Richard Bruton (Dublin North Central, Fine Gael)

These are the more substantive amendments. Amendments Nos. 4, 5 and 6 relate to section 7 of the Bill as passed by the Dáil. These provisions go to the core of the Bill and have been the subject of considerable and valuable debate in both Houses. The original formulation of section 7 referenced two distinct situations, namely, where there is a comparable employee against whom the agency worker can be compared and, where there is no comparable employee. In the first instance, the Bill as passed by the Dáil set out at section 3 the criteria to be fulfilled and the type of considerations that could be taken into account in measuring the level of comparability as between the agency worker and the comparable employee. In the latter context, where there was no comparable employee, the Bill set out that the entitlements of the agency worker would be those that would apply if a comparable employee were to be employed. This construct was considered to accurately reflect the directive requirement and was an attempt to provide clarity and guidance beyond that provided by the directive.

In the course of indepth consideration and examination of the Bill in both Houses concerns were raised as regards, in particular, the inclusion of the notion of the comparable employee in the legislation given the potential difficulties to which this could in practice give rise. For this reason, I had these issues considered further with the Office of the Attorney General with a view to providing greater legal certainty and clarity in the Bill. As a result, it is proposed to remove from the Bill the notion of using the comparable employee construct and to defer to the wording of the directive.

Amendment No. 6 now provides that an agency worker is entitled to the same basic working and employment conditions as those to which he or she would be entitled if employed directly by the hirer to undertake the same or similar type work. I believe that this should meet the concerns raised in both Houses and should provide greater certainty to agency workers, employment agencies and hirer undertakings that will be required to work within the confines of this legislation. I am satisfied that the revised text ensures that agency workers are properly protected in terms of their entitlements under the directive and that the Government will remain in compliance with that directive.

The changes proposed require some revision of the existing provisions of the Bill and this is the intended combined effect of amendments Nos. 4, 5, 11 and 14. The intention of amendments Nos. 4 and 5 is to retrospectively remove the definition of "comparable employee" from section 2 of the Bill and to delete section 3, as passed by the Dáil, in its entirety. Acceptance of these amendments makes those aspects of the Bill redundant. As I mentioned earlier, amendment No. 6 proposes to substitute section 7(1) of the Bill as passed by the Dáil with the new formula for setting out the core entitlement of agency workers. This essentially provides that agency workers will be entitled to the same basic working and employment conditions as those to which they would be entitled if employed directly to do the same or similar work.

Amendment No. 7 is a saving provision which clarifies that those arrangements that exist separately from this legislation and which provide for better terms for agency workers than those provided for in this legislation stand on their own merits. This is to ensure that no agency worker is disadvantaged by this legislation and ensures compliance with Article 9 of the directive. Amendments Nos. 11 and 14 are consequential amendments involving identical amendment to sections 11 and 14 of the Bill respectively. This arises owing to the removal of the reference to "comparable employee" from the Bill. Section 11 of the Bill relates to access to information on employment by agency workers and the amendment removes the reference to "comparable employee" but does not otherwise change the provisions of that section. Amendment No. 14 has the same effect in relation to section 14 which deals with access by agency workers to collective facilities and amenities. Deputy O'Dea raised concerns in this regard when we last discussed the Bill. My Department took the opportunity when preparing for the taking of the Bill in the Seanad to assess the practicality of what was suggested. On reflection, remaining closer to the original wording of the directive is easier, safer and clearer. To be fair to the draftsman, "comparable employee" was included to ensure greater definition. However, given the practical cases that have emerged, it was felt, as correctly articulated by Deputy O'Dea in the Dáil, that we should stick closely to the wording of the directive. I hope these amendments are acceptable to the House.

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