Louise O'Reilly (Dublin Fingal, Sinn Fein)
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I thank the Minister of State, Deputy Joe O'Brien, for being here this evening.

A fortnight ago, the Supreme Court published its long-awaited decision on defining employment status. The court ruled that delivery drivers for Domino's Pizza should be treated as employees and not as contractors. The Supreme Court ruling has massive implications in the battle against bogus self-employment. The Government needs to set out in primary legislation how a worker's employment status will now be determined following that landmark decision. In particular, we want to see the Government bring forward legislation that includes a comprehensive statutory definition of what constitutes a contract of employment. This is definitely needed.

The Supreme Court stated that a question of whether a contract is one of service or for services should be resolved by reference to five questions. These are: whether the contract involves the exchange of wage or other remuneration for work; if so, is the agreement one pursuant to which the worker is agreeing to provide his or her own services and not those of a third party to the employer; and if so, does the employer exercise sufficient control over the putative employee to render the agreement one that is capable of being an employment agreement. If these three requirements are met, the decision-maker must then determine whether the terms of the contract between the employer and worker, interpreted in light of the admissible factual matrix and having regard to the working arrangements between the parties as disclosed by the evidence, are consistent with a contract of employment or with some other form of contract, having regard, in particular, to whether the arrangements point to the employee working for himself or herself or for the putative employer. The final aspect is that it should be determined whether there is anything in the particular legislative regime under consideration that requires the court to adjust or supplement any of the questions outlined.

Basically, the courts have kicked the ball into the Government's court. It is for the Government to act. While there is no definitive or composite test that can be applied in all cases to distinguish a worker from an independent contractor and each case is looked at on its own facts, there are, however, four basic factors that tend to recur in these decided cases which must always be regarded as important. The first is the need for personal service, which is the hallmark of a contract. The second is the degree of economic risk involved, and the opportunity to make a profit will always be an important factor. The third is a requirement to provide premises, tools or equipment is a key factor indicating a contract for services. The fourth is that the label that the parties attach to the contract is not decisive. Therefore, my request to the Minister of State is that, in amending the law to reflect the Supreme Court decision, he should bring forward an updated comprehensive statutory definition of what constitutes a contract of employment.

We are talking about thousands of workers who will be impacted by this. These are some very vulnerable workers. They are basically told, "There is your phone. There is an app. Now you are an independent contractor. Go off and make a fortune." Many of these people are working for below the minimum wage. They have no rights or entitlements at work until their status is clarified. They exist in that half-in-half-out status. It is difficult for trade unions to reach them to organise. It is difficult for them to get to know what are their rights and entitlements at work.

We have heard suggestions that definitions used in the Employment Equality Acts or the National Minimum Wage Acts or the definition of a worker provided for in the Industrial Relations Acts could be used. All of these should be looked at. The use of these definitions would allow for the determination of whether an employee is engaged in a contract of service by two basic questions as to whether the parties are bound by a contract and whether the putative worker is personally providing services under that contract. Updating the statutory definition of what constitutes a contract of employment would do away with the need for a technical legal analysis of what determines a contract of service over a contract for service. Will the Minister of State or a member of the Government be bringing forward legislation to give effect to the Supreme Court judgment?

Joe O'Brien (Dublin Fingal, Green Party)
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I thank the Deputy for raising this matter. The Supreme Court judgment in this case, the Revenue Commissioners v. Karshan Midlands Limited, regarding Domino's Pizza delivery drivers is an important decision and one which the Government welcomes. This is a complex area of employment law where the classification of some employment relationships is not easily deduced. Indeed, this judgment further highlights the reality that each case must be determined on its merits.

The fact that the Revenue Commissioners have pursued this case over a period of 13 years speaks to the complexity of this area of law and to the Government’s commitment to ensuring that workers are correctly classified in a way that matches the reality of the relationship between the worker and the business.

Mechanisms exist for the determination of the employment status of individuals or groups and the State's comprehensive suite of robust employment rights protections are kept under ongoing review. This decision and the need for any possible legislative changes will be carefully considered in this context. Where an issue arises in relation to the employment status of an individual, cases are forwarded, for investigation, to the Revenue Commissioners regarding tax treatment and-or the scope section of the Department of Social Protection regarding the appropriate class of PRSI. This may be undertaken either solely by the recipient, or jointly with the labour inspectorate of the Workplace Relations Commission, WRC. The WRC may also determine employment status as a preliminary issue at an adjudication hearing.

In determining the appropriate employment status of an individual, the relevant Departments and agencies have regard to the Code of Practice on Determining Employment Status, which was revised by a working group comprising the Department of Social Protection, the Revenue Commissioners and the WRC, in consultation with the social partners and published in July 2021. The code is the key guidance document for employers and workers and others in the context of deciding the employment status of a worker. It as revised to take account of newer labour market developments, including platform work.

Louise O'Reilly (Dublin Fingal, Sinn Fein)
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With the greatest of respect, if the Code of Practice on Determining Employment Status was doing all that the Minister of State thinks it might be doing, I genuinely would not be here now. I would have a fighting chance of catching my train, which, I think, I will miss, and I would be gone home. That is not sufficient. Clearly, pursuing the matter for 13 years in the courts shows that it is not sufficient. The Department would not have pursued this matter though the courts if there was already a code of practice in existence that would sort it out. The code of practice does not encompass all eventualities, which is why we have workers who, this evening, tomorrow, the next day and in the following days, will find themselves in a situation where they are trapped in what some people like to refer to as the gig economy.

I have other names but I will not say them here. Bogus self-employment is in every sector. It is found in certain parts of the public service and semi-State bodies. It is found in universities and is particularly prevalent in construction. The winners are those employers who seek to get around the rights and entitlements of workers while the losers are the workers.

It is incumbent on the Government to legislate in light of this judgment. It is a landmark judgment that is seismic in that it has the capacity to deliver great change, but this requires action on the part of the Government. I am perfectly happy to bring forward that legislation. I would like the Government to work with me. In his reply, the Minister of State said the Government is committed to stamping out the practice of bogus self-employment. I am not trying to put words in his mouth as I do not have his reply in front of me. The practice of bogus self-employment is obviously not supported by the Government but the Minister of State is in a unique position as a Minister to be able to do something about it and bring forward that legislation and enact it. I do not think anyone would say the code of practice will be sufficient with the workplace changing and the labour market moving in the way it does.

Joe O'Brien (Dublin Fingal, Green Party)
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The misclassification of a worker as being self-employed when his or her terms and conditions mean he or she is in reality an employee is a matter of real concern. There is no single clear legal definition of the terms "employed" or "self-employed" in Irish or EU law. To determine a person's employment status, both the written or oral contract and the reality behind the contract must be taken into consideration.

At EU level, a directive has been proposed on improving working conditions in platform work. A key element of this proposal is that it will help to determine the correct employment status of people working for digital platforms.

Ireland has robust mechanisms for the determination of employment status and the Government is committed to tackling false self-employment wherever it occurs. I reiterate that this court decision and the need for any possible legislative changes will be very carefully considered in this context and I will bring the issues raised by the Deputy to the Minister and the Minister of State, Deputy Richmond.