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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 Willie Penrose: Information on Willie Penrose Zoom on Willie Penrose] As Deputy David Cullinane said, the vast bulk of employers are honourable decent people who want to do the best by their employees. Of course, employment is a two-way relationship and there is mutual recognition of one another's rights, obligations and responsibilities. Such relationships establish a good workforce and everyone wins. They produce a win-win. The problem is the dodgy employer is always on the look-out or on the make and this is the type of thing we want to stamp out. My late uncle used to say a builder never got rich on the materials that went into the building but rather on the back of the people working on the building. He had strong socialist beliefs and he made that point from the time I was on his knee talking to him.

  As matters stand, the concepts of casual employment and continuous employment are mutually exclusive. The difference is an important one. A casual employee will never accumulate the necessary minimum period of continuous employment that ensures statutory protection under our employment law framework, including the provisions in this Bill. That is the point - they will not gain anything.

  I have studied this carefully from the perspective of trying to determine the legal rights. This gap creates a loophole that can be can be exploited by employers. If employers can impose terms and conditions that, in effect, casualise the workforce, then workers fall outside the protection of employment law. They are put at risk of job insecurity, limited integration in the business, low motivation, low job satisfaction and entrapment in a succession of short-term low-quality jobs with little or no social protection. We must end this exploitative practice but this Bill fails to do so.

  The Bill is being debated in the context of the decline of standard employment relationships and increasing atypical work. Some changes are inevitable. We accept some changes. Some may be positive or welcome. However, we have to be careful of where non-standard terms and conditions can be imposed on vulnerable and low paid workers and those with little protection. That is where we have to focus. Conditions of flexibility can become conditions of insecurity and can become permanent. That is the significant issue.

  Women are over-represented in non-standard employment sectors that are poorly-paid, insecure or outside or at the edge of our employment protection laws. Employment policy has to strike the right balance between the need for flexibility and adaptability by enterprise and the rights of workers to job security - in other words, the right to a basic level of predictability in the terms and conditions of work.

  Section 18 of the Organisation of Working Time Act 1997, referred to by the Minister, deals with workers who have a contract requiring them to make themselves available for work. The section sets out a floor of minimum pay entitlements for someone whose actual hours in a given week do not match up to his or her hours on call.

  Compensation and various other measures are provided for, including the 25% of 15 hours provision and the usual arrangements. However, the Act does not deal with a contract with few or no guaranteed hours of work or with no requirement, on paper at least, for employees to make themselves available on-call outside of any guaranteed contractual hours. Many workers are now encountering terms and conditions under which the company is under no obligation to provide work to the worker at any time and the worker is under no obligation to accept any work offered by the company at any time. The Minister may suggest that is rare, but I have in my hand a copy of a contract. The contract is from a significant multinational catering firm. The firm used to do contracts with State bodies and organisations and may well still do so. The firm imposes on workers certain conditions. Under the conditions for hours of work, the hours of work of the worker will be determined by mutual agreement. The company will give the worker seven days' notice of hours of work which are available to him. The worker has the right to refuse or accept these hours. The refusal of hours on the worker's behalf will have no negative consequences on hours offered to him in future. The firm gives no guarantee that hours will be offered to him on a weekly basis. The reality is that the company expects its workers to be available whenever it calls on them. The contract is written in terms that exclude any obligation on either party. When there is no mutuality of obligation, as proved in the case of the Minister for Agriculture and Food v. Barry, the floor is gone, the show is over and they are gone out the door - the worker has no employment protections.

  It is clear that if-and-when contracts are not caught by the 1997 legislation nor will they be caught by the Minister's Bill. The Minister disagreed with that point, but doctors differ and the patient suffers. There is only one set of patients, that is, the workers caught with precarious and unstable hours. In fact, these workers may be outside the entire system of employment protection law. That is my view. The reason is that under the arrangements there is no obligation on the employer to provide work and no obligation on the worker to do any work offered. The law requires mutuality of obligation for a contract to be in place. If there are no enduring mutual obligations, there is no enduring contract. This issue has not been to the higher courts yet, but the law may well be decided if people working under such arrangements are told that they are in effect casual day workers.

  We do not insist that genuine casual work must be deemed to be permanent and pensionable. No one is insisting on this. We all know about students and how people have availed of such work over the years - we have all done it. In fact, the trade unions have recognised and accepted the concept of genuine casual work in collective agreements negotiated with the hospitality sector. We do not live in cocoons or ivory towers. However, if someone is, on paper, simply working from shift to shift, but the circumstances give rise to a reasonable expectation that the employee will be re-engaged to do that work and if it turns out that the employee is, in fact, subsequently employed to do that work, we need to look at the set of facts, rather than what has been written on the paper.

  I urge the Minister to look at the Australian rules on this issue. Under Australian law, service as a casual employee must be included in any calculation of continuous employment if the employee was employed as a casual employee on a regular and systematic basis and during the period of service the employee had a reasonable expectation of ongoing employment by the employer on a regular and systematic basis. Under the rules in Australia, account must be taken of whether the employee was offered work regularly, whether the employee generally accepted work when it was offered and whether, although the amount of work offered might vary, there was a pattern or system to the work that the employee was offered each week. Unless the Minister accepts amendments to the Bill to introduce provisions such as the Australian rules, we will be stuck with what are perverse arrangements that will subsequently lead to the downgrading of the status of employment.

  I hope we can all agree that imposing such terms and conditions on the vulnerable, the low-paid and those with little social protection is unacceptable. If we are agreed on that, we should now take agreed and effective action to stop it. Like my colleagues, I am happy to play a role in that regard. The Labour Party intends to bring forward proposals to amend the Bill to include casual employment carried out on a regular and systematic basis and where the worker has a reasonable expectation of an ongoing, regular and consistent pattern of employment by the same employer.

  The Labour Party notes the proposal to provide for the rights of employees to be placed in a band that reflects actual working hours. The Bill provides for four bands ranging from periods between one and 35 hours, one and ten hours, 11 and 24 hours and 25 and 34 hours and beyond. Most employee representatives, including the Irish Congress of Trade Unions and the Labour Party, are of the view that the bands proposed in the Bill is simply too broad. They need to be narrowed substantially. There should be six or seven bands in which workers could be placed under the legislation.

  The reference period for the look-back or review of 18 months is far too long and should be reduced. I agree with Deputy Willie O'Dea that it should be reduced. We should allow a 12-month period for the unfair dismissal applications. Then we can get in after 13 months. I imagine we could all agree on that. We should try to get the period back to 13 months. That is one suggestion of which we are strongly supportive. Under the Bill, an employee could be placed on a lower number of hours after 18 months. While a further review is under way, the 13-month look-back period would help to deal with the scenario. In that way, the Minister would not be allowing that to slip through.

  The Irish Human Rights and Equality Commission has noted concerns in respect of the banded hours proposal and the banding provisions. The commission has suggested a contract arrangement that seeks to accurately reflect the hours worked may provide workers with some robust protection from significant reductions in income.

  We can all work together in several areas to try to find solutions. No one is suggesting he or she alone has divine right to insight or that he or she has the only proposals to deal with the situation. This is a major opportunity for us to deal with issues. I agree that it is time to call a halt to bogus self-employment and people being classified in that way. I was disappointed with the study referenced by the Minister also. I indicated my surprise to her in respect of it. This is something on which the Labour Party has been focused for several years.


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