Clare Daly (Dublin North, Socialist Party)

It is timely that we are discussing this matter. Clearly the protection of workers is an extremely important issue. The Topical Issue debate brought to centre stage the issue of workers rights in general and highlighted the necessity for legislative protection. Statutory and legal protection, if not enforced, is not sufficient. That workers in Vita Cortex and La Senza who are not being given basic statutory rights were forced to take action to secure those rights, shows the breaches of existing legislation that are being engaged in by employers. That begs the question as to what support and protection will be provided to ensure those breaches do not take place.

Agency work is a form of casualisation of labour and has been traditionally used to undermine the rights and entitlements of full time workers and is generally for the benefit of employers and not workers. That the practice is rampant within the public sector is an indictment of the Government, particularly the Labour Party which prides itself on being friends of workers. As previous speakers have said this is a consequence of the public sector recruitment embargo. Not only does it threaten the job security of workers and undermine the level of service provided to the taxpayer but it is a more expensive option in many instances. Unless the issue is properly addressed society will continue to suffer, not least the workers involved. Historically, there have been major campaigns and struggles against casualisation, not just in this country but in other countries as well, from the days on the docks when employers liked to hand pick the fellows they wanted for the day and sent everyone else home with no rights or security whatsoever. What we have is an EU directive which does not propose the abolition of agency workers or to curb the ability of employers to engage temporary agency workers instead of directly employing them. The purpose of the directive is to propose that we legislate for the equal treatment of agency workers in terms of some but not all conditions. It is shocking that the notion of equality is objectionable to some, but in fact that is the case. What happened is that the introduction of the provision has been delayed. The legislation should have been passed before Christmas. I note that the Government is respecting the provisions of the directive from 5 December but we all know what happened when the word got out that this provision was to be given legislative status - many employers started banging the drum. One would think they were going to be pauperised as a result of the measures being put in place. As a result, the Government is somewhat begrudgingly introducing the measure late in the day. It is poor form on the part of employers' groups that led the charge in that regard. There is no doubt what they were seeking was a similar provision to that negotiated by some employers in Britain and Northern Ireland where the directive was transposed into legislation but it also included a derogation that excluded workers from the protection of the legislation unless they had worked for a 12 week period. It is appalling that equality would be measured by the length of time one works and that one would not be entitled to equal treatment if one happened to work for ten weeks, two weeks or one week. It is regrettable that the derogation was introduced in those jurisdictions. Undoubtedly, in that instance it is a licence for people to employ temporary agency workers for 11.5 weeks to avoid liability under the terms of the legislation. I am pleased that such a measure is not being envisaged in this country but it is incredibly poor form that it was allowed to happen elsewhere. It is regrettable that many of the employers' organisations waged a certain campaign against the progressive element in the legislation in this country. As other Members have said, there is a progressive element to the legislation which would be welcomed by most right-thinking people.

I am pleased the Bill will provide for equal treatment of agency workers in terms of core pay and work place facilities such as canteens, transport and crèches. I imagine that many workers would have a good laugh at that on reading the legislation considering that there are hardly any employments that have crèche provision and there are few which provide transport either. However, even on the limited basis that such facilities exist they should be made available to all, even if an employee is only in the workplace for a day, three days, a week or two weeks. That is a point that should be conceded.

The biggest problem with the legislation is the list of exemptions, which we in the United Left Alliance find objectionable and on which we will table amendments on Committee Stage. There is no need for workers to be excluded from protection. In the context of equal treatment and equal protection, why should it not be extended to all areas? Pensions have been highlighted. That is an issue on which there is frequent media comment. The argument could be made that it is unrealistic to provide for agency workers in general being protected by a potential scheme but that is a false argument. The construction industry provides a poor pension scheme but nonetheless it demonstrates that there is an ability to pay pensions for those working for multiple employers and still to develop a mechanism whereby a pension provision could be made available for them. While the scheme is poor in terms of the returns to employees, the idea that one could not have a pension scheme because workers are moving around to various employments does not stand up to scrutiny given what is happening on the ground. It is logistically possible to provide for that so why would we not do so? The sad reality is that the pension provisions are so poor that many workers are opting out of the scheme for fear they will get nothing ultimately. We should not make pensions unattractive; we should facilitate the provision of pension cover where possible. That is one area that also requires to be examined.

Similarly, sick pay needs to be addressed. That someone may become ill when he or she is engaged in short-term employment must be considered because it is precisely those workers who are the most casual and the most vulnerable who need the most protection. The idea that there would not be sick pay provision could lead to catastrophic consequences for those workers and provision should be made in that regard.

There are a number of potential problems with other aspects of the Bill such as the exclusion of benefit-in-kind and bonuses. We saw that happen in the EBS dispute before Christmas whereby bonuses are not just something that apply to fat-cat bankers and the provision of big four and five figure sums to already wealthy people. In many employments the negotiation of bonuses or benefits associated with piece work have been a negotiated part of people's wages and conditions. If we were to exclude temporary agency workers from protection and access to benefit-in-kind and bonuses we would create a loophole which could give rise to employers being encouraged to set up a structure of pay involving a low basic rate with piece work and targeted bonuses being built in to that to try to exclude an entire section of the workforce from core benefits by enhancing other benefits rather than improving basic pay and thereby introducing a divide between permanent and agency workers. There is no need for such an approach because they are the type of bonus payments which are part and parcel of payroll. That is an important issue that must be addressed.

