Willie O'Dea (Limerick City, Fianna Fail)
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I note that amendment No.9 is being taken in conjunction with amendments Nos. 24 to 26, inclusive, and I wish principally to address my remarks to those amendments. Under the Industrial Relations Act 1946, if employees felt they were not getting a fair wage in accordance with the terms of an employment regulation agreement or if they were working excessive hours or too few hours and so on, and if they wished to make a complaint, there was a simple procedure involving the National Employment Rights Authority and the Department. Somebody on behalf the Department was empowered under that Act to take a criminal prosecution against the employer. The threat of that was very effective and it largely worked. It obviously did not deal with every situation because we would need an army of inspectors to police every situation, but people had automatic access to the Department which could then prosecute criminally, and it did so successfully on occasion. That was a very powerful deterrent and, by and large, it kept employers on the straight and narrow.

When the High Court looked at the powers of the joint labour committees, it recognised that breaches of their powers could result in criminal convictions, which shows how extensive their powers are. The Duffy Walsh report suggested that aggrieved employees should have access to NERA and that NERA should have the option of bringing either a civil case or a criminal case. As a result of a High Court decision, the section of the Industrial Relations Act 1946 that empowered NERA to bring a criminal conviction has been struck down, in my opinion. Therefore, the position is that NERA could still be given the power to bring a civil action on behalf of aggrieved employees. However, that is not what this legislation provides. It provides that if employees are aggrieved, they are more or less on their own. They must go to the rights commissioner, wait in the queue, represent themselves or maybe get a trade union or some other third party to do so. We are talking about people who are generally not very well educated and in low wage employment. Examples might include an immigrant or a housewife who is working to supplement the family income because her husband has been put on the dole. If they succeed before the rights commissioner, the employer can appeal to the Labour Court, so these low wage employees more or less have to represent themselves in the Labour Court, unless they can get a trade union or some third party to represent them. If they win their case at the Labour Court and the order is not enforced, they must go to the Circuit Court. These employees could be contending that their wages are €5 short every week. There could be a pitiable sum of money involved in the great scheme of things, but a lot of money to the individuals in question.

It seems to me that the only access for such employees to the Department is under the new section 45E of the Bill, as amended. It states that where it appears to the Minister that a complaint under section 45 has not been presented to a rights commissioner and the circumstances touching the matter are, in the opinion of the Minister, such as to make it unreasonable to expect the worker or even a trade union to present the complaint, then the Minister will step in. In other words, the automatic access of these workers to the Department for assistance is being taken away. If the worker does not present a complaint, the Minister can step in if he or she considers it unreasonable to expect the employee in the case to represent himself or herself.

That is a very high barrier. I cannot understand in what circumstances it would be unreasonable to expect the employee to represent himself or herself. If the employee does not present a complaint to the rights commissioner, how will the Minister get to know about it? Is it a matter of somebody going directly to the Minister instead of going to the rights commissioner? From what I can see, the chances are such employees would be turned down if they went to the Minister. In the normal course of events, I do not see how it can be unreasonable to expect somebody to lodge a complaint.

The procedure is relatively simple. A local TD, a citizen's advice centre or even a trade union official such as a shop steward can fill out a form for a person, although most people can fill out the form themselves. I am concerned as to why the legislation does not state that if people have complaints, they can bring them themselves or get their trade union or any other third party to represent them, when they have access to NERA, which can bring the case on their behalf. Why take away what was automatic access to assistance from the Department for these low paid workers who are poorly able to represent themselves and who cannot afford heavy duty lawyers? What has changed?

Why did the Government depart from this recommendation of the Duffy Walsh committee, which suggested the situation would continue as it has since 1946, albeit that the action that would be pursued on the employee's behalf would be of a civil nature rather than a criminal nature? The net effect of this, so far as redress is concerned, is that an employee who may be owed a trifling couple of hundred euro has to go to the rights commissioner, perhaps then go to the Labour Court to argue his or her case and, ultimately, go to the Circuit Court if an order issued by the Labour Court is not being enforced. Why is the Department now being effectively stopped from acting on his or her behalf or, rather, why is there no automatic recourse to the Department?

It seems, on the one hand, the Minister has announced his intention to bring up to date new provisions for redress in such cases, and in more general unfair dismissal cases, to more or less consolidate them and make them more modern and effective and,on the other hand, he is removing something which this cohort of workers has enjoyed since 1946. I would appreciate it if the Minister could explain the reasons for this. In what circumstances does he contemplate that section 45E will kick into effect?

Richard Bruton (Dublin North Central, Fine Gael)
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I thank Deputy O'Dea for raising these issues around the enforcement area, which is an area causing considerable concern. In the context of the workplace relations Bill on which I am working and the blueprint of which I have published, I am considering in great detail how enforcement operates and how we can improve it.

The Deputy has submitted a number of amendments, some of which relate to the REA system and some to the REO system. With regard to amendment No. 9, section 8 inserts a new section 32(4) of the Act to provide a new straightforward enforcement mechanism to secure compliance with REAs instead of resorting to a criminal prosecution. A complaint about non-compliance by an employer with an order of the Labour Court for compliance with an REA may be brought before the Circuit Court by or on behalf of the worker concerned by a trade union, or by the Minister if the Minister considers it appropriate. The Circuit Court then makes an order directing the employer to comply with the terms of the Labour Court.

