Billy Kelleher (Cork North Central, Fianna Fail)
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I am pleased to bring the Employment Agency Regulation Bill 2009 before this House for debate. I propose to make some general observations on the rationale and principles informing the content of the Bill because I appreciate that Members will have a fuller opportunity to explore the provisions in more detail on Committee Stage.

The current licensing system governing the operation of the employment agency sector in Ireland is underpinned by the Employment Agency Act 1971, which has been in place for more than 35 years. The 1971 legislation was enacted at a time when the intention was to protect vulnerable Irish emigrants from exploitation by employment agencies abroad. The employment market in Ireland has been transformed in the intervening period and employment agencies have responded by developing their services to meet the needs of potential end user enterprises and agency workers.

In addition, the accession of new central and eastern European states in May 2004 has resulted in free movement of persons between these countries and Ireland and the deployment of temporary workers from employment agencies in EEA states in end user undertakings in Ireland. Key concerns in the review and partnership discussions pertained to the potential for exploitation of vulnerable agency workers from overseas and non-compliance with Irish employment rights legislation by employment agencies as employers, particularly in respect of personnel assigned as agency workers across national boundaries to end user undertakings in one state where the formal employer is based in another state.

The Bill before the House responds to commitments agreed under the social partnership agreements in Towards 2016 and the review and transition agreement 2008-09. At the core of the agreement by the social partners is a commitment to reinforce the existing system of regulation by requiring all employment agencies established or operating in Ireland to hold a licence. The focus of the Bill is, therefore, on the licensing and regulation of employment agencies which supply agency workers to an end user, or hirer, undertaking in Ireland. It provides for a mandatory licensing framework which will also embraces employment agencies delivering a service from outside the State even where they do not have a physical presence here. As such, the Bill is aimed at updating and strengthening the current licensing system. The provisions in the Bill are focused on ensuring that potential vulnerable agency workers posted temporarily from such agencies are protected against abuse and exploitation.

The Bill provides that employment agencies established in the State may operate only under a licence granted by the Minister for Enterprise, Trade and Employment. It also provides that employment agencies established in another EEA state must apply for an employment agency licence unless the Minister is satisfied that agencies in that state are permitted to operate in accordance with a licence or are otherwise appropriately regulated, authorised or supervised in that state. Such agencies will be recognised agencies within the terms of the Bill. Employment agencies from outside the EEA seeking to supply agency workers to Ireland will be subject to the State's employment permit system.

Deputies will appreciate that it has not proved possible to adopt a one size fits all approach to licensing employment agencies operating in Ireland. We are constrained in our approach by concerns about the legality of licensing agencies in other EU member states in which employment agencies are already subject to regulation and control because we could be deemed to be infringing EU treaty provisions as interpreted by European Court of Justice rulings. Licensing could be construed, for example, as a non-tariff barrier to provision of cross-border services.

The Bill provides that it will be an offence for an employment agency to carry on its business in the State if it is not licensed or a recognised employment agency. To further underpin the regulatory framework, an end user undertaking in Ireland is prohibited from recruiting an agency worker to work in the State from an employment agency which is required to be licensed but does not hold a licence. An end user undertaking which fails to comply with this provision will be guilty of an offence.

The Bill clearly embraces employment agencies which provide placement and worker hire services. The latter agencies are often referred to as a temporary employment agencies in respect of which a triangular relationship is established between the agency, as employer, the agency worker and an end user undertaking to which the agency worker is assigned and under the direction and control of which he or she works. The Bill does not, nor is it intended to, interfere with the fundamental characteristics of this established triangular relationship.

The Bill provides for the designation by the Minister, after consultation with an advisory committee, of a code of practice. The code will set out the practices and standards of behaviour including practical guidance to employment agencies for the purposes of complying with the provisions of the Act and any regulations made under it. The code will be an instrument to guide best practice in the employment agency sector. A code of practice by its very nature is meant to provide guidance on compliance and as such will not be a statutory obligation. Clearly, however, employment agencies which fully embrace the terms of the code of practice could use it as an important marketing tool in terms of the quality of services they offer.

Apart from submitting the code of practice for the sector for the approval of the Minister for Enterprise, Trade and Employment, the proposed advisory committee will also advise on the ongoing operation of the new legislation and the employment agency sector generally. The advisory committee will include representatives of the social partners and other interested parties, including the agency sector, departmental nominees and ministerial appointments. The committee will comprise no more than ten persons with a chairperson. A core element of its work, immediately after the enactment of the legislation and following the issue of a commencement order, will be to draw up a proposed code of practice.

In addition to being given the capacity to revoke a licence, the Minister is also being provided with powers to prohibit recognised employment agencies from operating in Ireland where an agency has contravened the provisions of the Bill. The capacity to suspend for stated reasons employment agencies from another EEA state for a period of three years is a potent measure to help secure compliance with the core objectives and intent of the Bill.

We have also been considering ways in which a provision might be included in the current Bill to further strengthen the enforcement of employment law in respect of agencies established outside the jurisdiction. Given that it is regarded as contrary to EU law to require an agency to appoint a specified representative in the State for the purpose of ensuring compliance with employment legislation, we have considered whether an agency might be prosecuted for an alleged criminal breach of the law even where the defendant fails to appear for the trial. The advantage of such an approach is that a prosecutor could realistically proceed against employment agencies which offend against employment law and ultimately prevent them from operating in the State on foot of a conviction. This could prove to be a valuable tool in enforcing employment rights compliance. A provision for prosecution in absentia for offences under employment rights legislation has been included in the Bill.

As regards the enforcement of decisions of Irish courts and tribunals, including rights commissioners, the Labour Court and the Employment Appeals Tribunal, in EEA states, it will be possible to enforce Irish judgments under Brussels I regulations on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. These regulations will enable persons who are employed by an employment agency established in another EEA state and who perform services in the State on behalf of a hirer undertaking to obtain remedies against the agency concerned in respect of breaches by it of Irish employment legislation. It will also enable them to enforce a judgment or decision of an Irish court or tribunal in any member state other than Denmark. Under the terms of regulation 44/2001, a judgment of a court or tribunal in Ireland is recognisable and enforceable in any other member state to which the regulation applies. The Jurisdiction of Courts and Enforcement of Judgments Act 1998 will apply in respect of Denmark and other EEA states.

The Bill also includes measures to counter penalisation of agency workers and to protect such workers in the context of disclosure. Agency workers are thus being provided with standard whistle blower protections.

The Bill, which provides an enhanced and strengthened regulatory framework for employment agencies established and operating in the State, means that core commitments in the social partnership agreements are being met to the maximum extent consistent with our treaty obligations. The framework allows for a balanced approach which provides for the protection of potentially vulnerable agency workers while at the same time allowing employers flexibility to fill job vacancies.

The Government also intends to hold open the possibility of introducing an appropriate mechanism to prohibit, save in relation to essential services, the use of agency workers supplied by an end user undertaking for the direct replacement of employees in cases of an official strike or lock out. The prospect of such a provision is based on the assumption that sufficient progress can be made by employers' representatives and trade unions in concluding a framework agreement under Article 5.4 of the EU directive on temporary agency work. That directive provides for equal treatment of temporary agency workers and workers directly recruited by an end user undertaking to the same job. The directive provides for equal treatment from the first day of employment for agency workers and a derogation by agreement between the national social partners on an agreed time limit or qualifying period before which the agency worker would qualify for equal treatment. My Department is facilitating meetings between the social partners to help them develop a framework agreement within the parameters of the EU directive. The successful conclusion of an agreement will enable the Government to consider transposing the terms of the directive, including the framework agreement, in advance of the directive's deadline of end 2011.

