Wednesday, 13 March 1991
Dáil Éireann Debate
An Ceann Comhairle: As Deputy Rabbitte has already mentioned, a number of amendments have been ruled out of order. In anticipation of a query from Deputy Rabbitte and the other Deputies concerned, I will explain why these amendments have been ruled out of order.
The Worker Protection (Regular Part-Time Employees) Bill, 1990, extends to certain part-time employees the benefits currently conferred on ordinary  employees by various enactments, including benefits payable from the social insurance and redundancy payments funds. By seeking to extend these benefits to other types of part-time employees, the Deputies' amendments thus potentially impose additional charges on the Revenue. That should be clear to all concerned. That is the position.
Mr. Rabbitte: I find it difficult to fully appreciate the import of your statement having regard to the fact that the purpose of the Bill is to afford the protection of various pieces of labour legislation to part-time workers. In fact, one of the greatest problems we are confronted with in the Bill is the prospect of employers stepping outside the new Act in terms of avoiding its provisions in regard to part-time workers. The amendments which have been adjudged to be out of order merely seek to ensure that those for whom the benefits of the Act were intended receive those benefits. Obviously, it is anticipated in the legislation that there will be a charge on the Exchequer in precisely the manner you suggest but it seems to contravene the very spirit of the legislation.
An Ceann Comhairle: Unfortunately, Deputy Rabbitte, the Standing Orders of our House stipulate that in the event of additional charges being imposed on the Revenue, these amendments must be ruled out of order.
Mr. Shatter: It seems the amendments tabled in my name and some of those in Deputy Rabbitte's name go to the heart of ensuring that this legislation works. I would draw your attention, Sir, to the fact that the legislation is designed to provide protection to workers who are expected to work for eight hours or more. The most substantial amendment which was ruled out of order is designed to ensure that employers do not seek to put themselves outside the legislation by, for example, employing someone one week for six hours and the next week for ten hours, in other words varying the hours  each week. The amendment I tabled is to ensure that, where a worker is in continuous employment for 13 weeks and works for an average of eight hours per week in each of those weeks, that worker will get the protection intended by the Bill. As the Bill is currently drafted employers who do not wish to provide protections have an easy mechanism to be permanently outside the Bill by employing part-time workers for different hours on a week to week basis. That would mean a coach and four could be driven through the Bill.
The amendment imposes a charge on the Exchequer. It is my understanding that it is the intention of the Minister for Labour to ensure that people who are in continuous employment and work on average eight hours per week will get protection under the Bill, but that protection is not in the Bill as it is currently drafted. It seems that prior to this amendment being ruled out of order on the basis that it imposes a charge on the Exchequer, we should hear the Minister's view as to whether it was his intention — this may be a drafting error — that if someone worked on average eight hours per week for 13 weeks they would be excluded from the protections provided in the Bill because their hours varied from week to week and on occasion fell below the eight hours.
An Ceann Comhairle: May I help the Deputies by saying that the Chair has clearly and unambiguously ruled that while the amendments referred to seek to extend benefits to these part-time employees they clearly involve potential charges on the Revenue. However there is nothing to prevent Members from discussing these aspects of the matter as we go through the Bill, as indeed Deputy Shatter has just done. You may advert to that fact and hear the view of the appropriate Minister, but the fact remains, Deputies, that your amendments are out of order. In accordance with the normal practice, precedent and rules of the House, and on the best advice of my office, I am quite satisfied that the amendments in question are out of order  for the reasons I have stated. However, they can be discussed as we go along. We must start on amendment No. 5 in the name of the Minister. There is nothing to stop Deputies from expressing their feelings on this matter as regards the extension of benefits to these part-time workers and the implications thereof.
Mr. T. O'Sullivan: I regret very much that you felt compelled to make this decision. Nine of my amendments have been ruled out of order, and this does not help the Bill in any way. While everybody in the House agreed in principle to the Bill on Second Stage, despite remarks from some of the Government backbenchers some reservations were expressed. It is in an effort to strengthen the Bill that we put forward these amendments. You are now asking us to go through an exercise whereby we can refer to the amendments, but at the end of the day that is no good. It is totally against the spirit of the discussions to date. The introduction of this Bill was a very fruitful exercise and everybody was in favour of it.
What I am concerned about is that the amendments involve a potential charge on the Exchequer. That does not specifically say there will be a charge on the Exchequer. The people we are trying to include in this Bill are people who would make an insurance contribution. Therefore there would be no liability; they would be contributors. What we are trying to do is widen the net to bring in people who are making no contribution at present. I realise the Minister cannot overrule your decision, a Cheann Comhairle, but this matter should be considered again. It will be a rather futile exercise if many amendments are ruled out of order.
An Ceann Comhairle: I suggest we get the matter in order, especially having regard to the fact that there is a rather rigid time limit on the business before us this morning. We should proceed to amendment No. 5 in the name of the Minister.
Mr. McCartan: I would inquire of you,  Sir, and particularly of the Minister, if it would be in order, by agreement, notwithstanding what is in Standing Orders, to take these amendments for the purposes of discussion and deal with them on that basis.
An Ceann Comhairle: I have said you may discuss them on the relevant sections. We now come to amendment No. 5. Amendment No. 7 is related and I suggest therefore that amendments Nos. 5 and 7 be taken together, by agreement. Is that satisfactory? Agreed.
In page 2, subsection (1), in the definition of “excluding provision”, paragraph (a) (i), lines 25 to 27, to delete “Social Welfare (Employment of Inconsiderable Extent) Regulations, 1979 (S.I. No. 136 of 1979),” and substitute “Social Welfare (Employment of Inconsiderable Extent) Regulations, 1991 (S.I. No. 28 of 1991),”.
This is a technical amendment necessitated by the updating of the social welfare regulations relating to employment of inconsiderable extent. I have made a number of regulations to the Bill since it was before the House in December. We have had the employment of inconsiderable extent regulations of 1991 and there is a number of amendments like these which have to be——
Mr. T. O'Sullivan: On a point of order, I apologise for interrupting the Minister but nine of my amendments have been ruled out of order as have a number of Deputy Shatter's and Deputy Rabbitte's amendments. I am not aware of the amendments in the names of Deputies Shatter and Rabbitte which have been ruled out of order. Would it be possible to call out these amendments as it would help the discussion?
Mr. B. Ahern: I would make a general point in response to the Opposition spokesmen, who have been most helpful in this Bill, as I want to be in this debate. Many of the amendments that have been put down — and I have prepared my brief on the entire range of amendments — seek to grant to part-time workers rights over and above those which full-time workers enjoy under the relevant Acts. I want to make it clear from the outset that in this Bill I am not in the business of trying to amend the main Acts which apply to full-time workers, and that was never my intention.
A number of the amendments that are in order are related. It is the intention in the Bill to provide pro rata benefits to part-time workers. I made that commitment to the House and that is what I have been doing for many months. The mechanism I employed in doing this is to treat in the same way as full-time workers all those part-time workers who have continuous service for not less than 13 weeks and are normally expected to work not less than eight hours a week. I want to say to Deputy Shatter that I was asked about this matter on numerous occasions on Question Time and I made it clear that it was not my intention to go by the average hours because that would bring in all kinds of difficulties, as I already outlined and I will explain again if necessary. Part-timers who are excluded from the various Acts such as the Unfair Dismissals Act, by virtue of the exclusion provision in those Acts, are generally identified by hours and sometimes by social insurance status. That is what I am seeking to do in the Bill, and I want to make that clear from the outset.
Mr. Rabbitte: I would like to address the point the Minister has raised, that what he is seeking to do is to apply benefits pro rata to part-time workers and not to confer on them benefits that full-time workers do not have. That fails to  recognise the unique position of part-time workers. They are not in similar circumstances to full-time workers. Secondly, it is contrary to the spirit of the EC draft directive on atypical workers which expressly recognises the role of agency workers.
We are finally dealing with this welcome legislation so many years later than many of us would have liked, nonetheless we welcome the fact that it is before the House now, but it will be out of kilter with the EC Directive on atypical workers. We have gone through the manner in which many part-time workers — the majority of whom are women — are exploited. Many of them are agency workers and are employed through agencies. By the very nature of the job they do and of the demand in the market place for part-time workers, that will continue to be the case even after the enactment of this legislation.
It is regrettable that an employer can evade his responsibilities under this Bill by continuing to employ people through an agency; therefore, a very special claim can be made in this regard. Of all the decisions made in terms of ruling amendments out of order, the one relating to the definition of employer is most difficult to accept in the sense that it merely seeks to insert a definition of employer which is more in keeping with the practice on the ground. The fact that there may be a potential charge on the Exchequer seems to be in conflict with the entire thrust of the Bill in being adjudged out of order.
