Wednesday, 30 April 1997
Seanad Éireann Debate
This amendment echoes the comments I made on Second Stage. I did not elaborate on the issue in any great detail then as I indicated that I would table an amendment on Committee Stage. The amendment is intended to put on record our views on Sunday trading. The reason I am suggesting that this issue be put before the people by way of referendum is that we have had Sunday trading in this country by stealth. The issue first came to my attention in early 1994 when Marks and Spencer arrived in Dublin. Until then, the only form of Sunday trading we had among larger companies only took place in the lead-up to Christmas.
The various churches pointed out, as they were entitled to do, their opposition to large scale multinational Sunday trading in the lead up to Christmas. At that time they called on the Government to regulate the issue. Unfortunately, the Government did not respond. I appreciate the complexities that were, and still are, involved in this issue. My understanding is that consultation — which seems to be very much the buzz word here today — started in 1993 or 1994 and has been ongoing since. I do not intend to denigrate the use of the word; it is very important that we have consultation. We still have not reached a stage where we have, in any shape or form, regulated Sunday trading other than the recent acceptance by the Government of the Bill drafted by my colleague, Deputy Kitt.
I do not intend to sound like I am attempting to score a political point when I say that Deputy Kitt's achievement should be recorded. It is a source of pride to me that a colleague of mine, who has become something of an expert in the area of labour relations, drafted this legislation and brought it to the attention of the Government. It was obviously good enough to be accepted by the Government of the day. Deputy Kitt should be complimented for his initiative. Deputy Kitt, in his contribution on this issue on Committee Stage, pointed out that this matter had been widely discussed within the Fianna Fáil parliamentary party. He was correct in saying so; I was one of a number of members of the parliamentary party who were of the opinion that the Bill had not gone far enough and that the proposals contained in it, on which there appears to be consensus across the floor of the House, did not go far enough. The people were never asked  whether there should be large scale Sunday trading.
In June 1994 I was approached by Mr. Louis Copeland, a man who would be well known to people involved in the retail trade as he runs a number of outlets here in Dublin. Mr. Copeland is also an officer of the Dublin Small Businesses Association. He articulated a concern, which had been expressed to him and with which he was familiar from experience, about the impact which Marks and Spencer's decision to commence Sunday trading would have on family run businesses in Dublin and throughout the country. Mr. Copeland and others were opposed to this idea.
At that time, Marks and Spencer decided they would operate Sunday opening for a period of 20 weeks as a pilot scheme. That decision signalled the opening of the floodgates. This was the first example of a growing trend among the larger multiples to open for Sunday trading. The point was made then, and is still relevant now, that all the smaller shops in an area where a large multiple opened for Sunday trading would have to follow suit. There would be a perception that business would be lost if they did not do so.
There is a growing trend in this country towards large out of town shopping centres where the anchor tenants are, in the main, UK multiples. If people shopping in these centres find that all the smaller traders are closed, it will obviously affect the business of smaller shops later in the week. Smaller shops are forced into opening and because they are, in the main, family run businesses their entire Sunday has to be sacrificed to staff the shop.
Statistics prove — the UK provides us with most of our statistical sources — that there is no real increase in the overall weekly income of those stores. Why are they opening if they are not increasing their overall take? I would suggest they are opening on Sundays in the hope that they will stifle and eventually kill off all the independent retailers, close down the family run retail sector and operate a monopoly in whatever market they decide to enter. That, in my view, is the hidden agenda of multinationals such as Marks and Spencer, Debenhams, Boots, Dixons and all the other multiples which have arrived in Ireland in recent years. They are seeking to shut down the corner shops and the family owned business and achieve a dominant position in the marketplace. It is at that point the consumer will start to feel the pain. People may feel they are getting great value for money at the moment but once multiples achieve a dominant position in the retail market consumers should be wary.
No Government will be in a position to do anything about this problem once the tiger of crass commercialism has been released. I keep referring to Marks and Spencer as they are the people who initiated this phenomenon. There was no planned Sunday opening until they arrived on the scene. Subsequent UK multiples coming into this country operated in the same way. Marks and Spencer's decision went against the trend in every  other European country, a fact which has been pointed out by other Members of the House.
Sunday trading has been a source of controversy in the UK in recent years. It is interesting to note that the decision by Marks and Spencer to open on Sunday came about as a result of legislation passed in the UK in 1994 which deregulated Sunday trading there. The decision to open on a Sunday came from British based headquarters and did not take account of the cultural differences between Britain and Ireland in relation to Sunday trading. Why should they care?
Dunnes Stores had no option but to follow suit and they cannot be criticised on purely commercial grounds for doing so. Dunnes Stores could not have been expected to stand in splendid isolation. However, their corporate decision not to open on Easter Sunday should be commended. In spite of any other difficulties, real or imagined, which Dunnes Stores may have the public should acknowledge that their decision not to open on Easter Sunday was positive, pro-consumer and pro-Irish.
We are seen to be good Europeans in our dealings with the EU at various levels and we have taken our lead from Europe in many areas over the past 25 years. However, in spite of the fact that there is already existing legislation in practically all other member states in relation to this issue, we have failed to take the European initiative. We have not initiated legislation to outlaw, restrict or reduce Sunday trading. Who asked the major multinational companies to open on Sunday on a regular basis? Nobody did.
If the truth were known, the vast majority of Irish people, even at this advanced stage of Sunday trading, would probably reject the option to have Sunday trading. However, in proposing a referendum I am not prejudging its result. I could be surprised. It is possible, after three years of regular Sunday trading and the growth of out of town shopping centres, particularly in Dublin — in Blanchardstown, the Jervis Centre, the Square in Tallaght and the new Quarryvale centre — that we have developed a culture of Sunday shopping. Perhaps this culture is now the leisure pursuit that was traditionally followed in other areas, as Senator Farrelly said. Perhaps this is how society has developed but, ultimately, the people should be asked their opinion in the absence of specific legislation.
