Thursday, 1 March 2012
Protection of Employees (Temporary Agency Work) Bill 2011: Committee Stage
I move amendment No. 1:
In page 5, lines 18 and 19, to delete subsection (2).
I welcome the Minister of State, Deputy Sean Sherlock. This is dangerous legislation. It provides that it shall be deemed to have come into operation on 5 December 2011. This is the first time I have seen an effort being made to introduce retrospective legislation and as such, I am sure it will end up in court. Today is 1 March and I presume Report Stage will be taken next week. As I note the Government has tabled an amendment which means the legislation will return to the Dáil, I assume it will be sometime later this month when the legislation will become law. However, its effect will be backdated to 5 December last year.
This legislation will end up in court. We cannot have a situation where legislation is passed in March but its effect is backdated to December. On that basis, a case must be made that this section should only apply from the day the legislation is passed, not 5 December last year. I do not believe the legislation will be upheld in court. I assume the Attorney General has said the Government can take a run with it and that, on balance, it should be upheld. However, that is a mistake. I urge the Minister of State to accept the amendment and pass the legislation with its provisions stipulating that it will come into effect on the day it is actually passed.
I agree with Senator Feargal Quinn on this amendment. For as long as I have been a Member of this House, it has always been stated retrospective legislation does not comply with the Constitution. When the Minister spoke on Second Stage, he said he had received legal advice that the legislation was in order. However, the same happened in the case of the nursing home Bill and when it was challenged, it was found to be unconstitutional. I, therefore, strongly urge the Minister to ensure the provisions of this Bill will be applicable from the date of enactment.
The only reason for backdating is to get over the problem that the Bill was not ready and passed by the Houses in time. However, that is not a reason to apply retrospectively provisions which might have implications for businesses and, perhaps, employment. In fact, the Minister conceded on Second Stage and in his correspondence with the unions that there would be job losses arising from enactment of the directive. That is lunacy at a time of such high unemployment. I have said in the past - I am not making a political point because I said it from 2008 to 2011 also - that the public service and politicians have failed to grasp the severity of the downturn for those who are struggling. We are acting as if we are still living in good economic times. Every Bill should be jobs-proofed. If this Bill was, it would clearly be illustrated that its provisions should be ameliorated as much as possible in the interests of maintaining jobs in the economy.
I thank the Senators for tabling the amendment. I appreciate their concerns about the intention to have the Bill apply retrospectively from 5 December 2011, the transposition date of the directive. On Second Stage earlier this week the Minister indicated that he was in receipt of legal advice from the Office of the Attorney General to the effect that the legislation should, on enactment, have retrospective effect from 5 December 2011, with the notable exception of the offence creating provisions in sections 13 and 15 in Part 4 of the Bill. These provisions will come into effect on enactment of the legislation. My advice is based on the fact that implementation of the directive provisions is necessitated to meet the obligations arising from membership of the European Union and that, therefore, they enjoy protection under the Constitution.
I really believe a mistake has been made for two reasons. First, this is shaky legislation which will end up in court. There is a danger that the Attorney General has decided to take a decision "on balance" - the phrase she used. This is very dangerous legislation on which to do so. I had the experience in 1971 - probably before the Minister of State was born - of ending up in the Supreme Court in a case which I won on a four to one judgment. I was only a young fellow at the time, or at least I thought so-----
I won the case in the High Court but the State appealed the decision. However, I won in the Supreme Court. I mention this not because I have a legal background, but because I learned enough about legislation way back in 1971 to realise there is always the possibility of dangerous legislation being enacted. Since I came a Member of this House 19 years ago, I have seen a few efforts being made to introduce legislation which would have had retrospective effect and in practically every case the relevant Minister decided not to go ahead with it. This is one of the exceptions. However, a mistake has been made. We should have had the directive transposed before 5 December and the legislation should have copied the directive word for word, but we have not done this. The phrase "at least" was inserted when there was no need to do so. I do not know why the legislation has been changed, but that is not a point I wish to make now. The point I wish to make is that this legislation is being backdated to give it retrospective effect and that, on that basis, it should not go through. I, therefore, urge the Minister of State to accept the amendment.
I thank the Minister of State for coming before the House. I second the amendment and plead with the Minister of State to at least go back on it, although I know the Minister has taken legal advice. When I spoke on this issue on 20 October, I pleaded for us to take this agency directive very seriously. However, there is no point in looking back now. We know how fortunate is the United Kingdom in seeking a 12 week derogation. I am a business person who was parachuted into the House. While I am not a legal person, I am thinking about all other businesses, as this is super-complicated, convoluted legal stuff. Senator Lorraine Higgins is a legal person, but business people will not understand this legislation. If we have to implement it retrospectively from 5 December, there will soon be one hell of a mess for the business people of Ireland. It is about jobs, jobs and jobs. There has been nothing but job losses. Will the Minister of State look again to see if anything can be done?
What Senators Feargal Quinn, Jim Walsh and Mary Ann O'Brien have said is very important. We often hear about the complications of starting up a business. It is all about creating employment, yet bureaucracy adds further regulations. There is no logic to the proposal that this legislation be backdated. Agency workers are used as cover for staff who are on leave of absence, maternity, parental and sick leave. The dramatic increase in costs will be completely unsustainable, especially when the agency fee is factored into the equation. The problem is that there are not that many business people here because any business person knows the cost of hiring an agency worker is normally much higher than in taking on a permanent worker. This is a prime example of regulations being introduced that will prevent people from starting up a business.
I hear what the other Senators are saying. No one wants to get caught up in a situation where the provisions of legislation have to be implemented retrospectively. Nonetheless, as the Minister of State said and as the Minister pointed out on Tuesday, the advice from the Attorney General is that we are obliged to implement the directive as and from 5 December 2011. A consultation period started in October 2010. We would like to have seen a grace period introduced in the legislation, similar to the 12 week period in the United Kingdom. Unfortunately, however, there was no agreement between unions and employers' representatives. That is why the Minister has been forced, against his better judgment no doubt, to implement the legislation as and from 5 December, the date from which the directive was to take effect.
