Richard Bruton (Dublin North Central, Fine Gael)
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During the passage of the Bill through both Houses of the Oireachtas, the provisions providing for retrospection to 5 December 2011 have been the source of considerable debate. Section 1 as originally passed by the Dáil provided that with the exception of the provisions relating to offences or the instigation of legal proceedings, all other provisions of the Bill would be deemed to have come into effect on 5 December 2011. In light of the debate in both Houses and on further consideration of this issue with the Office of the Attorney General, the amendment to section 1 as proposed in subsection (3) restricts the application of retrospective cover to the basic working and employment conditions of agency workers to extend only to pay. As for the other non-pay elements that come within the basic working and employment conditions set down by the directive, such as working time, rest breaks and access to collective facilities and to job vacancies etc., I am advised that in practice, enforcement of these on a retrospective basis would be almost impossible as they cannot be undone after the event. I believe this amendment should go some way towards meeting concerns that were expressed previously about the intention to make the provisions of the Bill in their entirety, with the exception of the offence provisions, retrospective. I recommend the amendment to the House.

Subsection (2) of the amendment applies the general provisions of the Bill, such as section 2 on interpretation etc., on a retrospective basis. Subsection (4) provides that the offence provisions in the Bill will not come into effect until the day following the passage of the legislation. All the other provisions of the Bill will come into effect upon enactment of the Bill. I hope this measure, which balances the need for the Government to meet its directive obligations, also meets to a greater extent than heretofore the concerns expressed about this provision. This amendment will ensure that agency workers who are entitled to equal pay from the transposition date of the directive will have this entitlement backdated to 5 December 2011. However, they will not be able to claim entitlements from 5 December 2011 in respect of other aspects of basic working and employment conditions, including breaks, working time, collective facilities, etc.

Willie O'Dea (Limerick City, Fianna Fail)
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I thank the Minister for the change he has introduced to this section of the Bill and the legislation now is much better than was the case on its initial introduction to the House. While technically, one can state that one cannot retrospectively give people rest breaks they did not receive at the time or give access to collective facilities, if one wished to be completely consistent one could of course put in place a system to compensate them for not getting such breaks or access. Nevertheless, I welcome the change made by the Minister. During the Second and Committee Stage debates, I made the point that the retrospection in this section regarding pay would be very harsh on certain undertakings. Almost six months have elapsed since the commencement date of 5 December 2011 and the longer this goes on, the greater the burden will be. I also pointed out to the Minister the possible constitutional implications and the danger, were someone to mount a constitutional challenge. However, I do not propose to oppose this amendment because it represents a considerable improvement on what went before.

Brian Stanley (Laois-Offaly, Sinn Fein)
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Sinn Féin supports the retrospective nature of the legislation but is concerned that, due to the passage of time while enacting the legislation, many workers may have been obliged to endure unequal pay and conditions. While this measure caters for pay, it does not cater for the other matters. Sinn Féin believes this should not be the case and that workers should be entitled to claim back, for example, time off in respect of breaks and so on if they were treated unfairly.

Richard Bruton (Dublin North Central, Fine Gael)
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I thank Deputy O'Dea for his support in this regard. We discussed the Attorney General's advice at length on a previous occasion and that is a robust way to go. However, the reason I have focused the amendment on pay is in light of the concerns regarding the practicality of seeking to enforce back to 5 December 2011. Seeking to disentangle some of the other items would pose a practical difficulty and I have been advised by the Attorney General that this is a better approach to take. It meets the general concerns expressed in both Houses that the retrospection element had to be applied in a balanced way. While I recognise Deputy Stanley's comment, I believe what I propose in this amendment to be the best way to proceed. Seanad amendment agreed to.

Seanad amendment No. 2:

Section 2: In page 5, between lines 20 and 21, to insert the following:

" "Act of 1971" means the Employment Agency Act 1971;".

Michael Kitt (Galway East, Fianna Fail)
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Seanad amendments Nos. 2, 3, 12, 13 and 15 are related and will be discussed together.

Richard Bruton (Dublin North Central, Fine Gael)
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Seanad amendments Nos. 2 and 15 are technical amendments. It is the practice in drafting legislation that where there is a reference to another enactment on more than one occasion, the definition of the enactment is included in the interpretation section and the enactment is thereafter referred to by its shorter title. This is the effect of Seanad amendments Nos. 2 and 15.

Seanad amendment No. 3 essentially is of a technical nature to ensure the legislation aligns properly with the European Union directive. Article 3.1(f) of the directive lists overtime as a constituent element that goes to make up basic working and employment conditions. While overtime is listed in the Bill as a component element in the definition of pay, it is not included in the definition of basic work and employment conditions and to be correctly aligned with the directive, it also should be included under the definition and this is the intention of the amendment.