The Minister of State said this area is difficult because there cannot be separate legislation for big and small stores and one cannot stop corner shops opening if the multinationals are pursued. However, several suggestions were put forward today and in the debate in the other House. Many options are open to the Government in framing legislation on Sunday trading. For example, decisions could be made on the square footage of each retail sector or the opening hours. All the multinationals open between 12 p.m. and 6 p.m. on a Sunday but most people who avail of small  shops on a Sunday do so after Mass or Services. Alternatively, they go to the pub at midday and buy bacon, eggs, bread and tea on their way home. Such shops could open between 12 p.m. and 1 p.m. They could also open between 7 p.m. and 9 p.m. when people, if they are short of something for the morning, tend to go to the local shop. This does not give carte blanche to the multinationals. They would not bother opening on a Sunday if the opening times were restricted to an hour in the morning and two hours in the evening.
There are many options but none of them have been pursued. This issue will not go away. Although I acknowledge the Government's good faith in accepting Deputy Kitt's initiative in the absence of its own, it does not go far enough. I am nailing my colours to the mast on this matter by saying it should be put to the people and they should be allowed to decide.
Mr. T. Fitzgerald: I support the amendment. I do not intend to repeat Senator Mooney's comments but I fully concur with them. The State is trying to create employment and other countries, such as the United States of America, have reduced the working week to 25 hours to create extra jobs in specific areas. Has one extra job been created as a result of Sunday trading here?
My objection to trading on a Sunday is that all religions consider it a day of rest. It is a day of leisure when one can pursue sporting, cultural and other activities. However, these are left aside now in favour of shopping in one of the major stores. This appears to have become the Sunday outing. I do not agree with it because it is to the detriment of our culture, heritage and sporting activities. It does nothing for the well being of our people.
Forty years ago my father worked six days a week but Sunday was a day of rest. The working week was first reduced to five and a half days — people had a half day on a Saturday — and then to five days. However, people now work seven days a week. I disagree with that because it is wrong. We are showing a bad example by allowing the major stores to operate to the detriment of small shops. I have no problem with local shops opening after Mass on a Sunday to provide essentials. If there is a difficulty in terms of who should trade on a Sunday, it could be confined to food stores which provide necessities.
I agree with Senator Mooney's argument. Who asked the people if they wanted Sunday trading? This good amendment should be accepted because, if this is a democracy, we should not dictate to people. They should be asked their opinion. A referendum on this matter would be carried by a huge majority. We are here to serve the people and it is wrong that the big stores are opening on a Sunday. We should not copy everything Europe does. There are new EU directives every day but European and Irish cultures are different. Ireland has recognised Sunday to a much greater extent than our European partners  over the years. Sunday was considered a day of rest when one could participate in sporting activities or family outings.
If families are to be kept together we must respect the wishes of the people that the family comes first. The purpose of Sunday is not to bring families into shopping centres to spend money which they probably cannot afford. If people browse in shops, they generally buy something they do not need. This often happens to me. I go into a shop which has a sale and I end up buying something that I do not want. If I passed the door I would have more money in my pocket.
I oppose Sunday trading because it harms our culture and families. Weekends should be days of rest. Politicians get no rest at weekends. I wonder how the Bill will apply to them. I support the amendment and I hope the Minister of State will accept its sentiments.
Mr. Sherlock: I do not understand what the amendment has to do with the Bill. It states that section 14 shall not come into operation until the matter of Sunday work has been decided by the people in a referendum. To what specific work does it relate? I travelled through my town last Sunday when major work was being undertaken. People must work in the sugar factory between October and February because it cannot close down on a Saturday evening.
Much necessary work must be done on a Sunday. Is the purpose of the amendment to ensure that a referendum is held to ban all Sunday work? I do not know who could draft such a constitutional amendment. I have many observations on the Bill but putting such a measure into effect is not one of them. Perhaps the position could be clarified.
Ms O'Sullivan: I appreciate what Senators Mooney and Fitzgerald are trying to effect by this amendment but I do not think it achieves that. It is not possible to put down an amendment to a Bill calling for a referendum to stop big shops from opening on a Sunday, which is what the Senators want to achieve. The Minister has tried at various times to see if there is any way of exempting small corner shops, garden centres and places suitable for a family outing on a Sunday from legislation which would have the effect of preventing large supermarket stores from opening. There is no easy way of achieving this and this amendment does not achieve it. The effect of the amendment would be to prevent implementation of the positive elements of section 14, namely, the protection of workers who work on a Sunday and the provision of extra pay, etc., for them. I fear the amendment would displace section 14, which would result in not having the desired protection. Also, it would be difficult to find wording for the type of referendum proposed.
I share what the Senators wish to achieve by referendum. I think the only way we can stop  large supermarket chains from opening on Sundays is by the power of cultural change or social pressure rather than legislation. If people do not go to them they will not open. The culture Senator Fitzgerald referred to, namely, going to matches and Mass on a Sunday and enjoying time with the family, is very much an Irish tradition. It is also a northern European tradition in places like Germany. However, I do not know how this can be addressed by legislation or referendum. It is more likely to be done by some popular campaign to encourage people not to go to these shops on a Sunday and to enjoy the day with their family instead.
Mr. Cassidy: I support the amendment, which has much merit. Having listened to Senator O'Sullivan practically agreeing with it, the Minister should take cognisance of it and accept it. There are six days a week for trading and it is pure greed on behalf of the chain supermarkets that results in trading on Sundays.
We had a wide ranging discussion among the 3,000 units of the Fianna Fáil organisation and 90 per cent of people expressed the opinion that Sunday trading was not acceptable. Sunday is a day of recreation, a day for the family and for going to church. When the Lord created the earth he clearly stated that Sunday was to be a free day for everybody to go to church and to be with the family.
If we are to follow European trends then we should note that there are only two countries in Europe with Sunday trading. We should be the last country in Europe advocating it. I commend Senator Mooney for putting down this amendment and I know he will be calling for a vote on it so strongly do we feel.
