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Protection of Employees (Temporary Agency Work) Bill 2011: Second Stage (Resumed)

Thursday, 19 January 2012

Dáil Éireann Debate
Vol. 752 No. 2

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Question again proposed: “That the Bill be now read a Second Time.”

Deputy Patrick Nulty: Information on Patrick Nulty Zoom on Patrick Nulty I am delighted to continue the debate on this very important Bill and to put forward some ideas. One of the things I noticed both in the debate around this legislation and yesterday in the discussion around the Industrial Relations (Amendment) Bill was the very lukewarm response it has received from some elements within Fianna Fáil and Fine Gael, although there have been positive comments. In particular, I want to take up one point made yesterday, I believe, by Deputy Harris — the record will correct me if I am wrong — when he described trade unions as a vested interest. Trade unions are not a vested interest. They are the expression of workers coming together to organise in their workplace to secure decent pay, conditions and safety at work. They are the most clear example of civil society coming together to protect their interests within the workplace. They are not a vested interest; they are an essential part of our democracy and an essential element of the labour movement, of which I am a member. That must be put on the record.

The lukewarm response from some elements within the conservative parties in this House shows a failure to recognise that the economic model pursued in this country over the past decade has failed — by that, I mean the completely deregulated markets, privatisation and the approach to taxation which focuses entirely on property based developments and property tax breaks. We need to move away from that model and towards a model which focuses on strong regulation, decent pay at work, good parental leave and other supports for workers, and on giving employees a strong input into their workplace through co-operatives and positions on boards of directors and so on. That is the correct way to go. In Scandinavian countries like Finland and Denmark as well as in Germany, there are movements towards this. We must recognise that if we want a productive workforce we need one that is secure and able to plan for the future and contribute to their place of employment.

The improved measures for agency workers contained in the Bill are a tremendous credit to the work of what I would say is the broad European left. In that context, it is important to remember the work of our outgoing member of the European Parliament for Dublin, Mr. Proinsias De Rossa MEP, whom I hope everyone in the House will acknowledge has been an outstanding parliamentarian over many years both in this House and also within the European Parliament. He strived to see this agency workers legislation being enacted in Europe but he also led the campaign here in Ireland to have the legislation brought into Irish law when the Fianna Fáil Government at the time was very reticent about doing so. I wish him well in his retirement. He has been an outstanding advocate for working people over many years.

The Bill is a response to the changes taking place within the workplace, not just in Ireland but more broadly, and that reflects its European dimension. There are some 35,000 to 40,000 agency workers in this State, 2,000 of whom work in the health service. While we can have a [243]very different debate about why we have so many agency workers and why, in my view, we need to lift the moratorium on public sector recruitment to allow us to hire front line staff, at the least where we do have agency workers in employment we have to ensure they get appropriate pay and conditions and are protected under the legislation. This is why I am supporting the Bill, although, in the broader context, I raise the issue of the need for more secure employment.

The Bill ensures that agency workers will be treated the same as contract and permanent workers. I welcome the fact there are no derogations in respect of the qualifying period in terms of the provision of equal pay. While this has been criticised by IBEC, it is wrong on this issue. It is absolutely correct that the Minister has held his ground in this respect and the analysis of Deputies on the Government and Opposition benches who objected to this derogation not being in place is not correct. This legislation should hit the ground running.

Somewhat misleading comparisons to pay in the UK emerged during yesterday’s debate. In the UK agency workers may find themselves on inferior pay and conditions for up to 12 weeks. I am glad Ireland is taking a step forward in that regard and that, although we do this in many other respects, we are not allowing ourselves to get caught up in a race to the bottom which suggests that what one has to do to get economic growth and investment is to drive down the pay and conditions of workers.

What is happening in the global economy at present is that there is a shift from manufacturing from European economies towards developing economies. However, the large manufacturing industries and companies will encounter a huge problem if that continues because workers in developed economies, because of the credit crunch and because access to credit cards and easy capital has been shut down, will find it harder to purchase the products that are being produced. Their purchasing power is being diminished all the time within the global economy, which will eventually have a huge impact on that economy because people simply cannot buy the goods that are being produced. Companies need to take a mature approach and recognise that short-term profits, often based on the exploitation of workers in other parts of the world, are not a sustainable model and not a desired way to develop and grow a business.

It is one of the great ironies and unfortunate aspects of neoliberal, right wing economics that its exponents seem to fail to understand how their own economic model works and that one can produce as much as one wants of a product, but if there are not people to buy it, one will inevitably be caught in a spiral of economic downturn. That is a huge challenge for the global economy. I am glad we are not getting tied up in that and that we are protecting agency workers.

It is also important to remember that having this in legislation recognises the fact it is particularly difficult to organise agency workers within trade unions, which is why we need a legislative base to protect them. Where there are agency workers, due to the seasonal and temporary nature of that work it can be very difficult to integrate people into the workplace. Having this strong protective legislative base for agency workers ameliorates that.

