Seanad debates
Tuesday, 10 June 2003
Protection of Employees (Fixed-Term Work) Bill 2003: Committee Stage.
2:30 pm
Joe O'Toole (Independent)
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I move amendment No. 1:
In page 5, between lines 21 and 22, to insert the following new subsection:
"(2) The Minister may by order provide for the commencement of this Act on a date earlier than the passing hereof where necessary to comply with Council Directive 1999/70/EC."
Senator McDowell asked me to deal with these issues on his behalf if he was not here. The point behind the amendment is that, as the Minister of State will be aware, we are already late with this legislation. My understanding is that Ireland is shortly due to appear before whichever European court deals with these issues. It is to save us further embarrassment that the Labour Party tabled this amendment and I formally propose it on their behalf. It is an important issue to ensure that business is done.
My understanding is that Ireland could have applied at some stage for an exemption for a further year from implementing this agreement but it decided not to. We are, therefore, clearly in breach of the directive.
Michael Ahern (Cork East, Fianna Fail)
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Amendment No. 1 tabled by Senators McDowell, Ryan, O'Meara, Tuffy and McCarthy, if adopted, would have the effect of applying entitlements under the Bill from 10 July 2001, the date on which the directive was due to have been implemented by Ireland.
The House will be aware that we have included pay and pension entitlements of fixed-term workers under the definition of remuneration. This is estimated to cost the Exchequer some €50 million per annum. We have been advised by the Office of the Attorney General that the directive did not require us to include such entitlements and, as a result, these entitlements can only apply from the date of enactment of the Bill. Accordingly, I do not propose to accept this amendment.
Joe O'Toole (Independent)
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I welcome very much the inclusion of pay and pension entitlements. It is hugely important and I am sorry that I did not get the opportunity to say that on Second Stage.
On the advice from the Attorney General's office, my understanding is that a European directive is enforced from the time it is passed and that one cannot delay the spirit of the directive merely by waiting for the legislation to be carried through. Although I am not an expert in this area, I would have thought that the directive applied from the time it was passed and that, effectively, from that date in July 2001, the spirit of it was in place. I am not sure what that means in any real sense, but that is the normal approach and it is always the case. It is a constant factor in directives that they are in operation from the time they are passed. They are not delayed simply because the implementation issue has not been dealt with.
Amendment put and declared lost.
Section 1 agreed to.
SECTION 2.
Joe O'Toole (Independent)
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I move amendment No. 2:
In page 6, subsection (1), line 2 after "writing" to insert ", including a contract of employment with an employment agency.".
There are two issues here. The Minister of State will understand that I am talking about people who have a contract of employment with an employment agency for a period. If such a person wishes to be protected by this legislation, there is no reason why that should not be allowed. Perhaps it is a matter with which the Minister of State proposes to deal, but I cannot see any reason somebody working for an employment agency should be treated any differently from somebody working for an auctioneer or for anybody else.
Derek McDowell (Labour)
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We discussed this briefly at the end of the debate last week on Second Stage and the Minister told me at that stage that it was intended to deal with the position of temporary agency workers at a later stage. However, we have since discovered that in so far as it may be intended by the European Union to deal with it, we in this country are doing our level best to ensure that they do not, or at least not in a fashion which would be satisfactory to Senator O'Toole and me.
There is an increasing number of people who are working with employment agencies or for whom employment is basically arranged by an employment agency. Most of them, although not all, are non-nationals and there are increasing reports that many of these people, who are quite vulnerable, are being abused, that their conditions of employment are not up to scratch and that, far from getting the protection which this Bill affords other employees, they are not even getting their basic rights. This is simply not satisfactory.
It requires more than legislation to guarantee that workers will not be exploited. Legislation does a certain amount to rebalance rights and the power of workers and employers. In some circumstances, employees who may be entitled to take a job in another place of employment because they have the necessary qualifications and are well settled in a place can ask to be included in a pension scheme.
Those who come here from southern Africa, for example, do not know the scene and may well not be aware of their rights. They may not speak English and may work exclusively for employment agencies which organise their work permits. They are in a vulnerable position and number many thousands. This Bill will offer them some protection. It seems that the Minister of State does not intend to extend protection to them by way of the Bill and it is disappointing that he and his colleagues are in Brussels busily consorting with the right wing conservative governments of several countries to frustrate any effort to protect them. He will have a hard job persuading me or others that is something we should do. This is being done in the name of flexibility and that it is in the interest of workers to be employed for a short period to enable them to be trained or settled and that they should then move on. This ignores the nature of the relationship between employer and short-term temporary employment agency workers – a David and Goliath relationship. The rights of workers must be enshrined in legislation. As one step in that direction, I ask the Minister of State to accede to the amendments in my name and that of Senator O'Toole.
