David Cullinane (Waterford, Sinn Fein) | Oireachtas source

It is nice to be back again. By my calculations, this committee has spent ten hours and five sessions hearing from 39 witnesses about this Bill and the wider issues that are raised in it. That is an impressive amount of time and effort. I thank the committee and the Chairman for the work it has put into this Bill. I also thank all the witnesses for giving their time to evaluate the Bill as well as sharing their insights and analysis. All contributions from all sections, both those who agreed with what the Bill is setting out to do and those who did not agree, have been read by me, those in my office, and Dr. McCabe, who is with me, and we are both thankful for the arguments made.

We have to be clear on one thing from the outset. There is a problem with if-and-when contracts and that problem demands a legislative response. There is no point in witnesses coming into this committee, as some have done, and pretending that the Irish world of if-and-when contracts consists of nothing more than students training to be doctors or lawyers, and employers doing them a flexible favour. The employers’ groups did themselves no favours by putting forward such a facetious line. Mr. Tim Fenn of the Irish Hotels Federation, said, “The first thing we would suggest is that this Bill be forgotten about.” In the words of Senator Reilly, “there has to be a realisation that there is a problem”. We may disagree with how to address this issue, but no reasonable person can dispute that there is an issue and problem that needs to be addressed. The problem the Bill sets out to resolve is that of a person consistently working hours that are not recognised in a contract. As I have said from the beginning, I am happy to see changes to the Bill as it stands so long as that key objective is still realised.

Having gone through all ten hours of transcripts, I feel that there are three core issues raised with regard to the Bill that I believe to be valid and which were put forward in good faith. The first relates to the use of the word "exceeds" in section 3(1). This was raised by Ms Marguerite Bolger, SC, and Ms Cathy Maguire, BCL. Both said that they strongly welcomed the Bill and what it seeks to do. Ms Bolger made the point that the Bill as worded could be interpreted as giving an employee the right to hours in excess of those currently worked. As I have said on numerous occasions, this is most certainly not the intention of the Bill. Ms Bolger suggested replacing the word “exceeds” in line 30 to “reflects” to put it in line with the overall intent. I have reflected on this and I am more than open and willing to support such a change being made if the committee is agreeable.

The second issue relates to the look-back period for calculating the appropriate band for the employee. My Bill gives a period of six months, which is in line with the University of Limerick study recommendation. I understand that representatives of those who carried out that study were here today as well. The committee heard from various witnesses who criticised the six-month look-back period as too short to take into account seasonal factors. Other witnesses thought that anything more than 12 months would be excessive. I accept that the six month look-back period may be too short to take on board seasonal factors. I am willing to see that changed and I suggest that it could be a period of nine months. With that in mind, section 3(1) would then read, “A worker, or his or her trade union or a representative acting on his or her behalf, shall be entitled after a period of no less than nine months of continuous employment with his or her employer, to request in writing of his or her employer to be moved to a weekly band of hours, as per the banding of hours set out in the Schedulewhere the band requested [reflects] the hours average worked weekly in the previous nine month period.” I feel this reflects a reasonable balance between the rights of the employee and the rights of the employer. No one is asking for additional hours in this Bill. All that is being requested is a contract that reflects the reality of hours worked.

The third issue raised is that of a refusal of a request for a move to a new band of hours on objectively justified grounds. Again, I feel that the issues raised with regard to how the Bill, as it stands, deals with this have merit, especially with regard to the current test of "severe financial difficulties". As a result, my office and I are working on a formula of words that will move to give the Bill a test on objectively justified grounds, as per the intent in the Long Title. With the Chairman's permission, I will get back to the committee with this formula of words.

One point was raised that I feel does not warrant a change in the Bill. On the issues regarding the obligation to provide information on overall availability of working hours, I believe the employers’ organisations simply showed up their outright opposition to the Bill rather than raising any valid criticism. Section 5 as it stands places an obligation on an employer to display the work roster for the following week "such that the notice is reasonably likely to be understood by the workers concerned”. The Bill says that this roster “may” be in English or Irish, and in other languages where required. It does not say “shall” be in English or Irish, and in other languages where required. The key issue is that the notice is such that it is understood by the workers concerned.

The obligation is to display a roster that is understood by the workforce. We do not want rosters that are not understood by employees. Unless Irish employees believe in putting up notices that are not understood by workers, a practice that would negate the reason for a notice in the first instance, the purpose of which is to be understood, then I fail to see how this be claimed as such an onerous burden on employers that it would lead to the immediate collapse of the business and-or bankruptcy, as claimed by the employers representatives, or lead multinationals to flee Ireland for foreign shores, where they presumably would have to put up notices in languages other than English. This type of nonsense approach benefits nobody.

As already stated, I reject the comments made by witnesses that there is no need for this Bill and that if-and-when and contracts are all sweetness and light: they are not. There are other issues that were raised in the course of the five hearings, including the need for additional sanctions where an employee is penalised for requesting a move in banded hours, which I am happy to discuss, along with the comments that I have just made.

I thank the committee for its work in scrutinising this Bill and I am happy to take any questions members may have.