Thursday, 30 July 2020
Financial Provisions (Covid-19) (No. 2) Bill 2020: Committee Stage
I move recommendation No. 3:
In page 14, between lines 25 and 26, to insert the following: “(22) The Minister may make an order under paragraphs (a), (b) or (c) of subsection (21) that pertains to a certain class or sector of business of employers.”.
I am a little disappointed that the previous recommendations were ruled out of order because it is common sense to extend the existing temporary Covid-19 wage subsidy scheme when so many businesses are in trouble. While we welcome the new scheme, the lower rate of subsidy is, frankly, being introduced too soon. The existing subsidy should be extended for another couple of months.
Recommendation No. 3 gives the Minister a bit of flexibility so that he can provide additional support to particular sectors if he wishes. The Minister of State has just indicated that the Government is not taking a sectoral approach. Perhaps this conditionality should be built in so that such an approach could be taken. We know how much difficulty the hospitality sector is in, for example. To my mind, this is a common-sense recommendation. It builds in extra flexibility in case it is needed between now and the next set of proposals. I would be disappointed if the Minister of State was not willing to support it.
I understand what is being said. As I indicated, we are not proceeding on a sector-by-sector basis. The July stimulus includes a suite of measures covering approximately 50 items, eight or ten of which are included here. We will discuss legislation covering other matters tomorrow, and we already discussed a number of matters earlier in the week. Some of the Government measures take the form of grant schemes that do not require legislation. We are taking an economy-wide approach and asking people to take advantage of other measures in their sectors. They are not confined to this particular measure. It is only one of a suite of available options. I am not in a position to accept the proposed recommendation.
I wish to put on the record that we are proposing a recommendation to allow the Minister to alter either the rates of the subsidies paid to employers in respect of certain classes of employees or the reduction in turnover necessary for an employer of a certain class of businesses, such as those in the hospitality or tourism sectors, to qualify. We know that businesses are really on the point of having to close. It does not make sense not to build in the option of flexibility. I imagine that many businesses, particularly in the tourism sector, will wonder why the Minister of State will not adopt this measure. What is the actual reason for not adopting it? It does not commit the Government to doing anything right now, but gives it the option to offer additional support if the tourism sector plunges further between now and the next set of proposals. This is a common-sense proposal that does not commit the Government to anything today but allows for the extra support these businesses may need.
The Senator has highlighted one sector, namely, the tourism sector. We know there has been a huge impact on that sector, but at least it has the opportunity to reopen. A dozen other sectors may not reopen at all. I will give the example of English language schools. It is possible that none of those schools will open in the short or medium term. The Senator has highlighted just one sector. That is why this recommendation is hugely flawed.
There are two aspects to this. We do not want to give the Minister too much power to decree through a statutory instrument a measure which should take the form of legislation. Such measures must be debated here. There is also a practical administrative reason related to the Revenue database on specific sectors. Many businesses could be in similar sectors or could be involved in multiple sectors. The technology does not allow us to pick a particular sector to implement a niche measure. The Revenue's data collection does not work that way. The main point is this. It is almost August. We will return in September and debate the budget very early in October. There will be a very early opportunity to revisit this in advance of the budget, which is not very far away at this point.
I move recommendation No. 5:
In page 32, between lines 21 and 22, to insert the following:
“Need for harmonious industrial relations and avoidance of industrial unrest
7.The Act of 2020 as amended by this Act, in so far as it relates to the wage subsidy scheme and to special warehousing and interest provisions, shall not apply to an employer unless he or she demonstrates to the satisfaction of the Revenue Commissioners that he or she— (a) does or will engage in collective bargaining with his or her employees, with the object of reaching agreement regarding working conditions and terms of employment, or
(b) is or will become a member of a representative association which agrees that it is expedient to have terms and conditions relating to remuneration, sick pay schemes and pension schemes in respect of workers in the sector from time to time examined by the Labour Court under section 15 of the Industrial Relations (Amendment) Act 2015.”.