The effect of the amendment put forward by Deputy O'Dea would be to remove the discretion of the Minister in deciding whether it is appropriate to refer a case to the Circuit Court. This is a standard provision in a range of employment rights legislation dealing with the failure by employers to comply with Labour Court orders or an EAT decision, including the National Minimum Wage Act 2000 and most recently the Protection of Employees (Temporary Agency Work) Act 2012. It is NERA, acting in the name of the Minister, which is responsible for taking a case in the Circuit Court.

There are a number of reasons it may not be appropriate to refer a case to the Circuit Court. The reasons for non-referral would include the following: the company having been abandoned; a limited company not having been properly wound up or liquidated so there is no prospect of payment from the insolvency fund; the award is less than the potential cost to the State of legal proceedings; the employer cannot be found and has possibly emigrated, or an incorrect name of the employer is on the award; and the former employer, a sole trader, is now in receipt of social welfare with no other visible means of income, meaning pursual by the State is not a realistic option. These are circumstances that have to be assessed on a case-by-case basis, and requiring NERA to effectively proceed automatically without regard to those circumstances would not benefit either the employees or the resources of the State if the result was to be nulla bona and they would effectively get nothing.

The Deputy also raises issues in respect of the later provisions on EROs. He puts forward some sensible proposals, such as notification of employers first. As I understand it, he proposes that the Minister would be the one bringing a complaint to a rights commissioner. What we are seeking to do is to have a very simplified complaints procedure in order that, where a complaint arises, it would be immediately followed by an inspection and, in that period, the employer would be given the opportunity to correct his or her hand. We are also looking at new powers such as a compliance notice that could be served on the employer at that stage. We are examining the scope for better enforcement mechanisms and the jurisdiction of the court into which cases will be taken, as well as introducing new instruments for the State to use to try to achieve compliance, such as fixed notice charges, a new mechanism for enforcing awards and so on.

I intend going to the committee in the very near future with a document setting out the draft approach of the workplace relations commission and the enforcement approaches we will take under that. This will involve across-the-board measures to deal with all the different forms of enforcement that come before NERA. Rather than seeking to proceed on a piecemeal basis and make amendments here, the approach I propose to take is to introduce across-the-board changes following a period of consultation through the production of a policy paper. I will then bring it to the committee in the near future and have an opportunity to evaluate the reaction from Deputies and others before moving to the design of an appropriate enforcement approach that would be more effective for workers than what is now in place.

While I fully accept Deputy O'Dea's motivation in putting forward this approach, he is seeking, in respect of some of his amendments, to remove discretion which I believe it is appropriate to have. In the case of his other amendments, I would prefer to wait and consider a full, comprehensive package for enforcing the various elements of labour law infringement that come to be examined, rather than seeking to go down the road with a specific model in a specific instance before consultation and the design of a system that I would feel is robust and has been tested before the court of public opinion as well as the court of the Oireachtas.

Willie O'Dea (Limerick City, Fianna Fail)
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I am aware we are discussing this legislation in the context of the Minister's proposals on the workplace relations legislation generally. I take comfort from the fact that he regards the provision in amendment No. 25 in my name that, before a complaint is presented to a rights commissioner, the employer should be notified of the contravention in writing and given a period of 14 days to respond and, if possible, rectify the issue, as a good one. I hope he will take it on board in his workplace relations legislation. Accordingly, I will not be pressing that amendment.

The Minister spoke much about discretion. I might be wrong, but as I understand it, under the 1946 Act, if someone wanted, the National Employment Rights Authority, NERA, could take on his or her case. A significant barrier has been put in place between an aggrieved employee and the NERA, as there are all sorts of conditions set down before the NERA will condescend to represent someone. To me, this is reducing people's rights.

There is also a peculiar provision in section 18 concerning a situation where someone is entitled to be informed about what rights he or she has. It provides that where someone is unhappy and does not receive full information about his or her rights from his or her employer, he or she can go to the NERA which can issue a notice to the employer to supply the information. This is automatic access to the NERA when someone is not receiving information on his or her rights. When someone is not getting his or her rights, as opposed to information on them, he or she has to go to the rights commissioner, the Labour Court and the Circuit Court.

When this legislation takes effect and if this provision remains unchanged by the workplace relations legislation, access to the NERA will be practically non-existent. I am concerned about some of the wording used. For example, it will only take effect when a complaint has not been made which the NERA is meant to know about and it will only step in when it is regarded as unreasonable to expect a person to represent himself or herself. The tone of this form of drafting and the way it could be interpreted concerns me.

While I am not going to push the amendments, it is a matter we will have to discuss in more detail in the context of the workplace relations legislation. Everyone accepts employees are in a worse situation than they were in before the High Court decision. I hope these provisions will not leave them in a worse position where they do not have the maximum protection. I am seriously concerned about the wording of the new section 45E in the 1946 Act.

Richard Bruton (Dublin North Central, Fine Gael)
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I assure the Deputy that that is not the intention. We are seeking to simplify procedures in the workplace relations commission. For example, we want to ensure, when a person makes a complaint, that within days the employer will be informed and have an opportunity to rectify or clarify the matter. This would be an early resolution phase. If the matter cannot be resolved, it can go for adjudication. In the past in the case of a registered employment agreement, the only route was a hearing in the Labour Court or with the rights commissioner in other cases. A queue would form for hearings before an issue could possibly be simply unravelled. This also led to long delays and when cases were finally vindicated, it was often too late to be an effective remedy.

We are seeking to streamline the approach and ensure issues can be dealt with, where possible, at the least complex level. We are examining better mechanisms for the NERA to take enforcement measures at lower levels, thereby not necessitating going to the Circuit Court. I will have proposals on the workplace relations legislation to take to the committee soon and, I hope, from that I can take up the Deputy's suggestion for improvement as he has considerable experience in this area.