Mr. Shatter: The amendments I tabled and were ruled out of order were not designed to extend the application of the Bill to reforming general areas of labour or industrial law. They deal with the workings of this Bill which will fail in its objective if the Minister does not take on board the amendments which were ruled out of order, particularly amendments Nos. 1 and 9. For the good employer it does not matter whether the amendments are made because he will abide by the legislation; the bad employer now has an in-built basis in the legislation for avoiding all its provisions. There is a major,  legal fundamental flaw in this legislation and I have no doubt that, if the Minister does not accept those two amendments, (1) the legislation will not work properly and (2) within two years the Minister will have to come back to this House to seek to make amendments to it along the lines proposed in amendments Nos. 1 and 9, to comply with the European Directive and ensure that the legislation has the domestic applicability intended.
I will give a simple example: a woman worker employed by a cleaning firm on a contract basis to clean a block or blocks of offices can be told that she is in regular employment as follows: in the first week of every month she will work for ten hours, in the second week of the month she will work for four hours, in the third week of every month she will work for ten hours and in the fourth week of every month she will work for four hours and so on. They can be her terms of employment, on an agency basis, in which case she is outside the scope of the Bill if she works on an eight hour basis. She will not be someone falling within the terms of this legislation who is generally expected to work eight hours.
If the intention is to provide protection to workers in circumstances where employers want to evade the provisions of this legislation, the in-built fatal flaw in the legislation means it will not work. I do not understand why there is a major difficulty in saying that someone in the continuous service of an employer for not less than 13 weeks and, in that context, they have worked an average of not less than eight hours per week for that employer — as I suggested in amendments Nos. 1 and 11 and is suggested in amendment No. 9 tabled by Deputy Rabbitte — should be protected under this legislation. If someone has been in continuous employment for one year, two years or three years, working for the same employer for not less than an average of eight hours per week, surely the legislation should protect that employee? I do not accept that legislation cannot be drafted to allow that to happen. If the Minister does not take this on board the Bill will not work.
 We are scheduled to complete all Stages of the Bill today but I invite the Minister to give further consideration to this amendment and, if necessary, agree across the floor of the House that the Bill should not be completed today. This is a fundamentally crucial issue and it relates to the differentiation between full-time and part-time employment.
The other matter, equally fundamental, is to ensure that the provisions of the Bill are not evaded in circumstances in which it is socially highly undesirable. If someone is in regular, continuous employment with the same employer for one, two or three years, should that person not get protection even if the continuous employment is less than eight hours? More often than not it is women who are exploited in this area. Why should the woman working for seven hours per week for the same employer for six months or a year not get protection under the Bill? She is not a temporary worker, not someone recruited for three or four weeks to alleviate a temporary problem in a firm where there has been an unexpected increase in work which will not last.
It was suggested in another amendment which was ruled out of order — but is relevant in response to the Minister — that where someone has been in the continuous service of an employer for not less than 26 weeks and for eight hours or less, by virtue of the continuity of service the protections provided in the Bill should apply. I emphasise that these amendments were not tabled to embarrass the Minister or to try to hijack the Bill into providing protection it is not intended to provide; they were tabled to ensure that this Bill will work and that the broad intention — which is to provide protection for part-time workers in continuous employment who work a reasonable number of hours per week — will be there in reality. Far too often in this House we pass legislation which gives and appearance of protection when, in reality, it does not provide any. I say that as someone with a degree of experience in this area, who has consulted people who have specific experience in the  workings of all our labour laws at the practical level in the context of dealing with employees and employers. I cannot over-emphasise the importance of amendments Nos. 1 and 11 because they are essential to the Bill.
Amendment No. 1 coincides with an amendment which the Irish Congress of Trade Unions also sought to be made to the Bill in their document circulated last January. It is an amendment which will ultimately have to be made. If this legislation is passed without the amendment the EC Directive will require it to be made. I invite the Minister to give further consideration to these issues. We should also agree across the floor of the House that all Stages of the Bill should not be completed so that further time could be given to that consideration.
Mr. T. O'Sullivan: When we agreed that the Bill should conclude at 1.30 p.m. today nobody anticipated that so many amendments would have been ruled out of order. I realise how important it is for the Minister to get this legislation through because, tomorrow, we will be discussing the Social Welfare Bill and it is desirable to finish our work on this Bill. Section 1 (3) (b) states that the Minister may, by order, amend the definition of “regular part-time” so as to alter either or both the minimum number of weeks of continuous service and the minimum number of hours a week that a person is normally expected to work, and may so amend where that definition has been previously amended by virtue of this subsection.
Is the Minister prepared to give an assurance to the House, as a means of making some progress in the debate, that if some abuses arise in the coming months he would be prepared to come back and make an order that would alter the threshold and the various definitions which we are now being deprived of an opportunity to put to a vote? Deputies Rabbitte and Shatter in their amendments refer to the employer. The Labour Party decided on the employee, and we are trying to achieve the same goal. Is there some  means whereby we can address this problem? Contrary to some of the comments we have heard in the House, there is quite a degree of exploitation in the workplace. Jobs are in short supply and until we here, as legislators, do something to protect the workers' interests that exploitation will continue. In his reply will the Minister give the House an assurance that, if need be, he will introduce the necessary order in this House within, say, the next six months if at all possible to overcome this present impasse?
Mrs. Barnes: I would like to express not just disappointment but sheer depression at what is in the Bill. We all including the Minister, looked forward to this Bill, and we know his commitment to it. The concept of part-time work is seen at European level as positive and it can be a productive way of dividing one's life between domestic responsibility and work outside the home. That is the ideal we all are working to and we thought would be incorporated in the Bill, as it is in the EC directive. We do not want to find once again that our legislation is faulty and we have to threaten to take it to Europe or waste the time of this Dáil in bringing it back for amendment and strengthening.
The Bill is entitled The Worker Protection (Regular Part-Time Employees) Bill, 1990 but as Deputy Shatter says, it provides no protection. Even more alarming, the implementation of this Bill could mean that not alone would it not meet what we are trying to do but, it could defeat the intention of the measure. We know there is manipulation and exploitation in the workplace, particularly of part-time workers who are the most vulnerable. I have taken up Deputy Toddy O'Sullivan's point about having cases of abuse brought back to the House. Part-time workers, particularly women, are so vulnerable that they are the last to produce evidence of exploitation or put themselves forward to give such evidence because they know that when women part-time workers try to advance any kind of action for their protection or for improving their conditions of work they  are told there is a bus that can collect another group of women who do not wish to be organised or will not have to be organised in the way they wish to be organised. I know the Minister is aware of that vulnerability and the exploitation of women workers particularly and their lack of voice and power due to not being organised.
If these amendments are disallowed or not taken on board in some way by the Minister, the position of part-time workers could be worse than it is now. That is the last thing we want in this House and I ask that every effort be made in the time we have to see those amendments as fundamental to the Bill to provide the protection we seek.
Mr. M. Brennan: I welcome the Bill and congratulate the Minister on introducing it. I would like him to clarify something. Part-time meter readers are employed by the ESB. They are classed S.1 and they are paying some contribution in insurance to the ESB but the ESB are paying nothing for them. They can be let go at any time. Can some protection be introduced in this Bill for these ESB meter readers? Some of them are concerned about their jobs. They are part-time but on contract to the ESB. My worry is that if these people become ill they may not be able to draw unemployment benefit and that is the reason I raise this matter.
Mrs. Fennell: I was one of the people on this side who welcomed this Bill when it came before us. It had been sought for a long time. I am conscious that this is dealing with a group of people at the lowest level of the labour market, people who earn £25, £30 or £40 per week, working behind the counter in pubs or cleaning offices — indeed, some public offices — or banks, all areas of high productivity where proper payment should be made to workers. Many of them had seen in this Bill a ray of hope that for the first time they would be treated with some dignity and justice and be brought into the ranks of normal workers. I would regret if the Bill did not achieve that and  we will make every effort in this House to ensure that it does so. The perception could be that it is only a token and it may have to go somewhere else, perhaps to Europe like the case that was resolved there this morning. Again, we are talking about a majority of women.
On Second Stage it was signalled from this side of the House that there was concern. The Minister is very fairminded. He consults with people and I know he went to a great deal of trouble to ensure the Bill was right. I ask him to have second thoughts about it. If he sees the coalition of agreement and of concern that is here, I hope he will give more time to it and have a rethink about the matter. Every consideration and co-operation will be given to him in this connection from all of us here.
Mr. Garland: On behalf of the Green Party, Comhaontas Glas, I would like to repeat what previous Opposition speakers have said about this Bill. It appears to be fatally flawed. This is unfortunate because of the short time we have to try to finish Report and Final Stages by 1.30 p.m. today. I do not know how that is going to be done because the Minister has not answered the Opposition reservations about the Bill. It is very bad practice to take Committee and Report Stages of an important Bill like this one after the other. Surely the whole point of Report Stage is to allow the Minister to consider the points and amendments brought forward by the Opposition on Committee Stage. We did almost the same thing with the Sugar Bill when there has been only one day between Stages. Surely there should be at least a week between Committee and Report Stages.