We have acknowledged that there is a competitiveness issue. There will be a cost to employers. The Minister has said the same. We are in a period in which we are trying to reduce costs to employers to ensure those who are competing, particularly on an international basis, do not incur additional costs. The Government has received advice from the Attorney General that the legislation should have retrospective effect from 5 December and it would be foolhardy of any Government to ignore the advice of the Attorney General. This week we received important advice from the Attorney General on the need to hold a referendum on the fiscal compact treaty and again today we are considering important advice from her. I do not think any government has ignored advice from the Attorney General.
People are at their wits' end wondering how they will survive and pay their bills this week. They are good people who have worked all their lives. The least they can expect from us in the recession which has hit them is not rhetoric - the 100,000 jobs have now been announced three times - but effective action to ensure there will be no more job losses in the economy. On Second Stage I quoted the economist Jim Power, for whom I have no great grá, but he has estimated that 10,000 jobs could be lost. The Minister has conceded that jobs will be lost as a result of this measure. We are, therefore, passing legislation which could result in 20,000 to 30,000 people enduring hardship because the breadwinner in the house will lose his or her job. It is unconscionable that the Minister of State is so sanguine about this, as is the senior Minister.
It is one thing to say the Attorney General has stated it conforms with the Constitution to backdate the legislation to 5 December, but it is another to make the argument that the Attorney General has stated we must do this. That is a policy decision for the Minister and his Government colleagues. Senators Feargal Quinn, Mary Ann O'Brien and Mary White have provided employment for many decades.
They are business people and they are stating clearly the implications of this are wrong.
I would ask the Minister of State, Deputy Sherlock, as a young Minister starting his career in that capacity, to have the courage to accept and implement this amendment, which is a minor one. There are more substantive ones coming down the line. Does he accept the principle which previous occupants of the position always held dear, that legislation should not be retrospective and to make it so incorporates bad precedent and principles into the law?
Britain got a derogation, and the Minister of State must take much of the responsibility for the fact that the Government failed to get that derogation. The only reason for this I can see is that the Government prevaricated with the former social partners pretending, that they somehow would be given a veto on this legislation. That era has gone. Unions withdrew from social partnership. We do not have social partnership anymore. IBEC, representing the large employers, and the unions benefited significantly through increased salaries. There are union officials who are on €200,000 a year representing small sectoral interests, particularly in the public sector, and it is totally unrealistic and unreasonable. We need to put those days behind us and go back to collective bargaining at local level. Let employers and unions, at local level, decide what is appropriate and what can be done by way of rates of pay and terms and conditions of employment. I appeal to the Minister of State to accept the arguments that are being put before him, and this minor adjustment to the Bill.
Does the Minister of State accept that there will be significant job losses, without quantifying the number, as a consequence of introducing this legislation? I would like a straight answer from him. His senior colleague has put it on the record to the unions that there will be significant job losses. I would ask the Minister of State to put the same on the record of this House.
I oppose the amendment. I support what the Government is doing here and I support the advice which has come from the Attorney General.
I am flabbergasted at some of the comments that I have heard so far in the Chamber today because I fail to see how we will see job losses on the scale that some Senators have stated we will see them. I just do not see it. Senator Walsh spoke of three Senators who represent themselves in terms of them being business people. I applaud those who set up businesses and entrepreneurs, but I also have spoken to those who represent workers in trade unions. I refer not to the senior trade union representatives on high salaries of whom Senator Walsh spoke but to those on the ground who represent agency workers. I spoke to agency workers. I was part of a campaign that SIPTU and the Irish Congress of Trade Unions initiated to protect workers.
This is a simple measure we are trying to implement. It is not convoluted and complicated, as somebody said. It is to try to bring about equity for those who are agency workers and those who are directly employed permanent workers.
I am at a loss. Perhaps those Senators could point out to me from where the job losses will come, how they believe this will amount to massive job losses, and why that is so. If that was the case, it would say more about employers in this country than anything else.
Senator White should explain why an employer would want to leave an agency worker go simply because he or she is being asked to provide that worker with the same terms and conditions as somebody who is a permanent worker. Senators should explain how they believe this will amount to job losses and why they have a difficulty with the notion of agency workers having the same rights and entitlements.
-----and those who represent business interests might not know this - have been exploited in this State and across the European Union. That is why this directive was brought in.
We need to ensure there is equity for workers in this country. I do not believe in a modern republic there can be a situation where one worker who is doing exactly the same work as somebody else is treated differently simply because he or she is an agency worker. Some of the profits on the back of their labour goes to the agency company, of which they are part. I do not believe that is the best way in which we should create employment in this country.
I accept what the Government is trying to do here. I have some reservations because there are many exceptions, our amendments on which, unfortunately, have been ruled out of order, but we can address them on the sections. However, I reiterate that if Senators make the claim that this will amount to massive jobs losses, let them spell out how there will be such massive job losses. Let them explain why employers would let workers go. That would say more about the employers than about anything that we are doing here today.
I take issue with something Senator Walsh stated earlier about the senior Minister and the Minister of State. One will not find two Ministers in any Government who are more pro-jobs and who have introduced as many initiatives in as short a period of time, and that must be acknowledged. I spoke earlier in the House about the launch yesterday of the high-potential start-ups and the potential to create 1,600 jobs in the next year, and the €500 million research budget targeted at getting those with good ideas, which the Minister of State announced-----
I will. There was an opportunity before 5 December last to have a lead-in period similar to what they had in the UK and it is regrettable that the social partners did not engage in a meaningful way. Everything we do and say in this House must be geared towards creating jobs and making it easier to retain and create new jobs. A situation similar to what they have in the UK would have been desirable. I wish the Minister was in a position not to have to back-date this to 5 December, but we are being told the advice is that he must. Maybe there is an opportunity to have another look at it and, if that is possible, we would very much welcome it. The real opportunity was lost in the run-up to 5 December. I would certainly take issue with both IBEC and the trade union movement that they were unable to reach an agreement that would have been acceptable to everybody. We are possibly closing the stable door when the horse has bolted on this issue. As the Minister of State indicated, the Attorney General is saying that 5 December must be the operational date. However, I join previous speakers in asking the Minister of State to have a look at it to see if it is possible to modify it in any way.