Michael Ahern (Cork East, Fianna Fail)
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I propose to discuss amendments Nos. 2 to 4, inclusive, together. I thank the Senators who tabled them.
At the conclusion of the Second Stage debate Senator McDowell raised the matter of the exclusion of agency workers from the scope of the Bill. I wish to clarify that this was done in accordance with the terms of the framework agreement on fixed-term work annexed to Directive 1999/70/EC which provided that the agreement applied to fixed-term workers with the exception of those placed by a temporary work agency at the disposition of a user enterprise. This was done because a separate directive for atypical workers, that is, agency workers, was to be agreed by the social partners at European level as had previously happened in the case of the part-time and fixed-term worker directives. These negotiations broke down in May 2001 and the draft directive in this area was subsequently published by the European Commission in March 2002. It has been under discussion in Brussels since. Accordingly, agency workers were excluded from the ambit of the legislation because of the provision in the framework agreement. They are already covered in the Protection of Employees (Part-Time Work) Act 2001. It is the responsibility of the Italian Presidency to advance the temporary agency dossier.
I consider it appropriate that such workers should now be included in the scope of the Bill. It will be necessary to secure agreement from the Government for their inclusion but such agreement will not be possible prior to Report and Final Stages. I intend to report on this matter on Committee Stage in the Dáil and update this House after the passage of the Bill in the other House.
Joe O'Toole (Independent)
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That is positive news. Previous legislation covers these workers, many of whom are not temporary. I agree with the point made by Senator McDowell. The workers concerned have been walked on and, in many cases, subjected to slave conditions of labour. There is the potential for them to be underpaid and oppressed in many ways which is the reason they require protection.
I understand from what the Minister of State has said that he accepts the tenor of this proposal and will return with an appropriate wording following Cabinet consultation. On that basis, I am happy to withdraw my amendment.
Derek McDowell (Labour)
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I welcome the Minister of State's response. What he proposes will add significantly to the protection of the workers in question. Without wishing to be churlish, will he explain what his colleague, the Minister of State, Deputy Fahey, meant when he said on radio that any efforts to extend undue protection to temporary workers in the directive currently under negotiation would be bad, distort the labour market and bring to an end the Celtic tiger, if it was not already dead?
Derek McDowell (Labour)
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If the Minister of State has the opportunity, will he ask him what he meant? I am happy to acknowledge that he has decided to accept the thrust of our amendments and to withdraw the amendment in my name.
Paul Coghlan (Fine Gael)
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I welcome the Minister of State. I must be careful what I say to him or Gene Kerrigan might get at me again in his Soapbox column. I welcome the Minister of State's indication of his acceptance of these amendments, albeit in the other House.
Amendment, by leave, withdrawn.
Amendments Nos. 3 and 4 not moved.
Joe O'Toole (Independent)
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I move amendment No. 5:
In page 7, subsection (1), lines 4 to 7, to delete paragraph (a) and substitute the following new paragraph:
"(a) any consideration, whether in cash or in kind, which the employee receives, directly or indirectly, from the employer in respect of the employment, and".
This amendment proposes to tidy up the definition of "remuneration" which changes in different legislation. This definition is not the same as that contained in the Protection of Employees (Part-Time Work) Act 2001 but is similar to the definition contained in the Payment of Wages Act 1991 which excludes expenses. This definition is inappropriate to fixed-term work legislation; it should be the same as that contained in the 2001 Act, otherwise it will cause confusion.
Derek McDowell (Labour)
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I support Senator O'Toole's amendment. The definition of "remuneration" in the Bill means money while the amendment is intended to extend it to include benefit-in-kind. The Minister of State rightly made much of the Government's decision to define equal treatment as also including wages. It gives greater teeth to the Bill and the protection afforded by it. A logical further step would be to acknowledge that people are sometimes paid by benefit-in-kind. Those on fixed-term contracts may also receive benefits-in-kind. This should be taken into account.