I will now outline the provisions of the Bill. Section 7 is a standard provision dealing with the Short Title and commencement of the Bill. Section 2 sets out the main definitions associated with the Bill. Section 3 defines the two types of employment agencies to which the Bill applies, that is, a "placement agency" and a "worker hire agency", often referred to as a temporary employment agency. Section 4 empowers the Minister to make regulations prescribing, inter alia, the form of an application for an employment agency licence, the form of an employment agency licence and the fee, or fees, in respect of an employment agency licence application.

Section 5 stipulates that any orders and regulations made by the Minister under the Bill, with the exception of an order made under section 1(2), must be laid before the Houses of the Oireachtas.

Section 6 is a standard provision stating that the expenses incurred by the Minister, in connection with the administration of the Bill, shall be paid out of moneys provided by the Oireachtas. Section 7 sets out the procedures that apply to the service of documents under the Bill.

Section 8 provides that a person guilty of an offence under the Bill shall be liable, on summary conviction, to a fine not exceeding €5,000 or to imprisonment for a term not exceeding 12 months, or both, and on conviction on indictment to a fine not exceeding €250,000 or to imprisonment for a term not exceeding five years, or both.

Section 9 provides for the repeal of the Employment Agency Act 1971 and for the revocation of all regulations made under the Act. Section 10 provides that to be eligible to apply for a licence a person must be established in the State or in another EEA state. Agencies from outside the EEA wishing to offer a service in the State must establish in Ireland or in another EEA state. The supply of personnel from outside the EEA will be subject to the employment permit requirements. The section also provides that the Minister can refuse a licence in certain circumstances.

Section 11 sets out the circumstances in which the Minister may revoke an employment agency licence. Section 12 provides for the Minister to designate an EEA state as one which satisfies requirements for the licensing or otherwise regulation of, employment agencies in that EEA state.

Section 13 provides for the prohibition by the Minister of a recognised employment agency from carrying on the business of an employment agency in the State or providing an employment agency service to a person in the State, in certain circumstances, for a period of up to three years. Section 14 provides for the publication by the Minister on the Internet of a list of licensed employment agencies and recognised employment agencies.

Section 15 provides for an appeal to the Circuit Court by applicants for a licence, or a licensed employment agency or a recognised employment agency in circumstances where the Minister has refused to grant a licence under section 10, revoked a licence under section 11 or prohibited a recognised employment agency from carrying on the business of an employment agency in the State or providing an employment agency service in the State, under section 13.

Section 16 provides that the Minister may direct an employment agency in writing to provide to him or her, by a given date, information and documentation on the remuneration and hours of work of any of its employees in respect of any period of work of those employees with a hirer undertaking.

In addition, the section provides that where a licensed or recognised employment agency contravenes a direction under this section, the Minister may serve a notice on the licensed employment agency informing it that its licence shall cease to have effect, which shall cease to have effect on service of the notice, and serve a notice on the recognised employment agency informing it that it is prohibited from carrying on business in the State or providing an employment agency service to a person in the State. Finally, the section provides that a person shall be guilty of an offence if he or she contravenes a direction under this section.

Section 17 provides that the Minister may make regulations requiring licensed and recognised employment agencies to prepare such records as may be specified in the regulations and to keep those records for such period of time specified in the regulations. The section also provides that a person who contravenes the above requirements shall be guilty of an offence.

Section 18 provides that the Minister shall publish, on the Internet, a list of employment agencies which have had their licences revoked under section 11 or which do not have effect in accordance with section 16 and of recognised employment agencies in respect of whom a prohibition notice under sections 13 or 16 is in force. Section 19 provides that a person, other than a licensed employment agency or a recognised employment agency shall be guilty of an offence if he or she carries on the business of an employment agency in the State or provides an employment agency service to a person in the State or advertises or causes to be advertised the provision by him or her of an employment agency service. This section also provides that a person, other than a licensed employment agency or recognised employment agency who holds himself or herself out as being a licensed employment agency or recognised employment agency, whether by advertisement or not, shall be guilty of an offence.

Section 20 provides that it is an offence for a person to enter into an agreement with an employment agency for the provision of an employment agency service by that employment agency if it is not licensed or is not a recognised employment agency. Similarly, it is an offence for a person if an unlicensed employment agency or an employment agency, which is not a recognised employment agency, provides an employment agency service to that person. I hope what I say is clear. It might sound like repetition but it is important that the provisions are clearly outlined.

The section also provides that in proceedings for an offence under this section that it shall be a defence for the accused to show that he or she did not know and could not, upon reasonable inquiry, have discovered that he or she was not dealing with a licensed employment agency or a recognised employment agency.

Section 21 provides that a placement agency shall be guilty of an offence if it charges a job seeker a fee for providing its services to the job seeker, including training. The section also provides that it shall be an offence for a person to employ a job seeker who has been charged a fee by a placement agency. In addition, it is provided for that in proceedings for an offence under this section, it shall be a defence for a person to show that he or she did not know and had no reasonable grounds for believing that the placement agency had charged the job seeker employed by that person a fee for providing the job seeker with its services, including training.

Section 22 provides that a licensed employment agency must produce its licence for inspection by an authorised officer on request, must display a copy of the licence prominently in its premises and that a person who contravenes this section shall be guilty of an offence. Section 23 provides that a person who forges an employment agency licence, displays a forged licence knowing it to be forged, alters a licence with intent to defraud or deceive, displays an altered licence knowing it to be altered, produces a revoked licence to another person with intent to defraud or deceive or who has in his or her possession a forged or altered licence, without lawful authority, shall be guilty of an offence.

Section 24 provides for the appointment of authorised officers by the Minister for the purposes of the Bill. Section 25 sets out the powers of authorised officers, including the power to require certain records from persons who control workplaces. Section 26 provides for the prosecution in absentia under section 50(1) of the Criminal Justice Act 1994 of employment agencies from outside the State who have committed an offence in regard to one of their employees in the State under a specified enactment set out in Schedule 1 to the Bill, that is, industrial relations or employment rights legislation.

Section 27 provides for the making by the Minister by order under the Bill of a code of practice relating to the conduct of employment agencies, after consultation with the advisory committee, to be set up under section 33 of the Bill. Section 28 provides for administrative co-operation with foreign statutory bodies on issues which arise under the Bill. Section 29 provides for the protection from civil liability of persons who report breaches of the Bill to the Minister or a member of the Garda Síochána.

Section 30 provides that an employer shall not penalise or threaten penalisation against an employee for making a complaint to a member of the Garda Síochána about a breach of a provision of the Bill or giving evidence in any proceedings under the Bill. The section also sets out what constitutes penalisation.

Section 31 provides that if a person states to the Minister, or to a member of the Garda Síochána, that an offence under the Bill has been, or is being, committed or that a provision of the Bill is not being complied with, knowing the statement to be false, he or she shall be guilty of an offence.

Section 32 provides that references to the Employment Agency Act 1971 in any enactment shall be construed as references to this Bill. Section 33 provides for the establishment of an advisory committee, by the Minister, to advise and assist him or her on the performance of his or her functions under the Bill, and for the appointment of members of the committee, by the Minister. Section 34 provides, inter alia, that on assuming membership of either House of the Oireachtas, European Parliament or local authority, such person shall cease to be a member of the advisory committee.

Schedule 1 contains a list of specified enactments, that is, the body of industrial relations and employment rights legislation that applies, inter alia, to employment agency employees. Schedule 2 sets out the redress mechanisms available to, inter alia, employment agency employees in the event that their employers are in breach of section 30(1) of the Bill.