In answer to Senator Cullinane who asked whether this would amount to job losses, I met two companies in the past 24 hours. One is a multinational manufacturing exporter in the top 50 in this country with 650 employees, 300 of whom are agency workers and 350 of whom are permanent. Let me take the Senator to the boardroom in the United States where this company is run. It has companies all over the world, in Mexico, Asia, eastern Europe and Ireland. The board is in the United States and Ireland is one location. They run a red, amber, green system. They work on margins, not profitability. Let us say this year our margin is 42% of a target and at the end of this year, Ireland does not hit that 42%. When the board members ask why, they see that different labour laws have come into Ireland, competitiveness is gone and there is a new cost. Ireland has gone from a green in flexibility in the labour department to a red, and we will be struck off by the board. It will take them a year or a year and a half to disband that company, and 600 jobs will be gone.
As the leader and founder of my own company, I often speak in public. I have been very fortunate to be given a few awards. There is no "I" in team. I am only here because of my workers. I adore, revere and respect my workers. I am very proud that we take great pains with the law and with the right advice on how to treat our workers. I am here today to try to legislate a perfect balance between the company, the agency, the permanent worker and the temporary worker. I purposely tabled my amendments to try to achieve that balance. I want to be very clear on that.
I wish to make the point, although Senator Mary Ann O'Brien has made it for the benefit of Senator Cullinane, that there are companies utilising agency workers where those workers themselves are quite happy with the rates of pay they are getting and the permanent employees are happy with the arrangement around the agency workers. It is the permanent workforce in some of these companies, apart from the agency workers, who are raising the issue that the lack of flexibility being introduced within the system will have long-term implications for their jobs. Decisions are made outside of Ireland in many cases. It is my fear that we will consign these people to the unemployment register.
I would have thought Sinn Féin would have changed its tune from the 1980s. There was a big company in New Ross with up to 1,000 people working there until some Sinn Féin-IRA activist came in and caused a number of strikes which led to the closure of the company. I thought those days were behind us. I ask people to enlighten themselves about the real issue in this economy as it stands, rather than false ideology for populist reasons to garner votes. This is about people who are employed today but who could find themselves unemployed tomorrow, with their families suffering as a consequence.
One must have regard to the points that were made by those such as Senator Quinn and Senator O'Brien in terms of their experience as business people and given Senator Quinn's long-standing membership of this House as a legislator. One has to have due regard and respect for that and for everything he says.
If we strip out all of the rhetoric, the verbose language and the accusations, which I appreciate given such language occurs in the normal course of political dialogue, the key point is that this is about the implementation of a directive.
-----or the nature of our own relationship with the European Union. I happen to believe we are members of the European Union - that is factual. As such, we have signed up to a process of consultation through co-decision procedures and interaction with the Council of Ministers and the Commission. When the Commission makes a legislative proposal, if there is a co-decision procedure to be adhered to, then we, as members of the EU, are party to that consultation process. When an agreement is reached, primarily on the basis of consensus, we then transpose the directives. In this case, the directive dates back to 2008, so we have to transpose it. If we all agree to the fact we are members of the EU, then we subscribe to those founding principles and the legislative actions arising thereof, and to which we are party.
To take the points made by Mr. Jim Power, he was extrapolating from a UK figure. While the Senator states he has no grá for Mr. Jim Power, dare I say it, I happen to think Mr. Power is provocative and is one who has provoked debate in a very positive sense in this country around issues such as agriculture, for example-----
-----and in regard to the nature of employment. He has provoked good debate, which is what we need in this country. However, there is no evidence to date that in the UK, job losses have occurred as a result of the same directive that must be transposed into UK law.
I am not aware of any evidence on the record of this House or the Dáil in respect of utterances by the Minister, Deputy Bruton, in regard to job losses on this issue.
With the indulgence of the House, I will quote again from his speech:
The final derogation available under Article 5.4 of the directive recognises the voluntarist nature of industrial relations in the United Kingdom and in Ireland and was designed to meet the needs and flexibilities required in the labour market to accommodate the system in place in both countries. The derogation includes the possibility for a "qualifying period" before the principle of equal treatment would apply to temporary agency workers.
To be fair to the senior Minister, Deputy Bruton, what we are trying to do here is to protect the rights of workers, to comply with the EU directive and to do so in a way that is balanced. If there is a contention that job losses will occur directly in one specific company or entity as a result of this, I respectfully suggest I have my doubts. The evidence in terms of inward investment into Ireland by global companies, which have public affairs departments and are au fait through those departments with trends in EU legislation and transposition of EU directives, is that they are aware this legislation is on the cards and would have regard to that fact when they are making their investment decisions in Ireland. We have had some notable investment decisions and notable companies setting up here, some of whose operations would be within the sphere of employing temporary agency workers or contract workers.
I have not seen any evidence of job losses in the UK and I do not know of any public utterance by the Minister, Deputy Bruton, to this House or the other House in respect of prospective job losses in this area. If somebody has done a study or has extrapolated from UK figures, that should be put on the record or submitted to the Oireachtas Library.