There are some 340 employment agencies in Ireland at present. There is a need for the Department of Jobs, Enterprise and Innovation to co-operate with other State agencies and the trade unions to conduct research on the implementation of this Bill and to make sure it is implemented fully and correctly. We remember the case of Irish Ferries and there have been other examples where people were not getting what they were entitled to. We need strong regulatory protocols in place when this Bill passes to ensure agency workers get what they deserve and need.

Given the nature of agency work, it can be difficult for people who are not getting their entitlements to speak out and speak up because they are not organised and are often in a very [244]transient position in regard to their own careers and the labour market. We need the law to be an asset to those people and to ensure the regulations are in place and are being delivered on properly. There is no future for this country as a low wage economy. We need to ensure the jobs we are attracting are secure, permanent, regulated and give added value. That is how we will get out of the economic recession.

With regard to employment policy over many decades, in some ways it could be said the Celtic tiger period was an anomaly because of the temporary boom in construction work. What we have seen all along in employment policy, from the Telesis report to the Culliton report and others, is the failure to provide secure jobs, particularly for people in urban areas such as Cork and Dublin. When it comes to attracting investment, those areas have often been let down. We need to ensure that protections are in place and educational opportunities are provided to people so that we can attract high-tech secure jobs that are based on the knowledge economy, about which the Minister of State has spoken. That is why it is important that we continue to invest in education. If we do not do that and do not protect our most vulnerable young people by ensuring that access to third level education is maintained and there is no glass ceiling, the regulations we are putting in place in regard to employment will not be matched by opportunities provided in terms of education. We must take a holistic approach to employment and education policy and I hope we do that in the future.

I am glad to see that strong supports for agency work are being put in place. I also want to see this being tied to the restoration of the JLC legislation, on which debate began yesterday. It is a moderate piece of legislation. I would have preferred to see Sunday premiums being protected in the Bill. We need to see that the commitment in the programme for Government to legislate for collective bargaining rights is brought before this House. I have not seen it in the legislation programme for this session. I remind the Minister of State and the Government of the commitment within the programme for Government to legislate for collective bargaining rights. I put it to the Minister of State that we need such a package of measures. I wonder when that legislation will be introduced. Perhaps these comments can be taken on board and we can be given some indication as to when we can see that legislation.

We need a competitive economy, innovation and investment, and we need to attract and create jobs locally. However, to do that, we need a workforce that is protected, able to plan for the future and able to buy the products being produced. Workers can do so if they can demand fair pay, decent conditions and equal rights at work. This legislation is a small step forward in that respect.

An Ceann Comhairle: Information on Seán Barrett Zoom on Seán Barrett I call on Deputy Dara Murphy, who is sharing time with Deputies Paudie Coffey and Paul Connaughton. He has ten minutes and they have five each. Is that correct?

Deputy Dara Murphy: Information on Dara Murphy Zoom on Dara Murphy It is not fair having to share.

An Ceann Comhairle: Information on Seán Barrett Zoom on Seán Barrett I am only reading out what I have in front of me.

Deputy Dara Murphy: Information on Dara Murphy Zoom on Dara Murphy That is fine. I welcome the opportunity to speak on this very important Bill.

The EU directive on temporary agency workers, which was adopted almost four years ago, has as its objective the protection of such workers. It is important to note that they represent 2% of the workforce in our country, some 35,000 workers, which, by any definition, is a significant number of people. It is correct to say they have not been properly organised due to the large number, up to 400, of different employment agencies in the country. This legislation goes [245]a long way, therefore, towards assisting a group that, to date, has not had the potential or the opportunity to organise. In effect, this legislation will apply the same basic working and employment conditions to temporary and agency workers as apply to other employees in the same businesses.

The transposition date of 5 December for the directive means that the new rules will apply since that date, assuming the enactment of the Bill we are debating today. As defined in section 2, the basic working and employment conditions cover the areas of pay, duration of working time, rest periods and breaks, night work, annual leave and public holidays. It is an extensive and exhaustive list of categories. The people concerned will find they are now on the same terms and conditions as other employees.

In addition to covering those aspects, the Bill is in line with the European directive requirements. It includes other working and employment conditions to which agency workers will have an entitlement, in the same way as if they were directly recruited by a hirer. These include basic pay, shift premium, piece rates, overtime premiums and an unsocial hours premium. It also includes a Sunday premium where a Sunday is worked and a premium is normally paid to agency workers — in other words, not by exception.

There has been some discussion. Sometimes it seems a Minister may have achieved his objective when there is criticism from both unions and employers. In this instance, the social partnership model has not managed to achieve agreement. That model has served us in a mixed fashion throughout the country. There was a time when social partnership allowed for a national spirit of togetherness and an acceptance of where we are as a people. If social partnership is to continue, not only in a meaningful fashion but at all, there must be a broader acceptance on both sides that if they take trenchant and polarised views they will effectively be marginalised.