I commend the Bill to the House. It resulted from discussions with the social partners. It has been a long time in gestation. Clarity was required in the context of our obligations under European Union treaties. Much discussion took place at European Union level to achieve that clarity. The Bill is a commitment to make sure exploitation is weeded out. The issue was raised quite forcefully in discussions with the social partners, including in discussions I had with them when I had responsibility for labour affairs. The legislation will deal with agencies or undertakings in Ireland that intend to use workers in an exploitative way. I commend it. There is broad support for ensuring agencies are well regulated but, equally important, for ensuring the triangular relationship between agencies, employees and the employers or undertakings functions and allows flexibility in the workforce.

Leo Varadkar (Dublin West, Fine Gael)
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I welcome the Bill and I offer my broad support for it on behalf of the Fine Gael Party. This legislation updates the 1971 Act. I have been in contact with most of the stakeholders, including unions, employer bodies and employment agencies and there is broad support for the Bill, although a number of provisions may need to be refined or amended on Committee Stage.

The purpose of the Bill is to require employment agencies to operate under a licence either from Ireland or another recognised EEA state. It provides for the Minister for Enterprise, Trade and Employment to make codes of practice, establishes an advisory committee and provides for the protection of whistleblowers, the prosecution in absentia of employment agencies and the enforcement in other EEA countries of the decisions of rights commissioners, the Labour Court and the Employment Appeals Tribunal. It does not deal with the temporary agency workers directive, which has not been transposed into domestic law yet but I imagine that will be subject to legislation at a later stage.

I am slightly concerned that some of the Bill's provisions may be contrary to the provisions of the Single Market and the Internal Market. The Minister of State referred to this in his contribution and I am sure he has advice on this but I have not seen it, as I am never given access to such advice. I will seek my own legal advice on these provisions.

Section 12 is a little strange. It allows the Minister to designate certain EEA states but not others for licensing. It is not clear how the Minister intends to exercise those powers. I do not fully understand how, in a Single Market, some states can be designated and not others. For example, a number of states have a licensing regime and others do not. The UK does not have such a regime for licensing employment agencies and, instead, supervision is used. Does that mean it will not be possible to recognise the UK? I can understand how another state with a licensing regime could be identified and its licences recognised but how does that apply to EEA states that do not have such a regime? Will they be excluded from participating in the Irish market? Will they have to apply, therefore, for a licence in Ireland? Will countries that do not have a licensing regime be recognised anyway because of European Single Market legislation? Ireland could up end recognising all employment agencies based in Romania because it only has a supervision system and not a licensing system, in which case nothing at all would be achieved. I would like clarity on this issue.

Section 13(1)(b), according to the explanatory memorandum, will allow the Minister to refuse a licence to an employment agency on the basis that offences were committed in another state that would have been illegal in Ireland. That is a strange provision. An employment agency operating entirely within the law in another state but doing something that would be illegal if it happened in Ireland can be refused a licence. I find it difficult to understand how that would stand up in the courts if anyone were to challenge it. For example, in this State it is illegal to sell fireworks but it is legal to do so in other countries. This is similar to saying to a retail outlet such as Spar, which might sell fireworks in Germany, that it cannot operate there because they do something that is legal in Germany but illegal in Ireland. Such a provision will not stand up in court if it is challenged. I would like to see the legal advice on that if the Minister of State is willing to make it available to my office.

Section 3 defines the terms "employee" and "employer" and then it refers to worker hire agencies. This issue of defining "workers" and "employees" separately in legislation has been raised previously but if references are being made to employers and employees in the Bill, would it not make more sense to refer to an employee hire agency or to define "worker"?

Section 10 provides that for an agency to be eligible to apply for a licence, a person must be established in the State or in another EEA state. However, it does not set conditions regarding what kind of person may establish an employment agency. It might be appropriate to consider this in the legislation. For example, it does not require that the person should have a qualification such as a human resources or business degree. They must be persons of good standing but no requirement is set that they should have the ability to run an agency. It is strange that this would be not the case in a licensing regime. If one applies for a licence to drive a car, for instance, one must pass a test to secure a qualification. The section permits individuals to establish a worker hire agency or a placement agency without any qualifications or without passing a test. That is a potential deficiency in the legislation.

The UK has a supervision regime rather than a licensing regime. Will that be considered to be acceptable by the Minister? Does she consider supervisory regimes to be the equivalent of a licensing regime? Section 10 also uses the term "established in the State". I do not know what that means in law. I have never seen it defined in law, particularly not in regard to employment agencies. I am not a lawyer but Deputy Penrose is and perhaps he can advise the House but I have never seen the term used before. Why is it not defined? Will the Minister of State clarify what it means in order that the good justices when they deal with matters under this legislation will be able to read the Second Stage debate to ascertain what the Minister of State meant by "established in the State"?

Section 21 prevents a placement agency from being guilty of an offence if it charges a jobseeker a fee for providing services, including training. I question whether this is necessary. I do not doubt placement agencies charge people when they should not and that should not be tolerated. The licence of an agency that does this should be revoked. However, if an agency provides training, I do not see why it should not be able to charge for this. The jobseeker does not have to take up the training and, therefore, pay the fee. Why should it be illegal for a placement agency to provide training? Why should a training and placement agency in the State be an illegal entity, which it would be under this legislation? For example, if a placement agency reviewed and improved a person's curriculum vitae, which is often done, it cannot charge for that service and I do not see why that should be the case. It is up to the individual whether he or she wants to pay for the service and I do not see why it should be an offence. The same applies to interview preparation. We have no difficulty with agencies charging large sums to do interview preparation for job applicants. I do not fully understand why it should be illegal for agencies providing this service to charge for it.

It is a step too far to make it an offence for the employer to knowingly hire somebody who was charged for such a service. Ultimately, these things are the responsibility of the person and of the service provider. If the person pays for it, it is his or her own business; if the provider charges for it, it is its own business. The last thing we should do is to criminalise a third party, which this Bill would do. It would criminalise an employer who hired an employee while being aware that he or she had some exchange of moneys with the placement agency, even if it was for something as simple as a fee for interview preparation.

Section 24 provides for the appointment of authorised officers by the Minister for the purpose of the Bill. I would be interested to know exactly which officers will be enforcing this Bill. Will they be officers of the Department or of NERA? The legislation also allows the Minister to appoint an agency to do this job, although it does not specify the agency. Will it be NERA or another agency? Should the agency not be named? Will there be a number of different agencies? The Minister might clarify that. Section 25 gives these authorised officers from the mystery agency extensive powers, to which I might return on Committee Stage.

Section 30 deals with penalisation. There is some concern about the definition of penalisation and I know the Minister will receive a number of submissions with regard to how the term "penalisation" is defined. The Minister of State may wish to consider this. It is all very well to have protection against penalisation, but they do need to be well defined. There is also no protection from penalisation for involvement in trade union activity; this is something that could be included in the Bill. People who are being hired through employment agencies will probably not be unionised, but I do not see any reason they should not be permitted to join a union if they so wish. This is different from obliging the employer to recognise a union. There may be a case for rewording the definition of penalisation to explain it better.

Section 33 provides for the establishment of an advisory committee, for which I question the necessity. I know Ministers love setting up boards, advisory committees, task forces and so on; there is nothing they like more. They are the international masters. If there was an Olympics of setting up committees, Fianna Fáil would win it every time. If it is necessary to set up an advisory committee, I do not think it should be set up on the FÁS model, as provided for in the Bill. The committee will consist of two employee representatives, two employer representatives, two civil servants, two people representing employment agencies, and two cronies. This is not the way it should be set up. We brought legislation through the House to change the way the FÁS board was appointed and, although the positions should have been scrutinised, Fine Gael supported the Bill in principle and did not vote against it. I do not understand why the Minister is now going back-----

Billy Kelleher (Cork North Central, Fianna Fail)
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I do not think cronies are referred to in the Bill.

