Willie O'Dea (Limerick City, Fianna Fail)

I move amendment No. 1:

In page 5, to delete lines 18 and 19.

The net effect of the amendment is to remove section 1(2) from the Bill. The Bill would therefore come into effect when it was passed by both Houses of the Oireachtas and signed by the President. I am trying to eliminate the element of retrospection back to 5 December. We have the rather peculiar situation that the employment agency is the body that is obliged to pay the agency worker. It is obliged to fulfil the terms of the new legislation. However, the employment agency will not be in a position to know precisely what those terms are until this Bill has been passed into law.

The Minister said on Committee Stage that the hirer has an obligation, but it is the employment agency that has the obligation. In fact, the hirer has no legal obligation to inform the employment agency of the appropriate rate of pay for comparable workers currently employed by the hirer. That is a serious gap in the Bill.

It is not just a question of trying to assist employers in this case. Admittedly, I have received representations from one or two employers who told me they are employing a number of agency workers and that there could be a very big bill in this case. At least one of them told me they are contemplating a legal challenge. If there is such a challenge to the legislation, the agency workers whom the directive and the legislation are designed to help might not get their benefits for a long time, perhaps years. It depends on how far the legal process goes.

The other point I made on Committee Stage is that the courts lean against retrospective legislation. I quoted the authority on Committee Stage. The test the courts usually apply to retrospective legislation is the one laid down by Chief Justice O'Higgins in the case of Hamilton v. Hamilton 1982. He was quoted in the last case dealing with retrospective legislation before the Supreme Court, which was the nursing homes issue. Chief Justice O'Higgins said: "Retrospective legislation, since it necessarily affects vested rights, has always been regarded as prima facie unjust." If it is prima facie unjust or if there is a presumption, as it were, against retrospective legislation, there must be very good reason for making legislation retrospective.

To the best of my knowledge, although I am open to correction, this is the first time an EU directive in the labour law area has been made retrospective. There have been a number of directives but this is the first that is retrospective. I have learned from my inquiries that, despite the Government's great anxiety to have its operation in place as and from 5 December last, a number of EU countries have not yet, surprisingly, implemented this directive. They include Denmark, Sweden, Luxembourg, Italy and Greece. A number of countries have only partly transposed it, namely, the Netherlands and Belgium.

I ask the Minister to re-examine the proposal I have put forward, which is to remove the element of retrospection from the legislation. That retrospection will leave the legislation open to challenge and if it is challenged, it will delay the entitlements that should flow to workers as a result of the legislation.

See this speech in context