Mr. Ronnie Neville:

I thank the committee for the invitation to participate in this consultation process. The society is aware that the committee has been consulting with various interested parties on the Bill. We have reviewed and considered some of the representations made to date. Given that the committee has already received numerous representations, highlighting legal issues and potential concerns, we do not want to rehearse those either in our written submission or in this oral submission. We sought to limit our comments to the two most important provisions in the Bill.

The society acknowledges concerns which have given rise to this Bill and which have been put before the committee regarding certain practices affecting some casual employees working under if-and-when contracts. The society absolutely endorses and supports any efforts for greater protection of workers where such protection is necessary. The most obvious example is that of workers who are on a part-time contract, for example, for ten hours a week, and who over time, perhaps a number of years, may well have actually been rostered to work more hours, such as 25 to 30 hours. Obviously there has been some media focus on this in recent years. Undeniably where there is such an obvious practice of consistently depriving a worker of the contractual right to the hours that he or she consistently works, this justifies a change in the law in order to offer such workers protection. However, the society has concerns that the Bill, as drafted, may place a disproportionate burden on employers. This, in turn, gives rise to potential constitutional concerns regarding the Bill.

During previous consultation before the committee, various speakers emphasised that the intention of the Bill was to give a worker a contractual right to the existing working hours already in place, but it should not give rise to workers gaining a right to demand additional hours. We have concerns that section 3 appears to expressly allow for this. The Bill makes express provision for an employee to be moved to an "increased" weekly band of hours, where the band requested "exceeds" the average hours worked weekly in the previous six-month period. It does not provide for workers requesting to be moved, as a matter of contract, to the band of hours which corresponds to the average weekly hours worked. It expressly provides that the worker should request the next, or higher, band of hours.

We recommend that the committee should consider the constitutionality of such a provision as to require an employer to increase workers' hours above those usually worked, even on an average basis, may be disproportionate. It is conceivable that under the Bill as drafted an employee could build up their contractual hours by making repeated consecutive requests every six months. Clearly that was not envisaged by the proposers initially, nor is it envisaged today. That would need to be considered.

Our second main concern is that the threshold to be reached by an employer to lawfully deny a request to provide increased contractual hours appears quite high and may be excessive. The Long Title to the Bill provides that the employer must consider an employee's request for an increase in hours and to "permit refusal only on objectively justified grounds". Notwithstanding the Long Title, that is the only reference to objective justification in the Bill. Thereafter, the Bill is silent. Specifically, section 4(3), as Dr. Ryan pointed out, provides that the request can only be refused by demonstrating that the business is in severe financial difficulty such that there is a substantial risk that either people will be laid off or that the sustainability of the business would be adversely affected. Clearly the language used in the drafting of the Bill has been very deliberate in specifying "severe financial difficulty" and "substantial risk" of those dire financial difficulties.

The justification for refusal appears narrow and fails to allow for any other form of objective justification. The committee might consider whether the threshold for an employer refusing a request should be lowered, as there appear to be numerous examples of situations which might objectively justify a refusal, other than being in dire financial straits.

We recommend that the committee may need to look closely as the constitutional aspects of the Bill and in particular the scope of the Bill on two fronts. One is the potential to seek and obtain higher hours than those previously worked and the second is the considerable limitation on the basis on which employers can refuse such a request.