This is a recommendation we are very anxious to press. It essentially seeks to do what the Government should have done with this Bill, as I explained on Second Stage. It aims to use the State's leverage to get better outcomes for everyone, introduce reforms in low-paid sectors and move to a model based on high-quality public services and decent pay and conditions. This recommendation would essentially ensure that in order to avail of the temporary Covid-19 wage subsidy scheme, employers would have to engage in collective bargaining. Demonstrated engagement with workers' representatives would be a condition to availing of the relevant supports.
We are seeking to do something similar with recommendation No. 6, but I will not be pressing that. The measure contemplated within recommendation No. 6 make seeks to provide protection against lay-offs and short-time work. We will not be pressing it because, as Deputy Nash noted in the Dáil, that concern is already addressed in the legislation. The provision is in section 2, which inserts a new section 28B into the Emergency Measures in the Public Interest (Covid-19) Act 2020. The relevant provision is on page 9 of the Bill. It provides for the sort of leverage or quid pro quo we were seeking to create via recommendation No. 6 and states that employers cannot avail of the scheme if, other than for bona fide commercial reasons, they lay off or remove qualifying employees from their payroll.
The Government has already introduced protections for workers against lay-offs and short-time work. Recommendation No. 5 would allow the Government institute a similar quid pro quoto ensure employers engage in collective bargaining. This would be a condition for access to the scheme. As outlined in the title to the new section we are seeking to insert, this is intended to ensure harmonious industrial relations, avoid industrial unrest and protect workers against a lack of representation in the workplace.It is in keeping with the long-standing commitment within the Labour Party to ensuring the protection of workers' rights, collective bargaining rights and union representation.
In the previous Seanad, the Labour Party group, with support from Senator Gavan and colleagues across the House, enabled the passage of the Competition (Amendment) Act 2017, which secured rights of collective bargaining for vulnerable freelance workers. It is in a similar spirit that we are seeking to press this recommendation in order to ensure that the Bill will impose certain conditions to protect workers and that these will be inserted into the scheme. We are very glad that the Government has done this already in the new section 28B in respect of employees who might otherwise be vulnerable to being laid off or to short-time working. It is great to see that the matter contemplated by recommendation No. 6 has been dealt with, and that the Minister said in response to Deputy Nash in Dáil Éireann that he will keep it under review. We are trying to do something similar with recommendation No. 5 and to go a little further to say that employers should engage in collective bargaining with their employees and that employees would therefore have the right to representation in the workplace.
I understand what Senator Bacik is saying and the issues she raises, which are very valid. They cannot, however, be accommodated in this legislation. The recommendation seeks to restrict the hiring practices of employers who want to access the TWSS, the EWSS or the special warehousing and interest provisions already contained in the Bill. It proposes that entry to such schemes would mean that employers would not be able to hire new workers into roles where lay offs have occurred, or hire new workers unless the work they are being hired to carry out has already been offered to increase the hours of short-time workers. These are stand-alone schemes designed to support a firm's viability. The matter falls outside the criteria relating to the Revenue Commissioners. The will administer the EWSS but they are not the people that the Houses of the Oireachtas want to adjudicate on employment rights. Those issues are for the Workplace Relations Commission and, ultimately, the Labour Court.
Section 28B (6)(ii) contains safeguards to specifically provide what Senator Bacik aims to do with recommendation No. 5. The section states that, other than for bona fide commercial reasons, an employer cannot access the EWSS if that employer has laid off a qualifying employee and replaced him or her with two or more qualifying employees who work fewer hours, with the aim of increasing the number of qualifying employees in order that the employer can get an increased subsidy payment. There are measures in place to ensure that employees cannot be laid off and other employees taken on. This is an industrial relations issue and asking Revenue to get involved with who has been hired or fired would actually prevent the scheme getting up and running as urgently as we want it to. The issues raised by Senator Bacik are totally valid but I do not believe we should ask the Revenue Commissioners to get into the middle of hiring or firing, or who has rights. This is more appropriately judged under the Workplace Relations Commission and the Labour Court.