When John Bruton was Taoiseach I had the pleasure of serving on the National Economic and Social Council, which at the time was involved in the PESP, PCWs and other competitive agreements. The initial period of social partnership served the country exceptionally well but partnership evolved into a group of people who came to know each other quite well, perhaps personally as well. Put simply, the objective in later years of the partnership meetings was that everybody could walk out of the room with something in their pockets. The reality now is that we are living in completely different times. Everybody involved in partnership should perhaps return to the original concept, namely, that everybody may have to take a little bit out of their pockets to allow something to remain there. There is a great future for partnership when both groups can come together. I compliment the Minister of State on having the decisiveness to drive ahead with this important legislation.

There has been much comment about our competitiveness, with some sections suggesting that it may be undermined by this legislation. There are important points to address in that regard. In the first instance, most of our trade and our competition takes place with our European partners who are bound by the very same legislation. Therefore, the argument on competitiveness does not really apply with respect to our dealings with the intra-EU sector. It is also important to note there have been very significant and rapid reductions in the cost of doing business in this country, and in comparison with our European partners. We often talk about countries such as Britain, or others in Europe and the rest of the world in terms of their potential to buy our goods and products but they are also competing with us in how we export within other countries and into the broader world. In the past 12 to 14 months we have seen our competitiveness and the cost of doing business in our country rapidly decline. There can be a simplistic “Workers of the world, unite”, or socialist-Communist view of how the world of economics might apply, in a fairytale world.

[246]The reality is that only having 1% of the European population means Ireland is bound to remain as competitive as it possibly can to continue to attract foreign direct investment. It is a ridiculous argument to suggest, as Deputy Nulty did, that the continued reduction in the cost of doing business in Europe is not the reason we are losing competitiveness to BRIC countries. It must be remembered 30 years ago one quarter of the world’s gross domestic product came from Europe with slightly more than a quarter coming from the United States. That meant half of the engine of the world’s economy came from the two main trading blocs. Europe is now down to 20% of world gross domestic product as the BRIC and other countries grow. Europe’s percentage of the world’s economy is continuing to contract, which is one reason Europe has seen a net deterioration in its balance of payments. It also puts Europe in a difficult position when it comes to the amounts of money flowing into and out of its economy. It is important to note, however, that Europe is in a better position than the United States.

It is crucial this legislation acknowledges the importance of finding people who move from temporary and agency employment into full-time employment. This Bill does not seek to undermine that progression. It is another important step brought by the Government in reducing red tape in industry and business. The House’s previous business, the Veterinary Practice (Amendment) Bill 2011, will reduce the amount of red tape in the agricultural sector. I encourage the Minister of State, Deputy Sherlock, and the Minister for Jobs, Enterprise and Innovation, Deputy Bruton, to continue to reduce the amount of red tape in our business and agricultural sectors as they are another cost businesses have to bear.

Deputy Paudie Coffey: Information on Paudie Coffey Zoom on Paudie Coffey This important debate gives us an opportunity to reflect on the employment needs of a modern society and economy. We have been well-served by existing legislation protecting workers and their conditions and terms. Legislation is already in place to deal with issues such as workers’ leave, work environments and health and safety, pay and work time, safety obligations and access to facilities and canteens. The Protection of Employees (Temporary Agency Work) Bill 2011 will introduce equality for temporary agency workers who work along with permanent colleagues and eliminate exploitation. We often criticise the EU for the many directives with which we have to comply. It must be acknowledged, however, the EU has led the way, setting high standards in areas such as health and safety and workers’ rights which this country has followed. This legislation in the best interests of workers is an example of that.

I am no cheerleader for the unions but I acknowledge their work over the years on workers’ rights, terms and employment conditions. These are important areas in a competitive economy. One need only look at the negative publicity surrounding the terrible working conditions in China’s factories that produce Apple computers and iPhones. We will never experience that in Ireland because of legislation such as this.

The role of the Government must also be acknowledged, as well as its commitment to improving pay for low-paid workers. Already in the short time served by the Government, it has increased the minimum wage and the recent budget raised the universal social charge threshold from €4,000 to €10,000 which will have a positive and direct impact on over 330,000 low-paid workers.

I have, however, some concerns about this legislation, particularly that some social partners have not taken advantage of the derogations provided by it. A modern economy must have competitiveness and flexibility in the workplace so as to win foreign direct investment, which is essential to our economic recovery. November 2011 saw the highest figure for exports ever, €8.2 billion, an increase of 9% on the same period in 2010. Imports at the same time amounted to €3.7 billion resulting in a trade surplus of €4.5 billion. This shows the importance of a small economy such as Ireland’s trading with its international partners. In that period exports in [247]organic chemicals increased by 11%, dairy products by 28% and medical and pharmaceutical products by 8%. This is serious growth in a small economy that must not be sniffed at.