Leo Varadkar (Dublin West, Fine Gael)
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I am referring to ministerial appointees, which is a legal term for cronies. That is exactly what they will be. One thing that has shocked me is the behaviour of the Green Party. Since the last local elections the Green Party has appointed at least seven failed election candidates to State boards. It has even set up a whole new Green quango, the Foras Orgánach, to facilitate its members. I published a Private Members' Bill, the Public Appointments Transparency Bill 2008, which was voted down in the House. At least Fianna Fáil was honest about it; its members voted it down because they did not think it was necessary. However, the Green Party went the other way, saying it did not go far enough. It secured a commitment in the programme for Government - which is not in the legislative schedule, incidentally - that the Government would introduce legislation to change the way public appointments are made. Since then it has engaged in the most appalling acts of cronyism, which would bring shame to the sleaziest member of Fianna Fáil.

The way in which the Green Party members have behaved is sickening and appalling. They are doing their best to pack committees and boards with failed Green Party election candidates. It was Deputy Gilmore who described the Green Party as being like hitchhikers in the Fianna Fáil car - ready to be thrown out at the next crossroads. However, the relationship is different. Fianna Fáil is the driving instructor and the Green Party members are the learner drivers, and it has taught them well. The cronyism in which they are engaging is disgusting. The Green Party will stay in Government for as long as possible so it can pack every board with its members. It will put all of its 200 members on various State agency boards or committees and then it will bring in the legislation it has promised for some time. I have no doubt the advisory committee we are discussing will include a Green Party associate or perhaps a failed candidate from that party. That is why I do not believe it should be constituted in that way. I do not see why we would pass legislation to change the way one board is set up and then go back to the old model.

I would also like some clarity on the expenses and allowances that are referred to in the Bill. Traditionally, members of an advisory committee receive expenses to defray the costs associated with being part of the advisory committee; they do not receive unvouched allowances, which are a form of payment. I would be interested to know whether it is the intention of the Minister to give money to these people as well as covering their expenses.

Section 34 prevents Oireachtas Members, MEPs and members of local authorities from being appointed to the advisory committee, a provision which occurs in a number of Acts. This might be a problem for the Minister for the Environment, Heritage and Local Government, who likes to break this provision. The Minister of State may recall that the Deputy Gormley tried to break the law by appointing two sitting Green Party councillors to the Private Residential Tenancies Board. However, they have since lost their seats, so, like every other failed Green Party candidate, they will be appointed to something if they have not been already. In fact, I am sure they have already been appointed to something.

Billy Kelleher (Cork North Central, Fianna Fail)
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Is the Deputy suggesting that if a person stands for election and loses, he or she is a lesser person and should not be entitled to be considered for anything?

Leo Varadkar (Dublin West, Fine Gael)
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No. I am suggesting that if one stands for election for the Green Party and loses, one will almost certainly be appointed to a public body. There is evidence of that.

Billy Kelleher (Cork North Central, Fianna Fail)
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So the Deputy is saying that such people should be prohibited from being appointed.

Leo Varadkar (Dublin West, Fine Gael)
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No; what I am saying is that appointments to public bodies should be properly scrutinised. I am saying that the members of a party that preached that line for ten years and voted down a Bill containing such provisions on the basis that it did not go far enough are hypocrites. I am happy to stand over that in any forum whatsoever. At least Fianna Fáil does not pretend anything; its members are clear on where they stand on this issue. It is the Green Party members who are hypocrites - on this issue, on the banking inquiry - you name it. Never has a party sold itself so cheaply. One can see it now with the cronyism and hypocrisy it is demonstrating across the board. It is shocking. As somebody who often gave my number to the Green Party, I will certainly never do so again.

The exclusion of local authority members from the advisory board under section 34 is not necessary. It is probably appropriate not to have Oireachtas Members or MEPs on the advisory committee, but it may be appropriate for a member of a local authority, if he or she is suitably qualified, to be appointed. Of course, local authority members have been elected. It is ironic that if one is elected one cannot be on an advisory committee but if one could not get any votes and one is a Green Party member one is almost automatically appointed. That provision should be removed. I do not see why the entire body of a thousand town, city and county councillors should be excluded by statute from the advisory committee and I will be proposing to remove that provision on Committee Stage.

I mentioned the different definitions of "employee" and "worker". There is one other aspect of the Bill that is worthy of mention, to which I referred already in connection with sections 12 and 13. Section 13(1)(b) states that the type of employment agency that would not be permitted to carry out business in the State would be one that:

...is convicted of an offence in a state other than the State, and the acts or omissions of which that offence consists would, if committed in the State, constitute an offence under the law of the State and be prosecutable—

(i) on indictment, or

(ii) summarily or, at the discretion of the Director of Public Prosecutions, on indictment,

or

(c) contravenes a condition contained in a direction of the Circuit Court under section 15(6)(b)

Perhaps I am misreading it, but it seems to mean that if an employment agency that was totally compliant in another state did something that would have been illegal in this State it could be barred from obtaining a licence. If that is the case, it will not stand up to legal challenge. I would like to see the legal advice on that.

This Bill is essentially a replacement of the Employment Agency Act 1971. It is not a large Bill but it is necessary, and we will support it broadly. However, I have concerns about the particular points I mentioned, and we will be tabling amendments on those issues on Committee Stage.

Willie Penrose (Longford-Westmeath, Labour)
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I welcome the opportunity to speak on the Employment Agency Regulation Bill 2009 and to indicate our broad agreement with and support for it. As Deputy Varadkar said, we have significant amendments to table on Committee State to ensure the Bill is strengthened and made fit for purpose. It is no use allowing legislation to meander its way through here, we should all make a contribution to ensure its purpose is effected in a real way and that its objectives are secured.

The Bill aims to regulate and supervise the provision of employment agency services and, as stated, it repeals the Employment Agency Act 1971, providing for a system of licensing for employment agencies that more aptly reflects the current labour market activities and circumstances. It provides for the establishment of a statutory code of practice setting down the minimum standards for employment agencies and for the setting up an advisory committee to oversee the sector in an advisory capacity; a cynic might say "Not another one". I wonder about all these advisory committees. These are a way of saying that those charged with the initial responsibility for legislation have no input. It is as if there is a vacuum. The Government is always collecting advice but when legislation is brought forward, there should be clear intent and purpose about its objectives and there should not be any need for advisory committees.

The Bill also makes provision for prosecutions to proceed in absentia in certain cases. That provision, under the Brussels convention, makes for the facilitation of enforcement, a critical element for prosecutions and the enforcement of results. The Bill will enhance and strengthen the regulatory framework for the operation of employment agencies in Ireland and the Labour Party endorses the introduction of this modern legislation. We have significant issues, however, with certain aspects and will submit amendments to address them.

We welcome the significant change that will require any employment agency offering a service in the State, wherever it is based, to be licensed in Ireland, unless otherwise licensed and registered in a member state of the European Economic Area. This is further strengthened by the provision to revoke the licences of employment agencies and prohibit them from operating in Ireland for stated and specific reasons. The licensing of employment agencies is an important issue for workers and indeed trade unions, particularly where significant numbers of new jobs are filled by employment agencies. This issue was discussed by ICTU it has expressed concerns about it.

The licensing system will not be a problem for the many employment agencies that operate to the highest standards here but once this legislation is put in place it will ensure every agency that operates is fit and proper. The trade unions have been concerned to ensure the protection of vulnerable agency workers and modernisation of the relevant legislation was a commitment made in Towards 2016, the review and transition agreement referred to by the Minister of State in his opening speech. While the legislation incorporates a number of the commitments made in the Towards 2016 review and transition agreement, ICTU and the Labour Party have noted significant commitments that were given have not been included in the Bill. We will pursue those.