I understand the Senator's position on legislation but it is entirely inappropriate that employers who desperately need the funds to go into their businesses, to keep them open and allow them to keep employing staff, would have a qualification whereby one has to do this or not get the support from the State. I do not think that is the right way to manage it and I am of the view that it would be inappropriate.
I take the Minister of State's point about the powers of the Revenue Commissioners but I believe that there would have been a way of working with us - as already stated, we aim to work constructively - to, perhaps, have arrived at a changed wording to ensure the sort of protections we seek could have been included in the legislation. I very much welcome the wording already in section 28B, which the Minister of State quoted, on protections against people being laid off. However, I am of the view that here would have been a way of dealing with our recommendation more constructively in order to ensure that it could have addressed our concerns and, perhaps, incorporated a reference to the Workplace Relations Commission.
I put on record Sinn Féin's support for this recommendation. It is a pity that whenever the issue of collective bargaining comes, up all we ever hear from Fianna Fáil and Fine Gael is "Well, yes, but now is not the right time". It was not the right time in the past four years of Fine Gael Government, supported by Fianna Fáil. It is not the right time today. I suppose it depends on one's philosophy and if one believes that we just need a return to normal and have masses of low-paid workers. Ireland has the largest number of low-paid workers of any country in the EU. It depends on whether one thinks it is okay to have masses of private sector companies in circumstances where joining a trade union means a person loses his or her job, such as, for example, a nursing home worker in one of the private nursing homes. Senator D'Arcy is shaking his head. I worked as a trade union official and I assure the House that when I organised workers in nursing homes, as soon as the employer found out, they were fired. Given this as an example, I do not think it is okay to just throw money at employers. It is very reasonable to include a requirement that workers should have rights in their workplace, but, of course, it is never the right time to do that.
I was interested in how the Minister of State responded. He indicated that he understands where Senator Bacik is coming from but that provision cannot be made in this Bill. Maybe the Minister of State will tell us what his plans are to legislate for collective bargaining. Of course, he does not have any.
The Senator will appreciate that I am here today to deal only with this particular Covid-related legislation. This scheme is solely administered by the Revenue Commissioners. Everybody understands that we do not want the tax office adjudicating on matters of labour law or the rights of people to seek representation through trade unions. I am aware that the intentions are good, but I suspect there will be lots of opportunities to raise this matter again. This is one of the first times I have heard somebody suggesting in the Oireachtas that the Revenue Commissioners should be involved in dealing with employment law and employment rights. Revenue has a job to do and does it very efficiently and effectively but it would be the responsibility of the Departments that deal with labour law to deal with this matter. That is all I am flagging. I am not in a position to answer for other Departments. Revenue has a job to do under this legislation and I would not like to even suggest that it should be responsible for interpreting labour law. Where would it end? There will be other opportunities, but not in this Bill, to raise these points. I know this is not the answer but I am being pragmatic about it. This Bill is for a Revenue scheme and the Senator's recommendation is not a job for Revenue.
As I said earlier, I take the Minister of State's point about the Revenue Commissioners' powers. I pay tribute to the Revenue Commissioners for the speed with which they turned the scheme around in the first place. We are all conscious of the immense work done by public servants in Revenue, in the Department of Employment Affairs and Social Protection and elsewhere to ensure that schemes and supports were in place for people who were left bereft and economically devastated by the Covid-19 pandemic.
While I take the Minister of State's point, there was a way of engaging constructively with us as we seek to engage with him in order to ensure that the spirit of this recommendation could have been reflected in the legislation and to address the concern we have as it was addressed elsewhere, such as in section 28B. As others pointed out, we must also be mindful that the hospitality and tourism sector has been very badly hit by the pandemic and by closures. There has been an issue within that sector where a significant number of employers refuse to engage with joint labour committees. An ESRI report published this week shows that workers in the sector are at high risk of contracting Covid-19 and other conditions that may cause increased complications.
