Friday, 27 April 2012
Protection of Employees (Temporary Agency Work) Bill 2011: Report and Final Stages
Before we commence I remind Senators that with the exception of the proposer of an amendment, who may reply to the discussion on it, Senators may speak only once on Report Stage. Also, each amendment must be seconded.
Section 1 currently provides that, with the exception of the provisions relating to offences or the instigation of legal proceedings, the Bill will be deemed to have come into effect on 5 December 2011. During the passage of the Bill through the Oireachtas, this provision, which gives retrospective cover from 5 December 2011, has been the source of discussion and a level of criticism. I have, therefore, reconsidered the position in conjunction with the Office of the Attorney General and have come up with an amendment, the effect of which will be to limit the application of the retrospective cover, as it impacts on the basic working and employment conditions applied by the directive, to the element of pay only. In the context of the other non-pay elements covered by the basic working and employment conditions set down in the directive - for example, working time rest breaks, access to collective facilities, access to job vacancies, etc. - I am advised that, in practice, enforcement of these on a retrospective basis would be almost impossible as they cannot be undone after the event.
Amendment No. 1 should go some way towards meeting the concerns previously expressed in respect of this provision. Subsection (2) of the amendment applies the general provisions of the Bill on a retrospective basis, while subsection (4) provides that the offence provisions will not come into effect until the day following the passage of the legislation. All of the other provisions will come into effect upon passage of the Bill into law. I hope this measure, which balances the need for the Government to meet its obligations under the directive, will meet, to a greater extent than previously, the concerns expressed about this provision. Acceptance of the amendment will ensure that agency workers will be entitled to equal pay from the transposition date of the directive and will have this entitlement backdated to 5 December 2011. They will not, however, be able to claim entitlements from that date in respect of breaks, working time collective facilities, etc.
I welcome both the Minister and the amendment. A number of Senators expressed concern about the matter to which it relates on Second Stage and Committee Stage. The changes proposed in the amendment in respect of pay and retrospection mean that many of those concerns have been allayed. I appreciate that the Minister and his officials listened to what Senators had to say on this matter and that they managed to draw up something that is going to improve the Bill and make it acceptable.
Amendments Nos. 2 and 23 are technical in nature. It is practice, in drafting legislation, that where there is a reference to another enactment on more than one occasion, a definition of that enactment is included in the interpretation schedule and the enactment is thereafter referred to by its shorter title. This is the effect of amendments Nos. 2 and 23.
Amendment No. 19 replaces the current text of section 13(1) of the Bill. It specifically provides for the prohibition - contained in the directive - on an employment agency charging a fee to an agency worker following the completion of his or her assignment with a hirer after which he of she is offered direct employment with the hirer. Amendment No. 20 clarifies that the new provision inserted by amendment No. 19 is in addition to, not in substitution for, the separate and distinct prohibition contained in section 7(2) of the Employment Agency Act 1971. The latter provides that it is unlawful for an employment agency to charge an individual a fee - commonly referred to as a "placement fee" - for facilitating the introduction of that individual to a third party who will hire him or her on a temporary assignment. Amendments Nos. 19 and 20 clarify that fees cannot be charged at the beginning or the end of a placement where a person is being recruited on a permanent basis.
This amendment is essentially technical in nature and it will ensure that the legislation aligns properly with the EU directive. Article 3.1(f) of the directive lists overtime as a constituent element that goes to make up basic working and employment conditions. Although overtime is listed as a component element in the definition of pay provided in the Bill, it is not included in the definition of basic working and employment conditions. In order for the legislation to be correctly aligned with the directive, overtime should also be included under that definition and that is the intention behind the amendment.
Amendments Nos. 4, 5, 8, 11, 18, 21 and 22 are related, amendments Nos. 6 and 7 are also related and are alternatives to amendment No. 5 and amendments Nos. 9 and 10 are also related and are alternatives to amendment No. 8. Therefore, amendments Nos. 4 to 11, inclusive, 18, 21 and 22 may be discussed together. Is that agreed? Agreed.
The matters to which these amendments relate were the subject of considerable debate on Second Stage and Committee Stage. The amendments relate to section 7 of the Bill, as passed by the Dáil. The formulation adopted in section 7 allows reference to two distinct situations, that is, instances where there is a comparable employee against whom the agency worker can be compared and to instances where there is not such comparable employee. In the first instance, section 3 set out the criteria to be fulfilled and the type of considerations that could be taken into account in measuring the level of comparability between an agency worker and a comparable employee. In the latter context, where there is no comparable employee the Bill sets out that the entitlements for the agency worker would be those which would apply if a comparable worker were to be employed. This construct was considered to accurately reflect the requirements of the directive. It was also an attempt to provide greater clarity and guidance beyond that contained in the directive.
