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Employment (Miscellaneous Provisions) Bill 2017: Second Stage (Continued)

Wednesday, 14 February 2018

Dáil Éireann Debate
Vol. 965 No. 5

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(Speaker Continuing)

[Deputy David Cullinane: Information on David Cullinane Zoom on David Cullinane] If that is the outcome of this process and the Minister is in the business of working with us and accepting amendments, we can get to a point where we will have a Bill that will be fit for purpose and do exactly what it should do. My party is committed to doing that, notwithstanding the fierce criticism we received from previous Ministers in the Department. We are big enough to put that to one side as we are here to do the right thing by those whom we represent. We will work constructively with the Minister. An Teachta John Brady will work with other Members of the House at the Select Committee on Employment Affairs and Social Protection where the Bill will progress. If we can get to a place where we will have a Bill that will improve the lot of those on low-hour and if-and-when contracts, that will be a good day. What we cannot say is that we banned zero-hour contracts because that is not what the Bill will do. It addresses an issue in relation to if-and-when contracts; it will not ban zero-hour contracts. We must collectively be honest with the people in what it is we are and are not doing. We will work constructively with everybody in the House to get to a place where we will have a Bill that will improve the lot of those stuck on low-hour contracts who make up the majority of low paid workers in the State.

Deputy Willie Penrose: Information on Willie Penrose Zoom on Willie Penrose On behalf of the Labour Party, I welcome the opportunity to contribute on Second Stage of the Employment (Miscellaneous Provisions) Bill 2017. Like the Minister, I acknowledge the commitment, drive and focus of my colleague, Senator Gerald Nash, who, when he was Minister of State at the Department of Jobs, Enterprise and Innovation, ensured a study of the prevalence of zero-hour contracts among Irish employers and their impact on employees was conducted in a most comprehensive and laudatory fashion by the University of Limerick which produced an excellent report. I, therefore, welcome the introduction of the Bill, in so far as it goes, and most of its contents, but there are some missed opportunities to strengthen the law further in this area.

  Like the ICTU and others have said and as outlined by many speakers, we, in the Labour Party, also subscribe to the view that the Bill is less than perfect. In our view, it requires refinement and amendments, some of which my colleague, Senator Gerald Nash, outlined yesterday in the doorstep interview he gave. Nevertheless, it would be churlish not to say there is a significant intention behind the Bill, which is welcome. The Bill is aimed at improving conditions for workers in precarious employment, but, as it stands, it is significantly and deeply flawed.

  Some aspects of the Bill are important for workers who in their working lives are faced with insecure and precarious work. Even a cursory view of the Bill clearly highlights that the prohibition on zero-hour contracts excludes casual workers. Surely all workers, casual and otherwise, should be included and treated the same. The Irish Congress of Trade Unions has noted, in particular, that the provision to pay a worker required to report for work for a minimum of three hours, whether he or she is required to work, is in line with the recommendation made in the University of Limerick report. Congress has indicated that the minimum payment for working such hours should be at the applicable hourly rate, rather than the prevailing national minimum wage or ERO rate as set out in the Bill. Likewise, the provisions relating to banded hours must clearly be revisited and reviewed. Furthermore, the Bill needs to be strengthened to ensure workers will not be penalised for invoking their rights under legislation. The hole in the bucket from my perspective of the Bill is the abject failure to deal with the concept of if-and-when contracts. It does nothing in that regard. Notwithstanding what the Minister said, as a barrister, I read the Bill inside out and cannot find anything to do with if-and-when contracts.

  I am aware of the commitment in the programme for Government to tackle the problems arising from the increase in the casualisation of work. There was clear evidence of employers increasingly having resort to atypical work - short-term and short working hour contracts - especially in the hospitality, retail and health care sectors. It started in the period before the recession and continued during it. It prompted the then Minister of State, now Senator Gerald Nash, to commission the University of Limerick report. My colleague, Deputy Brendan Ryan, who has an interest and expertise in this area, was instrumental in having the report debated at our parliamentary party meetings.