Unlike some of the other parties, the Green Party are very much in favour of the concept of part-time work. It is very important because, for example, it allows a normal sort of housewife-children-husband relationship where both parents can work part-time and can take responsibility for the children. It is essential that adequate protection be available to part-time workers, but particularly to women who are extensively employed in the  cleaning trade and are notoriously exploited. They are also exploited in the bar trade to some extent, although some bar keepers treat their staff well. We will not think any the worse of the Minister if he withdraws this Bill or provides for the Report Stage to be taken next week or whenever he thinks appropriate.
Mr. T. O'Sullivan: I am a little concerned by what Deputy Garland said about his party's position on part-time workers. That would be fine if there was the choice and there was full-time employment. The Deputy is opposed to that and, indeed, took the Labour Party to task for indicating that they would like to see full employment.
The reasons Deputy Garland's party are in favour of part-time work deserve some comment. To improve the quality of family life, we should use family legislation and not this Bill which is to deal with an exploited section of the community. We should not endorse what is being offered to us here on the basis that it is good for the family. A very small minority of people who are working part-time would not opt for full time employment if it was available. The Deputy is losing sight of what we are trying to achieve here. If there are family problems they should be addressed in a different way. Here we are trying to stamp out the abuse of people in part time work and the Deputy's approach will not help in that area.
Mr. B. Ahern: There are some important amendments which will go a long way towards addressing what Deputy Shatter is trying to achieve, to help people who could be caught in the trap of being let go after a 12 week contract.
There has been an effort to convince people that we have just discovered something new. There is nothing new. I have been dealing with this issue now for about two years and with the help of people from all parties we have made a  lot of progress. This Bill is taking all our labour legislation and ensuring that it covers part-time workers who up to this have not been included in labour legislation. We are not trying to solve the problems of agency and contract workers.
I gave a commitment in the Programme for Economic and Social Progress that we would examine the whole area of contract work. To date, we do not have enough research on contracts and on casual and agency work but after examination of the area we will, if necessary, legislate on that. On the other hand substantial studies were done by Congress, political parties, unions and so on into what is wrong with part-time workers. I am seeking to address the issue of part-time workers.
I am more determined than most in this country to stop abuse of employees. I take the goodwill of the people who spoke here into account. If I see abuses which we had not thought about in this legislation I will do something about it. With the help of the two debates we have had in this House, we have put a lot of effort and thought into this and we will stamp out abuses. I am not seeking to give all kinds of casual workers protection under this Bill.
I understand the motivation behind Deputy Shatter's amendments. I am against them because we are not trying to deal with casual and agency workers in this Bill, although we intend to examine that area. Regulation of casual and agency workers would not be appropriate under this legislation and it would probably be regarded as an inconvenience to both employer and employee. People in RGDATA, in shops and in the bar trade, have confirmed that this would be an inconvenience.
The Deputy's amendment would extend cover to a more casual part-time worker who would accumulate 26 weeks' service on long hours over an extended period without having any significant attachment to the labour force or without depending on the work for their earnings. That would be wrong and it is not what I  am trying to do. The Deputy's amendment, for example, would bring babysitters under the scope of the Bill and would establish a separate category of workers which would make the Bill unwieldy and make administration totally impossible. The existing legislation is well worked out and has been amended in order to eliminate abuses. If in the future an Agency Bill is required to cater for some of the people we have missed, rights for full-time workers will be applied in the part-time legislation and any future legislation. Today we are doing a particular job and what might happen later will be linked to it.
The last day, Deputy Shatter rightly pointed out that perhaps it is time to look at legislation in the labour area and to tidy it up. This Bill does that in a simple way by referring to existing legislation.
Some Deputy mentioned an EC Directive on atypical work. That deals with various kinds of workers including part-time, temporary, agency and a whole range of areas. This Bill only deals with part-time workers. I am not taking credit for a lot of things I am not doing. In dealing with part-time workers we are including in this legislation approximately 92 per cent of the hours worked in this country by part-timers. This is a massive undertaking. I totally agree with Deputy Rabbitte that we should examine agency and contract work. I am not trying to do it in this Bill but I give a commitment that now that I have other Bills out of the way, I will spend my energies doing that.
Mr. Rabbitte: The Minister is giving a commitment to tackle agency and contract work. When The Workers' Party brought in their Bill on part-time workers the Minister gave a commitment to bring forward a Bill and he has done so. I accept the Minister's good faith in this area, but it is fair to make the point, as Deputy Fennell said, that this side of the House clearly signalled reservations on Second Stage. We have not, as the Minister put it, discovered something new this morning. Some of the most serious exploitation takes place and women are  at their more vulnerable in the contract agency sector where the phenomenon of part-time work is so endemic. The fact that the Minister has said that this Bill will not try to tackle the problems facing agency and contract workers will leave a great share of the marketplace untouched. I hold the view that this sector will grow and that structures will be reorganised so that many of them will become part of the contract agency phenomenon. In preparing The Workers' Party Bill we carried out some considerable research on it. I think the Minister has his ear sufficiently close to the ground to know that both this week and last week the employers discussed and framed new mechanisms in an effort to ensure that the provisions of this Bill would not apply in their situation.
For example, one of the unions involved have brought to my attention the fact that it is now fairly common in the retail sector for women to be employed on five hour contracts and to be then told “you are coming in on Saturday, I presume”. The fact that they might, as Deputy Shatter put it, work 12 or 13 hours is neither here not there as the contract states that they are employed for five hours and they are then asked to come in on Saturday. They have no choice in the matter because if they fail to turn up they will lose the job that they so very badly need.
I accept that this Bill confers benefits on workers who have been disgracefully neglected in the past but the problem is that those rights will not be worth a great deal unless there are commensurate sanctions. That is one of the weaknesses in the Bill, and it encompasses what we are discussing here. It seems the sanctions are inadequate in a situation where an employer goes out to deliberately frustrate the provisions of the Bill. I ask the Minister to cast his mind back to the debate we had on the Industrial Relations Act during which we finally came up with a formula on the famous section 11 which states that one may picket a secondary employer who acts for the purpose of undermining the dispute. There is a necessity, where an employer acts for the  purpose of undermining the provisions of this Bill, for some meaningful commensurate sanctions to apply.
(1) Where an employee would have conferred on him rights under the provisions of this Act but for a deliberate act by an employer to frustrate the acquisition of such rights or where an employer acts for the purposes of avoiding the provisions of this Act in respect of either or both the minimum number of weeks of continuous service and the minimum number of hours, the employee or employees affected may refer the matter to the Tribunal for determination.
Without going into the area which the Ceann Comhairle said would be a potential charge on the Exchequer, I say this is a sanction which would apply where an employer seeks to avoid the requirement of a 13 week threshold where they say to an employee that they are giving them a fixed contract for three months, then let them go for a few weeks and bring them back on another three months contract.
Mr. B. Ahern: We have examined the points made by Deputy Rabbitte and others on Second Stage during the past few weeks. The point was made that there is a danger that an employer might move to a figure less than eight hours but I have investigated this matter and checked with the trade unions and others who deal with this area, which covers supermarkets and publicans, and do not believe that there will be any attempt to make such a move to any great extent. I would like to put on the record of the House that I have got an assurance from the supermarkets that they can live with the legislation. They do not like it but  they have assured me that they will not seek to play games as they did when the figure stood at 21 hours, attempting to move to 20 hours, and when it was at 20 hours, attempting to move to 19 hours. I asked for that assurance because otherwise we would have to reconsider what we are doing. Naturally, we will monitor the implementation of this provision.
I have taken the point made by Deputy Rabbitte and others that employers may seek to move from 14 weeks to 12 weeks and addressed it in an amendment similar to the one put forward by Deputy Rabbitte. Deputy O'Sullivan and Deputy Shatter have also put down amendments on this matter. My amendment, amendment No. 26, states that whenever a person is dismissed by an employer and is then re-employed within a prescribed period, that person will have access to the tribunal who can then look at the work contract to see if the employer was taking advantage of the ten or 12 week period to ensure that someone would not be working continuously for 13 weeks within a 26 week period. We do not want to make provision for those who do seasonal work but rather for the young person who is employed for ten weeks, who is then left off and taken back on within four weeks. Under the original Act the tribunal did not have the power to act. I have taken the points made on Second Stage into account and have addressed the matter satisfactorily in my amendment.
Mr. T. O'Sullivan: May I take it that if there are abuses the Minister will come back into the House in six months' time to introduce the necessary measures to stamp them out? There have already been reports of such abuses — Deputy Rabbitte referred to this earlier on — and we have all received telephone calls from various organisations. It is for that reason that my amendment, amendment No. 36, which has been ruled out of order, proposes that the Bill should apply retrospectively from 18 December 1990, the date on which the Bill was circulated. Many people are already under attack from employers in an effort to get over  the threshold and it is for this reason that we are endeavouring to abolish it. Deputy Shatter has proposed that it be reduced to four hours but the only way to stamp out this abuse is to abolish the threshold.