Michael Ahern (Cork East, Fianna Fail)
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I thank Senator O'Toole for bringing this amendment to my attention. It will bring the definition of "remuneration" in the Bill into line with that contained in the Protection of Employees (Part-Time Work) Act 2001. This definition is acceptable as it brings consistency between them. I accept the amendment.
Amendment agreed to.
Joe O'Toole (Independent)
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The same issue arises in respect of the definition of employer, which is different to that contained in the 2001 Act. It may be connected with the exclusion of the temporary agency and may be related to our earlier discussion. I do not have the actual definition in my possession, although I looked at it yesterday. If it is not to hand, I would be happy if the Minister of State could indicate that he is prepared to look at it, in the interests of consistency.
Michael Ahern (Cork East, Fianna Fail)
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I will look at the definition and return to the matter on Report Stage.
Question put and agreed to.
Section 3 agreed to.
SECTION 4.
Question proposed: "That section 4 be deleted."
Michael Ahern (Cork East, Fianna Fail)
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It is proposed to delete section 4 and, by means of amendment No. 14, re-insert it as the new section 20.
Michael Ahern (Cork East, Fianna Fail)
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The Office of the Chief Parliamentary Counsel has advised that section 4, which deals with miscellaneous amendments to the Employment Agency Act 1971 and the Organisation of Working Time Act 1997, should not be in Part 1 –"Preliminary and General"– of the Bill, but should rather be located under Part 4 –"Exclusions and other Measures". Accordingly, section 4 will be deleted and will become the new section 20 in Part 4 of the Bill.
Derek McDowell (Labour)
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Are there any other changes to this section, which will become section 20? Is the new location of the section the only change that will be made?
Michael Ahern (Cork East, Fianna Fail)
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It is a technical change. The Office of the Chief Parliamentary Counsel has also added a new subparagraph (c) to this section, as a consequence of having earlier referred, in section 20(2)(b), to ministerial regulations made in 2000 and 2003 relating to transfers of undertakings. This amendment to the section was necessary for technical reasons.
Question put and agreed to.
Section 5 agreed to.
SECTION 6.
Question proposed: "That section 6 stand part of the Bill."
Derek McDowell (Labour)
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Will the Minister of State clarify the purpose of this section?
Michael Ahern (Cork East, Fianna Fail)
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Section 6 provides that an employee is a "comparable permanent employee in relation to a fixed-term employee" if the permanent employee and the fixed-term employee are employed by the same or associated employer and if one of three conditions is met. If the previous circumstance does not apply, including in a case where the fixed-term employee is the sole employee of the employer, the permanent employee is specified in a collective agreement – an agreement that, for the time being, has effect in respect of the relevant fixed-term employee – to be a comparable employee with regard to the fixed-term employee or, if neither of these conditions apply, the employee is employed in the same industry or sector of employment as the fixed-term employee and if one of the three conditions I will now outline is met.
The three conditions to which I have referred are: that both employees perform the same work under the same or similar conditions or each is interchangeable with the other in respect of the work; that the work performed by one of the employees concerned is of the same or a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each are of small importance with regard to the work as a whole, or occur with such irregularity as not to be significant; and that the work performed by the relevant fixed-term employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.
Question put and agreed to.
SECTION 7.
I appreciate that this reads as a very cumbersome amendment, but I will try to explain it. A provision in the Protection of Employees (Part-Time Work) Act 2001, which should also have been included in this Bill, has been excluded. It relates to the fact that the comparator to which we refer can either be a person of the same gender or a person of the opposite gender – it can be one or the other. This is important because the employment equality legislation which ties into this refers only to people of the opposite sex. The failure to include such a provision leaves an argument wide open for an unscrupulous lawyer, or indeed a scrupulous lawyer. With due respect to, Senator McDowell, we know how much we love lawyers. There is a hole in the wall through which somebody can walk. I think I have covered this gap with the wording of my amendment, but it sounds cumbersome.
If a change of this nature is not included – I believe the amendment uses the exact wording of the 2001 Act – it will mean that a comparator cannot be of either sex. This amendment is the only way I could find of articulating my intention. It is not very elegant in language terms, but it does the business.
Derek McDowell (Labour)
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I wish to reiterate that the test set out in section 6, which the Minister of State read out earlier, sets out what will be the comparators. It largely reflects the 2001 Act. I accept that there is a belt and braces element to this matter. I am not sure that this measure is absolutely necessary, but no ill can be served by accepting the amendment put forward by Senator O'Toole, which provides absolute clarity in respect of the issue.