  I am also aware that many of the employer organisations indicated that such contracts also potentially suited some employers and employees. From an employer's perspective, I note that they advocated that such contracts were clearly useful in providing flexibility by ensuring employees would be available when needed to meet the needs of a particular business which clearly could reduce the payroll costs of an employer. For some employees who required flexibility for the purposes of education or meeting other commitments they said zero-hour contracts might have been beneficial. Leaving aside these weak arguments, there is no doubt that zero or low-hour contracts had a significant negative impact for many individuals, including low and unpredictable working hours, clearly unsustainable levels of income, difficulties in managing their work-life balance and problems with child-care arrangements and lack of notice of shifts.

  What was noticeable from the findings of the University of Limerick review was that zero-hour contracts were not resorted to extensively in Ireland. A lot of speakers get mixed up between zero-hour contracts and if-and-when contracts. There is a difference. One difference is that zero-hour contracts attract some of the benefits of the corpus of employment legislation, whereas if-and-when contracts attract nothing. There is a significant difference when one goes into the Labour Court, as I did previously. That is an important point to make. There is evidence of employers resorting to if-and-when contracts, which, like zero-hour contracts, involve non-guaranteed hours of work. The fundamental difference between zero-hour and if-and-when contracts is that individuals on zero-hour contracts with an employer are contractually required to make themselves available for work, whereas those individuals on if-and-when contracts are not contractually required to make themselves available. If-and-when hours take different forms in employment contracts. In some all hours offered to an individual are on an if-and-when basis. In others there is a hybrid arrangement, whereby an employee has some guaranteed hours and additional hours are offered on an if-and-when basis. That is why I said this was a very critical issue.

  The University of Limerick found that the key factors which were driving the use of if-and-when contracts included: increasing levels of work during non-standard hours; a requirement for flexibility in demand-led services; the absence of an accessible and affordable child care system; current employment legislation and the particular resourcing models for education and health services. Trade unions and others have pointed to the significant negative implications for individuals working if-and-when hours. They include: unpredictable working hours in terms of the number and scheduling of hours; unstable income and difficulties in accessing financial credit, as outlined by Deputy Willie O'Dea; a lack of employee input into the scheduling of working hours; employment contracts which do not reflect the reality of the number of hours worked; insufficient notice when called to work; being sent home during a shift; and a belief among individuals that they will be penalised by their employer for not accepting work. The Minister is trying to deal with that issue. Other implications include difficulties in accessing a range of social welfare benefits which is another headache and, in some cases, poorer terms and conditions.

  Elsewhere in Europe working hours are regulated by legislation and collective agreements. We have some collective agreements and want to ensure they will continue to work with trade union input. There are no zero-hour contracts in a number of countries. Where zero-hour-type practices are regulated, some countries have placed limitations on their use such as time limits. We must acknowledge that many of the recent and current employment and labour regulations have been introduced in response to EU directives. The reason we must be very careful is, from a legal perspective, a critical element for an individual is the analysis of the type of contract on which he or she is engaged and what the classification will be. That is crucial because contracts of the if-and-when variety are not likely to attract the protections offered in the corpus of employment legislation which are exceedingly important in vindicating and advancing workers' rights. Thus, in summary, establishing the employment status of an individual is key. In Ireland the courts have adopted from UK law and advanced the centrality of the concept of mutuality of obligation. That was evident in the case of Barry and Others v. The Minister for Agriculture and Food in 2008. The case clearly established that mutuality of obligation was the first essential test of the existence of a contract of employment, as referred to by Deputy Willie O'Dea. That is absolutely crucial.

  The Bill, as it stands, is flawed. I say that because it fails to offer any protection or relief to a growing cohort in the workforce which is effectively debarred not just from the remit of the Bill but also from the entirety of employment protection law. I refer to those workers who are being required in growing numbers to sign dodgy if-and-when contracts.

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