Richard Bruton (Dublin North Central, Fine Gael)

I thank the Members for those various contributions.

To start with the last comment first, the purpose of this legislation is to deal with temporary agency workers who have been clearly exploited where they have been brought in and paid at an entirely different rate. Basic pay and conditions is the issue. This is not seeking to state that short-term assignments are identical to the employment status achieved by persons who are full-time workers. On full-time workers who become part of a pension scheme, that is not a basic pay and terms of employment condition that is required to be applied equally under the directive.

It was designed to deal with people who are being exploited. We have made sure we are protecting people's basic terms and conditions.

Some of the issues that have been raised in the amendment in the name of Deputy Clare Daly and others are included. Holiday entitlements that are within collective agreements and arrangements that apply generally to employees or a class of employees would need to be equally applied. Therefore, the holiday entitlements that prevail would transpose to the temporary agency workers, and bank holidays and employment registration orders would be included in the terms of amendment No. 4.

The question of adoptive and parental leave is a separate issue as these are matters that arise under equality legislation. We are not seeking to replicate in this legislation what is dealt with in equality legislation, hence we are not introducing a new legal basis for rights in regard to adoptive and parental leave, which are already dealt with in other legislation.

Amendment No. 6 seeks to require the inclusion of sick pay and pension schemes. I cannot accept this because it goes well beyond the scope of the directive's requirements. The directive is about guaranteeing a floor of basic working and employment conditions that would apply to temporary agency workers. Nonetheless, it still recognises that people on short-term assignments are not in the same position as those who are full-time employees. Entitlements to pension rights or to various bonus schemes, share options and so on do not automatically transfer an entitlement under the directive, nor do we seek to go beyond the spirit and intent of the directive to introduce such obligations, which would have very considerable financial implications at a time when there is serious pressure on employers and employment. We are seeking to ensure people are not exploited. We are not seeking to define short-term assignments as equivalent to different types of arrangements.

With regard to amendment No. 10, some of the areas referred to are included, such as overtime premia and bank holiday premia, as well as work-related allowances such as shift work, piece work and unsocial hours allowances, and some others are also included if they come within the scope of collective agreements or arrangements that apply generally to employees or to any class of employees. However, some areas are not included. For example, where there is a dispute, a worker can contest and the issue will go to a rights commissioner for determination. We are seeking to protect agency workers in areas where we know there has been huge abuse of basic pay and conditions and we want to make sure this does not happen.

A number of Deputies, including Deputy Nulty, raised concerns about the derogation provided for in the directive, the so-called Swedish derogation. For example, arrangements are suggested which would mean workers on assignment are paid at least 50% of pay during periods when they are not on assignment, as is provided for in the legislation. Where such arrangements are in place, this would give rise to a situation where the full force of the directive would not apply. Such systems are not in any widespread use in Ireland and we have sought to ensure that there would be protection in respect of cases where such a derogation may be taken up. That protection includes the requirement for written notices, including the example I gave of 50% pay to be paid when the person is not in employment.

Following the discussion on Committee Stage, we examined whether there was additional protection or provisions that could ensure this system would not be abused. Items discussed included requiring that people could not arbitrarily terminate employment and that there would be an obligation to pay for a certain period if there was arbitrary termination. When we looked into that, we were advised that it would actually make the provision more frail in regard to protecting people. If there was an arbitrary lump sum, we would almost invite employers to decide to use this as a short-term arrangement, with workers getting temporary assignments and a retention payment for the off-time. This would almost build into what we initially thought would be a protection an incentive to regard this as something to be used in a system that would be very advantageous to the employer, not to the employee. Therefore, we have not made any additional changes. There is a written requirement so people enter into such a contract knowing they are giving up certain rights they would otherwise have as temporary agency workers, if they agree to such arrangements.

This is included for the reason that it provides flexibility and is a derogation that is provided for in the directive. If we do not make provision for it now, it can never be considered in the future. However, it is not an area where we have any evidence of abuse. We have transposed it into the legislation but we believe we have done this in such a way that the interests of workers will be protected by it. Obviously, this is an area where there is not a great deal of experience in Ireland of applying the rules. We feel we have done the best we can. We went back after the Committee Stage discussion to ascertain whether there were other changes we could make to make it more robust. The advice we received from the draftsman was that what we were doing was the best way to handle it. Let it then be challenged before a rights commissioner if there are abuses. The legal provision is fairly clear-cut and would give better protection to people to challenge any use of this provision that was not seen to be fair and reasonable by the workers concerned.

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