Dr. Desmond Ryan:

To give the committee some context, what I was alluding to was an existing legal provision from the fixed-term workers directive which has been transposed into Irish law under the 2003 Protection of Employees (Fixed-Term Work) Act. That directive expressly states that fixed-term contract arrangements are not to be regarded as the norm in terms of the ideal form of working. They require to be justified if they are going to be used. As the committee will be aware, under the Protection of Employees (Fixed-Term Work) Act, an employer has to explain why it is having recourse to a fixed-term contract as opposed to giving somebody an indefinite contract, effectively a permanent job. The employability concern that I referred to earlier is very well captured by that legal provision because it says that if an individual worker is to be employed on a form of employment contract that lacks long-term security, that has to be capable of being explained. That is a principle that could be very effective in regard to if-and-when contracts. To return to the Senator's point about balance, I recognise that employers may contend that to have an outright ban or a blanket rule precluding zero hours or if-and-when contracts would be a disproportionate interference with the way in which particular employers need to run their business. It seems to me that a more balanced approach would be to say, in recognition of that argument but furthering also the employees right to a degree of security of employment, that the particular business must be able to explain why for its business an if-and-when or zero hours arrangement is necessary. We then go back to the established legal principles in terms of objectively justifying a particular measure.

I would also emphasise, from recourse to comparative studies of other jurisdictions, in the United Kingdom, for example, that there is not an outright ban on zero hours contracts but what has been done there is that specific regulations have been brought in which ban exclusivity clauses. In other words, if an employer tries to say that they want their workers on zero hour contracts but they are also preventing them from working for a competitor, that is unlawful under United Kingdom legislation. There are ways in which what is perceived as a specific abuse of zero-hours or if-and-when contracts can be managed without banning them outright and in general, in light of the experience of the other three Acts on atypical work - part-time, fixed-term and agency work - outright bans in regard to atypical work are not desirable. What is needed is more nuance which tries to strike that balance. I agree with Mr. Neville's point about objective grounds being used both in the defence, currently in section 3(4), but also more broadly in regard to the committee's concern about banning zero-hour contracts.