Professor Michael Doherty:

I will run through the questions in sequence as well as I can but I ask the Senator to follow up if I miss anything. I am aware that Deputy Joan Collins also raised the issue of penalties, which I will address presently. On the definition of self-employment, if one talked to employers and employer representatives, I think one would find that if entering the Workplace Relations Commission system, the default status is almost always that of employee.

I have heard this view expressed very strongly. Tribunals would almost always default to the position that the person is an employee and it is for the employer to prove otherwise. This is perfectly appropriate, but before we get to that point, which the Senator referred to, when it is up to the declaration of status for social insurance purposes or tax purposes, it is self-declaration. Therefore the presumption is usually the other way and it only becomes possible for the person who may not genuinely be self-employed to argue the toss once they have instigated a complaint. I am sure that is where often most of the situations fall down, for very obvious reasons. This is not my area of expertise, but I am not sure how declarations of status are made with regard to social insurance and tax. At the outset part of this needs unpacking.

My interest in the sectoral standards is always about trying to get us out of this definition and the categorisation of everything very precisely, which is not possible in this area. The scope section and the Department have produced a very good checklist to determine if a person is or is not an employee. It needs to be updated, but individual situations may allow a person to tick four boxes here and four there, while the answer depends on the deciding officer on the day. It is very important in sectors such as domestic care and others. I do not believe it is justifiable for the State not to take a very close look at the situation in general in false self-employment and especially in certain sectors that present particular vulnerabilities or potential problems.

I understand that chain liability is not a panacea by any means. Again, it can often get bogged down in litigation. As has been said, it can be the shifting or deflecting of blame or responsibility to different parties. I am keen for the concept as applied to the construction sector. I would not be as sure, and would be a little more tentative, outside of that. The construction sector presents very particular issues, as Deputy Brady referred to. The sector is, by definition, a subcontracting industry. That is what happens. For the possibility of deflecting responsibility there, I do not see it as much as a problem there as in other sectors, especially if there is ultimately a machinery to enforce the obligations appropriately in the context of public contracts.

A slightly strange situation comes up in the aforementioned thesis I referenced with regard to social security. Sometimes citizens from other EU member states who move to Ireland have greater rights that derive from EU law than people who never leave the country, including in the context of chain liability. We must ask if those situations should not be equalised.

On the public procurement piece, any penalties that can be imposed for breaches of obligations would have to be proportionate. That is for sure. I am very much in favour of some sort of pan-European register that allows for a period of suspension for contractors who are found to be in breach of obligations under public contracts. It could not be forever but perhaps it could be proportionate to the level of offence. I am concerned that sometimes when this issue is discussed post-technical breaches are not counted. I have heard lobbying and submissions from some sectors that say a company would not be disqualified for a technical breach such as not having records on site and so on. To me this is not a technical breach: there is a breach or there is not a breach. I would be strongly in favour of such a register.

On the direct question of price quality issue, in my experience while public contracts do not just consider the lowest cost, there is a big reluctance, which in some sense is understandable, for procurers to err on the side of safety and go for lowest cost. Even though some of the clauses in public contracts have conditions relating to quality, the default option is price. There is a real fear of litigation among public procurers that if they do not award the contract to the cheapest offer, they will end up in the courts.