Professor Michael Doherty:

Fixed term worker legislation - to go back to where we started - applies to employees, and the suggestion is that it is quite difficult for some people who work to prove that they are employees under the existing test. Oftentimes this arises because of complicated relationships. I am not overly familiar with the film industry in particular, but the situation as described by Deputy Boyd Barrett seems clear enough. It may be the case that in some instances we should not obsess so much about who is an employee and actually look at the obligations of employers. In the case of an individual providing a service, there may be more than one employer that owes that person some obligations. In the example the Deputy has given, if someone is on set, the obligations to maintain health and safety may be on the person controlling that set, whoever that might be, but the obligations to pay the person may be on somebody else altogether. That might introduce more complexity to the situation.

Coming back to my sectoral view, trying to put basic standards in place for people working in film production, which apply across the sector, takes many of these problems away. It makes it clear that a person working on a set is entitled to X, Y and Z and that someone has to be responsible for providing that. The person responsible has to be from an organisation or entity of substance rather than form. The committee has discussed these managed services companies before. They are entities of form rather than entities of substance. The code is good, and it looks at substance to some extent, but a clear statement that we should disregard form in favour of substance is something that might be useful in terms of any legislation that is set down. Sectoral conditions could include a defined rate of pay for a sector and the entity that gives that rate is, in substance, the person who is performing the function of an employer in relation to pay. That is a slightly more complicated formulation, but it is logical, makes sense and takes us away from minute discussions about who is an employee and whether equipment was provided. If one is doing work in a particular sector, one should be entitled to a certain standard, and we should not have to go beyond the fact that he or she is entitled to that standard.

In terms of penalties, was the Deputy talking about general breaches of the legislation?