Many companies in these sectors need to have the flexibility to respond to seasonal and peak demands by using temporary agency workers. They budget for this in their business models. Their concern with some of the entitlements this Bill provides for temporary agency workers is that it may force them not to take on the same number of temporary workers in future. Instead, existing permanent workers may just do overtime which has a direct impact on job creation.

The social partners in the UK managed to agree on a derogation whereby temporary workers would have to have 12 weeks’ continuous work before getting the same full-time pay as their permanent colleagues. Those same unions are represented in this country. I urge them and the employers’ agencies to agree on a similar derogation as it will lead to cost effectiveness and assist in attracting further foreign direct investment.

I acknowledge the Minister of State’s work with the universities and colleges in research and innovation. It is an area with great potential which will assist innovation and expand new revenue streams.

Over 200,000 small and medium-sized enterprises employ over 700,000 employees. It is a sector that cannot and will not be ignored by the Government. We must support them in every way possible.

Deputy Paul J. Connaughton: Information on Paul Connaughton Zoom on Paul Connaughton The protection this Bill will give to temporary agency workers to ensure they receive equal treatment in basic working and employment conditions is most welcome. It covers a range of conditions including pay, duration of working time, rest periods, rest breaks, night work, annual leave and public holidays. The Bill’s provisions will affect 2% of the workforce, some 35,000 individuals, as well as their employers. Accordingly, it is imperative that it in no way hinders the effective running of businesses and in the current economic climate, no barriers to employment should be put in the way of business owners or operators.

However, this Bill contains no elements that place an unfair burden on employers. Essentially, agency work is no substitute for whole-time work in any business but it does provide a flexibility in solving a problem for a particular period. It is important those workers are fairly treated.

It is crucial this Bill, which stems from a 2008 European directive on temporary agency workers, is implemented in a common sense manner. How is it intended to communicate these legislative changes, especially to small enterprises around the country? For example, small business owners may not be aware that a temporary agency worker replacing a full-time employee is now entitled to the same pay, duration and annual leave as a full-time employee. In fact, in many businesses ad hoc arrangements have built up over several years between employers and employees in cases where there are only one or two employees, in, for example, basic pay, shift premium, piece rates and the Sunday premium.

Such employers need to be made aware of the legislative changes, whether this be through workshops at a local level or through notifications issuing to small businesses. Equal access to canteen facilities, workplace crèches and transport services are other issues that must be made clear to employers in terms of treating workers equally.

Complaints, liability and redress in the context of these issues are other crucial provisions in this Bill. An agency worker may refer a dispute to an entitlement under the Act to a Rights Commissioner of the Labour Relations Commission for adjudication and a decision of the commissioner can be appealed to the Labour Court for a legally binding determination. The commissioner will then find that the complaint was not well founded, require the employer to [248]take a specified course of action or require the employer to pay the employee compensation of an amount not exceeding two years remuneration. This compensation appears to be very much at the higher end of the scale and I believe that having the upper level of remuneration in such instances at one year would be more than sufficient.

The information exchange provision in section 14 puts further obligations on the hirer in terms of making the new temporary agency worker aware of the basic terms and conditions. The legislation could have the unintended effect of putting obstacles in the way of employers seeking to fill employment vacancies through agency workers and further incentivise black market activity. Proper communication of these new measures is, therefore, essential.

The issue of communication is also pertinent when it comes to the fact that the provisions of the Bill came into effect on 5 December, which may mean that employers are unwittingly breaking the law in the context of these new provisions. The failure of discussions last autumn about instituting a waiting period for the implementation of the legislation is regrettable and means that the provisions take effect from 5 December last, at a time many sectors were experiencing their busiest trading period. The EU directive on temporary agency work took effect across the European Union on that date. It was not open to the Government to determine a course of action in terms of a waiting period. This was a matter for the social partners and the breakdown of those talks has resulted in a situation where there is no lead-in period for the new measures.

Employers, big or small, have nothing to fear from the new measures but effective communication of the changes is key to ensuring both employers and the 35,000 employees affected fully understand the measures contained in this Bill.

Deputy Seamus Healy: Information on Seamus Healy Zoom on Seamus Healy I am grateful for the opportunity to contribute to the debate. Agency work is a form of casualisation of employment and it has been used traditionally as a method to undermine wages and conditions of employment for full-time and permanent employees. My preference would be for agency work to be outlawed and normal employment practices and procedures to be used. However, we have what we have and, in the circumstances, we have to ensure proper protection of workers. In that respect I welcome the Bill as a small step in the right direction. It will require significant amendment during the legislative process, particularly on Committee Stage.

  12 o’clock

The Bill will affect between 30,000 and 40,000 agency workers. The health service, for example, employs more than 2,000 of these workers. While the legislation is welcome, it needs to be amended and strengthened and I look forward to Committee Stage when the United Left Alliance will table various amendments. I welcome the fact that the Government and the Minister abandoned previous attempts to secure a derogation from the directive. Comments by various employer organisations opposed to the legislation have been unhelpful. It is shameful that groups such as Chambers Ireland and IBEC believe that even the minimal protections provided for in the legislation should not be available to workers. The protection of employees is an important issue, which has been highlighted in recent high profile cases such as Vita Cortex and La Senza. While they did involve agency workers, they highlight that the protection of workers’ rights and entitlements is paramount and must be pursued vigorously.