On the point of access to the NERA, it is the case that individual employees are a key driver in bringing complaints to rights commissioners for breaches of conditions. However, the NERA is still engaged in the strategic enforcement and inspection process for breaches in compliance with employment rights generally and registered employment agreements. It will be empowered to pursue prosecution for breaches of employment regulation orders and registered employment agreements under the new proposals. The practice has been for it to immediately inspect and short-circuit many complaints. This has resulted in a more effective response where people are willing to be compliant. There are problems, however, where employers are not compliant and will not accept findings. I hope to return to this subject soon when I bring the draft workplace relations legislation to the committee for discussion.

Bernard Durkan (Kildare North, Fine Gael)
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Amendments Nos. 10 and 11 are related and will be discussed together.

Peadar Tóibín (Meath West, Sinn Fein)
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I move amendment No. 10:

In page 12, line 12, to delete "24 months" and substitute "12 months".

These amendments address the maximum duration for a derogation under the inability to pay clause. The issue was discussed on Committee Stage but needs to be discussed again. There is no doubt that the small business sector is in major difficulty and that the Government needs to do all it can to ensure it survives. However, there is a balance that needs to be achieved. On one side, there is a strong onus to ensure the rights of workers are not unduly affected negatively in an effort to keep a business on life support when the problem could be terminal. My concern is that if a business is given an exemption for 24 months, there is a possibility that particular businesses will see it as opportunity to gain a competitive advantage for 24 months. Having an exemption for two years out of every five could give a significant competitive advantage. Who will pay for this? It will be paid for out of the pockets of the workers providing the service or manufacturing the product of the company in question. I understand why the exemption is being given. However, the equilibrium should be set at 12 months. This would ensure a business would have one year in which to get its house in order and head above water. In the case of the alternative, there will be businesses which will use the period of 24 months for their own competitive advantage, even if they do not necessarily need it.

Richard Bruton (Dublin North Central, Fine Gael)
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The two amendments proposed by Deputy Tóibín deal with the issue of the maximum duration of a derogation under the inability to pay clause. Section 9 of the Bill inserts a new section 33 into the 1946 Act. This provides that where a registered employment agreement, REA, makes such provision, an employer in financial difficulty may apply to the Labour Court seeking a temporary exemption from the requirement to pay the rates of remuneration contained in the agreement. The new section 33A(2) provides that the maximum period of an exemption will be 24 months and that such exemption must be for a minimum of three months. The new section 33A(3)(b) also provides that the Labour Court may enable an employer to qualify for up to two consecutive exemptions from the statutory pay terms of an REA where financial difficulties in an enterprise persist after the expiry of a shorter time limit than the maximum permitted under the legislation. Accordingly, two consecutive exemptions will be permitted within the overall two-year time limit rather than a single one, as was the position under the Bill as originally drafted, where this is necessary to safeguard employment.

Amendment No. 10 would reduce the maximum exemption to 12 months, while amendment No. 11 would restrict the extension of an exemption to an overall 12-month limit. The inclusion of the provision to permit the extension of an exemption within the overall two-year limit is a requirement arising from the most recent review of the programme for financial support agreed with the EU, the IMF and the ECB. While the inability to pay provisions relating to REAs are substantially the same as those proposed in respect of employment regulation orders, EROs, it is important to stress that the former would only apply where an REA so permits. It will be a matter for the Labour Court to determine the appropriate length of an exemption on the basis of its consideration of an application for such an exemption. Accordingly, I cannot accept the amendments.

The Deputy portrays what is proposed in the Bill as a way for employers to gain competitive advantage. The relevant sections in the legislation have been designed to require the Labour Court to ensure that applications in respect of the inability to pay clause are genuine and that there is a threat to employment. These are not casual provisions that will allow employers to build competitive advantage. There are demanding requirements in the context of obliging employers to submit the accounts relating to their businesses to scrutiny in order that the Labour Court may assure itself that applications are not being made for the motives to which the Deputy refers. The sections are designed to ensure that this mechanism will be used rarely and in a very prudent way. None the less, we recognise that an inability to pay clause is appropriate. As already stated, the troika was of the view that the Labour Court should have the flexibility to consider two applications from the same employer within the overall time limit of 24 months. That is what has been provided for in the Bill.

Peadar Tóibín (Meath West, Sinn Fein)
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I move amendment No. 11:

In page 12, line 24, to delete "24 months" and substitute "12 months".

Peadar Tóibín (Meath West, Sinn Fein)
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I move amendment No. 12:

In page 13, line 5, after "business" to insert the following:

", including information on payments to directors and companies associated with directors over the previous 3 years,".

This amendment relates to the ability of employers to seek exemptions. As previously stated, it is necessary on occasion for businesses which are severely hard pressed and which have an opportunity to rectify the situation to obtain exemptions. Having worked with private businesses for a long period, I am aware that many try to operate to the full extent of what is allowed under the law. In other words, if a grant is available a business will apply for it regardless of whether such a grant is required. If the opportunity to seek exemptions is open to businesses, they will try to obtain them. I accept that the majority of businesses do not operate in this fashion. However, there are those which do. It is important, therefore, that when legislating we should be careful in the context of how the changes will affect those businesses.