Multinationals are very welcome to Ireland and we appreciate their business and investment. However, under no circumstances do we appreciate the suggestion that they are going to interfere with or change our culture. We have something precious that is envied by most other countries in the world. Being Irish and acting Irish are the same thing. As somebody deeply involved in business, I do not welcome Sunday trading under any circumstances.
The Minister got a massive first preference vote in the last election. In her area people and resident's associations are totally opposed to trading on a Sunday. I do not see anybody clamouring for Sunday trading. I do not know of anybody looking for it except the multinationals. Are the multinationals going to be running Government and the affairs of our country as we see at the present time? Will the Minister say who is looking for Sunday trading?
Mr. Cassidy: The Government should legislate not to have Sunday trading. The Senator is correct, we are talking about work. I work six days a week and I know the Senator works six days a week. However, Sunday has been a day when everything has been honoured in relation to our culture, history and heritage. If we are going to follow EU trends then we should note that there are only two countries which have Sunday trading.
Mr. Howard: We should bring reality back to this debate. The reality is that Senator Cassidy and I in our other occupations work on Sundays and we employ people who work on Sundays. It is disingenuous to say that this relates to multinationals.
Mr. Howard: Perhaps I cannot speak with intimate knowledge about the Senator's business but I suspect that, like my own, it is more than a family business. We would need extensive families if they were to be capable of operating our businesses.
Mr. Howard: The Senator spoke about work on a Sunday. The amendment provides that section 14 shall not come into operation until a referendum is held on Sunday work. Even if the proposition is acceptable, the organisation of a referendum, including the time involved, has to be considered. In the meantime the protection being provided for people who work on Sunday would be left in abeyance, as Senator O'Sullivan pointed out.
Minister of State at the Department of Enterprise and Employment (Ms E. Fitzgerald): I sympathise with what Senator Mooney is trying to achieve. However, as Senators O'Sullivan and Howard have pointed out, the effect of the amendment would mean that people would not be entitled to a Sunday premium pending a referendum on the matter. I am sure Senator Mooney would not like this to happen. We want to see section 14 enacted quickly.
Ms E. Fitzgerald: That legislation was not enacted a wet week before a legal challenge was made against it and it has remained suspended since 1938. We took legal advice and there is no possibility of using that legislation. The legal advice I received is that it is not possible, constitutionally speaking, to ban Sunday trading on the basis of square footage or different rules for large and small shops. I think this is acknowledged in the amendment. The Senator made an interesting suggestion on hours of opening which I think would be legally possible, but I do not know how popular it would be. It would require a lot of consultation.
We should consult people to find out how well section 14 prohibitions operate in practice, if they make Sunday work more expensive for shops. We could also see if a voluntary agreement is possible — after public pressure, Dunnes Stores decided on a voluntary basis not to trade on Sundays, while Marks and Spencer has conducted an agreement with its unions and workforce on Sunday opening. We should examine the voluntary possibilities and the operation of section 14. For example, would the public accept different opening hours? RGDATA might say it did not suit its members to adopt such hours as they make a lot of money selling milk, etc., on Sundays.
Such consultation should take place before we consider holding a referendum. There has been much agonising over various referenda in recent years but it is important to get the wording right, which is not a simple matter. If it is decided to do this on a policy basis, one cannot do so without consultation, particularly where people's livelihoods are at stake. If we do something and get it wrong there will undoubtedly be challenges because a lot of money is involved, not only for big businesses but corner shops also.
I share the sabbatarian instincts expressed. I am one of the few politicians who refuses to do  public duties on a Sunday because I feel if I do not have my day of rest I am unable to work the other six days of the week. I also need time with my family. I appreciate the case made for Sunday as a special day and I have legislated for it in a number of sections, such as section 14, which provides for a Sunday premium and the provision that the days of rest shall include a Sunday unless it is specifically written into the contract of employment that Sunday working is being made voluntary under the Bill.
I think I have gone as far as I can go legally in my sphere of influence, which is workers' rights. There may be other issues concerning trading which could be explored but we must operate within constitutional constraints. The Office of the Attorney General does not approve a Bill unless every provision is in conformity with the Constitution and it is not open to us to legislate in a way which, we are legally advised, is constitutionally suspect.
Mr. Mooney: I am grateful to the Minister and my colleagues. I realise that accepting the amendment would create difficulties with elements of section 14, but this debate has not yet finished and should continue. To a large extent the Minister endorsed the reasons for putting down the amendment. Will she consider a request, made by Deputy Kitt in the other House, that her Department would publish a White paper on Sunday trading and Sunday work, narrowly focused on the new phenomenon of multinationals locating in Ireland? This document should look at the legal implications, the question of trading hours and the square footage of larger stores. This would put the debate in the public domain and help us find out what is happening.
MANDATE has led the charge on behalf of the workers but it is on the horns of a dilemma. On one hand, it is concerned with workers' rights, pay and conditions; on the other, its members do not want to work on Sundays and they would not do so if there were laws to that effect.
RGDATA represents small — to medium-sized retailers; its members are mostly family owned businesses and if they trade on Sundays they do not use outside staff, in the main. They realise that Sunday trading by multiple stores, especially in large urban areas, is having an adverse effect on the rest of the week's trading. People are doing their main grocery shopping on Sunday — the “shop till you drop” syndrome — and are going to local shops for small items only.
The multinationals have a secret agenda. Ultimately they want to end small — to medium-sized competition, so it suits their purpose to stay open on Sunday, no matter what cost is involved. They will make as many agreements with their workers as they like because they have enough money to stay open. This phenomenon first started in Britain. In Europe large stores do not open on Sundays and in Germany they close at lunchtime on Saturday. Why do the multinationals want to  stay open on Sundays if, as the statistics show, they are not making much money and their take for the week is not increasing? There must be another agenda — to remove the competition.
