Seán Sherlock (Cork East, Labour)

One must always have regard to what is said in the Seanad on legislation. I accept the points made about trying to revisit the issues involved before Report Stage. However, there was a consultation process on the legislation dating back to 2010; therefore, it is not a case of the Government trying to ram it through. The consultation process involved the social partners and, in fairness, the Minister took all views on board. However, we are working within the limitations of the directive which was agreed at EU level by all member states. It is arguable that no further consultation is required because there has been full engagement.

With regard to measuring the potential job losses, Senator Jim Walsh, with all due respect, is a member of Fianna Fáil which was in power for the past decade. To ask a Minister whether there will or will not be job losses and quantify the rate at which job losses will occur is a little like asking how long is a piece of string. We do not know.

I accept the point made by Senator Mary Ann O'Brien about the derogation period in the United Kingdom. It has only been in place for the last three months, but as of today there is no evidence of job losses. There might be some, but that is not based on information to me from the State agencies or stakeholders such as IBEC and others. One cannot measure exactly whether there will be job losses or whether there will be no change to employment structures as a consequence of this legislation. Bear in mind that its purpose is implementation of the directive and that we have obligations in terms of adherence to EU law.

With regard to amendments Nos. 6 and 7, the requirement in the directive is that agency workers enjoy at least the same basic and working conditions that they would enjoy if they had been directly recruited by the hirer to do the same job. Section 7 aims to remain faithful, as we are bound to be, to the wording of the directive and, therefore, provides for two separate and distinct possibilities. The first, in section 7(1)(a), provides for a situation where there is already in existence a comparable employee. In this instance, close regard must be had also to section 3 which defines the criteria for establishing a comparable employee. The criteria set down are very specific and cumulative and, in that sense, do not allow a broad interpretation to be make of a comparable employee.

Separately, section 7(1)(b) provides for instances where there is no comparable employee, in which case the terms and conditions applicable will be the same as those to which a comparable employee would, if directly employed, be entitled. This is compliant with the directive requirement. It is not possible to move beyond this, as the amendments seek to do, and introduce conditionality, effectively a watering down of the provisions, as proposed, because we would run the risk of falling foul of the directive requirements. As in the case of section 7(1)(a), this provision must be read in conjunction with section 3.

A further amendment brought forward to assist with legal certainty on the issue is that contained in section 7(3) which provides that in respect of agency workers on assignment prior to 5 December 2011, although the assignment may end after that date, the effective date for the purpose of establishing equal treatment is 5 December 2011. The Parliamentary Counsel has advised that the directive wording does not facilitate the inclusion of the conditionality proposed in the text of the Bill. In this regard, we have travelled as far as we can legally with the safeguards contained in sections 3 and 7(3) which are designed to assist in the proper implementation of the provision.

In the proposed amendment to section 7(2) Senator Mary Ann O'Brien is, in effect, proposing a deeming provision to certify that an employer would be deemed to have conferred the entitlements of equal treatment on an agency worker where it was demonstrated that these were at least the same as those applicable to a comparable employee. While understanding the rationale for the amendment, I am advised that such a provision is extraneous and not necessary. In instances where there are comparable employees alongside agency workers it will in practice be the case that employers will seek to demonstrate that equal treatment between agency workers and comparable employees applies. This will be useful in providing evidential proof.