During the debates on the legislation in both Houses, concerns were raised with regard to the inclusion of the notion relating to the comparable employee, particularly in light of the number of difficulties to which this was giving rise in practice. In view of Members' concerns, I have ensured that the relevant issues were reconsidered with a view to providing greater legal certainty and clarity in the Bill. As a result, it is proposed to remove from the Bill the notion of using the comparable employee construction and, alternatively, essentially to defer to the wording contained in the directive. This should meet the concerns which Senators raised on Second Stage and which were the subject of amendments tabled on Committee Stage.
I am satisfied that the revised outline of section 7 will still ensure that agency workers will be properly protected in the context of their entitlements under the directive. It will also allow the Government to remain in compliance with the directive. The proposed changes will require some revision of the existing provisions of the Bill. This is the intended combined effect of amendments Nos. 4, 5, 8 and 18. The respective intentions behind amendments Nos. 4 and 5 is to remove the definition of comparable employee from section 2 and to delete section 3 in its entirety. In the event that both of these amendments are accepted, the aspects of the Bill to which I refer will be redundant.
Amendment No. 8 proposes to delete the existing section 7(1) and to replace it with a new formula for setting out the core entitlements of agency workers. Essentially, the new section 7(1) will provide that agency workers will be entitled to the same basic working and employment conditions as those to which they would be entitled if employed directly to do the same or similar work.
Amendment No. 18 arises as a consequence of the removal of the reference to "comparable employee" in section 11, which deals with access to employment for agency workers. The amendment simply removes the reference but does not otherwise change the requirements under the section.
I thank the Senators who tabled amendments Nos. 6, 7 and 9 to 11, inclusive. On the basis of what I have outlined, however, it will be clear to them that these amendments refer to an earlier version of what was contained in the Bill.
The amendments are, therefore, no longer relevant. On this basis, I ask the Senators to withdraw them.
Amendments Nos. 8 and 21 seem to remove the reference to "comparable employees", as the Minister stated. They provide that entitlements would exist only by reference to the work employees are undertaking. Could the Minister clarify exactly the logic of this? I probably support his intention but I want to be crystal clear about it.
Let me refer again to the Swedish derogation, which we oppose. It pertains to the exemption of full-time agency workers from the legislation. We have a number of amendments that have been ruled out of order on this issue. Will the Minister rethink this matter because it potentially creates a loophole? If full-time agency workers are excluded from the protections under the Bill, there is a danger that some unscrupulous employers will exploit the circumstances that exist and hire full-time agency workers. Thus, we will end up having to return to the very problem we are trying to address regarding part-time agency workers.
I accept that only a tiny percentage of agency workers are deemed to be full-time. We fear there is potential for abuse by some unscrupulous employers. I accept that the vast majority are not unscrupulous but we know some seek to take advantage of loopholes where they see fit. Could the Minister revert to me on this? We have genuine concerns.
I accept the Cathaoirleach has ruled the amendments out of order. It is beyond me why amendment No. 13 was ruled out of order because we removed any references to the public sector. It fail to understand how it could constitute a draw on the State. Perhaps clarification can be given in this regard.
I am very pleased with the Minister's amendments. The word "comparator", mentioned on Second and Committee Stages, was not one I had heard before. We were concerned about its use and I am pleased it has been removed.
Concern was expressed by us over the fact that the directive we are supposed to be following was changed considerably. We have now returned to a position in which we are much closer to the original directive. On that basis, our current position reflects more accurately the intention of the directive. I thank the Minister for his changes. The Bill will now be far more valuable and will achieve what we were hoping it would achieve, namely, fairness for temporary or part-time workers. On that basis, I have no problem withdrawing the amendments to which my name is attached. I refer to amendments Nos. 6, 10 and 11.
I thank the Senator.