In amendment No. 12 I am seeking the inclusion in the legislation of a specific request to the effect that those applying for exemptions should supply to the Labour Court "information on payments to directors and companies associated with directors during the previous 3 years". It is absolutely within the court's remit to try to obtain such information in any event. I am of the view, however, that we should include in the qualification process an explicit request for such information. Unfortunately, recent events show that businesses have amended their profit and loss levels by making payments and granting other associated expenses to directors. What these businesses have done has changed both their profit and loss accounts and their balance sheets. If a business is in need, then this is due to its profit and loss position. If the latter can be determined by payments made during the previous three years and if the ability of the business to continue to trade is negatively affected because massive payments have been made to directors, it is extremely important that a way of elucidating this is explicitly indicated in the legislation.

Willie O'Dea (Limerick City, Fianna Fail)
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I support the amendment. We are dealing with a situation that affects those who are at the very bottom of the pay scale. The section deals with circumstances where employers can seek exemptions in the context of not paying the low levels of pay that will inevitably be awarded in any event under the EROs. It would not be unreasonable, therefore, to request information on payments made to directors during the previous years. I have no doubt that within the meaning of the new section 33A(5)(b), the Labour Court may conclude that such information should be supplied. However, I am of the view that it would be better if this were spelled out in explicit terms.

Richard Bruton (Dublin North Central, Fine Gael)
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On Committee Stage, Deputies Tóibín and O'Dea both referred to the importance of ensuring that details of the full financial affairs of a company are made available to the Labour Court when an application for an exemption from the requirement to pay the statutory wage contained in an REA is made. I explained on that occasion that the Bill already provides that employers will be required to submit to the court such information, particulars and documentation as the court may reasonably require for the purpose of determining whether an exemption should be granted, in particular such information about the employer, his or her business and the potential impact of an exemption as the court may direct. Accordingly, it was deemed that an amendment was not necessary.

In view of the points made by the Deputies on Committee Stage, I undertook to reflect on the matter before Report Stage. In this context, the office of the Attorney General has advised that it would not be appropriate to include a provision such as that suggested in amendment No. 12. As already stated, the new section 33A(5)(b ) provides the court with a general power to ensure that an application is accompanied by such information, particulars and documentation as it may reasonably require. Those particulars may vary from application to application and specifying particular information is not appropriate. If one includes something in a list and does not include other things, one creates the presumption that the items not listed are not required.

The advice of the Attorney General is to provide for a general power, which does not allow challenge by someone who is aggrieved that it lists only directors' payments and not some other item the court may want. It is preferable to leave this discretion to the court, which has absolute discretion to specify what it deems reasonable. In many circumstances, the court would regard what Deputy Tóibín has included - information on payments to directors - as a very reasonable request. The first issue to be considered is whether the company is capable of payment or has been siphoning off money, rendering it temporarily incapable of making the payment. The advice I have is that the provision as currently drafted is the most robust way to give the Labour Court a broad remit in order to leave it capable of getting the information both Deputies feel is appropriate.

Peadar Tóibín (Meath West, Sinn Fein)
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I take the Minister's point but the Bill states:

An application under subsection (4) shall be accompanied by—

(a) a current tax clearance certificate.

It makes a specific determination that the tax clearance certificate is required. It is always of interest to the State that taxes are in order. It also refers to "such information, particulars and documentation as the Court may reasonably require for the purpose". The new section 48A(5)(b) allows that broad space for the court to use its initiative in trying to get to the bottom of the opportunity for a business to get an exemption. If that subsection is retained, I am not sure how my amendment cannot be accepted. If it is not listed, it cannot be investigated.

Richard Bruton (Dublin North Central, Fine Gael)
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The reason for referring to the tax clearance certificate is to establish the probity of the business - that it is a business compliant with its general tax obligations. The second provision, in the new section 33A(5)(b), permits the Labour Court to trawl for any information it deems appropriate. Singling out the tax clearance certificate does not have the same status and it is not interpreted as confining the trawl for information. The legal advice I received is that giving the untrammelled power to get such information as the Labour Court deems appropriate is better than itemising one or more elements. The procedure provides for the court to convene a hearing of parties to the application. Clearly, if an issue arises in the case of a particular hearing to give the court grounds for concern that, for example, payments had been made to directors, the court has the power to use section 33A(5)(b) to ascertain that information. The court has full powers if other parties alert it to issues it had not been aware of or had not sought information on. The court has the power to continue to dig to get satisfactory information before making its adjudication.

Peadar Tóibín (Meath West, Sinn Fein)
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I move amendment No. 13:

In page 17, between lines 14 and 15, to insert the following:

"(i) maintaining of fair and sustainable rates of remuneration appropriate to the sector in question;".

Section 41A(3) states: "When carrying out a review under subsection (1), the Court shall have regard to the following". My understanding was that the aim of legislation was to maintain a fair and sustainable rate of remuneration appropriate to the sector in question. This integral element of the purpose of the legislation is missing at this step. It is only fair that we focus on this and try to ensure it is taken into account at every stage of the process.

Richard Bruton (Dublin North Central, Fine Gael)
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The Sinn Féin amendment proposes to insert one of the considerations that the JLC will be required to take into account in framing employment regulation orders into the principles and policies to be considered by the Labour Court in its periodic review of the establishment orders of the JLCs. Section 11 inserts a new section, section 41A, into the 1946 Act to provide that the Labour Court will, following the commencement of the Act and at regular five year intervals thereafter, conduct a review of all establishment orders in respect of existing JLCs. Following such a review, the Labour Court may recommend that a JLC be abolished or amalgamated with another JLC or that the establishment order of a JLC be amended.