The Seanad Divided:
For the motion: 28 (Paul Bradford, Colm Burke, Deirdre Clune, Eamonn Coghlan, Paul Coghlan, Michael Comiskey, Martin Conway, David Cullinane, Maurice Cummins, Michael D'Arcy, Jimmy Harte, Aideen Hayden, Fidelma Healy Eames, Imelda Henry, Lorraine Higgins, Caít Keane, Denis Landy, Maire Maloney, Mary Moran, Tony Mulcahy, Michael Mullins, Trevor Ó Clochartaigh, Marie Louise O'Donnell, Susan O'Keeffe, Pat O'Neill, Kathryn Reilly, Tom Shehan, John Whelan)
Against the motion: 17 (Thomas Byrne, Mark Daly, Terry Leyden, Fiach MacConghail, Marc MacSharry, Paschal Mooney, David Norris, Brian Ó Domhnaill, Mary Ann O'Brien, Denis O'Donovan, Ned O'Sullivan, Averil Power, Feargal Quinn, Jillian van Turnhout, Jim Walsh, Mary White, Katherine Zappone)
Tellers: Tá, Senators Paul Coghlan and John Whelan; Níl, Senators Ned O'Sullivan and Feargal Quinn.
Question declared carried.
I regret the amendments were ruled out of order and wish to take the opportunity to raise my concerns by speaking to the section, although I support the section and will not push the question to a vote. We were seeking that all terms and conditions of agency workers would be comparable with those of directly employed workers.
Section 2(1) sets out the position in regard to terms and conditions, including pay, working time, rest periods rest breaks during the working day, night work, annual leave and public holidays. While I accept all of the conditions listed, it is by no means an exhaustive list. Permanent workers have many other entitlements which are not included in that list. We were seeking to provide, not that all conditions be listed, because there could be thousands of conditions to which an employee is entitled, but that whatever conditions apply to a permanent worker would apply to an agency worker. I am speaking in this regard of comparing like with like. We are not seeking that a temporary agency worker would have the same rights as a permanent worker but that he or she would have the same rights as a directly employed person who is a part-time worker and that a permanent agency worker would have the same entitlements as a permanent worker. I am talking about like for like.
Section 2(1) states that sick pay and pension scheme payments are excluded, which I do not understand. The Government is currently considering the proposal that employers meet workers' entitlements in respect of the first three days of sick pay. I raised this issue on Second Stage. If I understood him correctly, the Minister said that the agency worker is not employed by the person for whom he or she may be working, which is part of the problem. If an agency does not provide a pension and the organisation for whom a person is working is not obliged to provide a pension then workers could end up in limbo. What we are trying to do - whether people see this as ideological or not is of no consequence to me - is to ensure there is equity between workers.
We had a number of good discussions in this House on pensions. The Government is encouraging people to take out pensions. We are all aware that we have an ageing population and that pensions will be a big issue in the future. People know that the state pension could potentially be cut at some point in the future, if not by this Government then by a future Government. Issues have already arisen in relation to private pensions. The Government, while encouraging people to take out private pensions, is for whatever reason excluding pension schemes from this provision.
Perhaps the Minister of State will explain the reason the amendments were ruled out of order and clarify the reason sick pay and pension schemes are excluded from this legislation.
Yes, and on the points raised in that regard by Senator Cullinane. While I do not believe pensions should be covered by this legislation, the issue needs to be addressed as a matter of priority. Only approximately 50% of the population have pensions cover. The Government's raiding of pension funds has had a negative impact on people in terms of their taking out pensions. We should be encouraging them to create their own pension funds. Pensions is a important issue but I do not believe it should be addressed in this Bill. However, legislation in this regard, once introduced, should address the issue holistically. Addressing this issue should be a priority of Government. I disagree with many of the negative things the Government has done in respect of pensions. However, that is a debate for another day.
In the wake of Senator David Cullinane's contribution, I wish to put a question to the Minister of State. The Senator has indicated that temporary agency workers should have the same rights as temporary workers. What will an employer or an agency do if there is no temporary worker in a company? What will be the position if a company wishes to confer equal rights in circumstances where there is no comparable worker available?
In the context of full-time agency workers, I met representatives of a company last night and the only comparable, full-time employee in the company has been working for it for 15 years. What should employers or agencies do in such circumstances? I apologise for giving the Minister of State a migraine.
The proposed amendment which has been ruled out of order seeks to move beyond the scope of the requirements contained in the directive. The directive seeks only to set a floor of entitlements in respect of basic working and employment conditions. Article 3.2 allows member states, in their national law, to determine the definition of pay, as well as other elements. Under Article 5.4, member states are asked to specify whether elements such as pensions, sick pay, etc., are included in basic working and employment conditions. Given the scope of the directive, this extends only to basic working and employment conditions. It is not the Government's intention to move beyond either the spirit or intent of the directive, particularly at a time when we face such challenges in the labour market.
I may be obliged to defer to the officials on Senator Mary Ann O'Brien's point.
I move amendment No. 4:
In page 7, lines 41 to 43 and in page 8, lines 1 to 15, to delete subsection (1) and substitute the following:
"3.—(1) For the purposes of this Act, an employee is a comparable employee in relation to an agency worker if—
(a) that employee's employer and the hirer of the agency worker is the same person,
(b) that employee and the agency worker work at the same place of work within the meaning of the Safety, Health and Welfare at Work Act 2005 or, where that employee and the agency worker work or are required to work at different locations, their work is directed and supervised by the hirer from the same place, and
(c)(i) both 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, or
(ii) no employee of the hirer of the agency worker is a comparable employee by reference to subparagraph (i) and the work done by that employee is the same or similar in nature to that done by the agency worker and any differences between the work done or the conditions under which it is done by each are of minor significance when viewed as a whole or occur with such irregularity as not to be significant.".
