Richard Bruton (Dublin North Central, Fine Gael)

IBEC and ICTU are social partners. They provide collective representation for employers, on one hand, and workers, on the other, and they are recognised nationally. My officials and I engaged in discussions with the social partners to discover whether agreement could be reached in this area. The directive explicitly provides that if, at national level, social partners can agree to its terms, a qualifying period can be put in place. Other European countries have workplace and sectoral partnerships and the directive also provides for derogations in respect of these. As a result, there is a series of national, sectoral, regional and other derogations. The derogations which apply to Ireland are those relating to registered employment agreements, REAs, which are a form of sectoral agreement, and to national social partnership.

The Attorney General provided advice on the issue of retrospection. When a European directive is transposed into domestic law it then applies and we respect that fact.

Reference was made to 10,000 jobs being at risk on the basis of similar predictions in respect of the UK. Legislation is already in place in the UK and, to date, the adverse impact on agency workers there which some feared has not materialised. I am hopeful there will also not be an adverse impact here. None the less, most of us here would be happier if the same qualifying period which will apply here also obtained in Northern Ireland. However, there is no avenue open to us in this regard.

Senator Clune highlighted the fact that there are certain sectors in which this pattern of work has developed. It is used in the pharmaceutical sector at peak periods and some other sectors use it more as a baseline. Senator Mullins pointed out that some parts of the food industry use it on quite a systematic basis. As Senator Clune also indicated, the going rate is that which applies at the time of employment.

Senator Quinn inquired as to who will choose the comparator. He advocated that employer should do so. The directive is quite clear: the comparator is what would happen if a person were employed on a particular date on a permanent basis. The comparator will apply on the date on which a person is employed, for example, 5 December 2011. It is the employer who, de facto, chooses the comparator and also what will be the rate of pay. Of course, this may be challenged with the rights commissioner. Senators Quinn and Mullins cited examples where the going rate now would be much lower than that which obtained when existing employees were taken on. The rate which applies in such cases is that which obtains on the day on which a person is taken into employment. Where an employer cannot show that he or she took on another permanent employee on that date, he or she must be able to support his or her argument. If an employer states that the going rate has dropped by €5 per hour since those employees were taken on, he or she must be able to support this with evidence. The legislation also assists in underpinning the position in this regard by making explicit reference, in section 3, to the fact that an employer can recognise that a person who has experience or existing skills is obviously a more valuable employee.

An employer must be in a position to show that the choice of comparable wage is legitimate and based on experience in the relevant sector. He or she must be able to prove that what he or she has done is reasonable. In that context, we are implementing the terms of the directive. We cannot go beyond that and state that employers can opt out of the obligation which exists in this regard. That is the obligation we are seeking to transpose. We cannot give employers the right to make certain choices in the way the Senators suggest because in such circumstances we would not be transposing the directive as it is currently formed.

The position is the same in respect of the Senator's argument with regard to reasonable grounds of defence. If an employer is challenged before the rights commissioner, the reasonable grounds of defence which he or she will have will be to show that the selection of the going wage rate was on fair grounds. We have tried to provide something which is reasonable and which is faithful to the directive.

Senator Quinn inquired as to whether the legislation could be subject to legal challenge. I do not know but I am aware that anything can be open to such challenge. We are of the view that the Bill is robust and we have taken legal advice in respect of it. We believe it represents the correct way to implement and transpose the directive. As already stated, meetings took place in respect of the qualifying period.

Senator Harte rightly made the point that in a time of recovery such as this, temporary workers have an important role to play. Employers should not see them as merely a cost to be avoided. Some people see temporary work as a legitimate career path. That is an important point and it is vital that groups of people should not be arbitrarily discriminated against. In a recovery period, employers may not be certain that their order books are sustainable and they will want to take people on an a temporary basis until their businesses establish a level of permanency. The recognition of the role of agency workers and their fair treatment under legislation is an important principle to establish.

Senator Walsh complained about reforms being introduced in respect of JLCs. The programme for Government contains a commitment in respect of bringing forward such reforms to make the JLCs more job-friendly and flexible. That is what we are doing.