Paul Coghlan (Fine Gael)
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It provides for the avoidance of doubt.
Michael Ahern (Cork East, Fianna Fail)
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I thank Senator O'Toole for bringing to my attention this amendment, which seeks to avoid doubt. It is in line with section 9(5) of the Protection of Employees (Part-Time Work) Act 2001. This amendment is acceptable as it is considered appropriate that a comparator for a fixed-term employee should be of the same or opposite sex to such an employee. It also provides for consistency between this Bill and the 2001 Act. I accept the amendment.
Joe O'Toole (Independent)
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I appreciate the Minister of State's acceptance of my amendment.
Amendment agreed to.
Section 7, as amended, agreed to.
Section 8 agreed to.
SECTION 9.
Derek McDowell (Labour)
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I move amendment No. 7:
In page 10, subsection (4), line 31, after "rights commissioner" to insert "or the Labour Court".
I intend to withdraw amendment No. 8. I have proposed amendment No. 7 because it seems logical, if one is referring to the rights commissioner, that one should provide for the Labour Court in the same context. This is essentially a technical amendment.
Michael Ahern (Cork East, Fianna Fail)
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I thank Senator McDowell for bringing this amendment to my attention. Its purpose is to provide that the Labour Court will, on appeal from a rights commissioner's decision, have similar powers, where an employer fails to provide a written statement or where such a statement is evasive or equivocal, to draw any inference it considers just and equitable in the circumstances and to determine whether the employee's contract should be a fixed-term contract or a contract of indefinite duration.
I consider this to be a helpful amendment to the Bill. As a consequence of my acceptance of the amendment, it will be necessary to insert another reference to "Labour Court" after "rights commissioner" in line 35 on page 10 of the Bill. I intend to introduce an amendment to that effect on Report Stage later this week.
Amendment agreed to.
Amendment No. 8 not moved.
Question proposed: "That section 9, as amended, stand part of the Bill."
Joe O'Toole (Independent)
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I have a question on section 9. I would like some clarification as to the objective grounds or the reasons that may exist for the renewal on a fixed-term contract basis, rather than a contract of indefinite duration. Who will decide on this matter? Section 8 provides a definition of objective grounds for less favourable treatment but there is no definition for objective reasons or grounds justifying the renewal of the fixed-term contract. How will that work on the ground?
Derek McDowell (Labour)
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It might be helpful if the Minister of State were to set out what objective grounds would be considered to be reasonable to employ somebody on a fixed-term contract as opposed to making him or her a permanent employee. That is at the core of what this section is about.
Michael Ahern (Cork East, Fianna Fail)
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The wording of sections 8 and 9 is from a framework agreement at EU level. In section 9 there is a reference to:
the objective conditions determining the contract whether it is–
(a) arriving at a specific date,
(b) completing a specific task, or
(c) the occurrence of a specific event.
Derek McDowell (Labour)
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Senator Mooney made an interesting contribution to the Second Stage discussion last week when he pointed out that RTE uses rolled-over fixed-term contracts. It does so, I suppose, largely to give it flexibility, in so far as it may want Senator Mooney's particular type of music one year but may not want it the next because it may not be as popular. Presumably, it also does wants to maintain a certain flexibility in terms of the rights which it gives employees because if it does not get a licence fee increase – although I accept that it got one this year – or it is under pressure financially, it may not necessarily be in a position to employ people full-time.
Let us leave Senator Mooney out of this and take it, for the sake of argument, that RTE says it wants flexibility because it is not sure a programme will be popular. Is that a sufficient reason to justify a fixed-term contract rather than employing somebody? If it says that it does not know how much money the Government will give it next year, or how much money it will make from advertising and therefore it needs flexibility in regard to how many people it has on its books, is that a good objective reason for a fixed-term contract? Is it envisaged that such reasons would be considered sufficient?
Joe O'Toole (Independent)
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He could be re-trained in rap music.
Michael Ahern (Cork East, Fianna Fail)
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If there is disagreement between the employer and the employee then the rights commissioner will have to make a call on what constitutes the objective conditions.
Derek McDowell (Labour)
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I am trying to ascertain what the Minister of State's thinking is in regard to whether these are acceptable reasons.