I wish to focus on amendment No. 8. If we do not pass it, there is a danger that, as a result of the doubts expressed, further disputes and differences will arise and that there will be a need for more conciliation, arbitration and court cases. Amendment No. 8 states the hirer company should pick the comparator. I love that word. I had not heard it previously, but I accept that it may be a common legal term. If we are to avoid disputes in the future, we must find a way to decide what the comparator will be in order to determine which particular agency workers should be paid. In each case either the union representing an agency worker or the worker will indicate what the comparator should be, whereas the hirer company will state it should be something else. Successive disputes will occur as a result. Amendment No. 8 stipulates that the hirer company should choose the comparator and indicate the going rate which should apply. The company would be obliged to have solid grounds for its decision. If the position remains vague, court cases will arise and people will be forced into conciliation, arbitration, etc. The provision would be much clearer if the amendment was accepted. Of the three amendments in this group, amendment No. 8 is the one about which I am really concerned.
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.
Yes. My concern is that this could lead to a situation where companies would be obliged to cease operations which would lead to agency workers and permanent employees going on the dole. If that proves to be the case, we will have done a bad day's work. That is the nub of the issue. Therefore, every precaution should be taken by means of provisions in the legislation to try to avoid the eventuality to which I refer. As Senator Feargal Quinn stated, amendment No. 8 would be of assistance in that regard.
Having handed the Minister of State a nice puzzle to mull over, I do not propose to repeat myself. I will, however, refer to the case of a company in north Dublin on the edge of the senior Minister's constituency. A representative of the company which is American and has its headquarters in Columbus, Ohio was with me last evening. As I stated, it operates a red, amber and green system. In 2008-09 it was in danger of relocating to the Czech Republic. At the time the managing director took the difficult decision to make 50 permanent workers redundant and introduce an extremely lean cost structure. He outsourced the human resources department to an agency and employed 50 permanent agency workers at a new rate. The 50 permanent workers are earning approximately €45,000, including PRSI, per annum, while the agency workers are earning around €25,000 per annum, which equates to the salary the permanent workers earned when they started in the company some 15 years ago. The managing director is extremely worried and the flag has already been raised in Ohio. A meeting of the company's board will be held in April with a further meeting scheduled in October. The issue will be flagged at the April meeting and a decision taken in October. This is a major concern as the company is a multinational which has made a direct investment here.
The Minister indicated that jobs had not been lost in Britain as a result of the implementation of similar legislation. Britain opted to seek a 12 week derogation. I do not expect any job losses to occur for another year or 18 months.
On Monday last I was in the United States meeting an extremely good customer to discuss a contract worth €1.5 million which would be vital to my little company. Senator Mary White will note with glee that I am competing with the Belgians. I know precisely what the Belgians are charging the customer in question and the weight involved. I have the beating of the Belgians, but I am very worried about this agency directive. Perhaps I am a simpleton, but the manner in which our legislators have copied and pasted makes for convoluted legislation. My operations staff find the legislation unclear because it no longer reflects the EU directive. The Government has made it more complicated and added new provisions in the Bill which will add costs to my company this summer. As a result, we may no longer be competitive and I may not secure the contract to which I referred. I will find out on 18 March if we have won it because I am recosting it this afternoon based on the provisions of the legislation.
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.
I wish to make a brief comment. While I do not wish to be personal, as an Irish citizen, I am embarrassed listening to the excuses provided on this Bill. It is an absolute disgrace that bureaucracy and a Department are interfering in business. I started my company not to make money but to create employment at a time when I had never heard of the word "profit". I am ashamed and embarrassed that a Department is delivering this legislation.
I move amendment No. 5:
In page 8, between lines 22 and 23, to insert the following subsection:
"(3) For the purposes of subsection (1) of section 7, where more than one employee is a comparable employee by reference to subsection (1) and different comparable employees are entitled to different basic working and employment conditions, then an agency worker shall be entitled to the basic working and employment conditions of the comparable employee who is most comparable to the agency worker, having regard to matters such as the similarity of their respective work and the date on which the comparable employee was employed as such by the employer.".
I move amendment No. 6:
In page 9, lines 3 to 12, to delete subsection (1) and substitute the following:
"7.—(1) Subject to any collective agreement for the time being standing approved under section 8, the basic working and employment conditions to which an agency worker is entitled shall be the same as the basic working and employment conditions to which a comparable employee would have been entitled if such a comparable employee were so employed at the same time as the commencement of the assignment of the agency worker, having regard to all the circumstances.
(2) In respect of any agency worker, his or her employer shall be deemed to have conferred the entitlement described insubsection (1) where such employer demonstrates that such agency worker is in receipt of basic working and employment conditions which are the same as the basic working and employment conditions of a comparable employee.".
I feel as if I am going around in a circle with the Minister of State, for which I apologise, in that this amendment also addresses the issue of the comparable employee, to which he has already responded. One can only imagine how business people are going to sort it out, given the conversations we are having on it. It might appear simple to the Minister of State. However, I do not know, given the lack of clarity on the issue, how I am going to explain it at a management meeting of my company this afternoon. The only comparable employee in my company is a full-time worker who has been working with it for seven years. As I understand it, the legislation, as drafted, provides that the agency worker, rather than me, as hirer, will have the right to make the comparison.
I support Senator Mary Ann O'Brien on this issue, about which I, too, have strong concerns. I hope I will not repeat anything the Senator said.
During the Celtic tiger years high rates were paid to employees. We should be providing in this legislation that an agency worker be paid what a new employee would be paid. Instead, there is a doubt in terms of employers having to consider whether they should pay the rate of pay applicable to employees of the company hired during the Celtic tiger years or that paid to new employees which may be lower. The Minister of State used the analogy of a teacher and the new conditions applicable in the education sector.
Amendment No. 7 attempts to address the issue by providing that where an agency worker is making a claim, he or she would be paid at the rate paid to a new employee. I sympathise with Senator Mary Ann O'Brien in this regard. As stated by her, an agency worker will under the legislation have the right to be paid the same rate as a person employed by a company for the past ten years at a higher rate, based on increments and other payments since taking up employment in, say, 2002, rather than at the new rate for the job in question which has been set at a lower rate. Businesses in Ireland will not be able to compete if they are tied to the rates they paid five years ago.