Agency workers are currently used to undermine the wages and conditions of full-time and permanent employees, particularly in the health service, and this raises the question of the need for the recruitment moratorium to be lifted urgently. The effect of the moratorium and significant reductions in budgets, including €750 million in the recent budget, means the service provided by the HSE has been significantly reduced and will result in the closure of hospital [249]beds, 550 beds in public nursing homes, 500,000 home help hours and a decrease of 23,500 in the number of day cases. Agency workers are used by the HSE and, therefore, the moratorium should be lifted and full-time employees recruited to fill vacancies that have arisen. The cost of agency workers is greater than the cost of employing full-time workers and replacing workers in the normal fashion.

I welcome the protections in the legislation for core pay, workplace facilities, transport, crèches and so on but significant exemptions need to be addressed and amended in regard to sick pay, pensions, benefits in kind, bonuses and so on. The use of comparators in the legislation are vague and they differ from the concept in equality legislation. Why are the same methods not provided for in this Bill? Equality legislation provides for three definitions of comparators and to make a case, one requires a comparison under one definition but, under this legislation, one must make a comparison under all three definitions. Effectively, that would undermine the legislation. Of course, IBEC has highlighted this issue already and has indicated that this is an area which it will advise employers to use as a loophole in this legislation. This is an area which will need to be amended in the course of the legislative process.

Sick pay is an area that needs to be addressed. Whether a person is working a day, a week, two weeks or ten weeks, he or she can become ill. I believe these workers should have an entitlement to the normal sick pay.

Bonuses are also exempt in this legislation. Bonuses have got a bad name in recent times. When one mentions bonuses, one thinks of the significant bonuses payable to senior civil servants, senior local authority officials and senior bankers, which have been a complete rip-off of the country over the past number of years. However, there are significant bonus schemes available as part of the employment pay and conditions of shop-floor workers and workers generally. There may be a Christmas bonus or there may be piece-work bonuses. This is an area in which this legislation is deficient. I believe that bonuses should come under the remit of the legislation.

Maternity leave is an area that needs to be looked at because many of the agency workers are women. It is not clear, at least to me, how the legislation affects maternity leave and top-up maternity pay. There is also the question of a derogation from the legislation in respect of workers who have a form of payment between employments. That would need to be addressed as well. Those are some of the areas that need to be seriously and significantly addressed by way of amendment in this legislative process.

The final area on which I want to touch is enforcement. This is an area that applies to this legislation, but it is a general point on all legislation. Enforcement is crucial to workers getting their entitlement under any legislation. There are a number of different agencies dealing in this area, inclduing the Labour Court, the Labour Relations Commission and the NERA. Unfortunately, the Labour Relations Commission and the Labour Court are inundated with problem cases and there are considerable delays in that regard. Justice delayed is justice denied. Additional resources must be made available to ensure the enforcement of this legislation.

The NERA’s most recent report, published in the middle of last year, indicates that it carried out approximately 2,300 inspections in the year previously. That was a reduction on the number of inspections the previous year, when there were approximately 3,000 inspections.

It is notable that the NERA found breaches in many of the areas covered by this legislation. In agriculture, the compliance rate was 42%, in catering 26%, in retail 28% and in hotels26%. The general compliance rate was barely over 50%. I understand that there has been an increase in the number of inspectors in this area but it is increase from approximately 30 to perhaps 45. That level of resource is not adequate to deal with not only this legislation but the general body of legislation affecting workers’ rights and entitlements.

[250]While I welcome the legislation and the confirmation and protection that it grants to agency workers on core pay and some workplace facilities, there are a number of other areas, particularly those that I have outlined, that require significant improvement and amendment during the course of the progress of this legislation through the House.

An Leas-Cheann Comhairle: Information on Michael Kitt Zoom on Michael Kitt I call Deputy Corcoran Kennedy who, I understand, is sharing time with Deputy O’Donovan.

Deputy Marcella Corcoran Kennedy: Information on Marcella Corcoran Kennedy Zoom on Marcella Corcoran Kennedy I welcome the opportunity to speak on this Bill, which is long overdue. As in much of our equality legislation, it is as a result of an EU directive. It has been well documented that agency workers are typically paid less than directly employed colleagues and possibly taken advantage of in other ways.

Protections already exist for agency workers in the areas of health and safety, payment of wages and unfair dismissals. However, that does not mean that they have a guaranteed right to equal treatment on a par with the directly employed workforce. We must provide for equal treatment of workers under the relevant EU directive.

