Catherine Murphy (Kildare North, Social Democrats) | Oireachtas source

The witnesses are very welcome.

I have commented in the past that some of the work that the Department has done was really good, particularly during Covid, and acknowledged on how flexible and quick the Department was in responding. I want to primarily focus on the Karshan case and the implications. I take issue with some of the comments Mr. McKeon made. First, the issue is not just about benefits. It appears there are three different silos - the WRC, the Department and Revenue. There are implications for people who are self-employed in terms of employment law. How they are classified is important from that point of view. I also take issue with being told that test cases were not used. Test cases have been used and, indeed, he said as much himself in 2018. He can reply after I have set out my questions. I hope that I will have a second opportunity to come back in because there is a lot of ground to cover on this one topic.

First, this was a Revenue case as opposed to the Department's. According to the judgment, the issue was presented in the context of drivers who provide delivery services and, obviously, that was Domino's Pizza and Karshan is the company name. It states: "The respondent (‘Karshan’) contends that these drivers were engaged as independent contractors under contracts for services, while the appellant (‘Revenue’) argues that they were employees retained under contracts of service." There is a difference between courier companies and gig economy couriers. The latter are more vulnerable as they may not always know the employment rights. For example, some couriers are foreign nationals who have come here to work. All couriers, according to Revenue, are treated as self-employed based solely on decisions made by the social welfare appeals office. The judgment continues: "The resolution of that dispute determines which of two legal regimes governs the taxation." How can there be two different regimes? There must be one legal regime or it becomes hugely complicated and that is part of what this case tried to set out.

The judgment states: "While the question of whether a decision of the Social Welfare Deciding Officer of August 2008 that similarly positioned drivers were not employees generated any form of estoppel was not before this court, it strikes me at a very general level that Karshan would have a legitimate grievance if it were to be penalised by one arm of the State for conducting its business in accordance with the law as interpreted and applied by another department of government." The judgment references how costs might be awarded later on. That shows there is a real conflict between Revenue and the Department of Social Protection, and Revenue have taken the revenue obligation from a decision that was made by the Department and there are industries, or portions of industries, that are affected by this.

The previous Minister for Social Protection said to Martin Wall in an article for the The Irish Times, that she was considering amending legislation "to permit deciding officers to make determinations on the employment of groups or classes of workers who are engaged and operate in identical terms and conditions. At present, both employers and workers must agree such class decisions but they can be subject to individual appeals". If one person is employed on that basis, and that sample is tested, then others are similarly determined but they have the right of appeal, which is very different in terms of how decisions are made. We must, once and for all, get this matter understood. How far back did the Department go back? Under what legislation did it first make this declaration? It was only in 1995 that workers could be grouped together by employment status for tax purposes.