The Minister has asked should provision be made for babysitters. A provision could be made for those involved in casual work for an hour or two such as a young person under a certain age acting as a babysitter, but as it stands the Bill is wide open to abuse. If there is to be justice the Bill needs to be extended to cover those who are not covered under existing labour legislation. I note the Minister's reference to the existing legislation and his statement that there is a need to tidy it up. That is an admission that all is not well in the labour area. We should be quite specific and do everything to ensure there is no further abuse. This can be achieved by the abolition of the threshold and the inclusion of contract workers. We are actually discriminating against legitimate employers and assisting people who operate in the black economy by employing contract workers. Life is being made more difficult for people paying PRSI. We are on the side of the cowboys, and that is regrettable.
Mr. Shatter: We seem to be ranging far and wide over the entire Bill. Without providing for averaging of hours this Bill will run into major problems. The Minister is of a different view and will not be convinced. I have no doubt that some employers will act in good faith but there will be major problems.
We have all made our point about continuity, the number of hours and our reservations. Our amendments have unfortunately been ruled out of order. I hope the Minister will consider what has been said, particularly about the averaging issue. That is the fundamental problem.
The Minister said on Second Stage that  his Department were reviewing the matter of contract workers. I suppose it is logical to say that we do not want to extend to part-time contract workers rights that full-time contract workers do not have. There is great concern that the concept of contract working is being used to evade commitments. We need to tackle the overall problem of contract workers. There are some trades in which people are only employed on contract. People who used to be covered by legislation covering unfair dismissals and so on are now outside it. If the Minister is prepared to give a commitment that he will not merely examine that problem but will introduce legislation to bring within the protections of the labour law provisions contract workers who are in reality employees, I will be satisfied.
Mr. B. Ahern: I have tried hard in four years to stick to my commitments, otherwise it makes a laugh of giving commitments to Opposition Members. The Department have in recent years carried out a lot of work using the expertise of independent examiners in universities and elsewhere to study the part-time work issue. There are abuses in the area of contract work. There are set pieces arranged between employers, middle people and employees, for different reasons. I am concerned about agency workers, where there is evidence of abuse.
Regarding Deputy O'Sullivan's comment on untidy legislation, I was not referring to this Bill as being untidy but rather the Acts referred to last week. A lot has been changed since 1970. Shortly I intend to change legislation on the payment of wages, the study of which goes back to the 1700s. It is mind boggling. It  includes the Truck Acts of 1830, 1850 and 1870.
Mrs. Barnes: Legislation like this is directed to the protection of rights and it may not be enough to operate on a pro rata basis, that is, to give rights on a pro rata basis with full-time workers. Full-time workers are operating from an organised level of power. The people we are talking about are operating from an unorganised level of powerlessness. I am referring to contract workers. This might have to be perceived as equality employment legislation. The Minister knows the amendments we had to bring in to counteract manipulation and abuse of women workers. I put that down as a marker and I know the Minister will take it on board.
“(f) (i) the definition of `employee'  in section 2 (1) of the Maternity (Protection of Employees) Act, 1981, in so far as it has the effect of excluding employees from the application of that Act by virtue of the Social Welfare (Subsidiary Employments) Regulations, 1979, the Social Welfare (Employment of Inconsiderable Extent) Regulations, 1991, or any other regulations for the time being prescribed by the Minister under subsection (3) of this section, or
This amendment is necessitated by the extension of social welfare insurability to persons earning over £40 per week, which will take effect from 6 April next. Given the change in the social welfare provision, the current wording in the Bill would have excluded workers whom it was not the intention to exclude from the right to maternity leave. That is basically those who work more than eight hours a week and have 13 weeks' service but earn less than £40 a week. The effect of the proposed amendments is that there are now two excluding provisions, the provisions which exclude part-timers from the benefits of the relevant Act in so far as the Maternity Act is concerned and the 18 hours and the £40 per week.
Mr. Rabbitte: I am glad the problem is shared. As I understand it where an employee is earning £40 or more — the limit was set at £60 in the budget the year before last — there is an onus on the  employer to pay the 17.5 per cent contribution in its entirety whereas if the employee was earning less than £40 per week, there is only a 0.5 per cent basic occupational injuries contribution. Therefore, there is a gap between the £40 and £60 rates. There is a discrepancy between the threshold the Minister is establishing in this Bill and what I understand is in the social welfare legislation. How far does this amendment go in putting this matter line ball with the social welfare legislation? The Minister will remember, that the Minister for Social Welfare in 1990 exempted employees who were earning £60 per week or less from paying social insurance. In this legislation the Minister is setting a threshold of eight hours a week and at an hourly rate of £3.50 per hour which some of these people are earning, it falls a long way short of the new cut-off point.
Mrs. Fennell: I am particularly interested in this amendment. I would like it spelled out better because an employer has already been on to me asking what he should do because the provisions of this Bill would put an increased cost on him which he would not be able to pass on to his principals. He indicated that he would have to think of ways in which he could ensure that his workers would fall below the threshold. Again, we are back to the issue of thresholds and I would imagine that this will be an area where we will have abuses. Will the Minister give us an example of how this will work?
Mr. B. Ahern: In the Social Welfare Bill, which the House will be debating tomorrow, the Minister is seeking also to assist part-time workers. In my Bill, if I had not moved this amendment, women earning less than £40 per week — there are, unfortunately, many, particularly in the contract area — would be excluded from maternity protection irrespective of the hours worked. The amendment brings in these workers. If they work more than eight hours per week and have worked for more than 13 weeks but earn under £40 per week, they are entitled to  the benefits of the Bill. They would have been excluded otherwise and people would have had to earn more than £40 before they would be entitled to the benefits in the Bill. I did not want to have a money threshold to qualify for benefits; I wanted to keep it on an hours and weeks basis.
Mr. Rabbitte: I understand that in so far as it covers maternity benefit, but do we not have a problem? I am not arguing on behalf of the employer who finds himself in this gap paying wages of between £40 and £60. The Minister may well say this is a matter for the Minister for Social Welfare. We got this huge tome this morning, a 43 page Social Welfare Bill — it is not my area, and I do not really understand it and we are supposed to have a position on it for tomorrow. The employer is now liable in total in the interregnum for social insurance whereas if the employee was earning £39, the employer would have a liability of only 0.5 per cent.
Mr. B. Ahern: I do not want to answer for my colleague but I know from my meetings on this Bill that Congress, and the employers, have been talking to the Minister in recent days about this aspect. I am sure that on the Second Stage of the Bill tomorrow it will be moved. The Deputy is correct, in so far as I understand the situation. Regardless of what was happening in the social welfare area I was anxious that I would not get tied into a position of the money value and that my Bill would not take on a third threshold. There is an hours threshold of eight hours per week and a threshold on the number of weeks worked of 13, with the exceptions Deputy Rabbitte put forward, and I do not want to set a money threshold. In this amendment I am avoiding getting into a money threshold. The issue of employers' contributions has been raised with me but it will not affect my Bill.
Mrs. Fennell: I want to ask a question but I am aware the Minister may not be able to answer it. In the context of  workers in receipt of a widow's pension or a deserted wife's allowance how will that affect their insurance contributions?
Mr. T. O'Sullivan: Bearing in mind what Deputy Fennell has said about an employer finding himself in difficulty, and the Minister's concern not to impose a financial threshold, that he wanted an hours threshold, are we now creating incentives for employers to bring the person below the eight hour threshold? If there is going to be an extra liability on an employer which he feels he cannot bear, are we giving him encouragement to employ a person for less than eight hours per week? We are caught in a catch 22 situation which will be very difficult to resolve.
Mr. B. Ahern: We are actually doing the opposite. If I had not tabled this amendment that is what would have happened. An employer would have been able to say if I pay an employee under £40 he will not be covered by the provisions of this legislation. Many people working in the contract cleaning area work for £2.50 an hour. Deputy Rabbitte will probably give me the JLC figure — I am not sure what it is now — as he negotiated that rate.
Mr. B. Ahern: If they are working only two or three hours per day, they will work 15 hours per week and Members will see that some of them would receive less than £40 while others would come out with a little more. I wanted to get away from a money threshold. There will be no incentive for employers to keep the pay under £40 to get around this Bill. I was anxious that workers would benefit particularly in relation to maternity protection. This amendment allows that.
Mr. Rabbitte: I am trying to establish if the scope of the amendment relates only to the maternity area. The problem we are discussing arises from the commitment in the Programme for Economic and Social Progress to extend social insurance on what the programme calls “an appropriate basis” to part-time workers. In so doing it sets a threshold of £40 per week. I agree with the Minister that we have enough thresholds without him introducing a money threshold. We are setting this new threshold of £40 per week. Workers were previously exempt from paying social insurance up to £60 per week after which they paid the normal 5.5 per cent and the employer paid the 12.2 per cent, or whatever it is. However, in the gap now between £40 per week and £60 per week the employer will be liable for the total. I am worried that, human nature being what it is — and some employers especially being what they are — they will manipulate that situation to cause the remuneration of the particular worker concerned to be brought below £40 so that they would not have the liability of the extra cost. I am, therefore, concerned to know how exactly does the Minister's threshold of eight hours per week gel with that £40 in the legislation.