We are conscious of the need to ensure protections for workers, especially in sectors that are being badly hit by Covid-19. We are conscious of the need to ensure that there are adequate measures in place for workers to be represented. The Competition (Amendment) Act already provides a mechanism for engagement, particularly where there are vulnerable freelance workers and fully dependent self-employed people, as they are referred to in that Act. We brought that legislation forward in this House with support from across the floor and working constructively with the then Minister and the officials. Senator Gavan is right that whenever we raise the need to ensure workers' rights and protection for collective bargaining, there tends to be a push back from the Government saying that the legislation being discussed is not the right means to achieve that. I am glad this is the right legislation in which the Government has put protections in respect of lay-offs and short-time working. It is also the right legislation in which to put protections in respect of the right to representation and in which to include - and copper-fasten - protections on collective bargaining.That is all too often left aside and, as a result of it, we see workers in particular sectors remaining prone to low pay and precarious conditions such as the involuntary short-time and temporary working practices to which I referred. This is the type of problem we are seeking to address in our recommendation. It is a principle that is worth supporting even if the Minister of State quibbles, as he may well do, with the mechanism we propose to put in place to address it. We had similar issues in regard to the gender pay gap legislation, for example, but we have always been happy to amend the way in which we are seeking to address a problem, once we see it is being taken seriously and addressed by Government. That is the spirit in which I propose the recommendation.
I understand the principle behind the recommendation and the spirit in which it is proposed. I have outlined the particular difficulties we have in asking Revenue to get into dealing with employment law. The Senator correctly noted that there is already provision in the legislation to address a situation where an employer might let somebody go and then hire two new people. She is correct that this does impact on employment law. One of the reasons we included it was to ensure there was no abuse of this legislation. Without it, I would have been very fearful that some scrupulous employer might have laid off a well-paid employee and then taken on two people on lower wages, thereby getting double the subsidy. Even though we did cross over into employment law with this provision, it was to ensure there was no abuse of the system by unscrupulous employers. We felt it was necessary to include this measure to protect the integrity of the scheme. That is the only reason we included it. The broader issue is not specific to the Revenue Commissioners.
As an employer in one of the sectors that has been referred to, I can understand the sentiment being expressed. However, we are in a crisis and we need to respond to that crisis very quickly. Trying to enter into collective bargaining before one would qualify for the wage subsidy scheme could put businesses at risk. It is not by our choice that people in my industry offer part-time and short-term working conditions. That is the way the industry is. We simply cannot afford to have full-time workers on a permanent basis because the business is not there. It is wrong to say that workers have no rights in the workplace.
Workers' rights are protected in primary legislation and every employer must comply with that legislation. It is not true, therefore, that workers have no rights in the workplace. In all my time as an employer, I have tried to do the best by my employees. I used the joint labour committee, JLC, arrangements for numerous years, until the collapse of those arrangements. I actually found it quite useful for hotels outside Dublin to use the JLC process. However, there is now primary legislation protecting employees' rights. It is wrong to say that there is no such protection in place.
I accept Senator Casey's bona fides and I have no doubt that he is a good employer. I am delighted that he acknowledges the value of the JLC system when it was in place. To be clear, I never said that workers do not have any rights. I noted something that is factually correct, namely, that this State is one of only two countries in Europe which do not have collective bargaining rights. In other words, I am pointing out that an employer can legally refuse to recognise that his or her employees are members of a union and legally refuse to deal with that union. This is a fact and it is something that the trade union movement along with Sinn Féin, the Labour Party and others have been trying to address and correct for years.
Unfortunately, whether it is Fianna Fáil or Fine Gael in government, the change we have been seeking has not been delivered. That is a fact. We do not have collective bargaining rights in this State. They were introduced in the Six Counties but we do not have them here. By the way, the world did not collapse in the Six Counties because workers have a statutory right to collective bargaining. Just as Senator Casey testifies to being a good employer, which I accept, I can testify that whenever trade unions try to organise workers, whether in meat factories, nursing homes or catering firms-----