Gerald Nash (Labour) | Oireachtas source

At a previous hearing, Mr. Martin McMahon, referred to the presence of what were described as test cases, which, it has been claimed, have been used to determine the employment status en masseof those who work in courier services. We know that is a matter of contention for the Department. The Department has consistently expressed the view that no such test cases or precedential cases exist. Both Ms Gordon and Mr. Duggan have claimed that every case is considered on its merits, with no reference to a series of cases considered in 1995. Instead, everything is considered on a de novobasis. However, the Department also endeavours to be consistent in terms of the determinations it makes, as well as those decisions made in the appeals process.

Ms Gordon will be aware that evidence was presented to the then Chairman of the Committee of Public Accounts, the late Jim Mitchell, in 2000 when the Comptroller and Auditor General was examining the phenomenon of false self-employment and the consequences for the Exchequer. A senior official in the then Department of Social, Community and Family Affairs made a reference to test cases. Ms Gordon is unequivocal that no such test cases or precedential cases exist for couriers. That is at odds with what Mr. Martin McMahon, who has considerable experience on the front line of this sector, has told this committee.

I made the request that representatives from the Department appear before the committee today in order that we might look under the bonnet in respect of this issue and to understand how it works. We need to address these issues. A serious claim has been made and the Department appears to be challenging that. I want to give Ms Gordon the opportunity to reflect on that and to put on record her perspective and that of the Department on this. This is a view that has been out there for a considerable time. It is a serious issue. A view was expressed at a previous meeting that clearly the social welfare appeals office, under the Department of Employment Affairs and Social Protection, cannot make law. I draw Ms Gordon’s attention to the case involving John Grace Fried Chicken Ltd., which gave rise to the destruction of the then joint labour committee system. The courts were clear that there is one lawmaking body in the Republic, namely, the Houses of the Oireachtas.

An allegation has been made that, in essence, the social welfare appeals office is making law and using precedential cases to inform the consideration of cases are brought to its attention. I want to give Ms Gordon the opportunity to address this a serious allegation. It is important that she does so. With the Chair's permission, I will ask Mr. Duggan some broad questions on the process.