Senator Cullinane asked why we are doing what we are doing. As I stated, the original drafter considering the directive sought to use the comparator as a way of providing an interpretation of how the measures should be applied in practice. When the Bill was published in the form making reference to a comparator employee - I refer to an employee in a relevant company doing the same sort of work as another - there was a difficulty as to the difference between a person taken on today and one taken on five years ago, for example. The question arose as to whether there could be a fair comparison. The Bill sought to make the comparison fair by introducing concepts such as training, length of service, etc. As we engaged with Senators, Deputies and employers, however, we noted the interpretation seemed to be resulting in more confusion than clarity. Specific employers were worried that the provision was totally vague and did not give guidance either to the employer or temporary agency worker on comparisons between employees recruited today and those recruited five years ago. Therefore, we have reverted to the text stating an agency worker shall, for the duration of his assignment with a hirer, be entitled to the same basic working and employment conditions as those to which he would have been entitled had he been employed by the hirer under contract at the same time. The new formulation is essentially simpler although any case would still have to be adjudicated upon by the rights commissioner. Evidence would have to be presented and, in the case of a challenge, the going rate on the day of recruitment would have to be established.
Having spoken to people, I understand the difficulties that arise making comparisons. In some cases, it could be straightforward in that the case could pertain to somebody who was employed last week. When recruitment was a long time ago and the conditions in the labour market were different, problems arose, thus creating uncertainty. We reflected on the debate in this House and correspondence from some Senators spelling out their concerns in greater detail. We have reflected on these concerns. Given that there are some anti-avoidance measures, which I will deal with later, the current formulation is more in accord with the rights in the Bill, and it makes it easier for employers and workers to know where they stand in practice. That was the thinking.
Senator Cullinane raised the Swedish derogation. This issue was debated in both Houses. Concern was expressed that there is a potential loophole. The practice to which the Deputy refers is not a practice in Ireland at present. The Swedish derogation, as it is called, occurs where the agency, rather than the hirer, employs the worker. The worker would be employed permanently by the agency, which would enter into a commitment not only to pay the worker during the period of the assignment but also when it did not have work for him. Our judgment is that this is a good option for some. Some might like a flexible arrangement like this. We should not rule this out or allow the opportunity for such a derogation to pass. If we did not include the derogation in the Bill, it would not ever be possible for such an arrangement to come into play.
With a view to providing anti-avoidance mechanisms, so the measure would not be used to abuse the system, we have stipulated that the employee must be informed in writing that, by entering into an arrangement such as that described, he is giving up rights he might otherwise have as a temporary agency worker. People would sign up to the agreement knowingly. I refer to a permanent contract of employment. If an employer abuses what is framed as a permanent contract of employment, a worker will have recourse to the rights commissioner to argue the contract is not such but an effort to have a temporary placement attracting pay at a lower rate than would otherwise apply. There are protections built into the Bill that deal with the concerns Senator Cullinane and others have raised.
I thank Senator Quinn for his support for my amendments. Several Senators, including those who have tabled amendments, have identified the area in question as a problem area. We need to respond to issues where they are raised with us in a constructive way. I thank my officials and the Attorney General's office who helped us develop a measure more fit for purpose.
"7.—(1) Subject to any collective agreement for the time being standing approved under section 8, an agency worker shall, for the duration of his or her assignment with a hirer, be entitled to the same basic working and employment conditions as the basic working and employment conditions to which he or she would be entitled if he or she were employed by the hirer under a contract of employment to do work that is the same as, or similar to, the work that he or she is required to do during that assignment.".
Amendment No. 12, in the names of Senators Cullinane, Ó Clochartaigh and Reilly, seeks to delete the derogation provision from section 7(2) which provides that the equal treatment in respect of pay only will not apply to an agency worker provided certain conditions are met. This would bring an additional group of agency workers within the scope of equal treatment. Accordingly, this would have the effect of imposing additional costs on a public sector hirer of agency workers. Amendment No. 12 is ruled out of order, therefore, because it would involve a potential charge on the Revenue. Amendment No. 13 is also ruled out of order for the same reason.
We are not having a discussion on it. I have made my decision on it. Amendment No. 13 is ruled out of order because it would have the effect of excluding agency workers assigned to work for public sector hirers from the scope of the derogation. This would have the effect of imposing an additional cost on a public sector hirer of agency workers as well.
"(4) This section shall not operate to affect any arrangement provided for under an enactment, a collective agreement or otherwise whereby an agency worker is entitled to basic working and employment conditions that are better than the basic working and employment conditions to which he or she would be entitled under this section.".