As to workers' rights, the Minister spoke about voluntary regulations, but these department stores will not regulate themselves and over 90 per cent of the retail sector would welcome the Government taking an initiative in this regard. Apart from the obvious extension of the working week in the period under discussion, which keeps a significant number of workers away from their home involuntarily, there are examples of alleged worker exploitation by a major Dublin department store. The company insisted that all its parttime staff should report for work on St. Stephen's Day in 1994 in order to prepare stock for a sale beginning on the following day. These workers were paid low wages but, given the unemployment figures, they had little choice but to comply with their employer's request, as a refusal would almost certainly result in their being let go. Such cases are continuing in the undergrowth, while some shops are claiming it is wonderful that they have concluded agreements with their workers.
Things may have moved slightly, but there is much to debate. If the Minister gave serious consideration to a White Paper, her initiative would be welcomed by the various lobby groups mentioned and the public. We could then nail the matter once and for all. We cannot roll back what has happened in the last three years. If, however, we can regulate it and the regulation is acceptable, that would be much better than the current status quo.
Mr. Howard: I find common ground with two points in Senator Mooney's contribution. First, I encourage the Minister to look favourably on examining the circumstances surrounding the developments the Senator has outlined. Second, I agree that there may be a hidden agenda, namely, the elimination of small operators after a certain period. Those points are well worth examination. I do not ask the Minister to prepare a White Paper but she should look at the matter so that we could examine in due course the best method for implementing it. One can do so without holding up this legislation and I therefore support Senator Mooney.
Ms E. Fitzgerald: The Department already commissioned a report on Sunday trading from the Irish Productivity Centre which was published, widely circulated and formed the basis for much discussion. To some extent what Senator Mooney is seeking has already been done.
Ms E. Fitzgerald: It was following that report that I conducted these widespread consultations with the different interests in relation to Sunday  trading. Following the conclusion of those discussions I got legal advice, which was when I ran into a cul de sac.
Ms E. Fitzgerald: After we got the report I had wide ranging consultations with all the interests concerned, as I have already told the House. Then I took legal advice which led me into a cul de sac. That is where the problems lay.
Mr. T. Fitzgerald: This section covers matters in which I have a personal interest. The section refers to “a person engaged in sea fishing”. I suggest the Minister of State and her officials read the safety at sea review which was published recently. I accept the section should remain as it is in that regard because it is also covered by subsection (4). I want to choose my words very carefully: it is almost impossible for me to see how two boats could collide in the middle of the day without somebody being negligent. Boats can be put on automatic pilot but, unfortunately, the automatic pilot does not warn about obstructions. Where the radar is working properly, it will bleep several times to indicate here is an obstruction. The only reason nobody would be on deck and the automatic pilot would be switched on is that the crew was tired because of the long hours they worked. That should be looked at.
The section also refers to “other work at sea”. Could lifeboat crews be specified in that subsection because they work very awkward hours? They often work for 24 or 36 hours on a mission of mercy. I hope that subsection covers life saving activities.
The third category is “the activities of a doctor in training” to which Senator Mooney referred. Why should there be any difference between a doctor in training and a fully qualified doctor? I have heard complaints from trainee doctors about their long hours and low pay. Why should  they be exempt from the provisions of this Bill? Fully fledged doctors need only work certain hours while doctors in training can be abused, to a certain extent, by having to work very long hours. I am opposed to that part of the Bill.
Mr. T. Fitzgerald: Perhaps I am reading the subsection wrong. It states a person “who is employed by a relative and is a member of that relative's household” and “whose place of employment is a private dwelling house or a farm in or on which he or she and the relative reside”.
I do not have time to go into it but this is a very weak section. It is contradictory as far as sea fishing and the recommendations of the safety review are concerned. It is ridiculous that young doctors have to work very long hours while qualified doctors do not. Perhaps I am reading the Bill wrong. I would also like to see the paragraph which refers to “other work at sea” strengthened.
Ms E. Fitzgerald: I dealt with this at length in my reply on Second Stage. Since the EU is drawing up a separate series of working time rules in relation to doctors so we have not included them in this Bill. When those rules are made we can bring them in by regulation under section 3 (4). Subsection (6) defines exactly what is meant by “relative”. It is not a loose definition but is very tied down.
All work at sea is covered by the Health and Safety Act, 1989, and the regulations made under that Act in relation to safety. There could be practical difficulties with the Senator's suggestion. For example, is one still at work when one is stuck on a boat at sea? That is why they are excluded. However, the safety regulations apply and we have made a particular effort in that regard which has paid off. Nineteen ninety five was a very black year for deaths at sea but in 1996, after a major safety effort in conjunction  with the fishing industry, matters improved greatly.
Ms E. Fitzgerald: The standard expenses, for example, the pay of the Labour Court or the inspectors. This is a standard provision which repeats what is already there. We are repealing a great deal of 1930s legislation and consolidating it in this Bill. The section ensures that the inspectors, who are already employed by the Department, can be paid out of money provided by the Minister for Finance.
Ms E. Fitzgerald: At this stage, we are not providing any additional resources to implement it because we are consolidating, modernising and refining laws which date back to the 1930s and replacing them with this new framework. The new law will not cost any more to administer than the old one.
Ms E. Fitzgerald: The provisions here are similar to those set out in the Bill sponsored by Deputy Tom Kitt. Sunday work is voluntary in cases where it is not written into a contract of employment. However, if workers agree to work on Sunday they can do so, but in so doing they must either get a shift premium, a Sunday premium or bonus time off to compensate, because Sunday is a special day.
Ms E. Fitzgerald: They cannot be obliged to work on Sundays unless it is written into their contracts of employment. Sunday work is automatically included in some new contracts. That is the issue addressed in the Bill sponsored by Deputy Tom Kitt. However, where Sunday working is not written into contracts people cannot be obliged to work on a Sunday under the terms of this provision.
Question proposed: “That section 14 stand part of the Bill.”
