Professor Michael Doherty:

The Deputy's third question raises an interesting point. Academics are always looking for something new and, at labour law conferences all around Europe at the moment, people are talking about the platform, or the gig, economy, but this represents a very small proportion of European economies, though it is increasing. Its importance is that it has put the spotlight on situations where people provide services under some sort of third party direction but not in a way that conforms to a traditional employment relationship, which is common in sectors such as media and aviation, etc. In some countries, though not in Ireland as yet, platforms are used in the provision of very traditional services, one of the fastest growing of which is home care services. Care providers are linked via a platform to somebody who requires care. In such cases, and in other sectors, we need to be very careful about how we regulate the conditions of the people who provide the services. Unfortunately, we have seen and heard quite disturbing things about the care sector in this State and, given that there is no employer in these cases, we need appropriate safeguards, both for the people who do the work and those who receive the service.

Most of us probably think of food delivery when we think of gig or platform work. It is not very prevalent but it has spread to a lot of other sectors in other countries and we would be unwise to ignore this. This issue is not new. We need to decide where the responsibility lies for ensuring proper conditions for workers, and for ensuring redress where people receive a service which is not up to standard in some way.

As I said to Deputy O'Dea, I do not think a third category is useful but we might consider a broader definition of what we consider a worker to be, which was addressed by the EU in a specific context. It would cover somebody providing a service, personally and for payment but not necessarily under the control of an employer, as we would traditionally understand it. It does not necessarily include a requirement for mutuality of obligation, which is where things get problematic here. If a company employs somebody to deliver something for 20 hours in a particular week and that person is not required to do it but has no other source of income, one has to ask if there is a genuine mutuality of obligation in the deal. Can the person doing the delivery really say he does not want to do the job, bearing in mind that he may not be asked again if he does not accept it? We need to think a bit more broadly about what we consider the obligations of employers to be in some areas, such as wages and holidays, etc.

The Deputy also raised the issue of public procurement. This is something on which I have done a little bit of research. In 2012 or 2013, I did some research into State contracts at a time when the only thing happening in construction was State contracts. It was very clear that there was a perfect storm for contracting authorities, particularly local authorities, in which the requirement was to get things done as quickly and cheaply as possible. If that meant accepting the lowest bid, however questionable it might have looked, so be it.

Trust was placed in contractors to fulfil obligations but it did not happen in many cases, especially in the case of workers from other member states who came here to do work prior to 2012 but in similar circumstances. While matters have improved in that sense and there is much more construction work going on now, I am still not sure that there is critical or sustained scrutiny of the awarding or the performance of public contracts. Outside this room there is a storm going on about a particular public project. Since 2016, ironically, workers who come here from other EU member states to do construction work have some protection. These are what we call Post-it workers who come to provide a service for a brief period of time and then return to their own countries, typically, construction workers from France who build something and then return to France. They have protection in that the main contractor in that relationship can be liable for any shortfall of remuneration for subcontractors but that applies only to those workers and not to workers employed by domestic employers.

I have read the submissions of Congress and so on. I would be broadly in favour of some sort of chain liability for subcontracting, particularly in the construction sector and in State contracts. It is arguable that outside of State contracts it is a little more difficult to prove, monitor and so on but certainly within the context of public procurement, there should be liability for main contractors for things that happen down the chain. It is done elsewhere. It is not a revolutionary concept. It is something we probably need to put on a statutory footing because it has been part of State contracts. However, I am not aware of any contractual cases being taken by the State against main contractors who have not fulfilled their obligations.