Equal treatment of workers extends to the basic working and employment conditions, which are provided for workers here and which have been well covered already by previous speakers. These include basic pay, overtime premium, work time, rest periods, access to amenities etc. I will not repeat them all here.

I understand that agency workers are an important element of the economy giving employers flexibility when they need it. However, this should not override our responsibility to protect temporary agency workers from exploitation. Considering that the figure of temporary agency workers varies between 35,000 and 42,000 depending on to whom one listens and that there are 340 employment agencies in Ireland, there is clearly money to be made in this sector. It is the worker who is the link between the agency and the hirer. It is a symbiotic relationship. I believe the worker is not merely a cog in the wheel of the economy but the oil that makes the wheels of the economy turn.

I have received representations from persons doing agency work who felt that they were being treated unfairly by not receiving the same remuneration as the person sitting beside them while performing exactly the same job, simply because they were agency staff. This inequity can lead to discontent and contribute to poor outcomes in the workplace. The other extreme was the dispute at Irish Ferries in 2005, where the company threatened to replace directly employed seafarers with low paid non-Irish national agency workers who I understand were eastern Europeans and who were paid less than the Irish minimum wage.

I particularly welcome the whistle-blowing provisions in sections 20 to 22, inclusive. There is not a tradition of whistle-blowing in this country but it is welcome that workers will have recourse to dispute resolution mechanisms if an employer penalises them for highlighting wrongdoing in the workplace.

I have a concern around the occupational pensions issue and I would hope the Minister could reconsider this. This particularly affects women as many of the agency workers are women, many of whom return to the workplace following child-rearing years via agency work. They would have had no opportunity during child-rearing to pay into a pension and this would be an opportunity for them to do so. I hope the Minister will reconsider this. Many temporary agency workers would be glad to pay into an occupational pension fund.

There has been some negative comment from employers and their representative organisations on the Bill but I see no reason Ireland should be any different from the majority of [251]other European countries in our response to the EU directive. Our responsibility to workers, be they Irish or not, should ensure that they are all treated equally.

Deputy Patrick O’Donovan: Information on Patrick O'Donovan Zoom on Patrick O'Donovan This is a first, for me anyway. It is the first time that I have spoken in the Dáil where there is not a single person on the Opposition benches. On Friday last, there were Members complaining that the cost of running the Dáil was €90,000 a day and stating that it was a charade, and here we have a situation on a regular Thursday morning where there is not a single Front Bench spokesperson from the Opposition present for such important legislation. That says much about what the Opposition thinks about it.

I agree with Deputy Corcoran Kennedy that much of the equality legislation enacted in Ireland comes from the EU. We have often been dragged kicking and screaming into change. This Bill demonstrates the subtle difference between a directive and a regulation. Deputy Coffey spoke about how the directive was implemented differently in the UK and Ireland. We have come through a period when social partnership was the be all and end all but we found afterwards that it was a contributing factor to the erosion of our competitiveness. The UK has an important derogation under the directive for the first 12 weeks of employment but we do not have the same advantage.

Deputy Healy lashed out at employers before he left the Chamber but without employers there is no employment. Only in Cuba does everybody work for the State but I am sure the Deputy does not advocate that a cigar rolling industry be established in Ireland. Two relationships should be borne in mind, that between the State and the employer and that between the State and the employee. There is a risk that employers will be run down or described as a dirty group of people but our position would be much worse without them. A previous speaker noted that 200,000 small and medium enterprises operate in Ireland. If each of these enterprises hired an additional two people we would have no unemployment. If they took on one person the unemployment rate would be reduced by half overnight. The days are gone when 100 jobs fall off the back of an aeroplane in Shannon Airport. Foreign direct investment is coming into Ireland at a much slower rate than heretofore. If we are going to get out of this economic mire, we will need to rely on small and medium enterprises.

I understand the reasons for this legislation in terms of equality of opportunity and other issues but we should not forget that employers are festooned with inspectors of one ilk or another. As a representative of a rural constituency, I have seen the implication of inspectors for the farming sector. We do not need more layers of inspection when it comes to the regulation of employment. I worry this Bill will become another stick with which to beat employers.

Deputy Corcoran Kennedy is correct on the issue of exploitation. The reintroduction of a basic minimum wage and the Government’s decision to exempt a large cohort from the universal social charge are examples of our commitment to those on low and middle incomes and demonstrate that we are serious about getting people back to work. However, we have to engage with employers because they are facing major increases in costs, whether in duties, charges or regulations.

The trade union movement can also play an important role but the days are gone when we can sit around the table in Government Buildings to carve up the cake where the first to get in the trough gets the most. Social partnership has to be reinvented and we will have to do more with less.

I see the benefit of this Bill in terms of dealing with the undeniable danger of exploitation. I agree with Deputy Healy on the issues he raised in respect of the moratorium in the HSE. Leaving aside the pension entitlements and long-term benefits that accrue to permanent staff, the costs associated with agency nurses are much higher than with nurses actually employed [252]by the HSE. However, there are major anomalies in the way the hourly rate is divided between the agency nurse and the agent. The same applies in respect of home care packages. This issue will have to be investigated because people are doing a day’s work and the middleman is taking a fair skelp out of their wages. The legislation brings these individuals into focus.

