Leo Varadkar (Dublin West, Fine Gael) | Oireachtas source

Amendments Nos. 6, 13 and 16 would require the employer to negotiate and obtain an agreement of employees on the matter of the distribution of tips and gratuities. As it stands, the Bill provides that the employer must consult their employees. It also establishes a legal entitlement for workers to receive their tips and gratuities paid in electronic form with the provision that these tips and gratuities should be paid out to workers in fair and transparent manner. Requiring the employer to obtain the agreement of the employees is a high threshold for the employer to meet and is not within their control.

We also believe the amendment is impractical, as it would require the consent of all employees before a change in policy could be introduced. Even one employee, or a minority of employees, could prevent a policy change against the wishes and interests of the majority of employees and the employer. This would be profoundly undemocratic. Seeking to introduce some form of qualified majority is equally likely to be impractical but would not be impossible.

An important requirement of the new Bill is that the employer must provide a statement to workers showing the amount of electronic tips obtained in a period and the portion paid to individual employees for that particular period. This will ensure transparency.

Amendment No. 10 seems confer a new function on the WRC adjudicators of inspecting workplaces and determining whether the distribution of tips and gratuities is fair. It is difficult to justify carrying out inspections in circumstances where nobody has made a complaint and would not be a good use of the WRC’s resources. Employees can have recourse to the WRC if they have a grievance and make a complaint. I am satisfied that this will provide ample protection for them.

Amendments Nos. 11, 12 and 14 seek to amend the factors that a WRC adjudicator can consider in determining an employee complaint on whether tip distribution is fair. I think the factors in the Bill as it stands are well balanced. They are relevant and, crucially, they are not restrictive. The adjudicator can, of course, consider other factors where they consider them to be relevant.

Amendment No. 15 would be a disproportionate intrusion on an employer. Employees in small business where employers also do work will usually have a good understanding of the level of work the employer does. They also already have the protection that they must be aware of the tips and gratuities policy. They can have recourse to the WRC if they have a complaint. This amendment would require employers to send out their personal financial information to their staff on a regular basis. This would even include staff who may be employed on an only occasional or part-time basis and every employee would then become a data processor under general data protection regulation, GDPR. I understand the intention behind the amendment is to ensure that staff are informed if their employer is taking a proportion of the tips. That is an understandable request or desire and we do not want to let abusive employers off the hook. However, we think it will be disproportionate and intrusive in this regard and would leave employees in the position where they would become data processors under GDPR.

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