Jim Walsh (Fianna Fail)

Amendment No. 4 has been designed to bring additional clarity to the position on agency workers. Paragraph (c)(i) states "that employee and the agency worker do the same work under the same or similar conditions or each is interchangeable with the other in relation to the work". If they are interchangeable, this obviously means that they should possess equal skills. Senator Feargal Quinn is absolutely correct in stating the more ambiguity there is in respect of the comparator, the more likely it is that disputes will occur.

International and other companies often engage agency workers because their services may only be required in the short term. If companies take on such workers, it removes from them the burden of carrying out additional administrative work. Agency workers may also be taken on as a result of the competitiveness issue. This matter has been raised with me by a number of companies which employ people on a permanent basis to do particular jobs. These individuals would obviously have developed certain skills over time and, therefore, their productivity levels are such that they warrant the rates of pay they receive. In the early stages of being employed those engaged to do work on a temporary basis will only be learning the relevant processes. In many instances, their output will not compare with that of their permanent counterparts. As a consequence, it is not unjust that the rates of pay they attract are lower.

Perhaps I might draw a comparison with the public service in this regard. An incremental pay scale based on seniority applies in the public service. This is defective, but I accept that it has grown up over time and recognise that it involves the principle that people improve with experience. That is an important factor in the context of the matter under discussion.

The kernel of the issue is that the more we leave matters open to dispute, the more excuse there will be for people to appeal in respect of their rates of pay in order to have them increased. As Senator Mary Ann O'Brien rightly pointed out, if this leads to uncompetitiveness in particular companies, it will lead to decisions being made outside Ireland to move operations elsewhere. I have spoken to representatives of companies which have resisted the transfer of significant elements of their Irish operations to countries such as India. In the context of the earlier amendments, other Senators tended to focus solely on workers and their conditions of employment. That is fine when there is good economic development and growth and when the level of employment is high. In current circumstances, however, we cannot afford to haemorrhage any more jobs. That is the reason we tabled the amendments. I ask the Minister of State to give further consideration to the matters to which I refer.

Amendment No. 8 attempts to ensure discretion to choose the comparator will rest with the employer in circumstances where more than one person is engaged in comparable work. Under the amendment and in the same way which applies in respect of direct recruitment, an employer would be in a position to designate a rate of pay. The agency worker would then be obliged to make a decision on whether he or she would be prepared to take up a position at that rate of pay. In the context of the way in which we are transposing the directive via the legislation before the House, we seem to be creating circumstances where such a worker would be in a position to appeal the rate in question. This would give rise to a subjective decision on the part of the Labour Court.