Amendment No. 14 is a saving provision that clarifies the arrangements that exist separately from this legislation and which provide for better terms for agency workers than those provided under section 7 and stand on their own merits. I believe this amendment speaks to some extent to the intent behind amendment No. 16. However, for the reason that amendment No. 16 would provide a different set of rules for agency workers working in the public and private sectors, I cannot accept it.
(d) in relation to the relevant assignments, the agency worker does the same or similar work under the same or similar conditions, and any difference in the work done or the conditions under which it is done as between any relevant assignment and any other relevant assignment is of minor significance when viewed as a whole or occurs with such irregularity as not to be significant,
This amendment provides for the introduction of certain anti-avoidance measures. As such, it was not considered on Committee Stage. It proposes the inclusion of a new section and must, for this reason, be recommitted to the House on this Stage.
This amendment is particularly important given the proposed revision of section 7 that deals with conferring on agency workers the entitlement to basic working and employment conditions. Section 7 follows closely the wording of Article 5 of the directive. As a consequence, this requires that measures are adopted at national level to ensure proper protection for agency workers in line with the anti-avoidance provisions of Article 5.5 of the directive. In particular, there is a requirement to prevent the use of successive assignments of agency workers designed to circumvent and override the entitlements conferred on them.
Amendment No. 15 responds to this by proposing the insertion of a new section 8. The intention is to ensure agency workers on assignment with the same hirer in a series of assignments in which they are doing the same or similar kind of work are not reverted to the starting point on each occasion they commence a further assignment with that employer. Rather, the provision in section 8(1) provides that the series of assignments will be treated as a single assignment which means agency workers will properly accumulate service and other entitlements under employment law. Accordingly, the first assignment in a relevant series of assignments is treated as the objective starting point for determining the commencement of the assignment.
Section 8(1)(b) provides a safeguard to ensure the time in between assignments when the agency worker is not working with the hirer is not taken into account for the purposes of determining entitlements. This would be minimum notice and so on. Section 8(2) defines what constitutes a series of relevant assignments which is that the hirer is the same person or a person connected with the hirer, as defined in section 8(3), the agency worker is the same person on the relevant assignment and works in whole or in part at the same place of work, that work is directed and supervised from the same place, and the work done is the same or of similar nature and undertaken under the same or similar conditions, with any differences being of a minor significance.
Additionally, section 8(2) provides where there is a break between assignments which is greater than a three month period, this breaks the sequence of the series of assignments, and further assignments after that point would commence from the start. The three month period in between assignments is borrowed from the existing legislation in the employment rights area, section 2(2) of the Unfair Dismissals Act 1977.
This was a particular concern of the unions. The Minister and his officials have listened to their concerns. Neither do I believe it poses any threat to employers. I can understand in the case of a person who works for a year, is gone for a month, returns to work for another year and is gone again for another month, that on his or her next return for the third assignment, the person is deemed to have had two years service and is not treated as starting on a day one basis. It makes sense and does not threaten potential employment opportunities while removing the concern the unions had. I certainly support this amendment.
I support this amendment and compliment the Minister on taking on board what was said on this issue on previous Stages. It addresses the concerns of Members and employers while ensuring agency workers are properly treated and given the due respect and conditions they deserve.
As someone who has used agency workers in my time as an employer, I always found they were in limbo. It has become more focused over recent years when we have found many family members and friends have taken up agency work. There is a generation coming into the workforce which seems more comfortable in this type of employment because it allows them to specialise and move abroad. It is important they are treated as permanent employees. The Minister has addressed them and this is a progressive move for employees, especially now in the labour market when people do not expect to be in permanent employment as they used to be and which allows them gain experience in different fields. The Protection of Employees (Temporary Agency Workers) Bill is important to the future growth of the economy as well. I fully support the Minister's work on the issue.
I thank Senators Mullins, Harte and Quinn for their support on this. Senator Harte probably hit the right note. Especially in this time where there is uncertainty, inevitably, there will be temporary hiring, work building up and people not knowing whether it will be sustainable. We need the flexibility for agency working as a form of employment, but equally we need to ensure those taken on in that capacity are treated fairly. This is trying to strike the balance between having the flexibility but also having the fairness.
Senator Harte is probably right that, increasingly with nature of the speed of technological change, people will go through different types of employment through their working lives and there will inevitably be different models developed. As we develop that necessary flexibility, we need to also ensure there is a balance in terms of treating people fairly and allowing them, for example, to plan for mortgages or whatever. We need to establish a fair basis for that. That is what the directive seeks to do.