In section 8(6) of the transition agreement, a commitment was given that would prohibit the use of agency workers to replace striking workers. In July 2009, the Government gave a commitment that it would bring forward an amendment to make it unlawful for employers to use agency workers for this purpose. The Minister of State's answer is that the Government is approving the drafting of a provision along those lines for inclusion in the Bill. I am worried about this. The commitment was given seven months ago. Why is the text of it now here before us so we can scrutinise it and indicate our support or opposition to it?

The advisory committee will prepare for the Minister's consideration a code of practice to guide behaviour in the sector. It is important that compliance would be required with a statutory code of practice as a condition of licensing and would establish those operating agencies are fit to do so. This was another commitment given to the unions in section 21(2) of Towards 2016.

A further issue that has arisen is that amendments are needed to provide for a complaint and redress mechanism for employees. There are all sorts of areas included in the Bill but there are also others that are not covered. The Minister of State will claim that section 30 provides for redress but I do not see that engagement in trade union activity or the recognition of the right to be involved in the trade union movement are included.

It is critically important to the trade union movement that the legislation would give an entitlement and a way for workers to recover money when they have been unlawfully charged fees by the agency or employer. What is the position the terms of registered employment agreements and employment regulation orders that we discussed at length recently? Will these agreements and orders apply to employment agencies and agency workers? That is a vital matter that must be clarified to our satisfaction. We will be tabling an amendment to ensure their inclusion otherwise the legislation we discussed previously will be left to one side.

We are confronted frequently with the question of who is the employer of the agency worker. It is important to everyone concerned that the legislation clarifies who is responsible. Legislation arose from a High Court case in 1986 about end users and employers. It is easy to shift responsibility from one person to another.

There is a need for an explicit amendment to ensure observance of employment equality rights to prohibit employment equality avoidance practices such as profiling or other activities that undermine equality rights. In some EU states there is a requirement for agencies to place a bond analogous to that of tour operators. The Bill allows for this to safeguard moneys received by agencies for and on behalf of workers in the event that an agency goes bankrupt and to provide assistance to workers who are posted away and thereby ensure they are not left stranded and can be repatriated as quickly as possible. That must be clarified and must include measures to ensure people's money is safeguarded in the event of an agency going bankrupt.

The Labour Party is focused on the transposition of the EU directive. The Minister of State referred to it and I have spoken about it extensively in this House. I even introduced a Bill to achieve that some time ago. When implemented it would put an end to the situation whereby agency workers get less pay and are given worse conditions than permanent staff, and would guarantee agency workers are entitled to equal treatment, pay and conditions as permanent employees. The Minister of State is facilitating meetings with the social partners on that and I welcome that. I hope those negotiations will prove fruitful.

In response to a number of issues brought to my attention by the trade union movement, it was suggested that legislation should address other significant issues. The Long Title of the Bill should be amended to include a reference to the International Labour Organisation convention 181 on private employment agencies. The EU Commission has called on member states to ratify this convention. This Bill could offer an ideal opportunity for Ireland to ratify the convention because it is unlikely there will be a more advantageous point in the legislative calendar to pursue this.

The Bill states the Minister can bring into being any parts or sections at different times. What is the Minister's intention regarding these commencements? Sections could be left forever without there being an order for commencement, which means they would be ineffective. The legislation would be neutralised, lying on the floor.

Section 3 refers to two types of employment agency to which the Bill applies. Will the Bill capture all employment agencies' activities? It should not permit licensing requirements to be circumvented. It may be necessary to provide for some exemption in, for example, the local employment service, various not-for-profit organisations and transition year work placements in secondary schools, which constitute a new area that did not exist in our time. Taking account of these would be important.

Section 8 provides that a person guilty of an offence is liable for a fine of up to €5,000 and-or 12 months of imprisonment on summary conviction or a fine of up to €250,000 and-or three years of imprisonment on conviction by indictment. In 1971, the maximum fine was £50, so this level of deterrent to transgression is welcome and moving with the times.

Subsection 8(3) provides that only the Minister can prosecute offences under the legislation. Were there any prosecutions under the 1971 Act? I believe there were none. Who will be the prosecuting authority? What of the National Employment Rights Authority, NERA? I understand that the Employment Law Compliance Bill 2008 will be before the House next month. If NERA is to have a supervisory role in that regard, should it not also have a role in the enforcement of this legislation? Whatever authority will be set up under the compliance Bill should also have a role in initiating prosecutions in this regard.

Section 9 repeals the Employment Agency Act 1971, but the fact that the agencies licensed under that Act can continue for three years means there could be parallel licensing systems, namely, the 1971 system until 2013 and the 2010 system onwards. One must allow people to get their affairs in order, as no one wants to wave a baton at people immediately, but perhaps a year or 18 months would be sufficient.

I referred to section 10 in respect of the bond. It is important that there be a bond similar to the one imposed by the Commission for Aviation Regulation on all tour operators and travel agents, based on their turnovers, before they can be licensed. This matter should be considered in the context of this Bill.

Section 11 sets out the circumstances in which the Minister might revoke a licence. At least two additional grounds should be considered for the purpose of revocation, namely, where an agency fails to comply with a statutory code of practice or where there are consistent or serious breaches of health and safety or other employment rights. Their inclusion would strengthen the Bill.

Deputy Varadkar has addressed section 12, which provides that the Minister can designate a European Economic Area, EEA, state as one that satisfies the licensing requirements. Does this mean that agencies could operate in Ireland without the need for a licence under this legislation? The Bill sets out that EEA countries will only be designated if they have a similar licensing regime. This is a positive development, but it will not reduce the likelihood of forum shopping. Deputy Varadkar wondered how the Minister would establish the similarities between licensing systems' requirements. In England, the system is a supervisory one. Some work remains to be done to seek clarification in terms of how this provision will operate, as it is a cause for concern.

Under section 16, the Minister may direct an agency to provide him or her with information. I have a feeling about the word "may" in this context, in that it should be "shall". Providing the information should be mandatory. I remember working on this matter previously. Not only the Minister should be furnished with a report, though. A report would be useful and I welcome the thrust of the section, but regular annual reports should be made to the Minister and he or she should lay them before the Houses of the Oireachtas and their relevant committees. When we advocated such a system in respect of the Bill on financial services provisions that we discussed just before Christmas, the Minister of State accepted it. That provision should be included in this legislation. The same request applies to section 17, under which the Minister may make regulations to require an agency to keep records. Surely the Minister is obliged to require the keeping of records and the identification of an employer in the State.

In the construction of legislation, "may" is sometimes read as "shall". This is an unusual aspect of interpretation. When legislation is being examined by the courts, there are schematic-teleological interpretations. They consider literal meanings first, then consider what is stated in the Chamber to ascertain the legislation's objective, as Deputy Varadkar said. The Minister of State could put the question beyond doubt and focus on setting a mandatory requirement for the maintenance of records.

Various sections make provisions in respect of the offence of carrying out an employment agency service without a licence. This is useful.

Under section 24, the Minister may appoint authorised officers. If NERA is to be a part of the Labour Inspectorate, could we not give it an investigative and enforcement role or will other agencies be involved? What officers will the Minister appoint? The Government is in the usual conundrum, in that the legislation will pass Second Stage but has not reached finality because it must still go to Committee Stage in the next month or so. As such, perhaps the Minister of State is not in a position to explain whether NERA will have a role. Could he clarify the situation for the House?