Mr. Sherlock: Section 14(1)(c) states: “...by granting the employee such paid time off from work as is reasonable having regard to all the circumstances,...”. Can an employer who requires a person to work on Sunday get away with merely giving him or her time off with pay?
Ms E. Fizgerald: It must be the going rate in the job. For example, if the going rate in the job is time and a half, those involved should get that; or if they work a full Sunday they should get a day and a half off during the week or perhaps a day and a quarter off during the week and a quarter day's pay, or some combination. The going premium is decided by reference to collective agreements for similar workers in similar industries and sectors. It is for the Labour Court to determine.
Question put and agreed to.
Question proposed: “That section 15 stand part of the Bill.”
Mr. T. Fitzgerald: Section 15(1) states:
An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period... that does not exceed... 4 months...
Where do politicians come into this? Everybody in this House is treated miserably. Similarly, the Minister of State is not adequately remunerated for the hours she works. Are politicians affected by this section? I worked 23 hours last Tuesday, from the time I woke up at 4.30 a.m. until the House finished its business at 2.45 a.m. I raise this point in view of the recent report on remuneration for politicians compiled by people who hardly work at all.
Ms E. Fitzgerald: The gentleman who wrote that report was my boss at one stage in my Civil Service career.
Mr. T. Fizgerald: God help the Minister of State.
Ms E. Fitzgerald: He worked hard in those days. I will say nothing about his work rate today because I do not believe we should cast aspersions on those who are not Members of this House.
We are not covered by this legislation because we are deemed to be people who set our own working hours. It is open to us to keep the telephone off the hook, not to attend clinics or whatever. That is what I do on Sundays.
Mr. Maloney: What is the status of family run businesses effectively comprised of employees, because they would pay PAYE where there was a husband and wife, two partners or whatever?
Ms E. Fitzgerald: That goes back to the question raised by Senator Fitzgerald under section 3. The definition of “family member” is set out in section 3(6). It includes lineal descendants, brothers and sisters and step versions of the same. For example, it could include one's grandfather's father, oneself, one's sons or daughter, grandfather, grandmother, brothers or sisters or step versions of them.
Mr. Maloney: This means that the Bill effectively does not inhibit family run businesses from setting their own hours.
Mr. Sherlock: The mechanism will permit 60 hour working weeks in the first year and 55 hour weeks in the following year, which will provide some relief in those years. Has further consideration been given to a situation where shift work was a regular feature of a person's income over a number of years? There are some industries, especially the dairy industry, where the implementation of the regulations would result in a substantial reduction in take home pay. Are there are any exemptions for those involved?
Ms E. Fizgerald: Existing law provides for a ceiling of 53 hours in the working week. Those limits were set in the 1930s. Reference has been made to the six day week being reduced to the five day week. This provision seeks to bring down the maximum working week on a pro rata basis. Existing rules are in force until the Bill is passed. I do not see us endorsing people working a 70, 80 or 90 hour week. There is a two year phase-in. Nobody should be forced to work excessive hours to earn a decent wage to support themselves and their families and employers should be able to organise their businesses accordingly.
According to the Labour Force Survey definition, there are 180,000 out of work at a time when some people are working excessive hours of overtime. The 48 hour rule gives employers seasonal flexibility to organise their businesses. They also have a two year lead-in. What they organise after that in terms of compensation for loss of earnings is their business. They would be expected to have  staff ready if they need to employ them. Indeed, some employees may already be in breach of the 1930s legislation.
Mr. Sherlock: What is that legislation?
Ms E. Fitzgerald: The Conditions of Employment Act, 1936. It is 61 years old.
Question put and agreed to.
Mr. Mooney: I move amendment No. 2:
In page 15, between lines 30 and 31, to insert the following new section:
“16.—(1) An employee may waive his statutory right to a 48 hour maximum working week by either—
(a) a written agreement with his employer, or
(b) pursuant to a collective bargaining agreement as approved by the Labour Court.
(2) An employee who refuses to give his or her consent to the waiver shall not be subjected to any detriment by his or her employer.
(3) Notwithstanding any other provision of this section, where such a waiver has been agreed, an employer shall not permit an employee to work in each 7 days more than an average of 60 hours calculated over a period of 12 months.
(4) The employer shall take the necessary steps to ensure that health surveillance is made available to the employee in question within the meaning of the Safety, Health and Welfare at Work (General Application) Regulations, 1993.
(5) An employee to whom this section applies may, at any stage, withdraw his or her consent by giving to his or her employer one month's notice in writing.”
The Minister of State debated this amendment in the other House with my colleague, Deputy Tom Kitt, when the arguments were well aired. The amendment is concerned with flexibility, the implementation of the 48 hour rule and the opt out clause. Why is she opposed to an opt out?
Ms E. Fitzgerald: We need to get this into perspective. Some 94 per cent of Irish business carry on without asking their workers to work more than a 48 hour average working week. The UK is the odd man out in Europe. When this was agreed in Brussels, five of the countries signed a statement in the minutes that they would not accept an opt-out. That opt-out was originally going to be for the UK on the basis that they might agree to the directive. In the event they voted against the directive and took it to the  European Court, where they lost comprehensively. It was part of the ideological opposition of the outgoing Tory Government to social legislation and to the Social Charter.
I feel strongly about this, but there is a reason we have a ceiling on the working week, although we have built flexibility into it. We do not want people to work excessive hours that would put their health or the health of their fellow workers at risk. My responsibility, as Minister of State for Labour Affairs with reference to health and safety at work, is to oversee that situation and to see that people are not being unduly pushed in that regard.
Second, if there is a voluntary opt-out, how voluntary is it? This is particularly true of unorganised workers or where there may be one or two workers in a business. If there is a threat that one may lose one's job, how voluntary is the situation? Undue pressure could be put on those people, and workers could be picked off one by one in bargaining. That is contrary to our collective tradition and our way of doing business. The interests of solid social partnership, which have served us well in establishing Ireland as the “Celtic Tiger”, will not make us suffer a competitive disadvantage but will still allow us to set ground rules for everybody in relation to maximum hours and good working conditions. Those are ground rules that good employers are comfortable with because they are complying with them already.