To go back to the point about the JLC, I do not know what it is at the moment but I know that eight hours at £3.50 an hour is a good deal less than £40 a week. Whereas the Minister for Labour seems to confer benefits with his Act, the Minister for Social Welfare will leave an area there that is unprotected. I accept that this may be directed more properly at the Minister for Social Welfare tomorrow, but we are concerned about it.
Mr. B. Ahern: I take Deputy Rabbitte's point but it is on the definition of employer in section 2 of the Maternity (Protection of Employees) Act that I have to confer powers. It is like what I did earlier when conferring powers under the other Acts. I have to do so in this Act but it will have the effect of giving people rights under all my legislation, particularly in regard to maternity protection.
Mr. B. Ahern: The intention of the Bill is to extend to regular part-time workers the benefits of labour enactments from which they are currently excluded because of the application of the hours threshold and the Acts listed in Deputy Shatter's proposed amendment do not incorporate the hours threshold. In other words, they do not exclude part-time workers. For that reason the amendment is not necessary.
The subsection we refer to here, subsection (3) (b) gives the Minister the power by order to amend the definition of regular part-time so as to alter either threshold, the 13 weeks' continuous service or the eight hours. My amendment would seek to substitute “reduce” for “alter”. In other words, the Minister has power in the new legislation, when enacted, to alter the thresholds. While I am not imputing to this Minister any motives to alter the terms to the detriment of the workers concerned, I am nonetheless concerned that that is what will be on the Statute Book. The Minister says he is already back at 1750 in terms of labour legislation. I hope Dermot Morgan does not hear about it because, having regard to the man the Taoiseach was trying to put into the Department of Labour, if Dermot Morgan should hear he is dealing with 1750 legislation, I can see some scope for him in that area. Let us imagine, for the sake of it, that we were to get a new Minister with such a disposition. He might want to alter the threshold upwards so that it would be worsened from the point of view of the workers concerned. This is a power that the Minister has by order and which, as it stands at the moment, would not necessarily come before the House. I am merely seeking a confirmation that he would not alter it to the detriment of workers.
Mr. B. Ahern: I appreciate that the Deputy would want to copperfasten the situation so that the only way the thresholds can move is downwards. That would be my intention in the foreseeable future and it is probably the direction in which they will move. However, there are other checks in the system, particularly the powers given to the Oireachtas in section 1 (3) (c). I would prefer to retain the flexibility inherent in the term “alter”.
 It is also important, as Deputy O'Sullivan pointed out earlier, that we would have flexibility in the event of our having to act quickly in any circumstances. The disadvantage in the last few years was that if I sought to make a change I did not have the powers to do so by order. I appreciate the Deputy's point in regard to the future and none of us can predict what will happen in the future. I think, however, the word “alter” does allow flexibility and I would ask the Deputy to leave it in at this stage.
“(c) Where it is proposed to make an order under this subsection, a draft of the order shall be laid before each of the Houses of the Oireachtas, and the order shall not come into effect until a resolution approving of the draft has been passed by each such House.”.
In agreeing to withdraw amendment No. 16, I have in mind that amendment No. 17 might give some protection. It does no more than seek to ensure that the order in question, or any order, would be laid before each House of the Oireachtas and will not come into effect until a resolution approving the draft has been passed by each House.
I think it is eminently reasonable, especially in the context of this legislation, that the House would have the opportunity to see the content and shape of the order proposed by the Minister, and if it is approved by resolution of the House, so be it. All joking aside, it is not beyond the bounds of possibility that because of changes in the marketplace or a recession in a particular area, a campaign would be whipped up by a reasonably powerful lobbying body like the  Federation of Irish Employers and pressure put on the Minister to make an order to the detriment of what we all agree is the most vulnerable sector of the workforce. I think as a minimum this House should have the right to express a view on that situation.
Mr. Garland: I would like to wholeheartedly support this amendment. It is time this House was more empowered to deal with business. I have seen this amendment before. It seems to be the standard Workers' Party attempt — and I completely agree with it — to make this House more meaningful. I will say no more than that I will support this wholeheartedly.
Mr. Shatter: This is an amendment that I tended to table on a regular basis when I was Fine Gael spokesperson on the Environment. Basically I feel that if there is power to virtually amend the substantive Act, that should require a formal vote in this House so that Members have an opportunity to speak to that rather than having the negative vote that is normally passed. I would support this amendment which is important in the context of this Bill, in particular because of the issues that were previously raised with regard to whether the Bill does provide protection to the part-time workers it is designed to protect. I do not want to labour the point, but it is open to employers to manipulate the Bill by employing a person one week for six hours, the next for 12 hours and the following week for six hours and so on, so that the employee has an average of eight hours per week. That employee is not expected to work eight hours per week as the Bill envisages. The Bill does allow the Minister to make amendments virtually by way of regulation. Very soon after this Bill will have been passed we will have to address this issue, one that would be more properly dealt with by way of a substantive Act rather than by way of regulation. But there is the possibility that the Minister could deal with this issue by way of regulation. If there are problems in the way in which the Bill  is drafted that require regulations to be made that go to the substance of the Bill, as opposed simply to its administration, then it is correct that we amend the Bill in the way Deputy Rabbitte proposes.
Mr. B. Ahern: What the Deputy is proposing is the affirmative procedure which gives more power to the Houses of the Oireachtas than the annulling procedure proposed in the Bill. There are plenty of examples of the affirmative procedure in labour law. I have no principled objection because I have actually inserted it in a number of other Acts in the past few years. Having been in Opposition for a few years myself — having seen things go through and missed them in the Law Library — I can understand the difficulties involved. The reason the annulling procedure was used in this instance was to accommodate not merely the orders under section 1 (3) (b) — relating to hours and continuous service — but also orders to be made under section 1 (3) (a). If regulations were made by the Minister for Social Welfare which had the effect of changing the exclusion provisions for the Redundancy Payments Acts, for example, the Minister for Labour would need to change labour law in tandem with those regulations. Reliance on the affirmative procedure could cause delays if for example, the relevant social welfare changes were effected during a recess period, or there was difficulty in finding parliamentary time, but I am not greatly opposed to it. Therefore, if Deputy Rabbitte wishes me to push it, I will have another wording. The wording I would prefer to use would read:
“(c) Where an order is proposed to be made under this subsection, a draft thereof shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving of the draft has been passed by each such House.”
Mr. B. Ahern: May I just make the point that at times endeavouring to have affirmative orders made may be difficult. I recently petitioned the House when I had a number of them on the Order Paper for some time and could not get the Whips to agree to allow me any time to move them. They were related to women working in mines and women working at night. I got them through only when the Leader of the Opposition, in an argument with the Taoiseach, quoted a number off the top of his head and asked what was the present position; the Taoiseach had to go rooting through the order book, and I was very pleased because that was the only way in which I could get through my orders. But it is not always easy to do so.
Mr. B. Ahern: In that case I had not even asked. The Leader of the Fine Gael Party had asked what was the latest position in regard to No. 8; I did not even know what No. 8 was but it happened to suit me. May I just say for the record, so that we have agreement — because we will have the question put at 1.30 p.m. — that that is the wording that would be inserted.
Mr. G. Mitchell: I congratulate the Minister on having brought forward this Bill. My experience of him is that he is a very practical man and is as much concerned about the difficulties facing part-time employees as are Members on this side of the House.
I should like to express concern — I will put it no stronger — regarding the  period of 13 weeks. It has been my experience that many people, on summer break from school or college, are employed by supermarkets, bowling alleys, different leisure facilities during the summer period. Often such breaks — which can extend from eight to ten weeks but do not reach 13 weeks — count for nought. Those people, because they are young, often are required to work long hours. I note the reference to hours but the reference to 13 weeks does concern me because, from my reading of the section, it would exclude people on break from schools or colleges who may be working in order to put themselves through college or participate in advanced courses at school, indeed merely to make ends meet given the very difficult economic circumstances in which many families find themselves. In that context I ask the Minister to consider whether 13 weeks is the appropriate period; whether some consideration might not be given to the plight of those people who work during the summer period in order to meet their economic needs and also meet those of employers. Perhaps he could examine whether it would be possible to facilitate them by reducing the 13 week period.
Mr. Shatter: I want to use the opportunity of speaking on the section to refer very briefly to a matter I raised on Second Stage and to perhaps cajole or push the Minister in the direction of doing something about it. One of the Acts with which we are dealing in section 1 is the Maternity (Protection of Employees) Act, 1981. I made the point on Second Stage that the protections provided by way of maternity leave apply to the woman who has a baby by virtue of a pregnancy but that no such protections are provided to families when they adopt a child. As an employee one pays the same social insurance contributions whether one has a family by virtue of the woman being able to conceive a baby herself or by virtue of adoption. In the context of this Bill the Minister rightly said that, we cannot effect general amendments to the labour  law applicable to part-time employees that would not extend to full-time employees.