Section 29 is welcome. Indeed, the Labour Party, in particular Deputy Rabbitte while he was our leader, tabled whistleblower protection legislation. It lay moribund for a considerable period notwithstanding his efforts to have it promoted. In fairness, this legislation is the second Bill to take account of it. The Minister of State's Department has certainly taken it on board. For example, whistleblower legislation was introduced in the Labour Services (Amendment) Act 2009 and is now being included in this Bill. However, it is being restricted, as it only applies to informing the Garda and similar bodies. I could report a complaint to the body designated to enforce this legislation, be it NERA or another statutory authority, but the protection umbrella only applies to complaints to the Minister and the Garda. If I complain to an authorised body or officer, will that protection be extended to me? If the agency worker is a member of a trade union, which makes a complaint on the worker's behalf, does the protection extend to the third party? Those are the types of question I would like given some serious thought. The broad thrust of section 29 should be welcomed.

Section 30 provides that an employer shall not penalise an employee for blowing the whistle, which is important. There will be no recrimination against somebody who blows the whistle in good faith. I accept that the Minister has circumscribed it in the legislation that the action must be in good faith, and somebody cannot act in a fit of pique. There must be bona fide grounds for a complaint and I would not be very happy with any piece of legislation allowing untrammeled rights to make a complaint without any sustained or substantial basis. There should be a bona fide reason for a complaint. All types of blacklisting practices by employment agencies should be prohibited and set out thus in the legislation.

Section 33 refers to the advisory committee and Deputy Varadkar has spoken about that. I can understand that no members of the Dáil, Seanad or European Parliament can be part of the advisory committee, which is correct and accepted. Should being a member of a local authority preclude a person from being part of an advisory committee? Some members of a local authority may have a significant degree of expertise in the labour law area but would be excluded from participation in the committee as a result of being members of a local authority.

I will not hammer the issue at the Minister of State forever and a day but members of a local authority may have a degree of proficiency in the area that would be useful to an advisory committee. They could participate in that regard. I remember members of local authorities from all parties being appointed to various boards and they brought a significant degree of expertise to those boards and made significant contributions.

Schedule 1 contains the specified enactments applying to agency workers. I know the Irish Congress of Trade Unions was concerned about who was the legal employer of an agency worker. It is clear from this and by extension other legislation that an agency worker has virtually the full umbrella of protection from labour legislation and employment rights. There is no argument about that. The problem is who will be responsible, as the agency and end-user employer could both claim they are not responsible. It is very important that we clarify that point beyond all doubt. It is a simple formula in my view as whoever pays the wages should be responsible. It is sine qua non.

The Minister of State knows there are significant contractual extensions of the employment chain, and there may be cross-border posting and complex payment systems. Trying to get around to the person paying the wages can be quite difficult. An amendment to the legislation to provide that the end user is normally responsible should be considered.

I have already indicated that amendments are needed to ensure that equality avoidance in profiling and practice by employment agencies would not take place. The Minister of State should be eager to ensure this does not happen. Apart from those observations, this is important legislation and it has been set out clearly. I look forward to an amendment being tabled with regard to strikes, which will ensure that there cannot be substitution of agency workers in the case of a genuine strike where all the normal procedures have been gone through.

The Labour Party broadly welcomes the advent of this legislation and we will bring forward amendments to improve it. They will convey some of the views I expressed today.

Mary O'Rourke (Longford-Westmeath, Fianna Fail)
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I also welcome this Bill and the fact that the Minister of State, Deputy Billy Kelleher, is present. The Minister of State, Deputy Dara Calleary, is responsible for the portfolio but I am sure the Minister of State, Deputy Kelleher, would have been involved in the preparation of the legislation.

The Bill is welcome because the last piece of legislation to regulate employment agencies was in 1971 and the world has changed since then. Employment law and the people covered by it have changed and we clearly need an updated law regarding these institutions. There are many exemplary facets to the Bill.

It was as a result of the Towards 2016 discussions that this Bill was promised, and that shows good intent on behalf of the Minister of State responsible for labour affairs, the Minister for Enterprise, Trade and Employment and the Government in ensuring that the rightful wishes of the trade unions and employers, as evidenced in this Bill, were listened to and acted upon. It showed good intent for the future of such talks.

I came in towards the end of the contribution by my constituency colleague but as far as I could gather, he was speaking about the hope that talks could reconvene and that, in particular, goodwill is still evident despite lying low at the moment. There is a well of it still there between employers, trade unions, the Government and other pillars. The talks could be revived.

I watched Vincent Browne's programme last night and it was very interesting. He asked Mr. Blair Horan about his use of the word "revisit", as Mr. Horan indicated his union wanted to revisit the 2010 budget. Speaking for myself, we should not revisit the budget. Mr. Horan stuck to his guns and argued that the parties could talk through the issues again. Mr. Kieran Mulvey of the Labour Relations Commission was on television and radio last Sunday week talking about an initiative he has taken to explore how the thoughts and outlook for talks could be kept fluid in order to avoid a truncated version of social partnership. This would avoid the bother of taking it from cold storage and revising it too late, perhaps when December dawns this year. I hope the Labour Relations Commission and this Bill will show that the Government has good intent towards those talks and will seek to bring into effect the legislative side of agreements that have been reached.

Many of these agreements are of a technical nature, and I know that Deputy Penrose speaks for his party on these matters. I am speaking as a person interested in all matters relating to employment. Anything that would regulate agencies such as that and take a more rounded approach to those it seeks to employ would be very worthwhile. I particularly liked the clause about the whistleblower. I am aware that in the past, there was much commotion about a whistleblowers' Bill, and the Government did not agree with it at the time. This is the second such Bill in which the whistleblower clause has been included. That is a very good start in bringing such an operation into legislation. A person who has information that is injurious to others within that particular system should have the chance to blow the whistle and offset other damages that may occur.

I spoke briefly about FÁS to the Minister at the parliamentary party meeting the other night. We are talking about employment legislation, and I think this topic comes under that heading. All the talk about FÁS has been about the expenses and it went on endlessly. Of course it was outrageous and I am glad the PAC and the Comptroller and Auditor General unearthed it. There is a firm promise on behalf of the board and the chairman that they will be good from now on. Such carry-on should not be allowed. However, there is a far more fundamental issue in respect of FÁS which has not been raised. We got sporadic accounts in the newspapers that a particular trainer had given a course and that there were now doubts about the training standards at that course. That all disappeared from view when the issue of the expenses was again brought up. I would be far more concerned about the need for authorisation and recognition of all the courses that have been provided across FÁS. Young people are told that the world is their oyster if they get the certification in their hands. If that certification is recognised elsewhere, that might be the case.

I do not wish to deny the great work of regular FÁS trainers and workers. I know many of them and they are fine people, but these appear to be bodies which FÁS brought in to give courses for a particular specialisation or profession. I would be very worried if there is no authoritative verification of the various courses carried out under its aegis. The holders of such certification should be able to travel the world in the belief that it entitles them to the recognition they are supposed to have.

There is a new CEO in FÁS and I met him in Mullingar to bestow certifications. I urge the Minister for Enterprise, Trade and Employment or the Minister of State to institute a very authoritative review of all those courses over which doubts have been cast in order that the holders of certificates in those courses can be assured they have the proper qualifications. Parents have come to see me about this and it gave me a sense of unease any time I came across it. I felt something was not quite right about it, yet I saw no follow up on it.

There is a very big drop in the number of young people taking up apprenticeships. I know that an apprentice must be registered with an employer, and that is understandable as there is no other way to get the experience. I know that there was a measure last autumn whereby those who had entered into phase four were allowed to continue their course in some fashion. However, what is much more important now is the low level of numbers undertaking apprenticeships. If we are to have corners rounded and if we are to look to brighter horizons, we do not want the situation that occurred some years ago, in which we suddenly found we had no plumbers, carpenters or whatever. We need to ensure proper planning is done and I would like to see a fully fledged apprenticeship system in place again. When I was Minister of State for labour affairs, I brought in what is still called the new apprenticeship system. We ended up with a properly structured course of studies for all apprentices.

