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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 O'Dea: Information on Willie O'Dea Zoom on Willie O'Dea] The normal budgetary cycle in which people prepare their accounts, tax returns, etc. and plan their budgets is 12 months. The Minister mentioned the need to account for seasonal adjustments. One 12-month period contains all the seasons. One does not have to go past a 12-month period to measure seasonal adjustment. On the other hand, I suggest to the Minister that 13 months might be an appropriate period. Somebody has to be working for at least 12 months to be covered under the terms of the Unfair Dismissals Act. To ensure those people are protected, a period of 13 months would be much more logical.

I have a real problem with the bands as proposed by the Government. Only four bands are proposed and they are very wide. I welcome the introduction of the one-hour to ten-hour band. That being said, we must bear in mind that precarious contracts give unscrupulous employers immense power to control and manipulate their workforce. The larger the bands, the greater the capacity for manipulation. For example, take a situation where somebody is in the 11- to 24-hour band. If that person is proving troublesome or is acting in such a way that the employer would prefer if he or she is not around, if that person is at the top end of the scale, the employer can move him or her gradually towards the bottom end of the scale which would result in a tremendous penalisation. More than half a person's income can disappear.

The Minister will say there are anti-penalisation measures in the Bill to deal with that. We will argue this on Committee Stage and put forward the appropriate amendments. I do not think the anti-penalisation measures do what they say on the tin. They are quite weak. They would need to be strengthened and the bands would need to be narrowed. Another reason to argue for a narrower set of bands is that if a person, who works 20 hours per week in the 11- to 24-hour band, is seeking credit and goes to the credit union for a loan, all he or she will be able to produce is evidence that he or she is working in a band of between 11 and 24 hours per week. In other words, all the person giving the loan will be sure of is that the person seeking it is working for at least 11 hours per week. Increasing the number of bands would not completely eliminate that problem but it would certainly mitigate it. Take the example I have given. If the band was up to 16 hours, then 17 to 24, that person would be able to show that he or she was working for at least 17 hours per week. That has to be seriously considered.

I received some documentation today from the Mandate trade union which contains some of the terms under which people are already working by way of collective agreements. Despite what we have heard from IBEC and others, those arrangements are working very well. It is very instructive to read them and to look at the bands. The bands are generally for approximately five hours, not 11 or 12 hours. We will have to look at that very closely.

There are a number of other matters which are more Committee Stage matters but I would like to refer to them now. I have a difficulty with the exclusion of casual work. The term "casual work" is not defined in the Bill and if somebody doing "casual work" is not covered by the terms of the Bill then the protection and rights afforded by the Bill do not extend to him or her. If something as wide as casual work is excluded without any definition, it will enable certain employers to say that they are classifying some work as casual work and, therefore, the people doing it are outside the terms of the Bill. In fact, they could even go to the extent, as sometimes happens with bogus self-employment, of getting people to sign a declaration that work is casual work. I do not think the anti-penalisation measures sufficiently deal with that issue.

I welcome the extension of the information provisions, but I am not convinced that a criminal offence is required. Generally speaking, employment law has functioned reasonably well without the necessity of importing criminal law into it. The solution would be to make the civil enforcement process more transparent and much more efficient, which would involve employing extra personnel at the Workplace Relations Commission and various other bodies dealing with this area. A law which states somebody can go to jail for 12 months if he or she does not provide information in time seems a little disproportionate. I have no overwhelming objection to it, but I think that the matter could be more easily resolved through changing some of those structures and procedures to which employees have to have resort.

The Bill claims to practically eliminate zero-hour contracts and if-and-when contracts. The only way to really eliminate zero-hour contracts and if-and-when contracts is to guarantee a minimum amount of hours of work. It need not be very many - a couple, three or four. That is not provided for in the Bill and we have to look at that.

There is a glaring gap in the Bill in that it does not seek to do anything about the phenomenon of bogus self-employment. I recently had a meeting in Limerick with tradesmen who work in the building sector. They are building houses for the State. Their employer called them in about two weeks and said that they were self-employed from Monday on, that they were independent contractors, responsible for their own tax and PRSI, and that they did not have any rights relating to unfair dismissal, notice or minimum terms, things which had been built up painstakingly over many years. It is amazing that this can happen in this day and age. To take a simple example, there is a distinction in a tax law between how an employee and a self-employed person are treated. As Deputy Willie Penrose will probably be aware, there is a whole raft of case law, fine distinctions and detailed judgments on what an employee is and what self-employment is, yet we are in a situation in this country where an employer can get out of bed on Monday morning and decide, at the stroke of a pen, that a person is self-employed. That is not acceptable. I note the recent joint report by the Department of Finance and the Department of Employment Affairs and Social Protection. I dismiss it as spin. We all know the figures and have plenty of anecdotal evidence of the growth of this phenomenon. It is a scam which is costing the State a lot of money. The Departments' joint report estimated that it was costing €60 million a year. It is a multiple of that figure, about which there is no doubt.

I have a question for the Minister. If somebody is entering into a precarious contract with part-time hours or whatever else, the sort of person the Bill has been designed to deal with, and the employer says there is a job but the person must sign a piece of paper stating he or she will be self-employed, does that render the legislation null and void where it relates to that person?

Deputy Regina Doherty: Information on Regina Doherty Zoom on Regina Doherty It is against the law.

Deputy Willie O'Dea: Information on Willie O'Dea Zoom on Willie O'Dea Employers are getting away with virtually eliminating all the other rights which, as I have said, have been built up painstakingly over decades. A simple expedient like that could mean that the Bill is worthless. I know that Deputy Mick Barry has a Bill to deal with this phenomenon. I have not had the opportunity to read it yet, but we will have to think seriously about amending this Bill along those lines because, with all due respect to Deputy Mick Barry - I am sure his is an excellent Bill - but in my experience, Private Members' Bills, however heavily supported or well-intentioned they are, have a habit of disappearing into the Bermuda triangle.

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