legislation is tempered by some of the issues raised by my Opposition colleague. Clarity is missing on many sections of the Bill. Amendments will be required to close down potential loopholes which could allow unscrupulous employers to treat workers unequally. I hope the Minister will have a positive approach and will include entitlements such as sick pay, occupational pension schemes, benefits in kind, financial participation payments and bonus payments. How can workers with equal length of service doing the same job with approximately the same skills have different entitlements with regard to sick pay? The Minister and the Department should clarify that workers will be entitled to the same benefits. If this is not the case, the Minister should identify why one human being should be treated differently to another.

We are also concerned about the issue of vagueness with regard to comparators. We need to ensure workers receive the correct entitlements and the system is not abused by unscrupulous employers. In identifying a relevant position to compare with that of an agency worker the legislation draws on similar definitions used in equality law. Equality law identifies three definitions for a comparator on basis of which to seek equality. Under that legislation only one of these definitions is required to make a claim of equality in terms of conditions. However, for some unknown reason, in this legislation the Minister seeks the comparator to meet all three conditions. Why is this? It is not consistent with equality law and appears to make the legislative safeguards in this area very difficult to achieve. This could provide an employer with a case in which an exact comparator does not exist and that employer could seek to undermine the entitlements of the agency worker. In this case, the agency workers would require a considerable amount of detail from the employer to build his or her case for a hypothetical comparator. IBEC has already highlighted that this would be a possible mechanism to ensure no comparator existed and therefore no obligation for the employer. This approach would undermine the spirit of the law. The Minister must clarify why he has chosen this path and why he has moved away from the accepted methods of identifying a comparative job.

The legislation also provides for what is known as the Swedish delegation, which excludes from equal pay entitlements those agency staff retained on half-pay by the agency between assignments. This affects a class of workers known as permanent agency workers. This provision is open to abuse in that employers would seek out permanent agency workers as a way of circumventing equal pay obligations. Will the Minister re-examine this to ensure this class of worker, although very small in number, is not presented with discrimination or used to undermine the legislation?

The legislation includes a list of collective facilities agency workers are entitled to have as part of equality of treatment. I hope the Minister will clarify the list as the list provided is not exhaustive and is used only for illustrative purposes. I hope the Bill and its protections will be enhanced as it moves through the legislative process and that the Minister acts on the points made. Agency workers have a vital part to play in our economy and in meeting the needs of employers. They can provide short-term support and technical skills expertise. Enactment of the Bill should not safeguard the rights of agency workers only but also those of all workers. There should not be an advantage to an employer in the employment of an agency worker over a directly employed worker, and I include the State as an employer in this regard. There is a trend whereby some unscrupulous employers will see agency staff as cheap labour and a method of keeping wage rates low and eliminating entitlements. Agency workers should be used to fill short term gaps in the labour market not to provide a form of cheap labour. There will be a cost for equality but the cost of equality should be met within a civilised society. This will have an impact on public services. We are aware of the huge number of agency staff contracted across the public sector. In my constituency, many of the roles in Navan hospital, County Meath, are filled with agency staff. The State is trying to eliminate such staff, but it is not filling the roles where agency staff once worked. Therefore, there is a danger of reducing health care services to people in County Meath.

While some have been used to fill short term and technical positions we remain concerned at the number of agency workers who have been used to fill full-time permanent staff vacancies circumventing the employment embargo and in some cases they are used to drive down costs. It makes nonsense of the employment embargo and shows how ridiculous it is. It is unwieldy and cannot properly deal with the necessity for front-line service and front-line employees.

The HSE spent €48.6 million on agency staff in the first quarter off 2011, higher than the amount spent the previous year. In excess of €14.5 million was spent on agency doctors, €21 million on agency nurses and a further €13 million on agency care, assistants and porters. If the Minister is true to his word to ensure equality between workers, the economic case for long term use of agency workers should no longer hold. There is a need to lift the employment embargo and begin to recruit full time permanent front-line staff to deliver services. I hope the Minister will respond to these points and provide the necessary clarifications for strengthening of the legislation.

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