I have read through in great detail the Maternity (Protection of Employees) Act, 1981. The way that Act is drafted I contend that one simple amendment would not address this issue; it would require a number of substantive changes to be made to it. It would seem to me that it is particularly anomalous that in the case of a couple who adopt a child, the mother in that adoptive family, is allowed no leave at all even for a week or two weeks following the adoption. There is no such provision in labour legislation, whereas such provision is made when a child is born to a family.
I would ask the Minister to give the House a commitment that he will examine the 1981 Act with a view to bringing forward amending legislation providing for a leave period for adoptive parents. It is a provision that would be widely welcomed on all sides of the House and by the community generally, and I would not envisage employers having any major objection to it or that it would create any major or unique difficulties for them. Equally I hope it is a provision that will be supported by the trade union movement. It is a provision that will not be made unless we push for it in this House. It falls uniquely within the area of responsibility of the Minister but, of course, overlaps into the social welfare area as well; I realise that. I ask the Minister to specifically bring forward legislation, at the first available opportunity, to allow some leave period for families when adoption takes place. Such families should not be discriminated against in our laws. I am suggesting this as someone who has considerable experience in this area. If a family who adopted decided to bring a case with regard to the constitutionality of the 1981 Act, in circumstances in which the adoptive mother was in insurable employment and it was suggested that she was unfairly discriminated against by virtue of acquiring a child by adoption as opposed to conceiving one herself, I believe there is a very strong possibility that the High  Court or Supreme Court would find that the Act was unconstitutional in that area. Perhaps this is a reform we could address before the courts force us to do so.
Mr. T. O'Sullivan: Deputy Shatter is suggesting that, if the Bill is passed in its present form, it will discriminate against adoptive parents. It is necessary to clarify whether, under the provisions of the Maternity (Protection of Employees) Act, 1981, maternity leave is granted for physical or health reasons or for social or family reasons. Essentially I do not disagree with him in what he is endeavouring to achieve. We have to establish under the Maternity (Protection of Employees) Act whether the leave is given. That point should be clarified.
Mrs. Fennell: I support the contention by my colleague, Deputy Shatter, that maternity leave should be extended to women who adopt a child because they have all the problems and difficulties of adjusting to a new baby in the house and to new timetables. It is true to say that in many instances adoption agencies do not look very kindly on applicants who are in full-time employment. If that measure is adopted it would make it easier and be more attractive for a mother to adopt a child. So far as I am aware there is a recognition that adoption agencies do not like adoptive mothers to be the same as most mothers in society, some work and some do not.
This is a matter about which several requests have been made and I received many submissions on it. I ask the Minister to look fairly at this, examine the issue and see whether that facility can be extended to all mothers whether they are mothers who have their children or adopted them.
Mr. T. O'Sullivan: I do not necessarily disagree with what Deputy Shatter is suggesting. I am merely asking whether the Maternity (Protection of Employees) Act is the appropriate Act. May we have some clarification?
Mr. B. Ahern: In response to Deputy  Mitchell, naturally enough under labour legislation generally I would be concerned with abuses, lack of rights or controls for workers, regardless of the type of work they do. The Bill will not cover summer holidays. If that was the case many difficulties could be encountered because there is a fair cost element in the Bill which, perhaps, I did not highlight during the course of the debate. I did not think it was necessary. These are rights people should have but there is a cost factor involved in regard to holidays and so on. It would be a bit unfair to expect employers to cover all work with legislation costs; there would be a reaction from the point of view of summer jobs and difficulties would probably arise for people in casual summer jobs, night jobs or weekend jobs.
As I said earlier a number of people work part-time under what would be considered funny arrangements. Employers have their own reasons for not wanting to be linked in too tight into legislation. When I started work on this Bill I received a number of submissions as did Deputy Rabbitte. One night Deputy Rabbitte read a list of abuses and it is amazing how different people interpret the abuses. I mentioned a particular company in the House — which I should not have done; it was a mistake — and I learned afterwards that while on paper it appeared that the people were receiving low wages I was not aware that they received food vouchers which covered the weekend groceries. The women involved were down on my head for opening up a hornet's nest. In these areas one has always to be careful as there may be other arrangements. Generally we are trying to cut out and eliminate abuses. At this stage it would be an unfair cost mechanism on employers to link it down to a zero rate on weeks. That is not to say that I do not have some sympathy for having protections.
I will examine the point raised by Deputy Shatter in relation to maternity protection. Quite frankly, I am not sure what is involved or the extent of the problem. I am aware that Deputy Shatter has done much good work which has  received the support of all sides of the House, and the Government, which does not often happen to a private Bill. I know he has put a great amount of effort and research into this. I will not say “no” to him but I will consult my advisers to see what is involved on the labour and social welfare side and report back to him.
“2.—This Act shall not apply to employment by an employer of an employee who is the father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter,  brother, sister, halfbrother or halfsister of the employer.”.
It has been suggested to me that in circumstances where the immediate members of the family work from time to time part-time in a family business the provisions of this legislation should not impose on that family business the additional costing about which the Minister is anxious not to make too much reference. It is also suggested that for the immediate family legislation such as this is not always appropriate in the context of the protections because in a family business, where one is employing a son, daughter, wife or where a husband is involved, there is not always a reality in dealing with matters in the way legislation prescribes. The way in which a family business operates will very often depend on family relationships and whatever protections are necessary are in other areas of our law.
I do not want to make matters difficult for the Minister but, perhaps, he will spell out the additional costs to an employer of applying this legislation. There are many family businesses around the country that operate in a way that makes them only viable because all the family join in and are of help. There are not always immediate financial rewards for that help in the context of direct wage payments. Often it is a means of keeping the family business viable for the family. It is important that the impositions that arise under the Bill and which by implication arise under the social welfare legislation, because of social insurance and other contributions, should not impose greater expense than is necessary on family businesses possibly creating some difficulties for businesses that just about keep their heads above water by the joint efforts of family members in circumstances where there may be only one major wage earner and one major salary drawn from the business.
In proposing the amendment I can equally think of a number of good reasons why there should not be this exclusion. I could argue both sides of this. It was important to propose the amendment in  order to give the Minister an opportunity to respond to it and, secondly, because there are some parts of our labour legislation which do have similar exclusions. Indeed, some of the labour legislation that the Bill deals with has this exclusion in it. I ask the Minister to put on the record of the House the circumstances in which this exclusion applies in the context of the various Acts listed in section 1, (a) to (g), where various legislative provisions to which an Act applies are generally listed. I do not have very much more to say on this point and I should like to hear the Minister's response. I ask him to bear in mind the cost provisions to which he referred.
Deputy Garland's amendment, which we have not yet reached, relates to the expenses incurred by small businesses which employ a small number of people. RGDATA referred to this point. Many relatively good businesses employ non-family members on a regular part-time basis but I am not convinced of the argument made by RGDATA on this point. If it facilitates the House, I have no objection to taking Deputy Garland's amendment at this time. It does not seem, from the point of view of time, that we will reach his amendment and to some extent extent the issues overlap.
Acting Chairman: Deputy Shatter's amendment proposes the insertion of a new section in the Bill and Deputy Garland's amendment No. 37 proposes an amendment to that new section. Therefore, there is a conflict.
Mr. Garland: I want to thank the Chair, Deputy Shatter and the other Members for facilitating me in this way.  I am not totally familiar with the procedures of the House and I probably did not approach this issue in the right way.
I wholeheartedly support Deputy Shatter's amendment as I believe we have to consider the other side of the coin. As has been rightly said, small employers are the backbone of this country. In many cases these businesses suffered from a form of self-exploitation. Many people who own small businesses would love to earn a decent wage, but they have been forced to open small businesses because they cannot get jobs. These people are trying to earn a wage and to do this they may employ other members of their families. Nothing whatever should be put in the way of people who employ immediate members of their families and no undue bureaucratic hindrance should be placed upon them.
I go further in my amendment and propose — this follows the precedent in legislation introduced in Britain by a Labour Party Government — that a family business should be able to employ up to three additional employees without coming within the scope of labour legislation. The British legislation proposed that up to five members could be employed but I think three or fewer would be the appropriate figure here. I commend this amendment to the Minister. Many small firms are being put to the pin of their collar trying to deal with the many bureaucratic impositions placed on them by way of VAT returns, PAYE and PRSI contributions. At the end of the day many family firms simply close down because they cannot keep going.
I want to remind the Minister and other Members that employers are under no obligation to provide jobs for anyone: they are in business and cannot be forced to provide jobs. Much of the bureaucracy imposed on very small businesses is so great they cannot employ even one person on a full-time or part-time basis. This cannot be good when we consider that approximately 250,000 people are unemployed.