The new subsection 41A(2) sets out criteria to which the Labour Court must have regard when carrying out a review of an employment regulation order. The Sinn Féin amendment proposes to add an additional criterion to the list, that is, the maintenance of a fair and sustainable rate of remuneration appropriate to the sector in question. It is considered that such a criterion is more appropriately taken into account in the formulation proposals for an employment regulation order rather than in approving the existence of a JLC covering a particular sector. In fact, such criteria are already provided for in section 12, in the list of principles and policies a JLC must have regard to when formulating proposals for employment regulation orders.

The provision in the Bill deals with the consideration of whether a JLC continues to have relevance, whether the sector has changed to such an extent that the existence of the JLC is no longer appropriate and whether it should be amalgamated with another JLC. The section specifies the matters that should be considered, including "the class or classes of workers to which the joint labour committee applies", "changes in the trade or business to which the joint labour committee applies", "types of enterprises to which the joint labour committee applies", "the experience of ... enforcement" and "the impact on employment levels". It is a process for considering whether the JLC is still relevant and whether it is to the benefit of workers and the sector.

Adding the provision suggested by Deputy Tóibín might make it impossible to change the structure. If there is, for example, a brush and broom JLC and we statutorily require it to maintain a fair and sustainable rate of remuneration in the brush and broom sector, we may find there is only one company in the brush and broom sector and the existence of a whole JLC structure is not appropriate. In that case the Labour Court may decide it should be amalgamated with another body. By attempting to insert something that is relevant to the order rather than to the continued existence of the JLC, Deputy Tóibín is mixing up the criteria in a way that is not helpful. That is generally accepted by the social partners who were consulted on this. This is a way of making sure the joint labour committee, JLC, structures remain geared to the sectors they seek to regulate. That is what is at the heart of this. It is solely concerned with the scope and structure rather than the rates of projection provided within the employment regulation order, ERO. A different task is being undertaken here.

Peadar Tóibín (Meath West, Sinn Fein)
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I move amendment No. 14:

In page 17, lines 44 and 45, to delete all words from and including "and" in line 44 down to and including "so," in line 45.

Peadar Tóibín (Meath West, Sinn Fein)
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I move amendment No. 15:

In page 17, lines 48 to 50, to delete all words from and including "or" in line 48 down to and including "recommendation," in line 50.

Bernard Durkan (Kildare North, Fine Gael)
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Amendments Nos. 16 and 17 are related and will be discussed together.

Peadar Tóibín (Meath West, Sinn Fein)
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I move amendment No. 16:

In page 19, to delete lines 13 and 14.

These are similar amendments with similar objectives. Equality proofing is a core standard I try to bring to legislation. If a nationality or religion was barred from achieving a certain wage, we would say it is not acceptable. If a citizen is over 18 years of age, whether he has just come out of college or was working just before he turned 18, it does not make sense there would be differing levels of remuneration because of that. On a simple equality basis, I ask the Minister to accept the amendment.

Willie O'Dea (Limerick City, Fianna Fail)
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The legislation provides that the joint labour committee can recommend minimum rates of remuneration. For certain categories of people, including trainees, it can recommend minimum rates of remuneration that are a percentage of the recommended rates. In my amendment, I seek to ensure this training period cannot last indefinitely. Most employers are responsible but there are those who will try to use this to pay people less on the basis they are trainees and they are therefore entitled to pay them less. I am trying to achieve that a trainee should be someone undertaking a specific course that will finish within a specific time and when the course has concluded successfully, that person can then step up.

Richard Bruton (Dublin North Central, Fine Gael)
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Amendments Nos. 16 and 17 address different aspects of the variations in the sub-minimum rates that will apply henceforth to different categories of worker under employment regulation orders in line with the statutory differentiation of sub-minima that has applied under the National Minimum Wage Act 2000 in respect of first-time job entrants and those engaged in structured training.

Section 12 inserts a new section 42A(5) in the 1946 Act that clarifies the relationship between the adult wage rates that may be proposed by a JLC and the sub-minimum wage rates under EROs. This relationship is expressed as the same fixed percentage of the minimum hourly rate of remuneration as set out in sections 14, 15 or 16 of the National Minimum Wage Act in respect of employees aged under 18 years, first-time job entrants, including first-time entrants aged over 18 years, and employees who are over 18 years who are undergoing a prescribed training course during normal working hours.

Amendment No. 16 would remove those employees that enter employment for the first time after reaching 18 from the sub-minimum category. This provision is consistent with section 15 of the National Minimum Wage Act 2000. It provides, inter alia, that an employee aged 18 or over, and who enters employment for the first time after reaching that age, must be paid not less than 80% of the experienced adult rate in the first year of having commenced employment after reaching 18 years and 90% in the second year.

Differentiated minimum wages are applied to particular occupational categories, such as first-time entrants to the labour market, by several EU member states as a means to enhance or keep labour demand. The principle behind this type of revision is that job entrants without experience should be paid at a lower rate than the rate for an experienced adult worker. It takes some time for a person entering the workforce for the first time to build a relationship of mutual trust with an employer. All other things being equal, an experienced employee is more valued by an employer than a new entrant. Whereas the National Minimum Wage Commission had originally recommended a three year period for new entrants, the provision in the Act of 2000 fixed the duration of the reduced rate for job entrants at a maximum of two years. The same arrangements as regards the duration of reduced rates and fixed percentages will apply in the sub-minimum rates set under EROs.