I am glad to have the opportunity to bring up these matters. They are of huge importance in the State training agency, and are of far more importance than the brouhaha that went on over matters. That has been rectified, but my concern is with the people who went on courses and were told they were getting a standardised qualification. Are they still getting it and are there any new courses? I thank the Leas-Cheann Comhairle for allowing me latitude and the opportunity to speak on this matter.

Damien English (Meath West, Fine Gael)
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I am glad to have the opportunity to say a few words on this relatively important Bill. The Bill was published last July, but it was agreed to address the issue under the Towards 2016 process. I got the impression from my research that there was a commitment this would happen three or four years ago. I often wonder why things take so long, especially when a Bill like this is relatively simple and most people agree with it. I do not understand why Bills slowly seep in here, when we could have put them to bed a long time ago.

The main purpose of the Bill is to strengthen the regulatory framework for the operation of employment agency services by requiring them to have a licence to operate an agency. I agree with some of the comments from ICTU on this. I do not know why everybody should not be required to have a licence. I have a difficulty with the idea that agencies with licences in their own EU state can operate here without an Irish licence. I have a difficulty with that because it leaves the issue open to different rules for different countries and it is not clear how that will happen. I accept there will be a difficulty addressing this due to other EU directives, but if we cannot have a licence for every agency operating here, we should at least have an assessment of the licences agencies already have. Some of the trade unions have suggested that a fast track approach be taken to endorsing an agency of another country. It is wrong to say the company does not need a licence specifically granted by this country. We either have it or we do not.

This is an important Bill. Many agencies are still operating in Ireland. Figures for past year show 300 to 400 employment agencies or companies operating here. Prior to the 2007 general election we were invited to meetings about abuse of agency workers. I thought this Bill might deal with that matter but it does not. It deals with agencies and that is one step that may fix many of the problems that exist. We are changing the working environment in our country and this may lead to problems going away. There was definitely abuse of people working for agencies. All the authorities and organisations we have cannot catch everyone so it is important to have whistleblower legislation in order that people can speak up. Even when legislation is in place, people are still unsure where to go for help and are still afraid to speak up. It is important we monitor the situation and follow this up with further legislation to protect and grant more rights and entitlements to the agency worker.

I cannot agree with all of the unions' recommendations for the rights of agency workers but there must be some clarification on when workers gain entitlements. I do not agree with Deputy Willie Penrose, who expressed the view in previous debates that agency workers deserve full entitlements immediately. There is a case to be made for a number of months to pass before they gain entitlements. That is not addressed in this Bill but it should be.

If an agency contravened the provisions of the Bill the Minister will be empowered to prohibit the company from carrying on a business for a period of up to three years. Why the period of three years? I am very blunt; I would say never again. It depends on how bad the abuse is. Is the period limited to three years? Can one point out that the agency blatantly went against all the rules and should be restricted for a period longer than three years? In some cases the licence may lapse or there might be another minor reason a company does not have a licence. Is there some flexibility or is a three-year period set in stone? What happens if the owners of an agency set up another agency under a different name and reapply for a licence? Can the Minister note the name of the owner of the past agency? It is not that difficult to set up a new agency or a new company in this country. We must be careful of this. Will it be similar to the disqualification of a director? This must be strong law or there is no point in having it. It is not clear from reading the Bill whether this point is provided for. I did not hear all the speech of the Minister of State and perhaps he dealt with this point. However, it must be clarified.

Do I understand correctly that the agency cannot provide training or charge a fee? The agency makes its profits through the worker being employed. I would like to hear the logic behind that because it seems a little harsh. Some agencies automatically provide training or another section of the company may provide the training. If one wants to bring in workers and get them fixed for the job, one may want to organise training.

Billy Kelleher (Cork North Central, Fianna Fail)
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Agencies can charge the client, not the jobseeker.

Damien English (Meath West, Fine Gael)
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That is fair enough. I hope some common sense applies to the point of whether agencies can train employees.

The preparation of the code of practice is a good idea. Will Deputies have a say? The advisory board will not involve Members but I presume the Minister of State is happy that the code of practice can come before the committee and it can sign off on it. As Deputies, we are invited to these meetings and people lobby us for changes. Deputies have useful input on this matter. Deputies and councillors should be on advisory committees and boards. We are elected to do a job for the people and although there is a danger of partisan politics, Deputies should be used more often on State boards and bodies. That would cut down costs because we are already paid to be here. We could do other work at the same time and broaden our job. That in itself would provide more scrutiny. This matter may be too minor but in principle I am not opposed to any politician of any party being used on State boards and organisations. That is what we are there for, to scrutinise. There is too much of a tendency to take politicians away from this.

The Irish Congress of Trade Unions has raised the issue that only the Minister can prosecute an offence, not NERA, the body set up to scrutinise abuse. Am I reading this correctly? The last item of legislation, the 1971 Act, was for a different purpose but very few people were prosecuted under that Act. In fact, nobody was prosecuted. That does not look good for the future if no one was prosecuted in 35 years. This addressed a different matter, where people were going from this country to work abroad, whereas this Bill addresses agency workers in this country. I would like to know who exactly can prosecute under this Bill. I do not see why it should be only the Minister.

Billy Kelleher (Cork North Central, Fianna Fail)
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Until NERA is on a statutory footing, prosecutions will be in the name of the Minister. Another item of legislation is required to statutorily establish NERA.

Damien English (Meath West, Fine Gael)
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Will that be dealt with in the next item of legislation?

Billy Kelleher (Cork North Central, Fianna Fail)
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We will clarify the point in the next Bill.

Damien English (Meath West, Fine Gael)
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Someone can be refused a licence for reasons on indictment in this State or another state. Three or four categories are set out in the Bill. Is the licence automatically refused in these cases or does discretion exists? Is it black or white? Discretion is important because an agency may have branches located in various countries and abuse of workers may occur in one branch. The Irish branch of the agency may be 100% straight in what it does and compliant with Irish law. Does the Minister have discretion in this point? I am not implying that the Minister of State does not have common sense but we must write this into law. It must be written into law because the Minister of State will not be there forever, especially if Fine Gael gets its way. The Oireachtas should have a role in setting out the principle of this point and we can deal with that on Committee Stage. Certain points need to be tidied up.

I feel very strongly about the licensing situation in this country. An agency should be required to get a licence under Irish jurisdiction if it wants to set up in this country. We must have control of this. Why bring forward laws if we do not enforce them? People have been treated very badly in the past. Members have met them when they come into our offices looking for help. It is difficult for Members to know where to go with some of these matters. I accept it is getting easier to find the right place to go but it can be awkward because they are very often coming in from companies we know. It is awkward but we have a duty to deal with this. The clearer the law is, the easier it will be for us to follow procedures. I suggest including in this Bill a requirement for any public representative of any party at any level to bring it to the attention of the relevant authority. There should be an onus on us rather than allowing us to decide to park it on our office desk. It is important that people are treated properly in the workplace and not abused.

I welcome comments from the Minister of State, Dara Calleary, who proposes to introduce amendments so that agency workers cannot be brought in when people are on strike. Will this be a feature of the Bill? It shows how agency staff can be used and abused to fill a gap.

Another point relates to how agency staff are treated by permanent staff. The second part of the legislation, which deals with entitlements, may put some of these issues to bed. If workers think agency staff have lesser rights than they do, it can be abused. It is a pity that happens. It would be necessary to have legislation to deal with this immediately and to set out the entitlements in black and white. There is no reason this should go on for years. The EU legislation came into force in 2008 and Ireland was one of the countries which delayed the passing of that legislation. I never fully understand the reason we delayed progress in that area.