Joe O'Toole (Independent)
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I thank the Minister for taking those questions.
Question put and agreed to.
SECTION 10.
Joe O'Toole (Independent)
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I move amendment No. 9:
In page 10, lines 37 to 40, to delete subsection (1), and substitute the following new subsection:
"(1) Where an employee has completed one year of continuous employment with his or her employer or associate employer
(a) his or her fixed term contract may be renewed on only one occasion and
(b) where the combined period of the fixed term contracts exceeds 4 years, the contract shall be regarded as being a contract of indefinite duration."
It has been referred to twice already that under the directive a consultation process took place between the social partners and the Department which was most effective. The view, certainly from the congress side, and as far as I know from the IBEC side as well, is that it was a most satisfactory process. Where problems have arisen it is because this has not been reflected in the Bill. No doubt those helpful people in the Department of Finance did their usual thing when they got it. The Minister of State may not be willing to admit that but those of us who know the ways of these people understand it. This scuttles what we are trying to do. During that process of consultation a consensus was reached.
I am not trying to embarrass the Department but there was a view held by it and the social partners that following one year's continuous service on a fixed-term contract, a renewal contract would be deemed to be a contract of indefinite duration. It was also agreed that the total period of that kind of increase would be time-limited. It had to stop and we had to agree on some particular time. It was also agreed that after the one-year period a rights commissioner could hear a claim as to the appropriateness of the status of the contract. In other words, could another fixed-term contract be justified or should it be one of indefinite duration? I suspect that this touches on the point raised by Senator McDowell.
The provisions of section 10, as currently written, has extended the one-year period up to four years. That has come out of the ether. I do not know where it has come from. Nobody ever discussed or agreed on that particular part of it. It provides no limit at all on the period of the renewal following that period. Any reasonable person would see that this could be grossly unfair. As currently drafted, the Bill allows an employer to employ a worker on a fixed-term contract for a period of one day short of four years and then renew that contract for another period, without any restriction on the period of that renewal contract. The way it is written defeats the whole purpose of it. Furthermore, there is no limit on the number of renewals that may take place after that first four-year period.
This is the bugbear of flexibility. Flexibility is fine where it is necessary. What was attempted in the consultation was to be genuinely mindful of the needs of employers as well as employees. I want to make this point very strongly. What emerged from there was a balance. Let us remember that the directive came from discussions between the Commission and the unions and employers at European level. At a local level of consultation we came up with a process which did not include a reference to four years. What I am trying to do is get back to my understanding of the Department's position and what was intended by the European directive.
Section 10(1) should be deleted and replaced with the new words "where an employee has completed one year of continuous employment with his or her employer or associate employer, his or her fixed-term contract may be renewed on only one occasion and, where the combined period of the fixed-term contracts exceeds four years, the contract shall be regarded as being a contract of indefinite duration". Unless I am missing some point, I do not think that is unreasonable. That is as close as I can get to my understanding of what we were trying to achieve. What is the Department's view on this? This amendment seems reasonable to me.
Paul Coghlan (Fine Gael)
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I support Senator O'Toole's amendment. This is something about which we were all concerned on Second Stage. It appears that there could be a gross unfairness here. While I bow to Senator O'Toole's superior knowledge on this matter, it seems incredible that someone would have to serve a two to three year probationary period. I am aware that it has to do with the issue of flexibility, as he explained.
Derek McDowell (Labour)
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I am in two minds about this. My major concern which I expressed on Second Stage is that this will become something similar to the tenancy arrangement where it is common for people to have a tenancy for four years and nine months, after which it is effectively terminated. I hope we are not creating a similar situation in regard to fixed-term contracts, that once one gets into the fourth year, or the fourth year plus a renewal, employers will seek to terminate the contract altogether.
In recent years the courts and the Employment Appeals Tribunal have tended to look behind fixed-term contracts and if such contracts are clearly intended to deprive workers of their rights, they tend to set them aside because one is effectively seeking to opt out of, for example, the Unfair Dismissals Act. On balance, however, we should not have to rely on the courts to do this. We should try to be as explicit as we can in legislation in order to strike a balance. Perhaps one year is too little but I am sure that four is too long. Equally, the provision whereby the final renewal can be open-ended or not of specific duration will have to be changed. Even if the Minister of State is not inclined to accept the first part of Senator O'Toole's amendment dealing with the fourth year element, he might at least be significantly more specific about the final renewal element in order that it can be, for example, for a maximum period or particular purpose.