Mr. T. O'Sullivan: I have difficulty  with both amendments in that they shift the emphasis from the employee, whom we are trying to protect, to the employer. Both speakers have expressed concern about the position of employers. Some of the greatest exploitation I have seen has been in family businesses. I know of people who have been treated as little more than chattels by their fathers or grandfathers.
When family firms go out of business the family member employed by his relative is left in a very vulnerable position. I know a man who worked all his life for his brother but when he became seriously ill he found he did not have sufficient contributions to claim benefit from the Department of Social Welfare. As a result this man has been left in an extremely vulnerable position. If the Minister accepts Deputy Shatter's amendment he will be opening the flood gates to abuse. In the past the greatest exploitation occurred on farms where members of the family worked but did not receive any pay and had no entitlements. When the mother or father died other members of the family were pushed out by their relatives and they had little or no protection afforded to them by the State by way of benefit.
While I accept the concerns expressed by Deputy Shatter, I do not dispute them, his proposal seems a little ridiculous. It would be fine if we lived in an ideal world but disputes can arise in family firms and when two or more people are involved someone has to lose out. These people are just cast aside and have nothing to turn to. For that reason I cannot support Deputy Shatter's amendment.
Deputy Garland referred to the British Labour Party. Thankfully I am not subject to the British Labour Party Whip. We need to be very careful about this point because there is great potential for abuse. For that reason I am opposed to this amendment.
Mrs. Fennell: I too have problems with these amendments. I do not believe all family businesses are sailing close to the wind; many of them are thriving and  profitable. Can the Minister say what protection, if any, there will be for relatives who have worked in family businesses for a number of years?
Mr. B. Ahern: I think Deputy Shatter asked me to explain the position rather than to say whether I am for or against the amendments. With regard to amendment No. 18, the clear definition of the scope of the legislation is contained in the parent Act and not in this Bill. Therefore, I am not proposing in this Bill to change the scope of those Acts. The Deputy will be interested to know that close relatives are excluded from the scope of the Redundancy Payments Acts, section 4 (3) (b) of the 1967 Act; the Minimum Notice and Terms of Employment Act, 1973, section 3 (1) (b); the Unfair Dismissals Act, 1977, section 2 (1) (c); and in some cases the Holidays (Employees) Act, 1973, section 2 (1) (g). Adoption of Deputy Shatter's amendment as it stands would exclude part-timers from the other enactments being amended and would leave them in a worse position than full-timers in relation to those Acts. I know that is not what Deputy Shatter intends, and I cannot agree with that amendment.
In relation to Deputy Garland's point, as I have said, the exclusion from the scope of the legislation of enterprises employing three or fewer people would create several anomalies. For example, full-time workers in such an establishment would have an entitlement to holidays but part-timers would not. This is precisely the kind of distinction we want to terminate. An employer of four part-timers would have statutory obligations as regards holidays but another employer of three part-timers would not. This would create great difficulties, particularly, as Deputy O'Sullivan outlined, when talking about small shops in the one block. If one employer takes on full-timers and another takes on part-timers, there would be anomalies in that the full-time employer must pay entitlements while the person who employs part-timers must not. That would be a disincentive against full-time work.
There has always been pressure to  introduce employment thresholds and to avoid imposing excessive burdens on small enterprises. Throughout all the Acts over the last number of years, this argument has arisen and it has always been resisted by Ministers for Labour from whatever party, partly on the grounds that there may be a constitutional bar to this form of distinction and partly because there is no good economic or social argument all employees should not get the basic minimum rights contained in the Statutes.
A number of Deputies have asked about the Minimum Notice and Terms of Employment Act, 1973. In answer to Deputies Fennell and Shatter, section 3 (1) (b) of that Act sets out that the Act shall not apply to “employment by the employer of an employee who is the father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, halfbrother or halfsister of the employer and who is a member of the employer's household and whose place of employment is a private dwellinghouse or a farm in or on which both the employee and the employer reside.” There are similar definitions in all the Acts. These people are not covered; that answers Deputy Shatter's point. Deputy Garland's point is more extensive and would create anomalies which I would have to reject.
Mr. Garland: I am very disappointed with the Minister's response. I think I am right in saying that the effect of the adoption of my amendment would not be to exclude small firms from the totality of these regulations and Acts but merely to remove them from the scope of this Bill. As I understand it, this Bill merely reduces the threshold from 18 to eight hours per week. It could be argued, of course, that there is an anomaly there. Nevertheless I would put it to the Minister that the effect of leaving the threshold at 18 for these very small family  businesses would be of some assistance to them. At present they may be outside the legislation because they are employing somebody for 12 hours. Surely the Minister would agree it is quite logical to insist that the number of hours remain at 18. I do not think this would create any problems.
“2.—An employer shall not treat less favourably a regular part-time employee in respect of his working conditions and terms of employment, including remuneration, access to occupational schemes, overtime, lay-offs, redundancy, short time, transfers, dismissals, disciplinary measures, participation in bodies representing workers, access to training, promotion and other workplace facilities.”.
This amendment seeks to insert a new section. With the utmost respect I submit that this is an important amendment. The issue is equality. The amendment seeks to enshrine in the Bill an affirmation of equal treatment for part-time workers. Because part-time workers are predominantly women — perhaps marginally over 70 per cent are women — there is the possibility that the legislation could be open to challenge in the European Court of Justice on the grounds that it may constitute indirect discrimination.
The Irish Congress of Trade Unions are extremely concerned about this point since the threshold primarily affects women. Having regard to the proportion of the part-time workforce they make up, there is the possibility at least of this challenge on the grounds of indirect discrimination. As regards the eight hour threshold I would like to hear the Minister give his opinion whether it is contrary to the EC directive on equal treatment, which applies to legislative requirements as well as to employment  contracts and collective agreements. It is for that reason I have sought to frame an amendment that would incorporate in the Bill a positive statement, an affirmation of equal treatment because of the dimension of the equality issue involved.
On Second Stage I referred to a statement issued by the chairperson of the Employment Equality Agency at the time of the publication of the report on part-time work entitled “Who Needs Flexibility”. Ms Catherine McGuinness, the chairperson of the Employment Equality Agency, said:
This report highlights the fact that it is women who are principally affected by trends in part-time working; making up as they do 69 per cent of part-time workers, and this makes the issues of protection of part-time workers an equality issue.
The report also showed that working mothers with three or more children made up 30.9 per cent of all women working part-time in 1988. In the same year, 50 per cent of all married women part-time workers as against 9 per cent of married men part-time workers cited family responsibilities as their main reason for working part-time.
These statistics highlight once again that it is women's working lives which are affected by a lack of a national policy on childcare and they emphasise the fact that equality between men and women in paid work will never be achieved until the childcare issue is addressed.
Mr. Rabbitte: That is a good question. Because I think I know the answer: the Minister will tell me that the scope of the legislation does not extend to that. If I may turn that argument on its head, it is precisely because in drafting this amendment, I am staying within the scope of  this legislation that the Minister should take it on board. The facts of the matter are that, even where part-time workers are relatively favourably treated, they are still the poor relation in the employment environment and denied access to other conditions and participative structures and a range of areas, some of which I listed in my amendment. They are still the poor relation notwithstanding their position in law: I refer, for example, to workers at present doing more than 18 hours who have the protection of the legislation which we seek to extend today but, even allowing for that, there was a celebrated case in my own constituency where, in spite of the workers' entitlements in law, they were discriminated against in the workforce.
The Minister stressed at the beginning that he is seeking to do no more than to extend the protection of the legislation to regular part-time workers. It is necessary that that should be accompanied by an affirmation which my amendment seeks to incorporate, to ensure that there is positive, equal treatment of all workers in this situation.
Mrs. Fennell: I agree with Deputy Rabbitte's amendment and it would reflect the principle about which the Minister spoke earlier that the legislation he is introducing is only aimed at reflecting what is happening generally in the workforce. The kernel of the matter, particularly in relation to this Bill, is the problem of married women with children unable to get full-time jobs because of their responsibilities at home. Of course that is not the whole problem but we know, from many studies, that women work part-time because they cannot combine full-time work with their role as mothers and home-makers.
Statistics show that, after the third child is born, the number of married women in the workforce falls dramatically, more dramatically here than in other EC countries; in other EC countries many women would not have three children. We must try to encourage women to keep a foothold in the workforce and ensure that they are not there  just on sufferance. They should not be second class workers but should be given every opportunity to maintain their position when they are part-time with a view to coming back as full-time workers when their home duties enable them to do so.
This amendment is very important as it would give greater strength and rights to part-time women workers and ensure that they would not be unfairly treated in relation to overtime, remuneration or training.
Mr. T. O'Sullivan: Deputy Rabbitte's amendment highlighted many aspects to which we should give further consideration. He listed many things which would be desirable, including remuneration. I said on Second Stage that if the Minister did not intend to introduce legislation in regard to a statutory minimum wage he should at least have given a commitment in that regard. Recently there was an abuse of workers in River Valley Industries in Crumlin, where people were working for £1.40 per hour and, until something is done about this, there will be continued abuse.