Mr. Mooney: I have little difficulty with what the Minister of State said and I am grateful that she has outlined her policy on this matter. I sympathise with her views on the small business where there may be one or two employees who could be put under undue pressure. I can envisage the scenario where an employee wants to leave, only to be told by the employer that he or she has to work. If the worker points out that the law states he or she can work only 48 hours, the employer may point out that there is an opt-out and ask the employee to sign it.
The Minister of State also said that the main point of her argument related to the health and safety elements. I sympathise with this, because for too long we have relegated the health and safety element in work to a lower level on the agenda than was proper. The Minister of State is to be commended for improving that situation.
In an earlier section of the Bill, however, there are exemptions for a group of State employees, such as gardaí and prison officers. Presumably they are equally concerned about health and safety, and on Committee Stage in the Dáil Deputy Harney raised the question of prison officers' overtime earnings. She described overtime earnings in the prison service as being quite substantial. I was taken aback by the figures she mentioned. Although it was not stated, I wondered if a lobby was operating to ensure that the gardaí and the prison officers were not affected  as a lot of money was being made on overtime due to security situations such as the BSE scare. Perhaps there were reasons of State security for their exemption, or perhaps it is not practical for those we trust to protect society to work 48 hours a week and no more.
Because of this, there is a dichotomy between these State employees and the private sector. Yesterday the Minister of State and I were at the plenary session of the National Economic and Social Forum, where economic growth in the service sector was repeatedly mentioned. That sector by its nature operates successfully in a flexible working environment. It is comprised of entrepreneurial people who have a skill I sometimes wish I had: that of taking an idea and making money out of it. We only hear of the success stories like Senator Quinn, and not the failures, but one has to admire them because of the environment in which they must work.
They are also a significant part of the wealth generation of the economy. I and others have doubts about the inflexibility of the Government's proposals in relation to the opt-out. I can understand that it is probably easier to take a rigid view and state that 48 hours is the figure, within certain parameters. That offers a lot of valuable protection and improves the health and safety environment. However, taking the entrepreneurial view, I remain to be convinced that the implementation of this directive in such a rigid fashion is good business for Ireland.
I am also surprised at the Government's rigidity on the 48 hour rule when Europe gave an opt-out. Their interpretation was not as rigid and it is to be reviewed after seven years. The Government intend to phase this in over two years, and we could have had a derogation if we wished. The countries that signed this statement were, presumably, Germany, France and Luxembourg.
Ms E. Fitzgerald: And Portugal. I do not have the list with me.
Mr. Mooney: These countries are having a lot of difficulty in solving their unemployment problems. Our unemployment problems tend to be different to the general European trend, as we have a significant young population entering the labour market on a yearly basis, while the demographics in Europe are totally different.
The Minister of State said that Siemens was but one swallow in a bountiful summer for our inward investment programme, but I have doubts. The Minister of State met members of the American Chamber of Commerce, who felt that we are creating an international perception that business here is overregulated. Those in the service sector made it clear at the National Social and Economic Forum yesterday that small businesses are overwhelmed with bureaucracy. That must be addressed by the Government, as it is the context of my amendment.
Mr. Quinn: I support Senator Mooney's amendment. A great deal of this has been debated already, the Minister of State has heard all the possible arguments and Senator Mooney has made many of the points I wished to raise. On the perception of Ireland as over-regulated, I was jolted by this when introduced to a table of businesspeople as being from Ireland. I was made welcome by one individual who spoke of how great Ireland was. He said Ireland was a great country with marvellous sporting facilities and places of interest. As he continued, my head got bigger and I became more proud of this country. He then told them not to open a factory here. He said he was on the board of a company which opened a factory here and he could get over the difficulty it faced in terms of regulations when the company decided to close one of its two factories. He said it was not only the regulations but the perception of regulations at all levels of society. He was talking about the Oireachtas, senior civil servants, the public and trade unions who believed that to protect jobs, they must regulate. He said he was on the board of a number of international organisations and he swore that he would fight against opening a factory here. The Minister of State will understand why I battled and fought but did not win the argument.
I told that story because Senator Mooney spoke about over-regulation and the perception of over-regulation. There is no doubt that the Minister of State made a strong case for this Bill and health and safety are clearly identifiable reasons. I am concerned that we are not giving individuals the opt out which we are giving to State employees. For example, the State is making an exception in the case of prison officers which it is not extending to others. That is the reason I support Senator Mooney's impassioned plea for future jobs, the economy and the wealth of our nation.
If we are to achieve what we and the Minister of State have set out to accomplish, we must be aware that we are in a competitive market and that other nations have not enforced these regulations as strictly and as rigidly. I am concerned that we are not giving the individual the freedom to opt out. The Minister of State has listened to this case being by others much better than I but I urge her to take note of it and to consider the long-term competitive objectives of this nation and the economy and to consider the freedom of the individual to work hard, which we encourage young people to do.
We are enforcing regulations which will not allow exceptions. Exceptions will be made by the self-employed, so it will be impossible to enforce these regulations in relation to those who set up their own businesses. Senator Mooney's amendment would cover the problems the Minister of State is trying to overcome and I urge her to accept it. In doing so, she will have achieved what she set out to accomplish and will enable the economy to compete in the years ahead.
Ms E. Fitzgerald: This is deregulating legislation which replaces 137 pages of primarly legislation, registered agreements, orders and regulations and allows flexibility. Senator Quinn will be pleased that he will no longer have to come to me if he changes the shift pattern of his workers. He will no longer need piece work placards on the wall and to hand piece work dockets to people in Irish and English on which one is legally forbidden to have a picture.
