Dr. Desmond Ryan:

I thank the Chair and members of the committee for extending an invitation to me. In terms of the perspectives that I hope to bring to the committee, they come from my being a researcher in employment law with a particular emphasis on atypical or non-standard work. I am also a practising barrister of many years experience who has represented employees and employers. Therefore, I hope that I am well placed to comment in a balanced way on this proposed legislation.

I commend the sponsor of this Bill. The legislation is a very significant step in strengthening further the rights of atypical workers and those working in precarious forms of employment. However, in my view there are a number of potential difficulties with the Bill as currently drafted that require reconsideration. As the legislation attempts to deal with the issue of banded hours it ought to strive to be fair, effective and sufficiently balanced in terms of the interests of workers and employers. The first of the areas that I would like to focus on is the balance that has been struck in the Bill, as currently drafted, between flexibility and security. A cornerstone of European employment law is the combination of flexibility and security that has given rise to an EU law concept of what is termed "flexicurity".

In terms of the balance between flexibility and security in this proposed legislation, I have a number of comments to make. First, in terms of the flexibility principle, section 3, as currently drafted, lacks sufficient flexibility for a number of reasons. The first point I will emphasise is the stringency of the potential defence that an employer has under this section. I have concerns about the constitutionality of this section on the basis that the test laid down is onerous. The test laid down in section 3(4) makes reference to severe financial difficulties and the substantial risk of redundancies or an unsustainability of the business among other things. I would favour the replacement of the current test with a test of objective justification. The latter test can be found in the other three Acts on the Statute Book that deal with atypical work. Those are the part-time, fixed-term and temporary agency work Acts.

Section 3 lacks flexibility due to the way two employers are treated in the very same way and I will explain. Let us consider an employer has legitimate reasons for not acceding to the request made under section 3(1). Under the Bill, as currently worded, if that employer does not provide a sufficiently reasoned decision explaining that then he or she will be treated in exactly the same way as another employer where he or she sets out to conjure up spurious reasons to deny the claim even though the latter employer can well afford to grant the claim.

Section 4, as currently worded, uses mandatory language to state that the Workplace Relations Commission will order the employer to increase the worker's hours to the next band. In my view, it is unsatisfactory that no differentiation is made between an employer who does not set out clearly or in a sufficiently reasoned way very good reasons and the employer who has no good reason. At present both types of employer are treated in exactly the same way.

There is another element to the flexicurity goal. In terms of security of employment for vulnerable workers, it is important to move away from the notion of job security and the idea of holding down one job for all of one's lifetime. Instead, we should consider security of employment more generally. I mean employability or making an individual more employable by having protections in place that are balanced against the needs of businesses. This aim could be better achieved. I urge the committee to consider protection for workers in terms of penalisation. The Bill, as currently drafted, enables a worker to seek the right to move up to an increased band but grants no protection to the worker against unfair dismissal or adverse treatment that flows from his or her request. That is a conspicuous lacuna or gap in the existing Bill that ought to remedied.

In terms of the obligations on the employer such as notification and displaying hours, I refer to the type of analysis used in Court of Justice case law on objective justification. I question whether there is a need for such onerous requirements in terms of display and translation. I also note that there is no provision in the current wording for redress to be sought in the event of non-compliance with the notification provisions.

I welcome the Bill. It is an important additional step to protect vulnerable workers. I am concerned about the constitutionality of the legislation in terms of the balance being struck between flexibility and security. In my view the Bill as it stands is insufficiently flexible.

The committee might consider introducing more flexibility. I go back to my example of the conscientious employer who legitimately cannot provide the additional hours but who, perhaps due to time delay, cannot obtain the relevant financial information in the 21-day period, for example. The committee could consider importing a provision to enable the Workplace Relations Commission to draw inferences from the failure to provide the response in a reasoned way within 21 days. Such provisions relating to atypical workers are in the Protection of Employees (Fixed-Term Work) Act and the part-time legislation. That would be a more proportionate way to deal with different cases in a sufficiently differentiated way.

On balance, the Bill is very welcome. I have a number of other observations to make and I hope I will have the opportunity to do so during the discussion.