Michael Ahern (Cork East, Fianna Fail)
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I propose to deal with amendments Nos. 9 and 10 together as they are related.
I thank Senator O'Toole for this interesting and thought-provoking amendment which requires further consideration involving consultation with other Departments, and a Government decision should it be accepted. In reality, it will not be possible to give a decision on this amendment, one way or the other, on Report or Final Stages in this House later in the week. Accordingly, I intend to report on the matter on Committee Stage in the Dáil and update this House after passage of the Bill through the Dáil.
The Office of the Chief Parliamentary Counsel to the Government provided me with amendment No. 10 following concerns raised in relation to chief executive officers of commercial and non-commercial semi-State bodies who, in line with Government policies, have rolling one year contracts spread out over seven years. The concern was that if such chief executive officers had the terms of the Bill concerning successive fixed-term contracts applied to them, they would automatically become permanent after a number of years into their contracts. It was never intended that such contracts would become permanent. The amendment addresses these concerns.
Joe O'Toole (Independent)
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I thank the Minister of State for being so open on the issue. I accept and understand that there has to be further internal consultation between Departments. I understood the Minister of State to say he intended to bring the matter to the Dáil and that it would come back to this House at some stage, although not on Report Stage because the consultation will not have been completed by that time.
Joe O'Toole (Independent)
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I very much thank the Minister of State for accepting the arguments, which I hope he will take on board during the consultations.
Derek McDowell (Labour)
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While the Minister of State was reading out that interesting observation about chief executive officers, it occurred to me that a similar argument could apply to the Secretaries General of Departments who have fixed-term contracts which might be extended. They could suddenly find themselves with full-time jobs, although I am not sure whether that was ever intended either.
Derek McDowell (Labour)
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Perhaps the Minister of State should look at that matter also.
Joe O'Toole (Independent)
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The former Department of Industry and Commerce went through various name changes before becoming the Department of Enterprise, Trade and Employment. Every time the name changed it involved a new seven year contract. That is where it could work in somebody's favour.
Amendment, by leave, withdrawn.
Government amendment No. 10:
In page 10, subsection (1), line 39, after "associated employer" to insert "and where there is a comparable permanent employee".
Amendment agreed to.
Government amendment No. 11:
In page 11, lines 1 to 5, to delete subsection (3) and substitute the following subsection:
"(3) The First Schedule to the Minimum Notice and Terms of Employment Act 1973 shall apply for the purpose of ascertaining the period of service of an employee and whether that service has been continuous.".
Michael Ahern (Cork East, Fianna Fail)
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Section 10(1) of the Bill, as drafted, provides that where a fixed-term employee has entered his or her fourth year of continuous employment, the contract may be renewed only once before it automatically becomes permanent. The Government's amendment to section 10(3) provides that the First Schedule to the Minimum Notice and Terms of Employment Act 1973, relating to continuous employment, will determine whether the service referred to in section 10(1) is continuous. This is a standard provision in employment rights legislation.
Amendment agreed to.
Section 10, as amended, agreed to.
Sections 11 to 14, inclusive, agreed to.
SECTION 15.
Government amendment No. 12:
In page 12, subsection (3), lines 36 to 38, to delete "end of 6 months beginning on the date of the last contravention to which the complaint relates." and substitute "expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates or the date of termination of the contract of employment concerned, whichever is the earlier.".
Michael Ahern (Cork East, Fianna Fail)
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The Office of the Chief Parliamentary Counsel to the Government has drafted this amendment to the Bill to deal with the concern of the Department of Finance that pension claims could be made by an ex fixed-term employee on his or her former employer many years after they have left that employment. This amendment will prevent such claims arising and means that section 15(3) of the Bill will be on exactly the same lines as section 16(3) of the Protection of Employees (Part-Time Work) Act 2001.
Amendment agreed to.
Section 15, as amended, agreed to.
Sections 16 and 17 agreed to.
SECTION 18.
Derek McDowell (Labour)
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I move amendment No. 13:
In page 15, to delete from and including ", or" in line 28 down to and including "1985" in line 30.