Senator Mary Ann O'Brien has stated that if her company were to take on 100 employees for a few months to fulfil a contract received from abroad, it would have to pay them the same rate as that paid to employees taken on five or six years ago. This is a flaw in the legislation and the matter needs to be addressed today. If not, the Minister of State should undertake to reconsider it before Report Stage. I hope he will accept the argument being made. This will affect our ability to attract foreign direct investment and tie our hands in competing within Europe and with the rest of the world. We should not be imposing on entrepreneurs, the creators of wealth and employers conditions not imposed on businesses in other parts of the world. Acceptance of the amendments would allow us to pay current rates rather than the ones paid five or six years ago.
The case for what we are trying to achieve has been well made by Senators Mary Ann O'Brien and Feargal Quinn. As has been said, we are seeking to provide that agency workers would be entitled to the same conditions and terms of employment as a person directly recruited by a company today. I recall what the Minister had to say about teachers when in the House for the debate on Second Stage. I accept that it is in order for the Government to set new rates for new teachers whose position differs from that of others who have been teaching for a number of years. If that principle is accepted, I urge the Minister of State to take on board amendments Nos. 6 and 7 which adopt the same principle.
The amendments, as I read them, conform fully with the terms of the directive, Article 5.1 of which states the basic working and employment conditions of temporary agency workers for the duration of their assignment at a user undertaking shall be at least those that would apply if they had been recruited directly by the undertaking to occupy the same job. Obviously, this has to be considered in the current context. Our main argument about the drafting of the legislation is that it moves beyond the terms of the directive. We see real dangers as a result in today's vulnerable and fragile employment market. We are, therefore, asking the Minister of State to conform precisely with the terms of the directive and not move beyond them. I hope he is prepared to take this request on board. I had intended to press the amendment, but if the Minister of State is prepared, as suggested by Senator Feargal Quinn, to reconsider the issue before Report Stage, I will be happy not to do so. Ultimately, our only objective is to ensure the legislation is shaped in a manner which will do the minimal amount of damage to the jobs market.
The explanatory memorandum refers to derogations. Will this legislation, when enacted, pose a threat to jobs in particular industries and the retention of particular companies in Ireland such as those mentioned by Senator Mary Ann O'Brien, of which the Minister and others have been made aware? Am I correct from my reading of the explanatory memorandum in thinking unions at local level, or employees and their representatives, and companies may agree to do something to protect themselves and jobs which may vary the derogation process? Would this be acceptable and conform with the legislation? Would it be possible to do this at local rather than central level, where previously large employers engaged in anti-competitive practices in collusion with the unions? Unfortunately, that is what social partnership ended up doing in latter years.
My final question goes back to the Minister of State's earlier comment on amendment No. 1 with regard to jobs. The Minister of State said he had quite good regard for the economist, Mr. Jim Power, and I would ask for some clarity on the jobs issue. From his answer I was unsure whether the Minister of State indicated there would not be job losses as a result of this legislation, that he was unsure whether there would be job losses or that there would be job losses. That is the core of what is motivating many contributions and amendments.
I join previous speakers in asking the Minister of State to consider this amendment, which is at the core of the problem. Perhaps he has indicated that there is light at the end of the tunnel in that the State has been able to bring in people doing the same job on lower rates of pay. It seems illogical and inconceivable that a company employing agency workers would have to pay people a rate higher than the current going rate if the people were hired directly. This is where there is a potential to lose jobs. If companies must pay agency workers at a significantly higher rate to comply with legislation, jobs will be lost in such a situation. We must do everything possible to protect businesses throughout the country. I know figures are possibly being plucked from the air and there is a certain amount of scaremongering about how many jobs will be lost. There is a potential to lose some jobs, and any loss of jobs would be undesirable.
Will the Minister of State consider the issue to see if a position similar to that taken by the State can be achieved? It should be possible to hire people on a rate of pay which reflects our current economic position, with agency workers paid at the rate that would apply right now if the company was to hire a direct employee and put them into employment. I know the passion with which people who are currently employers have spoken on the issue, and it is worth considering. Senator Mary Ann O'Brien mentioned some companies and I am aware of their position and very real concerns.
I urge Senators not to press this amendment to a vote to allow the Minister of State can to consider it further to see whether we can, in some way, bring about a position where the comparator can be with an employee hired in today's economic climate at today's rate.
I thank Senator Mullins who has fully briefed himself on the issues involved in the legislation. This does not fit in with the Minister's action plan for jobs. Is the Minister of State indicating that legislation should decide for a person seeking a job what the comparator should be? That does not make sense. In essence, the Government is determining that a hirer will not decide this issue for a person who is unemployed and seeking a job. This is the worst legislation I have seen coming to this House and we should freeze it, consider it and revert to the Minister. It is interpretation of an EU directive gone mad. We talk about creating employment but another part of the Department is doing the opposite. Does the Minister of State believe the unemployed people who are looking for jobs will thank him for this?
Grey areas and a lack of clarity have appeared this morning. I second Senator White's proposal to pause this for a little longer in order that the Minister of State would have the time to consider the position. He made an extremely good suggestion for me to go back to my three real company stories, and with all due respect, I make the same suggestion to the Minister of State. He should go to some of the brilliant people in Enterprise Ireland and the IDA, who I know very well, and ask them to carry out some focus group tasks in order that he does not have to listen to just one mad, passionate Senator. I am only a novice in here but it might be a good idea to slow this process a bit. As we have said, there is nothing more important than getting this right, as we are broke, in order that we are able to create jobs. Sometimes in my company the engineers might fold their arms and tell me something cannot be done. I call these people job prevention officers, JPOs, as a joke, and Senators or Deputies do not want to become job prevention officers.
