Ms Patricia Murphy:

I thank the Chairman for the invitation to attend the joint committee this morning to discuss the European Commission’s proposal for a new directive on transparent and predictable working conditions and the Government’s Employment (Miscellaneous Provisions) Bill 2017. I am joined by my colleagues, Ms Orlaith Mannion and Mr. Dermot Sheridan, from the Department’s employment rights policy unit. I will make a short opening statement addressing both items, after which we would be pleased to take questions from the committee.

The committee already has the information note on the Commission proposal, which the Department prepared and submitted to the committee at the end of January which sets out the background to the proposal and provides a short summary of it. This is a significant proposal from the Commission because it seeks to update and replace an existing directive, 91/533/EEC, commonly referred to as the written statement directive, which dates from 1991. The written statement directive provides that employees starting a new job are entitled to a written statement of terms of employment within two months of commencement of employment. The directive sets down a list of information items that must be included in the statement. In Ireland the directive was transposed by the Terms of Employment (Information) Act 1994.

The proposal is also significant because it is in the very same space as the Government’s Employment (Miscellaneous Provisions) Bill 2017, which proposes to update national legislation in this area. However, there are differences between the Commission proposal and the Bill. While the Bill pre-empts many aspects of the Commission proposal, the proposed directive includes elements which go beyond the measures included in the Bill in certain respects. Equally, the Bill goes beyond the Commission proposal in a number of respects.

The main differences between the Commission’s proposal and the comparable provisions in the Government’s Bill are as follows. The first relates to the directive's scope. The Commission proposal as drafted has a broad application and would include all workers, even those casually engaged on once-off work assignments. This could include situations where a domestic household engages a self-employed tradesperson, a plumber or a painter-decorator, for example, to carry out work at their home. The Government Bill on the other hand is focused on employees employed on a contract of service basis and excludes genuinely self-employed individuals. The second relates to the information to be provided to workers. The Commission proposal contains an extensive list of information to be provided in the written statement which includes a number of items not provided for in the Government’s Bill, including, for example, information relating to period of probation, training to be provided by the employer, and social security arrangements. The third relates to the time period within which information is to be provided. The Commission proposal provides that the statement containing all of the required information should be provided to the worker by the first working day at the latest. The Employment (Miscellaneous Provisions) Bill, on the other hand, distinguishes between a shorter statement of five core terms of employment, which must be provided by day five of commencement of employment, and the remaining items to be provided within the current two-month period. The fourth relates to the favourable presumption of written terms. The Commission proposal provides that if certain information is not provided in the day one written statement, the employee may benefit from a number favourable presumptions such that, for example, the worker could be deemed to employed on a full-time, open ended position, without any probationary period. The Government Bill does not include favourable presumptions similar to those in the Commission proposal. However, it does provide that it shall be a criminal offence for an employer deliberately to provide false or misleading information to the employee as part of the day five statement of core terms. It also provides that it shall be a criminal offence for an employer who fails to provide the day five statement within a specified period.

I will now outline the main features of the Employment (Miscellaneous Provisions) Bill 2017. The Bill is in response to the commitment in A Programme for a Partnership Government to address the problems caused by the increasing casualisation of work and to strengthen the regulation of precarious employment. The focus of the Bill is low-paid, more vulnerable workers, and its key objective is to improve the security and predictability of working hours for employees on insecure contracts and those working variable hours. To this end, the Bill addresses the following five key issues which have been identified as being areas where current employment law should be strengthened to the benefit of employees without imposing unnecessarily onerous burdens on employers. The first issue relates to ensuring that employees are better informed about the nature of their employment arrangements and in particular their core terms at an early stage of their employment. A new offence is being created where employers fail to comply with the new information requirements. The second issue is strengthening the provisions around minimum payments to low-paid, vulnerable employees who may be called in to work for a period but not provided with that work. The third issue is prohibiting zero-hour contracts, except in limited circumstances. The fourth issue is ensuring that employees on low-hour contracts who consistently work more hours each week than provided for in their contracts are entitled to be placed in a band of hours that better reflects the reality of the hours they have worked on a consistent basis over an extended period. The fifth issue is strengthening the anti-penalisation provisions for employees who invoke or try to invoke a right under these proposals.

The Bill seeks to achieve its aims through appropriate amendments to the Terms of Employment (Information) Act 1994 and the Organisation of Working Time Act 1997. It is important to point out that this Bill is some three years in the making. It is the result of extensive consultations, including a public consultation following the University of Limerick study on zero-hour contracts and low-hour contracts and detailed discussions with IBEC and the Irish Congress of Trade Unions over several months. Considerable effort has been made to ensure the proposals contained in the Bill are balanced and fair to both employees and employers.

Ireland welcomes of the broad thrust of the Commission proposal to update EU legislation in this area which is in line with what is happening at national level here. However, our position on individual elements of the proposal will be guided by the need to find the right balance between providing improved protections for employees without imposing unnecessarily onerous burdens on employers. Where new rights are introduced for employees or where existing provisions are strengthened, these should be proportionate and balanced. This is the approach that underpins the Employment (Miscellaneous Provisions) Bill 2017. Our approach will also be guided by consultations with stakeholders on the Commission proposal.

Discussions on the Commission proposal commenced last month in the social questions working party in Brussels. A second meeting of that working group took place earlier this week. Obviously, consideration of the proposal is at very early stage and most member states have entered a scrutiny reservation. However, it is worth noting that at the first meeting of the working group, nearly all member states voiced strong reservations about the very broad scope of the Commission proposal arguing that the definition of “worker” should not include genuinely self-employed persons. In response, the Commission has indicated that the intention is to exclude genuinely self-employed persons from its scope.