There should also be access to training when people work for an extended period in a part-time capacity for a firm. If there is an opportunity for promotion which requires training, such training is not extended to the part-time worker. Many people have been with the same firm for many years in a part-time capacity and are passed over in favour of new applicants. It is essential that, where there are promotional outlets within the firm, the position of the part-time worker must be protected. In some firms there are independent agreements between unions where people working on a seasonal basis establish rights on the basis that they were employed for two or three consecutive seasons at peak times. If you can establish that you have worked for a firm for two or three summers — in the drinks industry in particular — you have entitlements. On the other hand, these firms sometimes employ people who are not protected by a union and who are often  ignored. For that reason, the amendment is desirable and I welcome it.
Mr. B. Ahern: I noted what Deputy Rabbitte said. He made these points during the course of the broader Bill which The Workers' Party introduced some time ago. However, it is a fundamental departure from the structure contained in the Bill and it is not within its scope. The Bill was drafted after discussions regarding various aspects. The amendment covers a range of areas which, perhaps, are all very desirable — I would not argue against them individually — but if accepted, I should have to spell out in the Bill how I would implement all these areas, including disciplinary measures, tranfers, lay-offs, occupational schemes and so on.
I have a choice, as Deputies appreciate, between what I would term an anti-discrimination measure along the lines of the Deputy's proposal and a process which would extend our labour laws to categories hitherto excluded. I opted for the latter approach and I am prepared to consider amendments in that context as I did this morning. However, I cannot fundamentally go in the direction indicated in the amendment into areas which are not covered by any of the Acts.
The important point is that the objectives towards which the Deputy is aiming will be achieved in my Bill in so far as it removes any different treatment between regular part-time and full-time workers in the matter of those rights which we have chosen to provide in our labour law. It does that very successfully; it gives pro rata entitlements to all part-time workers of whom, as Deputy Rabbitte and Deputy Fennell said, 70 per cent are women. All this legislation has been built up since the foundation of the State and it has culminated in this Bill which, I hope, will be in force from 5 April.
I stressed on Second Stage that the vast majority of part-time workers are women and, consequently, have access to the employment equality legislation and the institutions under it to pursue claims of direct or indirect discrimination they do  that all the time. One of the courts is totally taken up with equality issues, which I welcome because a few years ago when I came into the Department of Labour, there had been an understanding by the previous Administration that one of the courts would close. I rejected that on the basis that we should keep it for long, protracted equality cases which require time. Until quite recently, the court was not free to handle such cases, but now a court deals with equality, which is a vast improvement.
Even with the setting up of the Labour Relations Commission there was probably an internal consideration that if the cases were reduced by the commission the number of courts we have would not be needed. I rejected that and said we should keep a court for equality issues, and it is being used by full-time and part-time workers and all kinds of categories, and I think they are doing a good job. they are changing the law on equality almost weekly, new decisions are being made and it is difficult to come to grips with where exactly that will end. Therefore there is access to discrimination cases and employment equality in a very broad sense at present.
Whatever about the merits of the other areas, to try to put them into a Bill in this form would not be possible as Deputy Rabbitte knows, but they can be looked at. Workplace facilities, access to training, the use of the apprenticeship schemes, the right of women to the various training schemes, etc., all are areas in which I have made substantial movements subject to the financial limitations under which I have to operate in the various agencies under my control, but we have made substantial progress there in recent years.
Mr. Rabbitte: I must confess I am disappointed with the Minister's response. I did not anticipate it. This is a very important issue that goes to the heart of the Bill. I have had representations from various women's groups and talked to my colleagues in the trade union movement, and in some cases they lay more store on  this affirmation than they do on some other areas of the Bill. I do not understand the Minister's reasons for professing to be unable to take this on board. I think it is perfectly in keeping with the spirit of the Bill, because this commitment to equal treatment is the heart of the Bill. The Minister asks how he can guarantee, say, equality of access to training schemes or other employment based considerations. I see no difficulty about that. Once the Bill is enacted in law, employers will take on board the import of that as somebody said good employers are doing already. Good employers are already negotiating this with the trade unions at plant level It would make a positive contribution to good industrial relations if this were taken on board.
I referred to an inter-union problem that emerged between full-time and part-time workers that could have had very serious consequences for a very valuable plant in my constituency. If this kind of affirmation of a commitment to equal treatment had force of law, it would only induce employers to ensure, as Deputy Fennell put it, that part-time workers are not there merely on sufferance or, as I put it, as the poor relation in the workplace. I do not see any great obstacle to enshrining a commitment to women in the legislation.
Regrettably, since we have managed to conduct most of this debate on a consensus basis, I have to press this amendment. It is important to note the support of the other Opposition parties for the import of it and I have to ask that the amendment be put.
Mr. T. O'Sullivan: While I can accept what the Minister said that already some of the areas mentioned are covered in existing legislation there is a certain void in the area of training, promotion and remuneration that will have to be addressed. Rather than forcing the issue to a vote at this late stage, I ask the Minister to indicate that he is prepared at least to come back on Report Stage with some amendment. What the Deputy is trying to achieve is quite reasonable.  we all recognise there are abuses, and that there are gaps in the legislation. The Minister admitted earlier that, as suggested by Deputy Shatter, there was a need to tidy up legislation and his acknowledgment of the Deputy's remarks is a fair indication that all is not right. For that reason he should consider accepting this amendment.
Mr. B. Ahern: Lest I am misunderstood, let me say the principles Deputy Rabbitte is setting down are matters on which I have done a good deal to improve them in legislation, and to improve them in reality through various organisations.
With regard to the amendment, equality and anti-discrimination law has a completely different structure from labour law. They are different laws and you cannot match them with this legislation. The Deputy is trying to extend protection and that is not the way to do it. Anti-discrimination laws need to contain exemptions on objective grounds and I do not think that would be correct in this Bill. Quite a number of the points the Deputy made are covered in the relevant legislation. I am not saying the Deputy is totally wrong in putting forward his view, but to take issues that are in none of the Acts and place them in the middle of the Bill without specifying in other sections or other mechanisms how this would be implemented, is not what we are about in this Bill. We are taking all our legislation, including the equality legislation, worker protection legislation, anti-discrimination legislation and all the relevant legislation and linking them to part-timers. Many of the issues Deputy Rabbitte is raising are in these Acts. To take them in one composite motion and try to put that into the Bill does not make sense. The arguments for having these matters in our legislation make plenty of sense, but the Deputy is merely taking a section from a Private Members' Bill that was before the House and placing it in this Bill. That does not make sense to me.
Mr. Rabbitte: The Minister says it has no relation to any other Acts. That is the  whole point. My amendment recognises the unique, distinctive, different position of part-time workers and the fact that they are predominantly women and seeks no more than to incorporate this affirmation. It requires employers not to treat these workers less favourably and gives that requirement the force of law. That seems eminently reasonable. As I have indicated, I think this is an equality issue and is worth pressing to a vote as I indicated earlier.
Mr. B. Ahern: Deputy Rabbitte must address all the aspects. Equality legislation is there, anti-discrimination is there, equal pay legislation is there. Where is the difficulty? These issues are either in legislation or they are not. If they are in, most of them are already the right of part-time workers.
Acting Chairman: Gabh mo leithscéal a Theachta. I am on my feet. A Aire, fan go fóill. As it is now 1.30 p.m. I am required to put the following question in accordance with the order of the Dáil of this day: “That the amendments set down by the Minister for Labour for Committee Stage and not disposed of are hereby made to the Bill; in respect of each of the sections undisposed of, other than section 8, that the section or, as appropriate, the section as amended is hereby agreed to in Committee; that the Title, as amended, is hereby agreed to in Committee; and the Committee reports that it has gone through the Bill and has made amendments thereto, and has amended the Title to read as follows: “An Act to extend certain provisions of Acts relating to employment to employees who are normally expected to work not less than 8 hours per week for an employer and, where appropriate, have so worked for not less than 13 weeks continuously for the employer, and to provide for other matters connected with the matters aforesaid; that the Fourth Stage is hereby completed; and that the  Bill is hereby passed.” Is the question agreed?
Mr. Rabbitte: I would be very reluctant to vote against the Bill. I do not particularly want to do that, but I indicated at 1.25 p.m. that I wanted to vote for my own amendment. There is recent precedent in the House, in my short memory, that seemed to suggest I am procedurally entitled——
Mr. B. Ahern: Sir, let me thank Deputy Shatter, Deputy Rabbitte, Deputy O'Sullivan and Deputy Barnes and Deputy Fennell who joined in the debate this morning. I have been trying since mid-December to get the Bill before the House. We have discussed this Bill on three occasions but — and I have made this point several times — in labour legislation it is hard to get an order of priority. If we can get the Bill through the Seanad next week it will be law by 5 April which is very important for the Department of Social Welfare. That would not have been achieved without the Deputies' help.
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