Senators Mary Ann O'Brien, Walsh and White have made very strong points. I believe the Minister of State will have to go back to the Dáil with this legislation if we accept his amendment No. 12. On that basis I urge the Minister of State to indicate that he has been impressed by the case made here and will give it some thought so that, on Report Stage, I hope he will be able to accept some of the concerns expressed here. I urge Senators not to press this to a vote in order that it can be considered on Report Stage. It will have to return to the Dáil anyway. I could understand the Minister of State's reluctance to follow this process if the legislation did not have to return to the Dáil, but as it does, it would be simpler to go back with a Bill that has been tweaked with these amendments.
There have been a number of points. I suppose now would be a bad time to say I am a big fan of Neuhaus Belgian chocolates. I would say "Fair play and well done" to anybody with an Irish company trying to penetrate the Belgian market. If the Senator is getting a foothold in that market, I applaud her.
That is fantastic. In fairness, one must applaud the business model used by two of the Senators present and the fact that the two businesses compete at a world class level. I am acknowledging this without plámás. I lived in Belgium for three years and I always thought Cadbury's was the only chocolate product until I moved to Belgium. We can now appreciate where we are with the wonderful product ranges and the high quality of those products.
Collective agreements are addressed in section 8 and the possibility is allowed for in that section of concluding local and enterprise level agreements. The fundamental point of the legislation concerns transposition of a directive and protection of workers' rights. The question is what a person should be paid now. There is no question of referring or reverting to old pay rates. This does not arise. Where does the Bill mention reverting to old pay rates?
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.
I thank the Minister of State for his reply and the clarification he has provided. I appreciate his honest answer which I accept, that he does not know what the likely job losses will be and that there is no evidence in Britain of job losses. Was any evaluation carried out or research undertaken by the Department or the Minister on the possible implications of enacting the legislation?
My second question is about the consultation process. The Minister said he had met the social partners. What companies did he meet? Did he meet representatives of IDA Ireland and Enterprise Ireland to discuss the implications of the legislation? What was involved in the consultation process and how extensive was it?
Third, for absolute clarity, is the Minister of State saying with regard to the amendments - the amendment we have tabled has been drafted in accordance with Article 5.1 of the directive - that he will look at it again before Report Stage or that he will not re-examine it? That will determine whether we will call a vote on it. I would like to think he would see some merit in at least re-examining it before Report Stage. As it is in accordance with the directive, his earlier answer that he could not accept it because it would not be in compliance with the directive is not accurate. I do not know whether he made that comment with regard to amendment No. 6 or No. 7.
Will the Minister of State indicate what representations were made by each of these bodies during the consultation process? How many would have endorsed the shape of the legislation, and how many would have sought to amend it? I appreciate that it is our call as to whether we press the vote on amendment No. 7, but our decision is contingent upon the Minister of State entertaining the case made by Members from all sides of the House, including those on his own, and considering it or not between now and Report Stage.
I will withdraw it but I have a question. During the wretched years of 2008 and 2009, when everything came crashing down and the unemployment numbers started to rise to the current horrific level, how many people in permanent jobs were made redundant in order that companies would become lean and competitive and survive, and how many were taken back as temporary agency workers? The three companies of which I have spoken, one a meat company in County Kildare, one a multinational located in both Galway and Kildare, and the other in north Dublin, all made permanent staff redundant, which they did not want to do, and then took on agency workers on a permanent basis in order that they could compete on the world stage. It is a question for us to consider. We felt a bit better because the companies got a few jobs back, but they did so in order that they could become competitive. It is so difficult in this House to feel what it is like to be in business and be worried, like I was because my house was mortgaged on my business. I had to let go ten of my friends who had worked for me for 16 years and take on temporary staff eventually in order that I could continue to survive.
I move amendment No. 11:
In page 9, lines 36 and 37, to delete subsection (4) and substitute the following:
"(4) In this section "permanent contract of employment" means a contract of indefinite duration, without prejudice to the fact that such contract may be terminated in accordance with the law.".
In an effort to bring further clarity to the definition of "permanent contract of employment", we are seeking to add to subsection (4) the wording "to the fact that such contract may be terminated in accordance with the law.".
While I understand the rationale behind this amendment, it would not, even if accepted, have any material effect and is redundant. It is already the case under the employment legislation that a contract of indefinite duration can be terminated for reasons such as redundancy, liquidation of the employer and so on. Under the provisions of the existing law, this Bill does not discommode existing law in this context.
I welcome the Minister of State's clarification that even though the social partners, who are no longer in existence, were allowed to have a veto on the provisions of this Bill, employers, employees and their representatives can come to an agreement at local level. What is the position when employees are not members of a union but have a works council? Can they reach an agreement which would be independent of the provisions of this legislation?
This is a technical amendment which seeks to ensure that for the purposes only of equal treatment of working and employment conditions for agency workers that are part-time employees, it is the provisions of this legislation and not that of the Protection of Employees (Part-Time Work) Act 2001 that applies. In effect, this means that whereas in that Act, the appropriate comparator that is established for an agency worker is another agency worker, that is superseded by this legislation, which takes as the appropriate comparator another directly recruited employee, subject to the criteria of section 3.
I move amendment No. 14:
In page 12, lines 25 to 28, to delete subsection (2) and substitute the following:
"(2) In this section "collective facilities and amenities" includes—
(a) canteen or other similar facilities,
(b) child care facilities, and
(c) transport services,
but does not include any matter in the nature of remuneration or any expense payable to an employee.".
We seek to add the following two lines to subsection (2): "but does not include any matter in the nature of remuneration or any expense payable to an employee". We hope this will bring clarity so that no other extraneous terms and conditions are brought into the legislation. The Minister of State may argue that it is already covered by virtue of the fact that it is not included, but I think by inserting these words, we bring greater clarity to it.
In amendment No. 15, we seek to insert the following subsection: "No action taken by a hirer undertaking or agency in compliance with this section should be taken as evidence that a direct employment relationship exists between the hirer undertaking and the agency worker." Again, we seek to bring absolute clarity to the legislation.