Deputy O'Dea's amendment seeks to amendment a new subsection (6) in the new section 42A. He explained on Committee Stage that the purpose of the amendment is to introduce into the Bill a time limit for the length of a course of training or study that an employee could undertake to be covered by the sub-minimum trainee rate. The Deputy is concerned that in the absence of such a provision, people could be categorised as trainees indefinitely, with indefinite training as justification for reduced rates of remuneration. Specifically for trainees, section 42A(5)(d) provides that proposals for EROs shall provide that a worker who has attained the age of 18 years and during normal working hours undergoes a course of study or training prescribed in those regulations made by the Minister under the National Minimum Wage Act 2000 shall be remunerated at an hourly rate reduced to the percentage set out in section 16 of the Act. In this regard, it is important to stress that under section 16 of the National Minimum Wage Act, such period of training is for a maximum of three years. Deputy O'Dea's concern that employees could be categorised as trainees indefinitely so that an employer could continue to pay a lower rate is misplaced.

An employee undergoing a prescribed course of training or study must be paid an hourly rate not less than 75% of an experienced adult rate in the first period of training, 80% in the second period and 90% in the third. The National Minimum Wage Act 2000 regulations that prescribe courses of study or training set down the comprehensive criteria a course of study or training must satisfy for the purpose of section 16 of the National Minimum Wage Act. The same criteria will also apply to training courses under the JLC system. The criteria include the requirement that the training must enable the acquisition of skills and-or knowledge expected to enhance the work performance of the employee at the end of the course. Other criteria are that the duration of the course is for a minimum of three years, the course includes an assessment or certification procedure or written confirmation of the employee's completion of the course, the need to identify the level of employee attainment against the objectives, which must include the employee's signature, and the need for the course to include a system of recording the progress and results of the employee.

These provisions exist to provide opportunities for younger people who do not have experience to access the labour force. There is provision that a lower percentage would be paid, in recognition of the lack of experience such a person might have. It is a lower or pre-entry level. This has been very much a young person's recession in that they have been worst affected. Most countries that are considering the challenge of youth unemployment have accepted that having staged lower entry points into the workforce for younger workers supports the opportunity for them to get into the workforce. The balance which we have essentially imported from the National Minimum Wage Act 2000 is just as relevant now as when it was framed. It is a reasonable measure.

I accept the point the Deputy is making on an equality basis about picking out 18 year olds, but that is not the case. In the labour market there is a catch-22 in that as a person does not have experience, he or she is not given the same hearing. Everyone is looking for people with experience of one, two or three years. The measure is designed to deal with this and was proposed by the commission which examined the matter in the first place. This is not an effort to undermine equality of treatment, it is in place because it reflects the way in which labour markets are working and gives young people a better opportunity to enter the labour market at a time when they are not as attractive to an employer as an experienced person.

Peadar Tóibín (Meath West, Sinn Fein)
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A potential situation is that an individual goes to college and gets a degree. He or she finds there is no job for him or her in the labour market and he or she does a master's degree. When he or she again finds there is no job for him or her in the labour market, he or she does a PhD and then enters the labour market at the age of 24 years. The Minister can correct me if I am wrong, but he or she would then be paid at a lower rate than an 18 year old. After completing a PhD he or she might find a job that is not related to the PhD; it is simply a job to ensure he or she survives and pays the bills. Such an individual in his or her mid-20s will be paid less owing to the legislation than a person aged 18 years who has had a six month stint somewhere else.

Richard Bruton (Dublin North Central, Fine Gael)
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There is no doubt that there could be that type of situation in that someone could have a PhD but might not have worked in the job for which he or she is being employed. The measure is recognition that entry rates are available to an employer through joint labour committees, JLCs. The intention is to provide for a minimum standard that must apply. I accept that an employer could decide that employing someone with a PhD to do certain work warrants a higher rate of pay because he or she is an attractive person to do the job. However, we are providing for a minimum standard. One must provide for the more common situation where a person is competing for job places with others who are experienced. The provision is reasonable in that context. I accept the point that one can always find exceptions, but the labour market will generally recognise that if someone has particular skills, experience or an educational qualification that makes him or her attractive, it does not prevent an employer paying him or her more. The measure is to provide for a minimum standard for new entrants. It has been accepted that there should be a different entry point. I accept the circumstance raised by the Deputy, but the employer will have flexibility to look at the issue in a different light.

Willie O'Dea (Limerick City, Fianna Fail)
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I move amendment No. 17:

In page 19, between lines 30 and 31, to insert the following:

"(6) Such reduced hourly rate, as that which would apply to a worker to whom subsection (5)(d) applies, shall only be permitted where, such worker is given access to a course of study or training, within an appropriate period to achieve skills commensurate with a higher remuneration rate.".

Peadar Tóibín (Meath West, Sinn Fein)
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I move amendment No. 18:

In page 19, lines 45 and 46, to delete "the desirability of agreeing and maintaining" and substitute "the agreeing and maintaining of".

Willie O'Dea (Limerick City, Fianna Fail)
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I move amendment No. 19:

In page 20, between lines 28 and 29, to insert the following:

"(f) the impact on working poverty and adequate income.".

Section 12 sets out the various measures the joint labour committee must take into account when submitting proposals for an order to the Labour Court. It must take into account the desirability of maintaining competitiveness in the sector in question, the levels of employment and unemployment, the general level of wages in competing enterprises in other member states and the level of the national minimum wage. All of these factors tend to exert downward pressure on the level of remuneration it will recommend. I propose an amendment to balance the situation in order that a JLC would be compelled to take into account the impact on working poverty and adequate income.

The Minister will be aware that we are suffering from 55 consecutive months of falling domestic demand. The people in question are at the lower end of the wage scale and compelled to spend every penny they get just to survive from week to week. They could use more money, but that is the way it is. The more we depress their spending power the more money we take out of the economy, which has a consequent effect on everyone throughout the economy. The purpose of the amendment is to balance some of the other provisions made.

