Richard Bruton (Dublin North Central, Fine Gael)

The Deputy's amendment would remove the exclusions from the proposed definition of remuneration, restoring the position that obtained as regards the scope of employment regulation orders, EROs, that applied in their operation prior to the High Court decision in July 2011. This would have the effect of restoring arrangements with regard to Sunday working which were acknowledged by the independent Duffy Walsh report as being unduly burdensome, especially in sectors in which Sunday is a normal working day.

In its decision in the John Grace Fried Chicken Limited case that resulted in the scrapping of all EROs, the High Court had particular regard to the absence of consistency across sectors with regard to such matters as the requirement to pay a Sunday premium and confusion between what had been established in statute for universal application and what was being imposed through EROs. Section 42A(7) provides for a new common sense or straightforward definition of remuneration for the purpose of formulating proposals for EROs.

The proposed new statutory definition of remuneration contained in the Bill is in line with the Government's decision of July 2011 and will ensure joint labour committees, JLCs, will no longer set Sunday premiums or any other conditions of employment already covered by universal standards provided for in existing legislation. In particular, provision for a Sunday premium will be removed from the scope of EROs while preserving worker entitlements under the Organisation of Working Time Act 1997.

During the Committee Stage debate on this amendment, there were some suggestions that the new provision would mean a downward revision of pay or the removal of such premiums where these have been paid to workers previously covered by EROs. This is not the case. Under the new legislation, workers in sectors covered by JLCs would have the same statutory entitlement for compensation for Sunday working as all other workers in the country. The obligation to provide additional compensation for Sunday working is derived from section 14 of the Organisation of Working Time Act 1997. In summary, although the Act specifies the means by which an employer should provide a premium for Sunday working, the nature and value of the premium rate is a matter for negotiation and agreement between the employer and trade unions representing employees or between the employer and employees affected by Sunday trading in circumstances where employees are not unionised.

Under section 14, any employee required to work on a Sunday, and where he or she having to work on that day has not been taken account of in the determination of pay, shall be compensated as follows. It will occur by the payment to the employee of a reasonable allowance, having regard to all circumstances; by increasing the employee's rate of pay by a reasonable amount, having regard to all circumstances; by granting the employee the reasonable paid time off from work, having regard to all circumstances; or a combination of two or more of these.

Prior to the John Grace Fried Chicken Limited High Court ruling, many EROs had provided premium payments to those required to work on Sundays. However, where EROs had made provision for a Sunday premium, they had only prescribed the level of monetary compensation, such as double time, time and a third, etc. They excluded the possibility of the use of the other options under section 14 of the Organisation of Working time Act. These provisions were a source of significant concern to employers in sectors in which Sunday is a normal working day, and in some cases the day of greatest demand for services which they provide. This is particularly true in the hospitality sector.

In recent years some form of consistent approach had been agreed to the treatment of Sunday premium rates in the hospitality sector, and JLCs agreed to harmonise the Sunday premium prescribed to time and a third. At one point, hotel JLCs and non-Dublin catering JLCs had provided for double time on Sunday while at the same time the catering JLC covering Dublin had provided for time and a third. The Duffy Walsh report accepted there was validity in the argument that the arrangements in place in JLC sectors with regard to Sunday working were unduly burdensome, especially in sectors where Sunday is a normal working day. Accordingly, I cannot accept the amendment.

The Minister will complement the removal of Sunday premium from the purview of JLCs through a request by him to the Labour Relations Commission to develop a code of practice on Sunday working in those sectors covered by JLCs such as that which exists in respect of all the retail trade. The code of practice on Sunday working in the retail trade was prepared by the Labour Relations Commission in 1998 following consultation with social partners to assist employers, employees and their representatives in observing the 1997 Act as regards Sunday working in the retail trade. It gives guidance, particularly on arrangements that may be put in place to comply with the options specified at section 14 of the relevant Act.

A development of the code in the current position would complement the provisions at section 14 of the Organisation of Working Time Act and ensure best practices are operated by all employers for those employees currently covered by JLCs and who work in sectors where Sunday working is widely practised. This code of practice will subsequently be given the status of statutory instrument by the Minister. When the employment regulation order system was first developed, the labour law provisions were weak. There was no Organisation of Working Time Act and no provisions were set out in the Acts for various rights for employees. A dual provision developed whereby the employment regulation orders provided one set of rules and the more developed and modern statutory labour codes provided another. This created anomalies such as the difficulty, to which Deputy Peadar Tóibín referred, if a public house decided to provide food on a Sunday. Suddenly the owners were expected to provide for a premium payment for all of their staff, while a public house which did not provide food was not obliged to pay such a premium. This created restrictions which made no sense in a modern sector in which Sunday working had become the norm.

We are allowing employers and employees to choose the more appropriate approach. For some this will mean having a higher weekly rate that will apply on all days rather than having a high rate on a Sunday. This may be the preferred way to organise a roster. It shares out the work and the premium in a fairer way. It allows people to operate in a flexible way under the existing Act. Sunday working must be recognised, but it must be recognised in different ways. This leaves the options available under the Act to workers regulated by the joint labour committees, just as they are available to anyone else working. The existing legislation provides for a statutory requirement that someone working in a grocery store has to be paid in a certain way, but the same does not apply to a person working next door in a book store on a given Sunday. This has led to many anomalies. We are allowing the existing statutes that provide for time off in lieu for working on public holidays, options for Sunday working and so on to apply generally but not to be proscribed in a different way under employment regulation orders.

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