This Bill is a major simplification of the law. We have built in a provision so that variations can be achieved from the minimum provisions in the Bill, which a good employer like Senator Quinn would well exceed in terms of the agreements he has negotiated with his workforce. In most cases variations can be achieved from the set terms of the Bill through collective agreement with the workforce and appropriate compensatory rest. It is a very flexible instrument and we should not buy the propaganda that the Bill is about regulation. It may surprise Members that it is, to a large extent, about deregulation and that the procedures are fairly simple.
If we were to run with the individual opt out and go with the terms of the directive on Article 18, there would be a great deal more paperwork involved in the policing of this because we would have to satisfy everybody that it was above board and that the terms of the directive had been met. Opting for the 48 hour rule is more simple than what we are talking about.
Senator Mooney asked which countries opted out. Belgium, Spain, France, Italy and Luxembourg stated that they would not make use of the option provided for in this provision given that an agreement between an employer and a worker would be totally inadequate in a matter as important as that referred to in Article 6, the 48 hour week, which must be governed by stringent and uniform provisions. The reason for the opt out was to try to get Britain's vote for the directive as a whole but it was unsuccessful in that regard. It was originally devised as something which would apply to the UK only and the other countries in the EU have not subscribed to it.
Senator Quinn spoke about a man he met in the United States who thought this was a bad place to do business. I understand his feelings in this regard and how he would stoutly defend Ireland as a good place to do business while maintaining his critical viewpoint. I will not go into today's ESRI report but since the Bill was published, approximately 12,000 jobs have been announced in companies which, in the face of this legislation, have decided to invest. I am sorry that businessman did not find this a good place to do business but he is in a minority.
I have read much economic literature on regulation and perhaps the most significant regulatory factor found in countries is universal minimum wage legislation which is in place in the United States but not in this country where it applies only in 20 per cent of particularly vulnerable employments. We allow the market to determine  wage settings but that is not the case in the United States or in a number of continental countries.
There is much propaganda about regulation. We should continue to simplify paperwork ranging from PAYE to PRSI forms and so on. Our health and safety rules have been greatly simplified from the old prescriptive system to one which places responsibility on employers, in conjunction with the workforce, to have a health and safety statement appropriate to their business. Those in the Department working in the small business area are looking at how they can make paperwork simpler for employers and how they can encourage business.
Mr. T. Fitzgerald: I agree with the amendment and the sentiments expressed by Senator Quinn. It appears the Minister of State will not accept the amendment. It is sad that she is introducing legislation which the EU and other countries want. I would like to see legislation introduced which would satisfy our workers, our employers and our working conditions and not other countries and, as the Minister of State said, to entice the British to agree to this. It might have nothing to do with the Bill, but we are dictated to in such a manner by the EU and it has such influence over us, that we introduce legislation to suit it. I would rather we introduced legislation suitable to workers, to Senators Quinn's and Mooney's views and those of others rather than abiding by EU directives and regulations.
Mr. Mooney: I find myself in general support of the thrust of what the Minister said. My concern centres around the individual's choice in a free society, and that is what the amendment attempts to address. What is so wrong with an employee having a written agreement with his or her employer? The Minister made a virtue of the fact that other EU countries opted out and that it was primarily a political device to get the British on side. The United Kingdom, our largest neighbour and one of our major trading partners, is the main beneficiary of inward investment in Europe by third countries, such as the United States and the Pacific Rim, especially the latter. We do not have as many Japanese or Far Eastern companies operating in this country in proportion to the UK and part of the reason relates to flexible working conditions.
My approach is not just bound up in the emotional ties I have to the Minister's lucid argument about why we should stick rigidly to a 48 hour limit, and I understand it precisely. I support workers' rights and I can see how loopholes would allow exploitation and intimidation resulting in possible loss of employment. I look at the situation in a global sense. As Senator Quinn, a successful businessman working in a service industry, correctly put it, this amendment addressed the dilemma facing those of us who, on the one hand, want to go all the way with the  Minister on this, but on the other want to stop short of the granny state syndrome where the State decides what is good for the individual as distinct from the individual deciding within a specific framework what is best for them and their family.
For those reasons I tabled the amendment, rather than just as a cursory exercise. I will not withdraw it. However, I am grateful to the Minister for clarifying a number of the points, apart from the fact she did not refer to my earlier question about exemptions, the various State employees and the overtime money they earn as well as other points raised, but I will not press her on those.
Mr. T. Fitzgerald: Consultants.
Amendment put and declared lost.
Sections 16 to 40, inclusive, agreed to.
Question proposed: “That section 41 stand part of the Bill.”
Mr. Mooney: I am aware that this is a new section added on Report Stage in the Dáil. It increases fines under health and safety legislation from £1,000 to £1,500. That the Minister acceded to a request for an increase suggests it is modest and I wonder whether it is the type of sanction she would be happy with. Would she clarify briefly under what circumstances fines are imposed for breaches under this section?
Ms E. Fitzgerald: This relates to District Court prosecutions and is something I inserted myself rather than in response to requests. The maximum fine which can be imposed by the District Court is £1,500. The Minister for Justice is examining an increase in the general limit from £1,500, but nothing has come of it as of yet as there is so much Justice legislation to be dealt with. It is not open to us to exceed £1,500. However, there are no limits if someone takes a Circuit Court prosecution. One of the most effective sanctions the Health and Safety Authority has is the injunction to stop work, a cease work notice, which has been used in the building area where there have been scaffolding accidents. It allows work to be closed down on a building site until matters are put in order. The lost production is a more effective sanction. It is a question of prosecuting in the District Court or the Circuit Court, where there are no limits, and it depends on the seriousness of the offence concerned. If an inspection finds no toe boards on scaffolding, a District Court prosecution may be proceeded with. If a serious accident occurs, a more open-ended prosecution without limits on fines may be opted for. If there are serious deficiencies on the site or premises, an order may be served to close it down until matters are put right.
Mr. Mooney: Has this always been the case, or has the closure order been introduced in new legislation?
Ms E. Fitzgerald: It is included in the Safety, Health and Welfare at Work Act, 1989.