Peadar Tóibín (Meath West, Sinn Fein)
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I add my support to the amendment. It is logical, given that there are hundreds of thousands of working poor in the State. People are going without meals, medical care and heat. Others are selling their cars because they cannot put fuel in them. People arrive at petrol stations with five gallon drums in order that they can put enough kerosene in them to heat their house for one week. There is a serious level of working poverty. A total of 115,000 people are in mortgage distress. People put the payment of the mortgage above paying almost every other bill. Retired gardaí to whom I have spoken are finding it impossible to pay bills such as the household charge. People who have never broken the law in their lives are being forced to do it now because of working poverty. If we were to focus on the raison d'être of the legislation, we would focus on the impact on the working poor.

Richard Bruton (Dublin North Central, Fine Gael)
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Section 12 inserts a new section 42A into the Act of 1946 to establish the principles and policies to which a JLC must have regard when formulating proposals to be submitted to the Labour Court for employment regulation orders. These principles and policies are set out in section 42A(6)(a) to (d). The Fianna Fáil amendment proposes to introduce the additional principle of the impact on working poverty and adequate income. The Bill already contains a number of principles to guide the joint labour committees, JLCs, in formulating proposals for wage rates that would cover the issues raised in this amendment, including the desirability of agreeing and maintaining fair and sustainable minimum rates of remuneration. In addition, the Bill as amended on Committee Stage makes provision in the principles and policies set out at section 12 to allow for an assessment of the general level of wages in comparable sectors. Where enterprises in the sector in question are in competition with enterprises in another member state, the general level of wages in the former are to take into account the cost of living in the member state concerned.

The Government amendment on Committee Stage sought to address the concerns voiced by trade unions and, during the Second Stage, by Deputy O'Dea. They urged that wage comparisons would not be used to undermine workers' purchasing power and that the range of comparable jurisdictions should be tightened so as to exclude those outside Europe. This provision was included.

Wage rates fixed under employment regulation orders, EROs, are set at levels higher than the national minimum wage. On average, these were approximately 10% higher than the minimum wage in 2010 prior to the wage's reduction by the former Government in February 2011. The factors that Deputy O'Dea is seeking to require JLCs to address are more appropriate to setting the level of the national minimum wage. An International Labour Organisation, ILO, survey of minimum wage conventions ratified by Ireland identified the national minimum wage as the wage considered sufficient to satisfy the worker's vital necessities of food, clothing, housing, education and recreation, taking into account the economic and cultural development of each country.

We are setting out the criteria that JLCs should consider. We have included the desirability of agreeing and maintaining fair and sustainable minimum rates of remuneration. I understand the Deputy's intent. If we were discussing the national minimum wage, for example, one would pursue deeper studies of working poverty and so on, but a JLC will set a pay level above the national minimum wage. A JLC is a committee of a specific subsector of the economy and draws people from both sides of the sector. It is not seeking to undertake in-depth research, as that would be more appropriate to a general setting of the national minimum wage. We have made adequate provision by setting out in the criteria the desirability of agreeing and maintaining fair and sustainable minimum rates of remuneration. Deputy O'Dea's amendment would add to this the complexity of an analysis of poverty and so on that would be more appropriate to the national minimum wage, not to a JLC seeking to set a sectoral premium over the minimum wage.

Willie O'Dea (Limerick City, Fianna Fail)
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I acknowledge that the Minister made an amendment on Committee Stage. Nevertheless, I did not envisage a JLC undertaking a deep analysis of poverty, sociological studies, etc. I suggest that, when a JLC formulates its proposal, account should be taken of the fact that the more one depresses the wages of the lower paid, the more poverty and unemployment there will be.

Richard Bruton (Dublin North Central, Fine Gael)
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The question of how working poverty will be addressed is a matter of public policy in terms of the family income supplement. It adds another dimension to the debate, but it would be more appropriate to a wider policy context, one in which the State determines the issues. For this reason, provision is made through the Department of Social Protection in the form of the family income supplement as well as other supplements to help people in difficulty, even if some of them are in work.

Although I recognise the issue the Deputy is raising, this is a serious problem and we need to introduce measures that make it easier to work and to maintain a proper standard. This topic raises many important public policy issues, but we are debating the establishment of a JLC to set a sectoral norm that is above the national minimum wage rate, taking into account all of the various criteria, including the desirability of agreeing and maintaining fair and sustainable minimum rates of remuneration. The Bill's provision is fair and balanced and the amendment as offered would not add to the ease with which the criteria would be put in place. In practical terms, we have already facilitated this matter in the Bill's provisions.

Peadar Tóibín (Meath West, Sinn Fein)
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I move amendment No. 20:

In page 20, lines 32 and 33, to delete "but does not include" and substitute "including".

It is important to cite the full subsection, which is an important part of the legislation as well as its most controversial. It is the part of the Bill with which most of the Deputies present have difficulty, as it will have the greatest negative effect on those who can least afford it. The subsection reads:

In this section 'remuneration' means consideration, whether in cash or in kind, which a worker receives from his or her employer in respect of his or her employment but does not include:

(a) pay or time off from work in lieu of public holidays;

(b) compensation under section 14 of the Organisation of Working Time Act 1997 resulting from the requirement to work on a Sunday;

(c) payments in lieu of notice; or

(d) payments referable to a worker's redundancy.

We are removing rights previously afforded to workers. I launched legislation on this matter last July. As has been often stated since the beginning of our debate, necessary efforts needed to be made to help those who could least afford this change.