As someone who worked in the area of health and safety for a considerable length of time, I recognise that we have made huge strides on health and safety regulations protecting employees, whether permanent or agency. However, we did so only because we were dragged kicking and screaming by the EU. What some of the Members opposite will not have to say about the European Union between now and the intergovernmental conference will not be worth hearing. They will never admit that an EU directive or regulation may be worth implementing. They are also notable by their absence from this debate.

Over the coming months we will hear a litany about what the bold and mean EU is trying to do to the country. The reality is that we would not be able to keep the doors of the country open without the EU. We would not be able to pay the agency nurses to which Deputy Healy referred or any nurses or teachers. A dangerous tendency to blame the EU for everything is sneaking into Ireland. Euroscepticism has been brewing for the past several years. That is a dangerous development which needs to be carefully considered by all Departments.

I wish to raise the issue of competitiveness and the BRIC countries — Brazil, Russia, India and China — with the Minister of State at the Department of Jobs, Enterprise and Innovation, Deputy Sherlock. How many schools in Ireland offer Portuguese, Chinese or Russian classes? In how many universities can one study for a degree in far eastern economics and Portuguese? I doubt any college in the country offers courses directed at the new and emerging economies. If we are to be competitive as a small open economy, we need to look at different models. At the end of the day, is a second level student better served by studying Russian instead of French given that Russia is one of the main emerging markets for Irish products?

As I noted previously, without employers there will be no employment. We need to be vigilant in this regard. I accept nobody likes change or having to deal with additional regulations. This legislation is important in terms of equality of opportunity and treating people as equals but a dangerous attitude is sneaking in that regards employers as a sort of mobile ATM which can fork out money to the State and everybody else. Employers do not have a bottomless pit of money and we need to engage with them with a view to taking 200,000 people off the live register by creating one additional job in every SME during the lifetime of this Government. While I commend the Bill to the House I look forward to discussing amendments on Committee Stage because we are being put at a disadvantage compared to our closest geographical neighbour and largest trading partner.

Minister of State at the Department of Jobs, Enterprise and Innovation (Deputy Sean Sherlock): Information on Sean Sherlock Zoom on Sean Sherlock I thank the Deputies for their considered and valuable contributions to the debate. I will start by providing clarification on the last point made, on the assumption that the Deputy may be leaving the Chamber.

Deputy Patrick O’Donovan: Information on Patrick O'Donovan Zoom on Patrick O'Donovan No, I will wait. This will be a good one.

Deputy Sean Sherlock: Information on Sean Sherlock Zoom on Sean Sherlock Students can study Russian on the leaving certificate curriculum. There are a number of Confucius Institutes throughout the State where Chinese languages may be learned, as well as at University College Cork and quite a number of secondary schools. As to Portuguese, I may revert to the Deputy on that one. I note the point he is making; we are conscious of that.

[253]In his introductory speech, the Minister set out the rationale for the proposed Protection of Employees (Temporary Agency Work) Bill 2011, which is necessary to meet our obligation to transpose the EU directive on temporary and agency workers. In the contributions by Deputies on the Bill, it has been evident that there is, in general, an overall welcome for the Bill in this House, with most Deputies expressing their support in recognition of the fact that it is a fair and balanced measure to improve the level of protection for agency workers under employment law. While Deputies have indicated broad support for the thrust of the Bill, I note the intention on the part of a number of Deputies to table amendments on Committee Stage in order to achieve greater clarity in some aspects of the Bill.

In several interventions on the Bill, there has been a strong emphasis on the need for balance in the manner in which the EU directive is transposed, so that the necessary protections for agency workers do not act as a deterrent to our ability to sustain existing jobs and increase employment. Given the current challenges that face the Government in the domestic labour market and the economy generally, the Bill has been drafted with a view to achieving this necessary balance. It provides that agency workers are afforded equal treatment, in respect of their basic working and employment conditions, with directly recruited employees who occupy the same job. This marks a further important step forward in workers’ rights and builds on the already considerable baseline of rights afforded to agency workers in this country who are protected under the existing suite of employment legislation.

The Government is fully committed to decent standards of employment across the spectrum of work. It is clear that agency workers have, on an incremental basis, been brought within the scope of employment rights legislation over many years, including legislation on the payment of wages and unfair dismissals. In addition, agency workers in Ireland, unlike in some other jurisdictions, also enjoy entitlements under redundancy payment legislation. In terms of minimum standards of pay, temporary agency workers are already covered in legislation governing the national minimum wage; as Deputies will be aware, the Government has, true to the commitment given in the pre-election period last year, reversed the reduction in the minimum wage rate. This Bill therefore builds on existing standards of protection that are conferred on agency workers and reflects the Government’s willingness to fully support the principle of fairer treatment for agency workers.

