Seán Sherlock (Cork East, Labour)

I will begin with the last point. If the lights are flashing amber or red in Columbus, Ohio, and the company to which the Senator referred is IDA Ireland supported or other State agencies have been actively involved with it, I suggest the State agencies talk to representatives of the company. The Senator should approach the State agencies to discuss potential difficulties the company may have. Successive Governments have always taken a hands-on approach and intervened through the State agencies to try to assist individual companies.

On Senator Mary Ann O'Brien's earlier point, where there is no comparable employee, the rate paid should be that which would be paid to a comparable direct employee. If such were to employed, the rate would have regard to skills, qualifications and length of service under sections 3 and 7(3), which sets the clock to 5 December 2011 and allows the hirer to base the rate on the rates that applied on that date. I hope that addresses the point raised by the Senator.

I thank Senators for their amendments. The Government understands the various circumstances Senators are trying to guard against with the amendments. Amendment No. 4 seeks to amend the definition of "comparable employee" as contained in section 3. Amendment No. 5 seeks to avert any attempt by agency workers to select the most advantageous possible comparable employee in a scenario where there may be more than one possible comparator in a hirer undertaking. Amendment No. 8 seeks the ability for the hirer undertaking to designate one person as the comparable employee against which the agency worker would be measured for the purposes of equal treatment. In the context of ministerial amendments made to the Bill during its passage through the Dáil, the legislation already caters for the circumstance Senators are seeking to address. In this connection, sections 3 and 7 must be read together. The criteria in section 3 require that the employer of the agency worker and employee must be the same, the agency worker and employee must work at the same place and the work undertaken must be the same or similar in nature and be carried out under the same or similar conditions.

Section 2 provides a further safeguard to avoid the selection of the most advantageous possible comparator, where it is a relevant factor, in the recruitment of direct employees, by providing that skills, qualifications and length of service are reckonable factors that a hirer can take into account. These provisions all address in an appropriate manner the concerns of hirers and allow them to develop a robust defence in terms of the relevance or otherwise of the comparator selected.

While I understand the concerns raised on the issue of the possible selection of inappropriate comparators, it is the case that there are instances, even in the civil and public service, where new entrants are taken on on less favourable terms and conditions than those that applied previously. In this case, it is difficult to see how a successful challenge could be mounted by an agency worker in favour of the application of terms and conditions that applied previously. For instance, new terms and conditions now apply to new recruits to the teaching and nursing professions, which would, therefore, be a logical benchmark for new agency workers being taken on. It is inconceivable that a claim for equal treatment would succeed on the basis that an agency worker could claim that the previous terms and conditions of direct recruits should apply to him or her. The Bill provides this certainty in so far as it can without unduly prejudicing the position of agency workers.

On the basis that they are already catered for, a view supported by the Parliamentary Counsel, while I thank the Senators, I cannot accept the amendments.