People who work on Sundays in the sectors in question are typically part-time workers. As my colleague stated, they are usually women trying to buttress the family wage with a few extra euro. It is a difficult time for them to work, as it reduces their time with their families. We meet members of this group regularly. Deputies, Ministers and advisers on large wages sit on comfortable seats in restaurants on Sundays and are served politely and efficiently by individuals whose wages they have just reduced. While preparing my legislation, we worked closely with the unions, which had the greatest difficulty with this issue. Will the Minister ensure we do not take the economic floor out from under these people and their families?

I have some details of the Minister's response on this matter on Committee Stage. He referred to working towards a code that would solve this issue. As legislators, we should not delay issues that need to be resolved now. We may not be able to resolve them in future. The Minister stated, "The proposed code would provide guidance to employers, employees and their representatives, in sections covered by EROs, on arrangements that may be put in place to comply with the options", etc.

My understanding is we are being asked to accept this reduction in the livelihoods of those who can least afford it on a promise that at some time in future, something will be put together - a code or guideline - to try to safeguard the wages of these people.

The wages of these people have already been reduced in the time between the judgment and now. I understand there are pressures on small businesses, and certain firms find it difficult to open on a Sunday. There are opportunities to offer more business and services to tourists and even the native Irish on Sundays. Since being elected, my requests here have been that when we are looking to reduce business costs and promote efficiencies, we should look everywhere else before looking in the pocket of those who are poor. We should leave no stone unturned.

Upward only rents are closing businesses day in and day out in the State. Rates are set which affect large multinationals in exactly the same way as the small, family corner business teetering on the edge. Insurance costs are also savaging small businesses, along with the energy costs which make it very difficult. There are also regulatory costs. Instead of one path dealing with enforcement and regulation of small business, a company can have a plethora of letters falling on its desks asking to look into roughly the same issues. It can be difficult to deal with those regulations.

There are many places where people in this Chamber can go to find the efficiencies and cost savings that small businesses need before taking the euro from the pockets of the working poor in this State. That is why I request the Minister to think long and hard before pushing this through.

Willie O'Dea (Limerick City, Fianna Fail)
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I will speak briefly in support of the amendment. We must bear in mind that the people we are speaking about are on pretty derisory wages, in many cases on approximately 10% more than the minimum wage across the board. I do not know why the Government wants to establish a statutory code with guidelines that I presume will not be enforceable. In the overwhelming majority of cases, the Sunday rate, as I understand it, is time and a third. When one takes into account the sort of wages we are talking about - €12 per hour - it means the extra earnings may be €4 per hour for four or five hours on a Sunday. Taking into account income tax and the universal social charge, in more cases than not, we are left with a very small amount of money. Nevertheless, it makes a significant difference to the people in question.

I agree with the case being put forward, and there are many costs for businesses, with many elements affecting the competitiveness of Irish business. Getting rid of the Sunday premium for people at the very bottom of the pile will not restore the Celtic tiger in all its glory, so I ask the Minister to consider this amendment seriously. We can talk about codes and the Organisation of Working Time Act but this is designed to reduce the extra payment that people at the bottom of the wage scale get for working on Sundays. The Government should not proceed with it.

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

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

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

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

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

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

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

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

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

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

Peter Mathews (Dublin South, Fine Gael)
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I am going to put the question.

Peadar Tóibín (Meath West, Sinn Fein)
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The amendment also seeks to substitute a word. The phrase "and substitute "including"." is used. Does this make a difference to the question to be put?

Peter Mathews (Dublin South, Fine Gael)
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No.

Peadar Tóibín (Meath West, Sinn Fein)
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Given that this Bill, as it stands, will have a material negative effect on hundreds of thousands of working poor in the State and take money from their pockets, and that we are told there is now soul searching in the Labour Party and there are new advocates in the party standing up for the working poor, I ask that we vote by means other than electronic means.

Richard Bruton (Dublin North Central, Fine Gael)
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I move amendment No. 27:

In page 34, to delete lines 35 to 37 and substitute the following:

" "(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order,",".

This is essentially a tidying-up amendment designed to ensure the provision is consistent with existing provisions under section 3 of the Terms of Employment (Information) Act 1994 governing the requirements for an employer to provide a written statement of terms of employment to an employee. The purpose of section 18 is to strengthen provisions relating to informing workers of their statutory entitlements by requiring the employers of any worker to whom an employment regulation order or registered employment agreement applies to include the terms of the ERO in a written statement of terms of employment to be given to the worker under section 3 of the Terms of Employment (Information) Act of 1994. To this end, section 18(b) of the Bill, as published, provides for the insertion of a new section 3(1)(fa) in the Terms of Employment (Information) Act as follows: "the terms of any registered employment agreement or employment regulation order applicable to the employee". This new provision compares unfavourably with the existing section 3(1)(m) in the Act of 1994 relating to collective agreements, which only requires that the written statement of terms of employment contain "a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made". Accordingly, for collective agreements, the only requirement is to refer the employee to relevant collective agreements as opposed to providing the terms of such agreements.

The difficulty with the original drafting is that some of these types of agreements and orders go through a series of iterations and become highly complex documents. Under the original drafting, the employer would be required to provide a complex document to every employee, whereas the existing provision is to provide the employee with an agreement referring to the fact that his or her terms and conditions are based in the registered employment agreement and the institutions and bodies that made it and to which he or she may proceed if unhappy with any of the provisions.

Richard Bruton (Dublin North Central, Fine Gael)
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I thank the Deputies for their co-operation with the passage of the Bill and my officials for their work on it.

Peter Mathews (Dublin South, Fine Gael)
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The Bill will be sent to the Seanad.