Mr. Mooney: There has been a spate of construction industry accidents, especially in this city, as a result of a boom in the industry. It is something Irish emigrants in the UK have lived with for a long time because of cowboy operators who do not adhere to the law. Is the Minister suggesting there is a problem with this, or is she content the section now addresses any potential difficulty in this area — for example, the construction industry, where safety seems to be the main problem but not the only one?
Ms E. Fitzgerald: I launched a scaffolding safety programme devised in conjunction with the Construction Industry Federation, the building trade unions, the Health and Safety Authority and FÁS. The carrot and stick approach — education and training of workers and spreading consciousness and putting the boot in with more inspections and closure notices — will suffice in the building trade where we are worried about the level of accidents, which in some cases have grown more than in proportion to the growth in business and work in the sector. I felt it unacceptable to have a limit of only £1,000 when a limit of £1,500 could be imposed. We should use the maximum fines as part of the armoury available, because health and safety are important. It is appropriate we do it in this legislation, which is fundamentally a health and safety measure.
Mr. Mooney: The other area of concern is the food chain. Do the regulations cover situations where employees may be exposed to health hazards as a result of contaminated food or because of environmental standards not being adhered to? I am referring to recent studies which indicated that a lot of food, such as quiches and lasagne, sold for human consumption and available in an increasing number of small retail outlets, is possibly prone to unacceptably high levels of contamination. There is a possibility of employees being contaminated from eating such food which they might have purchased in their work canteen. Do these regulations cover this area of the food chain?
Ms E. Fitzgerald: Food hygiene and environmental health officers would police the standards of salmonella and bacteria in food such as quiches and sandwiches. If an employer serves food in a workers' canteen, it would be part of his or her duty and care to ensure the food was reasonable and safe. I would be glad to brief the Senator some other time, perhaps under the Health and Safety at Work legislation.
Mr. Mooney: Thank you.
 Question put and agreed to.
First to Sixth Schedules, inclusive, agreed to.
Title agreed to.
Bill reported without amendment and received for final consideration.
Question proposed: “That the Bill do now pass.”
Minister of State at the Department of Enterprise and Employment (Ms E. Fitzgerald): I thank Senators for what has been a very good debate which was conducted with great courtesy at all times. Members made their points and brought their own knowledge and experience to bear on the proceedings. I am very pleased with the way the Seanad facilitated us in the speedy passage of this Bill. I want to put on the record my thanks to my staff, Billy Jestin, Lorraine Benson and Gerome Forde for their work on this Bill. We met in excess of 100 groups during discussions on this technical legislation. At all times they have operated with great professionalism and dedication.
Mr. Mooney: I thank the Minister on behalf of Fianna Fáil for not only her widespread expertise in relation to this legislation but for her usual graciousness and courtesy on the issues that divided us and for her clarity on the issues on which we sought explanations. I reiterate the compliments she justifiably paid to her staff. Perhaps we do not acknowledge often enough the excellent work done by civil servants in drafting very complex legislation. I compliment the Minister for her initiative in getting this Bill through both Houses because it was fraught with all sorts of dangers and difficulties.
Mr. Quinn: As the Minister is aware, I have some concerns about legislation going through this House, particularly this detailed legislation which the Minister and her staff must have been tempted to duck a year or so ago. I congratulate the Minister and her team on bringing this legislation to a fruitful conclusion.
I would add a word of caution about Bills such as this. A great deal of the work was done in the other House which we did not repeat. My concern is that while we studied it as it passed all Stages, we do not come back here a year or two later and ask if the Bill is working and is doing what we intended. Perhaps there should be some feedback. On occasions Bills which were introduced turned out to be in error and we had to start all over again, and that is not easy to do.
In congratulating the Minister and her team for the work that went into this, I also issue a word of advice. If the Bills we have debated have not achieved the very worthy objectives set by the  Minister there should be a mechanism to allow us to look at it again in the future.
Ms O'Sullivan: I, too, congratulate the Minister and her staff on this Bill. It had a relatively quick passage through the Seanad compared to the Dáil. As Senator Quinn said, there was no point in reiterating all the arguments made in the Dáil, so the Minister will appreciate that too much time was not spent going over previous arguments. Important consultations took place, not just in this House but outside the House, particularly with the social partners, IBEC and the Congress of Trade Unions, which enabled the Minister to strike the right balance.
It is important that issues such as zero hours and so on be addressed because they could be subject to strike action. These are difficult issues for many workers and I am glad they have been tackled. I hope issues such as those concerning non-consultant hospital doctors and sea fishing, excluded in the EU and here, will be dealt with relatively soon. Overall, I think it is a very good legislation and I welcome its passing.
Mr. Howard: I join with Senators in complimenting the Minister for her co-operation during the passage of this Bill. It is in keeping with her previous attitude when putting legislation through this House and it is something we welcome.
I wish to comment on the constructive and searching contributions from the Opposition, which are always welcome. Contributions here are always made from a genuine and constructive viewpoint.
Might I also say that the Acting Chairman conducted the proceedings with usual courtesy and efficiency.
Mr. T. Fitzgerald: I wish to refer to my criticism of section 3 and explain that my hearing is not great at times. I apologise, as subsection (6) gives a clear explanation of matters. The Minister made a great case for staff of this House, for Senators and Deputies. A great deal of legislation has gone through this House today and we all endeavoured to contribute by way of constructive criticism. It is not because the Minister introduced the legislation that we put forward different views. The problem is that we are becoming tired and overworked. Unlike the Minister, we do not have staff to do research or go through the legislation in order to improve it. I would say to the Minister, the leader of the Opposition and the Whips that Senators should have staff to enable them to make a better contribution to legislation which is debated in this House.
I welcome the Bill. The questions asked by Senators were normal questions, and again my apologies for my misunderstanding.
Question put and agreed to.
Sitting suspended at 5.50 p.m. and resumed at 6 p.m.
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