"(c) the body that negotiated the agreement on behalf of employees (or, in circumstances where the agreement was negotiated on behalf of employees by more than one body, each such body) is the holder of a negotiation licence under the Trade Union Act 1941, or is an excepted body within the meaning of that Act;
This proposed amendment is purely technical and relates to an amendment to section 8 that deals with collective agreements. The reason for this amendment is that section 8(1) allows for a body or bodies representative of employees to agree a collective agreement. The language of section 8(4)(c) refers only to body in the singular, that is, it describes the body that negotiated the agreement. This amendment ensures this section is aligned with section 8(1) by also covering the plural version.
I congratulate the Minister. Today has been an interesting day. In my experience over 19 years, and I spoke to Senator Mary Ann O'Brien about this earlier today, it is seldom we find a Minister willing to take amendments to a Bill that has passed through the Dáil and has come to the Seanad. On this occasion, the Minister has listened carefully, has taken a number of amendments into account and has certainly taken on board the concerns of a number of Members, especially Senator Mary Ann O'Brien, who is an employer of agency workers and who had some concerns which she expressed clearly.
The Minister and his officials have listened carefully. This enhances the reputation of this House because it shows it has performed something suitable. We have examined the Bill, which is quite technical and quite difficult to understand, and taken action, with Senators expressing their concerns and the Minister listening. It is a good day for this House, for democracy and for the Oireachtas. I appreciate the Minister's interest in this and also the response to the concerns expressed.
I endorse what Senator Quinn stated. I am standing in today for Senator Mary White, but it is refreshing that, since the Bill was before the House on Second Stage, the Minister and his staff in the Department have brought forward a series of amendments that makes it more appropriate under the circumstances. Too often, Ministers and Departments are unwilling to accept any amendments or changes. The legislation may not be perfect or utopian, but it is a good start to comply with the European directive and the Minister should be complimented on it. I presume if, in time, this legislation is found not to be working properly and to be deficient in certain ways, the Minister will revisit it to make it workable. It is a new initiative in this area and the progress that has been made under this Bill must be welcomed.
I thank the Minister and his officials for all the obvious work and for acknowledging our amendments and fears. I support what Senator Quinn stated. As an employer, I found the Bill difficult and technically very different. I am thinking if that is how it is for me in here, what will it be like for other employers, employees and agency workers who will have to grapple with it? With all of his work, the Minister has achieved a balance of fairness and flexibility, inasmuch as he possibly could, between the agency worker, the permanent worker, who is an important person we have not mentioned this morning, and the employer.
I thank the Minister for his co-operation and obvious personal interest in this Bill. Senator Quinn, who has much more experience in the Seanad and in business than I will ever have, articulated it well. As a parent, both of a permanent employee and someone who is working part time, I can see the merits of the legislation.
I was elected to the Seanad 12 months ago yesterday. Today was good work for the Seanad. I see the benefit of the Seanad more today than over the past 12 months, and even previously when I was not a Senator. It shows the Seanad has an effective and practical role in a Bill such as this which is important for employees and the citizens of the country. What has happened in the Seanad may not even make the news this week, but Senators will appreciate the work done by the Minister and his officials and by all the Members of the Seanad who engaged to make it a worthwhile Bill and one for the future.
I agree with the Senators who stated it is a good day for Seanad Éireann and for democracy. The Minister is to be complimented on taking on board the many concerns about the Bill expressed some weeks ago. As Senator Mary Ann O'Brien stated, it strikes a correct balance. It ensures fairness for agency workers while removing some uncertainties for some employers as well.
We want to ensure at all times we make it easy for employers to employ additional workers and remove any obstacles and difficulties. I am confident the Bill, as amended, will ensure some jobs that may have been lost to this country will be retained and we will see additional jobs created as a result.
It was a good day's work here. I thank the Minister and all the Senators who put in a great deal of work to ensure the Bill is now in a state that best serves the country and the economy, and is friendly to job creation.
I thank the Senators for their more than generous comments, especially cross-party. These are challenging times and we need to move forward together. There is an onus on us in sponsoring new legislation to be sensitive and responsive.
I also acknowledge the Senators' recognition that much work was put in by my officials, who are here, and the Attorney General's office in getting a formulation that was robust, in line with the directive and struck the right balance. A great deal of work went into it in the period. As the House will be aware, it has been some time since we discussed this last and that time has not been wasted. I acknowledge publicly the work my officials have done.