We can learn from the example of other countries who have regularised the employment agency sector and who may have a longer history of using employment agencies to source staff. This has become a significant issue in Ireland, particularly in the construction sector in the past three to five years and since EU enlargement in 2004. Ireland has been slow to react.

I have been an employer and I also have experience of being an employee so I know both sides. One must be black and white with regard to employment law. This is a reasonable Bill and will be a good Bill with a few changes but it will not inflict massive costs on any employer. The employer organisations seem to be happy with the Bill as it does not impose a burden. I know the Minster of State, Deputy Kelleher, is in favour of not imposing too much red tape on the sector.

I understand the duty is on the employer to check whether an agency is licensed and that the point of contact is the Department of Enterprise, Trade and Employment. If an employer contacts the Department, how quickly will he or she receive a response and will that response be in writing or will the information be available as a list on a website? If an employer contacts the Department and is informed the agency in question has a licence and can be used, can the employer be assured that the list and the information is up to date? An employer often needs to make a decision over a weekend or decides on a Monday that a person is needed for the week and he or she is unable to wait hours for an answer or a week to wait for a letter in the post. It should not be the case of waiting for Deputies to submit parliamentary questions which will not be answered, because the information will be needed immediately and should be up to date. There is no point in a list that is a year out of date. Does the legislation indicate the duration of an employment agency licence?

Paul Connaughton Snr (Galway East, Fine Gael)
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Like the previous speaker I welcome the Bill. I assume the reason for this legislation is to follow best practice as in European legislation. The structure of employment agencies has changed over the years. I assume if this Bill had been introduced before the arrival of so many immigrant workers over the past eight or ten years it would be a different structure. I see no reason why the employment agencies would not be policed and a licensing system for agencies is a reasonable proposal.

The movement of labour between countries comes in 20 to 30-year phases. I presume this Bill is a measure to protect people who come to a foreign country and who might be very badly treated if suitable employment laws were not in place. It is the case that a grey area exists within the employment agency business and this has nothing to do with non-native workers. In the good years the use of employment agency staff could be very expensive. I often wondered who was responsible for these staff, whether it was the agency that provided them or the employer who paid for them. It is referred to as a grey area in some of the documentation. I assume once this legislation is passed, this grey area will no longer exist. I assume the people who pay the piper will be responsible for such staff and I note the Minister of State is nodding in agreement.

Deputy Mary O'Rourke referred in her contribution to an unintended secondary effect of the legislation. I hope this will do its bit in so far as the trade union movement is concerned, that it will show that the Oireachtas and the Government, like the trade unions, are also very concerned about the welfare of workers. This comes at an opportune time when everybody is fiercely critical of everything that is happening and there is great cynicism as to the future of the country. Whatever hope we have as a nation of pulling together, we have no hope at all if we hang one another out to dry. It is against this background - even though this is only a very small element of a significant problem - that I hope it will be seen in some quarters that at least the Oireachtas Members wish to be prime movers in creating an environment for getting the economy right so that the people who are hurting so badly now will see that times will get better for them. Parts of this Bill should fit well in that regard. This is something about which the trade union movement has been making a lot of noise - and rightly so - over the years.

The Bill provides that employment agencies established in other EU states must apply for an employment agency licence unless the Minister is satisfied that agencies in that state are permitted to operate only in accordance with a licence or are otherwise appropriately regulated or authorised in that state. I ask the Minister of State if this means that outside agencies must apply for a permit here in order to operate in this country. I assume many of those employment agencies are based outside of Ireland. I was not aware there are 300 or 400 of them but I assume in a country of our size this would be appropriate enough. I ask how these agencies will interface with this legislation when enacted.

The Bill will establish a code of practice setting out practices and standards to provide practical guidance to queries for the purposes of complying with the Act. I am not an expert on this type of law but is it the case there is no statutory obligation on people to accept the code of practice? Is the Minister of State of the view that the employment agencies, when it suits them, might not be too concerned about the code of practice or does he believe it will become a marketing tool for them, that people will only deal with agencies which accept the code of practice and adhere to it? The Minister of State is nodding in agreement. I assume he has a good reason to believe this is what will happen.

Billy Kelleher (Cork North Central, Fianna Fail)
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Hope springs eternal.

Paul Connaughton Snr (Galway East, Fine Gael)
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I refer to a point raised by a number of Deputies in previous contributions. The Bill provides for a capacity to revoke the licence of employment agencies and to prohibit recognised employment agencies from operating in Ireland for stated reasons. I understand this is where the three-year rule applies. I assume there is no possible side-step available. I assume agencies are not single individuals but rather are companies under the Companies Act. In a case where a group finds itself on the wrong side of the law and is duly struck off the register, can the Minister of State assure us, as far as is possible, that it cannot reappear under a different name, in a different place and at a different time? Will he indicate how that might be policed? We have not been particularly successful so far as company legislation is concerned, and this type of racket has been going on for years. It has happened in the past when companies have been struck off that the directors proceed to set up a new operation in the name of their spouses, children or cousins. In other words, it is the same company by another name. How does the Minister of State intend to prevent that happening?

We all understand the importance of including a provision to protect whistleblowers. I have noticed in general, whether in the area of health, employment law or otherwise, that the whistleblower's lot is a lonely one. Some of the greatest atrocities committed in this State were uncovered by those brave enough to blow the whistle. However, the ultimate outcome for the whistleblowers themselves has not always been good, with some losing their jobs and those who do not often treated as pariahs who might as well have been out in the desert. We must show that we are serious about protecting whistleblowers and that will we do everything possible to do so. Such people are generally patriotic and entirely committed to acting in accordance with what they see as right. It has been shown in many cases that they were absolutely right, but it often did not work out well for them and their families. I hope the checks and balances the Minister of State provides will be in favour of the whistleblower.

Deputy Varadkar spoke about the issue of compatibility within the European Single Market. Under section 12 of the Bill, the Minister has the power to designate an EEA state as one which satisfies requirements for the licensing of employment agencies in that state. Given that we are told every day of the week that the State is breaking some European Union law or other, I am interested to know what the view is in Brussels in regard to this provision. How can Ireland decide that certain countries within the EEA are in and others out? On what basis are those decisions made? How will such a system work in the context of our linking up to the totality of the European Union and all its institutions?

The Bill also provides for the establishment of an advisory committee to draw up a code of practice and advise the Minister on the implementation of the legislation. This is a reasonable proposal, as is the provision that the committee should include the various stakeholders. It is important that the latter should be included in the mix, but there is also a case for seeking the input of those who are not directly connected to the industry and the sector. Will the Minister of State outline the proposed membership of the advisory committee? I understand it will be a type of FÁS board, with all the stakeholders represented. This may not ultimately be the best policy.

If I understood correctly, the Minister of State indicated to one of my colleagues that training would have to be paid for by the user of the service. Is that correct?

Billy Kelleher (Cork North Central, Fianna Fail)
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It will be paid for by the client.

Paul Connaughton Snr (Galway East, Fine Gael)
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I thank the Minister of State. I assume there is nothing in these measures to prevent or prohibit agencies from training staff, which would go entirely against their principles and function. If an employer is finding it difficult to recruit a certain type of employee with particular skills - this may have been more of a problem two or three years ago than it is now - that is the only concern; the employer could not care less who trains the employees so long as they come. I assume that so long as the client pays for training, there is no hindrance in this regard.

Is it the case that training for particular roles will come within training norms in this State? In other words, in the case of electricians, for example, I assume the employment agency would have to use the relevant training agencies. Is that correct? If so, there must be a tie-up between the employment agencies and the training agencies. While the Bill may look simple, it is not as straightforward as one might assume. While there are issues to be teased out on Committee and Report Stages, Fine Gael is broadly supportive of the legislation.