Seanad amendment No. 12 replaces the current text of section 13(1) to provide specifically for the prohibition contained in the directive on an employment agency charging a fee to an agency worker, following the completion of his or her assignment with a hirer, after which the agency worker is offered direct employment with the hirer. Amendment No. 13 clarifies that the new provision inserted by amendment No. 12 is in addition and not in substitution for the separate and distinct prohibition contained in section 7(2) of the Employment Agency Act 1971. The latter provides that it is unlawful for an employment agency to charge an individual a fee, commonly referred to as a placement fee, for facilitating the introduction of that individual to a third party who will hire him or her on a temporary assignment. In other words, a fee, either at commencement or end of placement, by way of recruitment charge is being outlawed.

Willie O'Dea (Limerick City, Fianna Fail)
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I take it that the 1971 Act, to which this legislation is an addition, prohibits the charging of a fee at the commencement of placement whereas this legislation address the situation at the end of the process.

Richard Bruton (Dublin North Central, Fine Gael)
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Yes.

Willie O'Dea (Limerick City, Fianna Fail)
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That is a progressive amendment.

Brian Stanley (Laois-Offaly, Sinn Fein)
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Sinn Féin accepts these amendments.

Michael Kitt (Galway East, Fianna Fail)
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Seanad amendments Nos. 4 to 7, inclusive, and 11 and 14 are related and will be discussed together by agreement.

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

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

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

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

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

Willie O'Dea (Limerick City, Fianna Fail)
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I thank the Minister for his remarks. I accept these amendments, which represent a considerable improvement on the Bill. I can understand from where the draftsman was coming in terms of the original legislation. However, the difficulty is that the more one tries to define the more loopholes open up. The Minister has taken the wise decision to stick closer to the wording of the directive, which better achieves the intention of the directive.

Brian Stanley (Laois-Offaly, Sinn Fein)
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Sinn Féin will be opposing amendment No. 4. On amendment No. 7, the directive and legislation were based on ensuring equality of pay and conditions between temporary agency workers and permanent employees. They are intended to safeguard employment and terms and conditions for both sets of employees. The Government has introduced a loophole that will exclude so-called permanent agency workers from the provisions of the Bill. Sinn Féin is concerned that acceptance of this amendment will result in the creation of the further loophole of two workers doing the same job being on different contracts with different terms and conditions. What will prevent an employer employing an agency worker on lesser terms and conditions? I urge the Minister to reconsider inserting the words "existing contracts of employment" to ensure that these potential loopholes are closed.

We will be supporting amendments Nos. 11 and 14.

Richard Bruton (Dublin North Central, Fine Gael)
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The intention was to provide clarity for employers and agency workers in terms of where they stood. The problem with the comparator was that such person may have been employed when conditions in the labour market were different and issues in terms of experience and so on may have arisen. We used the comparator in the first formulation of the legislation. We then tried to modify it to take account of different things that might make the comparator not a relevant person with whom to compare the new recruit being taken on as an agency worker. As Deputy O'Dea stated, this led to the creation of a complex set of different provisions. Following further consideration of concrete examples, we realised this provision would create more uncertainty in terms of where people stood. If a person is recruited as an agency worker, he or she cannot be recruited on terms different from those if the employer went out into the market that same day and had a direct recruit. That is what is provided for in the directive. We sought to use the comparator and then make modifications to the comparator to take account of different things which might make those two workers different because one was maybe five years earlier. In practice, it is better to revert to the wording of the directive. It is clearer in its application.

Having had a lengthy debate in the Seanad and having discussed practical cases, the consensus across the Oireachtas is that this is the better way to go. I will stick with it because having had the debate and having listened to the views of Deputies and Senators, this is the more robust way to proceed. It is fairer and it deals with what is the purpose of this, that is, that people cannot take on agency workers and apply entirely different terms and conditions. That is the sort of abuse this is designed to stamp out. This was not designed to create a new set of entitlements over and above what is in the directive and that is what the construct could have done. This is clearer, closer to the directive and commends itself to consensus across the Oireachtas.

Richard Bruton (Dublin North Central, Fine Gael)
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Seanad amendment No. 8 proposes the inclusion of an entirely new section in the Bill. This amendment is particularly important given the revision of section 7 of the Bill that deals with conferring on agency workers entitlement to basic working and employment conditions. Section 7 now follows closely the wording of article 5 of the directive. As a consequence, this requires that measures are adopted at national level to ensure proper protection of agency workers in line with the anti-avoidance provisions of article 5.5 of the directive. In particular, there is a requirement to prevent the use of successive assignments of agency workers designed to circumvent and override the entitlement conferred on them.

Seanad amendment No. 8 responds to this by proposing the insertion of a new section 8 in the Bill. The intention is to ensure that agency workers on assignment with the same hirer in a series of assignments in which they are doing the same or similar type work are not reverted to the starting point on each occasion they commence a further assignment with that hirer. Rather the provisions in section 8(1) provide that the series of assignments will be treated as a single assignment which means that agency workers will properly accumulate service and other entitlements under employment law, thus the first assignment in a relevant series of assignments is treated as the objective starting point for determining the commencement of the assignment.