The intention of the amendment is to elicit from the Minister of State the reasoning behind the exclusion of trainee nurses. As far as I can tell, it seems that it is intended purely as a way of saving money. Given the fact that trainee nurses are now established on a very professional basis, there seems no good or persuasive reason they should be excluded and, for example, not get pension credits for their work.
Joe O'Toole (Independent)
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That is a matter about which I am confused. There is a further issue which also bothers me. I have been turning around in my head the idea of members of the Defence Forces and the Garda Síochána being on fixed-term contracts. It is certainly fresh thinking and I do not see the reason they have to be excluded. I cannot see how it would arise. Gardaí and members of the Defence Forces can hardly be on fixed-term contracts, unless I am missing something. I agree completely with what Senator McDowell said on the question of nurses. I cannot see the reason the provision needs to be included.
Michael Ahern (Cork East, Fianna Fail)
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The effect of this amendment would be to include nurses in training within the ambit of the Bill. Section 18(c), as drafted, excludes nurses in training from the scope of the Bill in accordance with clause 22A of the framework agreement, annexed to directive 1999/70/EC, which provides that member states, after consultation with the social partners, may provide that the agreement does not apply to paragraph (b) – initial vocational training relationships and apprenticeship schemes. The Department of Health and Children requested that nurses in training be specifically excluded from the Bill for the avoidance of doubt.
Joe O'Toole (Independent)
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I do not have the directive to hand and have no doubt that what the Minister of State has read out is correct. The point is, however, that it was something which could come up in the consultation process with the social partners but never did. It was never discussed on this island prior to putting together this legislation and no argument was made to the social partners. I heard what the Minister of State said about the Department of Health and Children which may have a good argument as to the reason trainee nurses should be excluded but I would like to know what it is. What answer do we give to those who ask us the reason nurses in training are excluded? Nurses in training are different from many other groups; they are doing comparable work on wards with trained staff. It seems unfair that they should be excluded from any protection afforded under the Bill, unless we are missing something. If so, fair enough. As I am not an expert in this area, perhaps there is an issue about which we need to know. The Minister of State has told us that the Department of Health and Children did not want nurses in training included but did it make a substantial, enduring and convincing argument? If it did, perhaps we could hear what it is.
Michael Ahern (Cork East, Fianna Fail)
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Under section 2 of the Interpretation Act, on page 6, "fixed-term employee" means a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition, such as arriving at a specific date, completing a specific task or the occurrence of a specific event, but does not include employees in initial vocational training relationships or apprenticeship schemes or employees with a contract of employment. This provision is included because the Department of Health and Children specifically requested that nurses in training be excluded from the Bill for the avoidance of doubt.
Derek McDowell (Labour)
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I do not know whether the INO has a view in this regard. Perhaps the Minister of State will let us know whether the Irish Nurses Organisation has been in contact with his Department or whether it has a view in this regard.
Michael Ahern (Cork East, Fianna Fail)
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We will check the position with the Department of Health and Children.
Terry Leyden (Fianna Fail)
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I understand that a derogation was allowed for by Europe in respect of nurses, gardaí and members of the Defence Forces. I raised this issue on Second Stage and I could not understand why we adopted the derogation, even though it was available. I thought the Bill should apply to trainee nurses, trainee gardaí and members of the Defence Forces. I brought the matter to the attention of the Garda because I believe it would be helpful to include them in the Bill. However, it is a matter for the Minister and the Government. I understand that a derogation was available and that it was taken up. As someone who worked in Europe, I am aware that we received derogations on many issues but I never came across a derogation on a specific exclusion clause. The Minister of State should review the issue between now and the debate in the Dáil.
Amendment, by leave, withdrawn.
Question, "That section 18 stand part of the Bill.", put and declared carried.
Section 19 agreed to.
NEW SECTION.
An Leas-Chathaoirleach:
There should be an asterisk before amendment No. 14 as it is a Government amendment and a comma should be inserted after the word "complaint".
An Leas-Chathaoirleach:
Government amendment No. 14:
An Leas-Chathaoirleach:
In page 15, after line 39, to insert the following new section:
An Leas-Chathaoirleach:
20.–(1) Section 10(1) of the Employment Agency Act 1971 is amended by substituting–
An Leas-Chathaoirleach:
(a) '€2,000' for '£50', and
An Leas-Chathaoirleach:
(b) '€1,000' for '£10'.
An Leas-Chathaoirleach:
(2) The organisation of Working Time Act 1997 is amended–