Richard Bruton (Dublin North Central, Fine Gael)

I thank the Senator.

Senator Cullinane asked why we are doing what we are doing. As I stated, the original drafter considering the directive sought to use the comparator as a way of providing an interpretation of how the measures should be applied in practice. When the Bill was published in the form making reference to a comparator employee - I refer to an employee in a relevant company doing the same sort of work as another - there was a difficulty as to the difference between a person taken on today and one taken on five years ago, for example. The question arose as to whether there could be a fair comparison. The Bill sought to make the comparison fair by introducing concepts such as training, length of service, etc. As we engaged with Senators, Deputies and employers, however, we noted the interpretation seemed to be resulting in more confusion than clarity. Specific employers were worried that the provision was totally vague and did not give guidance either to the employer or temporary agency worker on comparisons between employees recruited today and those recruited five years ago. Therefore, we have reverted to the text stating an agency worker shall, for the duration of his assignment with a hirer, be entitled to the same basic working and employment conditions as those to which he would have been entitled had he been employed by the hirer under contract at the same time. The new formulation is essentially simpler although any case would still have to be adjudicated upon by the rights commissioner. Evidence would have to be presented and, in the case of a challenge, the going rate on the day of recruitment would have to be established.

Having spoken to people, I understand the difficulties that arise making comparisons. In some cases, it could be straightforward in that the case could pertain to somebody who was employed last week. When recruitment was a long time ago and the conditions in the labour market were different, problems arose, thus creating uncertainty. We reflected on the debate in this House and correspondence from some Senators spelling out their concerns in greater detail. We have reflected on these concerns. Given that there are some anti-avoidance measures, which I will deal with later, the current formulation is more in accord with the rights in the Bill, and it makes it easier for employers and workers to know where they stand in practice. That was the thinking.

Senator Cullinane raised the Swedish derogation. This issue was debated in both Houses. Concern was expressed that there is a potential loophole. The practice to which the Deputy refers is not a practice in Ireland at present. The Swedish derogation, as it is called, occurs where the agency, rather than the hirer, employs the worker. The worker would be employed permanently by the agency, which would enter into a commitment not only to pay the worker during the period of the assignment but also when it did not have work for him. Our judgment is that this is a good option for some. Some might like a flexible arrangement like this. We should not rule this out or allow the opportunity for such a derogation to pass. If we did not include the derogation in the Bill, it would not ever be possible for such an arrangement to come into play.

With a view to providing anti-avoidance mechanisms, so the measure would not be used to abuse the system, we have stipulated that the employee must be informed in writing that, by entering into an arrangement such as that described, he is giving up rights he might otherwise have as a temporary agency worker. People would sign up to the agreement knowingly. I refer to a permanent contract of employment. If an employer abuses what is framed as a permanent contract of employment, a worker will have recourse to the rights commissioner to argue the contract is not such but an effort to have a temporary placement attracting pay at a lower rate than would otherwise apply. There are protections built into the Bill that deal with the concerns Senator Cullinane and others have raised.

I thank Senator Quinn for his support for my amendments. Several Senators, including those who have tabled amendments, have identified the area in question as a problem area. We need to respond to issues where they are raised with us in a constructive way. I thank my officials and the Attorney General's office who helped us develop a measure more fit for purpose.