Section 7(1)(b) provides a safeguard to ensure that timing between assignments when the agency worker is not working on assignment with the hirer is not taken into account for the purposes of determining entitlements. Section 7(2) defines what constitutes a series of relevant assignments which is that the hirer is the same person or a person connected with the hirer as defined in section 7(3) and the agency worker is the same person in regard to the relevant assignment and works in whole or in part at the same place of work, his or her work is directed and supervised from the same place and the work done is the same or of a similar nature and undertaken in the same or similar conditions with any differences being of minor significance.

Additionally, section 7(2) provides that where there is a break between assignments that is greater than a three-month period, this breaks the sequence of the series of assignments and further assignments after that point would commence from the start. The three-month period in between assignments is borrowed from existing legislation in the employment rights area and is the case in section 2(2) of the Unfair Dismissals Act 1977.

Willie O'Dea (Limerick City, Fianna Fail)
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This is a reasonable amendment and I thank the Minister for bringing it forward. It seems reasonable that if an agency worker is employed for a long period of time, goes on a temporary break and is taken back after say a few weeks, the employer cannot more or less start him or her again and thereby ignore rights which he or she has accumulated or is accumulating because of his or her previous service. That is only right and proper.

While I appreciate the Office of the Parliamentary Counsel has done all in its power to ensure there are no loopholes left, looking at the provisions in regard to companies, I might spot one or two but I will not say anymore about that. We will hope for the best and hope that the Office of the Parliamentary Counsel has completely covered all eventualities.

Brian Stanley (Laois-Offaly, Sinn Fein)
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I welcome this amendment, in particular the fact it will stop employers recruiting agencies workers several times instead of making them permanent. This brings some clarity to that. I support the amendment.

Richard Bruton (Dublin North Central, Fine Gael)
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There is broad support in the House for this amendment.

Richard Bruton (Dublin North Central, Fine Gael)
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This proposed amendment is purely technical and relates to an amendment to section 8 of the Bill that deal with collective agreements. The reason for this amendment is that section 8(1) allows for a body or bodies representative of employees to agree to a collective agreement. However, the language in section 8(4)(c) refers only to a body, that is, it describes the body that negotiated the agreement. This amendment ensures that this section aligns with section 8(1) by covering the plural version, that is, bodies.

Richard Bruton (Dublin North Central, Fine Gael)
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This too is a technical amendment to section 9 of the Bill, as passed by the Dáil, and it seeks to ensure that for purposes only of equal treatment of working and employment conditions for agency workers that are part-time employees, it is the provisions of this legislation and not that of part-time legislation that applies. In effect, this means that whereas in part-time legislation, the appropriate comparator established for an agency worker is another agency worker that is superseded by this legislation which takes as the appropriate comparator another directly recruited employee.

Seanad amendment agreed to.

Brian Stanley (Laois-Offaly, Sinn Fein)
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Seanad amendment No. 14 states: "A hirer shall, as respects access to collective facilities and amenities at a place of work, treat an agency worker no less favourably than an employee of the hirer unless there exist objective grounds that justify less favourable treatment of the agency worker." Will the Minister explain the last sentence? Why type of objective grounds does that cover?

Michael Kitt (Galway East, Fianna Fail)
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Technically, I should not have allowed the Deputy ask a question because it was discussed already.

Brian Stanley (Laois-Offaly, Sinn Fein)
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The Leas-Cheann was moving very fast and I was trying to keep up with him.

Richard Bruton (Dublin North Central, Fine Gael)
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It is if there was slight pressure on the facilities and there was a queuing mechanism - in other words, that a reasonable approach would apply in allowing orderly access to the facilities. It would not be to so constrain the employer that those sort of normal provisions would not be acceptable.

Richard Bruton (Dublin North Central, Fine Gael)
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I take the opportunity to thank Deputies and Senators for their very constructive contributions to the debate. The Bill, as passed, is better than the one introduced. This is due to the vigilance of Members, in that they drew our attention to difficulties that might have been from the original drafting. I acknowledge the work done by Members as well as by my officials and those of the Attorney General's office in responding to the issues of practical importance raised by Deputies and Senators. It was a useful debate and I thank the Opposition for its contribution.

Willie O'Dea (Limerick City, Fianna Fail)
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I will reiterate the Minister's comments. He introduced this legislation on foot of an EU directive and his job was to fashion the legislation within the directive's broad terms. On Second Stage, I stated that the legislation as introduced had all of the hallmarks of something that had been prepared quickly. This was reflected in some of the anomalies that we identified.

I welcome the flexible approach taken by the Minister, who took much of what we stated on board, although he could not agree to everything. This is what parliament is about and the Bill is better as a result.

Michael Kitt (Galway East, Fianna Fail)
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A message will be sent to Seanad Éireann acquainting it accordingly.