This is a complex Bill. As Members have said, employers often may not have legal expertise within the company to interpret precisely what is meant by legislation, and I think our amendments show clearly the intention of the Bill in order that it does not act as an impediment to taking on staff. That is very important. The more employment legislation we heap onto the private sector, the more I hear of hesitation and reluctance on the part of employers to embrace all these regulations and obligations. I think it is worthwhile, therefore, to include these amendments as they bring greater clarity to the legislation, even if some regard them as unnecessary.
I understand the rationale behind these amendments. The provision as it stands, however, lists the facilities and amenities intended. While the list is not exhaustive, it is not intended that collective facilities and amenities would include remuneration or expenses. There is a danger in introducing one proposed exclusion as to do so would raise other issues that could be equally proposed for exclusion. This type of detail is more appropriate for inclusion in guidance documentation on the Bill in preparation in my Department. For this reason, I do not propose to accept amendment No. 14.
On amendment No. 15, it is not suggested in the legislation nor would it be legally possible under the Bill that an agency worker could contend that there is any employment relationship between the hirer and the worker on the basis that the latter now has an entitlement to use any collective facilities in the same manner as direct employees. The definitions make clear there is a three way relationship and the employer of the agency worker is the employment agency. In that sense, the amendment is unnecessary.
On amendment No. 14, I welcome the Minister of State's explanation and accept that if one is prescriptive in what one excludes, it could be subsequently interpreted that matters which were not prescribed could be included. On that basis I will withdraw the amendment. However, I am not as favourably disposed towards withdrawing amendment No. 15, which brings clarity to the position. While I am not contradicting the Minister of State, the addition of the amendment would not take away from the Bill but would provide additional clarification. The primary purpose of the amendment is to increase awareness for employers. Anybody who understands English will understand the text and, as such, the proposal would not act as an impediment.
I am hearing from employers, as I am sure the Minister of State is, that the large number of regulatory agreements, for instance, joint labour committees, are adding to the dole queues, even if I cannot quantify the numbers. They are being resisted by employers. As I indicated on Second Stage, I can identify employers who recruited people who would have been happy to work for the proposed rates of pay but decided not to proceed with the recruitment as they believed they would be open to a case being taken against them subsequently. It is unconscionable for the State to act in this way in the current economic climate. Unfortunately, the jobs of everyone in the public service, except politicians, are guaranteed whereas in the private sector nobody's job is guaranteed. We must be conscious of this in the current climate. I am disappointed to hear rhetoric from the Government. When it comes to testing matters in the Seanad and Dáil, the Government does not show any empathy towards the unemployed and is not making any attempt to tackle unemployment.
The amendment could be accepted without having an adverse effect on the legislation. I put the amendment to the Minister of State as a small test to determine whether he has empathy with those who are unemployed and need our support and help.
I move amendment No. 15:
In page 12, between lines 28 and 29, to insert the following subsection:
"(3) No action taken by a hirer undertaking or agency in compliance with this section should be taken as evidence that a direct employment relationship exists between the hirer undertaking and the agency worker.".
Amendment No. 15 can be addressed in the context of the guidance documentation provided with the Bill. On the other points regarding the august body of employment legislation and the system of joint labour committees and registered employment agreements, it is a surreal experience to hear a Fianna Fáil Party Senator-----
Senators will forgive me if I sound a little confused. We should not dismantle or raze to the ground the employment protections in place for workers on the basis of the current economic climate. We must strike a balance, which is what we seek to do in the legislation.
To be fair, the Government is doing its best to create employment and the conditions for employment. While I note the points made by Senators, I respectfully suggest they should be made on the basis of the amendment under discussion. If someone starts speaking about dismantling the joint labour committee architecture, that is another issue. For the purposes of the discussion of this amendment-----
The Minister of State indicated the guidance document "could" provide clarification. That is an appalling response. Could he not at least state that the document will include clarification? This is one of the difficulties I have with Ministers of State coming to the House. In fairness to this Minister of State, I am sure his hands are tied by his senior Minister and he is not allowed to accept amendments in the House. I am not making a specific point in respect of the Minister of State as this practice has also occurred in the past, including when my party was in power. The practice whereby Ministers of State come to the House to take legislation under instructions not to take amendments ties the hands of the House. The import of amendment No. 15 is purely for clarification yet we do not even have confirmation that the guidance document will include it. We are asking that the amendment be included in the legislation. That is a minimum request, which I and the Minister of State know does nothing to dilute the Bill. It merely inserts clarification for a layperson reading the text who may want clarity on this issue. That is all I ask. It is a straightforward request.
That is one of the most patronising comments I have heard in a long time. I am a Labour Party Minister of State who shares my Department with a senior colleague from the Fine Gael Party. We are completely ad idem on this issue. I am not here to do my master's bidding. An agreement has been reached as to how these issues are transposed.
The Seanad Divided:
For the motion: 15 (Thomas Byrne, John Crown, Terry Leyden, Paschal Mooney, David Norris, Darragh O'Brien, Mary Ann O'Brien, Marie Louise O'Donnell, Denis O'Donovan, Ned O'Sullivan, Averil Power, Feargal Quinn, Jillian van Turnhout, Jim Walsh, Mary White)
Against the motion: 28 (Paul Bradford, Colm Burke, Deirdre Clune, Eamonn Coghlan, Paul Coghlan, Michael Comiskey, Martin Conway, David Cullinane, Maurice Cummins, Jim D'Arcy, Michael D'Arcy, Jimmy Harte, Aideen Hayden, Fidelma Healy Eames, Imelda Henry, Lorraine Higgins, Caít Keane, John Kelly, Maire Maloney, Mary Moran, Tony Mulcahy, Michael Mullins, Susan O'Keeffe, Pat O'Neill, Trevor Ó Clochartaigh, Kathryn Reilly, Tom Shehan, John Whelan)
Tellers: Tá, Senators Ned O'Sullivan and Mary M. White; Níl, Senators Paul Coghlan and Susan O'Keeffe.
Amendment declared lost.