In the context of equality, many of the jobs in question are carried out by women. Maternity leave and access to top-up maternity pay are important issues. It is unacceptable that they would be excluded. Many temporary agency workers are employed in catering, cleaning and hospitality, which are predominantly occupations involving females. One could ask whether they deserve less equal treatment when pregnant than their permanently employed colleagues in a similar condition. Of course they do not. Provision must be made in that regard.

Other speakers pinpointed the derogation in section 6(2) exempting permanent agency workers who are paid between employments. The derogation should be opposed as it could work to the disadvantage of workers. The situation must be rectified.

One of the most significant anomalies arises in section 7 which, likewise, facilitates the social partners in agreeing to deviate from the positive provisions that exist in the Bill. That screams out to me as being like a sector-wide inability-to-pay type of facility for employers. That is something about which we must be mindful because if that is the case or if the legislation provides for an opt-out of that scale there is a certain double-speak because, on the one hand, we are talking about equality for a certain category of vulnerable workers and, on the other, we are excluding so many things that the equality is not as meaningful as it could be. That is extremely important.

The other main area that is crucial is enforcement. There is no point in us debating legislation and nit-picking over amendments if the legislation does not offer protection to the workers who need it. That is likely to happen. I do not say that lightly or with any good feeling but the reality is that our enforcement procedures are in crisis at the moment and the disputes we mentioned previously are a good example of that. One could ask what agencies are in place to enforce existing legislation to protect workers. There are two. The first is the Labour Court through the services of the Labour Relations Commission. The second is NERA through the investigations it carries out.

Even before the tranche of other workers who need to be protected are included, it is a sad tale on which the Minister's Department needs to act. In The figures for the Employment Appeals Tribunal are horrendous and the responses to questions I put to the Minister towards the end of last year show the situation is chaotic and that there is lack of enforcement. Since 2007, when the economic crisis began which resulted in many people losing their jobs and an increase in the number of unfair dismissal claims, there has been a trebling of the number of cases brought before the tribunal. The waiting time to have cases dealt with has risen as a consequence from 20 weeks to 74 in Dublin and 76 outside it. Any person who wishes to access the tribunal must wait over a year and a quarter. This is appalling and there have been consequences. Because of the backlog of cases to be dealt with by the Rights Commissioner, many people are choosing not to go before the Rights Commissioner but to skip that stage and go straight to the higher court to avoid delay - a delay which could be avoided if sufficient resources were invested at the level of the Rights Commissioner. It also means that many workers are walking away from an entitlement to perhaps up to two years' compensation in wages because they simply cannot access hearings. This is not good enough. If this is the case now, the addition of tens of thousands of other temporary workers who may potentially need to avail of the labour relations machinery of the State will mean that, without sufficient resources, the position will get even worse, if that is possible.

I anticipate that the Minister's reply will be the same as before Christmas, that the staffing level at the tribunal has been increased by 50%, from 30 personnel to 45.8 since the start of the crisis. While this increase is welcome, the facts prove that it is not sufficient. The matter must be dealt with immediately if there is to be any meaningful protection and the law is to mean anything.

I refer to the inspection services of NERA. The most recent report by its inspectors was in the summer of last year - a report was not produced at the end of the year. The statistics show that its inspectors carried out 2,359 inspections of individual employments and in that period found the total due to workers was over €1.067 million in unpaid wages which they recovered. This compares with a figure of more than 3,000 inspections in the previous year in which it was discovered that approximately €500,000 was due in unpaid wages. The figures illustrate that the number of inspections carried out by NERA - a tiny figure to begin with considering the overall number of employers in the country - was very small. It has carried out fewer inspections in the last year but its inspectors recovered more money, meaning more breaches were found. The level is increasing, even though the numbers of inspections has fallen.

We should take cognisance of these figures. The sectors in which breaches have been found are precisely the ones in which we are seeking to protect temporary agency workers. In agriculture the compliance rate is 42%; in catering, 26%; in retail, 28% and in hotels, 26%. The contract cleaning sector was one of the few that made it over the figure of 50%, with a 55% compliance rate. The security sector scored a 48% compliance rate, the construction sector, 61%, and the electrical sector, 54%. Others sectors recorded a rate of 42%. The average compliance rate is well under 50%, based on inspections in many of the employments which generally employ temporary agency workers. Unless the inspection service and the issue of backup support are addressed, all we are doing is nodding in the direction of the European Union and pretending we are writing in a provision. We are being disingenuous as regards the workers seeking our protection. On the one hand, we are bringing in a piece of paper to promise equality and, on the other, not giving them any vehicle to exercise that equality in cases in which employers choose to ignore it. Sadly, the facts speak for themselves; many employers are continuing to choose to ignore the legislation.

While I accept there are positive aspects to the Bill, its powers are too limited and there is no provision for backup. On that basis we will be tabling amendments on Committee Stage because it is essential that we support the intention to protect workers in this category.

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