The Government must have regard to other equally valid concerns that have been expressed about the need to create a positive environment for businesses to grow and develop. A number of Deputies referred to the importance of agency workers in the multinational sector as well as in the domestic economy. A fully functioning labour market that contributes to the retention of jobs, and indeed future growth, is important in these challenging times. We must maintain labour market flexibility in all areas, including the area of agency work, which provides flexibility for workers and employers alike.

Deputies raised a number of issues during the course of the debate. With regard to the failure of the national social partners to reach agreement on a qualifying period before equal treatment would apply, this is, as the Minister outlined in his introductory speech on the Bill, a matter of regret, as it would at least mean that recruitment agencies that operate both north and south of the Border would be operating under similar arrangements in both jurisdictions to allow an all-of-Ireland approach. While there is still time for the national social partners to negotiate agreement on this issue should the basis for such an agreement become apparent before the deliberations of the Oireachtas on this Bill are complete and the Bill is enacted, the basis for such agreement is not currently in evidence and, as Deputies will be aware, the Legislature cannot unilaterally provide for this derogation.

[254]The legislation is, with the exception of the offence provisions, being made retrospective to 5 December 2011 — that is, the date of transposition of the directive. This is because the State is obligated by virtue of its EU commitments under the treaties to have the transposing measure in place as and from the transposition date, and the advice available to the Government indicates that this course of action is required. I appreciate the difficulties associated with retrospective application, and that is why, in the interest of providing the greatest possible level of clarity to all parties affected by this legislation, my Department moved quickly, following the breakdown of negotiations on the qualifying period with the national social partners on 30 November 2011, to communicate with the various stakeholders. Advertisements were taken out in the national newspapers and the Department produced a guidance document and placed it on its website to cover the issues of greatest interest to all parties.

A number of Deputies referred to the importance of agency working in the multinational and domestic sector and pointed out that, contrary to common perception, agency workers are in some instances very well remunerated. It is important to note that the directive and this Bill aim to provide a new minimum floor of basic entitlements and pay. For this reason, there is no intention to include other elements that are not required by the directive, such as pensions, sick pay, maternity top-up and benefits-in-kind. The latter are discretionary elements that are not, in the words of the directive, binding and generally applicable. Given the current economic circumstances, now is not the time to try to provide gilt-edged conditions of employment when the creation of employment on a fair and equitable basis is what is required.

Under this Bill, agency workers are entitled to be treated, in their basic working and employment conditions, including pay, as if they were directly recruited by the hiring organisation to occupy the same job. I am conscious that a number of interventions have focused on the need for a comparator in this situation, and have referred to the tests under section 2 of the Bill in which any such comparable employee might be identified. I am conscious that the Bill needs to be as clear as possible to ensure delivery of the fundamental principle enshrined in Article 5.1 of the directive. In this regard, it is not necessary for the purposes of this legislation and the entitlement of agency workers to equal treatment to have a real — what might be termed flesh-and-blood — comparator; section 6 of the Bill provides for this. Of course, where there is such a comparator, that makes it easier to establish that equal treatment applies, and this is provided for in section 6(1)(a) of the Bill. Where there is no such comparator, section 6(2)(b) effectively places the onus of responsibility on the hirer to notify the employment agency of the relevant terms and conditions, including pay rates, that would apply if a comparable employee were to be hired by the hirer.

A number of Deputies referred to the fact that the outworking of the legislation gives rise to intricate and complex issues at an operational level. For this reason, they considered that the Bill would benefit from further clarification in some instances. In legislation of this nature, which is designed to embrace the main principles and policies at issue, it is difficult to encompass all of the outworking of the legislation that follows on from the Bill. While I agree that the Bill will need to be perfected in certain aspects to provide some necessary clarifications — in that context, it is intended to table some amendments on Committee Stage — many of the issues raised by Deputies will be clarified by the development of further guidance. It has been the practice of the Department in introducing new employment legislation to prepare a guidance publication that is better geared to deal in greater depth with the detail required, and that is also the intention in this instance.

Finally, there was some discussion about section 7 of the Bill. Deputy Boyd Barrett, in particular, had concerns about this section in case it was intended as some type of escape hatch from the provisions of the Bill. It is important to clarify that this is not the intention behind [255]section 7, which is a provision that is welcomed by all stakeholders in that it will recognise existing collective arrangements in place such as under registered employment agreements in some sectors. It will also allow for the conclusion, in the future, of collective arrangements at workplace or sectoral level and provides a mechanism for the registration, subject to approval, of these agreements by the Labour Court. This type of flexibility in the labour market is very much welcomed by all parties that have an interest in this legislation.

As I mentioned earlier, it is intended to bring forward a number of amendments on Committee Stage with a view to clarifying certain aspects that have been already mentioned. I thank the Deputies for their considered interventions on this important Bill.

Question put and agreed to.


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