Mr. Brendan Byrne:

I thank the committee for the opportunity to address the committee on behalf of Unite the Union. Our comments will focus on the second matter being considered by the committee, namely, the processes and procedures relating to the misclassification of workers' employment status and the impact thereof.

Unite the Union represents a small number of craft workers in RTÉ who have the protection of permanent, full-time contracts. Our union is part of the trade union group in RTÉ and our members stand in solidarity with all workers whose employment was misclassified by RTÉ, those known as the bogus self-employed.

The employment status section of the Department of Social Protection, scope, is currently investigating whether 695 RTÉ workers should have been classified as full-time employees.

It is our view that it would have been useful if the committee had facilitated workers affected by misclassification of employment in RTÉ to address the committee. We understand the committee has received legal advice to the effect that it has no power to mediate on workplace grievances. However, allowing workers to outline their experiences would not have placed any onus on the committee to mediate. It could have better informed the committee’s deliberations on this issue.

In Unite’s experience, bogus self-employment is a feature across a range of sectors. While this hearing relates to journalists working for RTÉ and other persons, the practice is particularly widespread in construction and is also prevalent in areas of the economy. Bogus self-employment, like other forms of precarious working, impacts on workers, compliant employers and the wider economy. It enables inequality in the workplace, where one worker is employed on a permanent contract and enjoys all the associated benefits, while other workers in the same or an equivalent role have their employment misclassified and are denied these benefits. It limits workers’ access to benefits such as pensions, holiday pay or illness cover and they enjoy fewer protections against unfair dismissal or discrimination in the workplace.

Employers who misclassified workers as self-employed or who engage in other forms of precarious employment have an unfair competitive advantage over other employers. The non-payment of employer PRSI not only reduces the money available to the Social Insurance Fund; it also reduces individual workers' social insurance entitlements. The effect of this is that the individual workers concerned and wider society are effectively subsidising the employer’s business costs. Some years ago, the Irish Congress of Trade Unions estimated that bogus self-employment in the construction sector alone cost the Exchequer €80 million per annum. That figure is now likely to be significantly higher.

In 2021, Unite put forward the following proposals as part of our submission to the then Joint Committee on Social Protection, Community and Rural Development and the Islands in response to its draft recommendations on bogus self-employment. It proposed the establishment of a presumption of employment where an employment relationship should be presumed to exist unless it can be proven otherwise. This means that the burden of proof in the event of a disputed relationship must be on the employer rather than the worker. It also proposed the updating of the code of practice on determining employment status to reflect new forms of bogus self-employment and precarious working. The code of practice should be put on a statutory footing. It proposed the establishment of a dedicated and appropriately resourced unit within the Workplace Relations Commission to carry out in-house investigation, on-site inspection and adjudication functions relating to employment status; the development of standard definitions of the terms "employee" and "worker", to be incorporated into all relevant legislation; and the extension of the limitation periods - look-back periods - applicable to breaches of employment law to six years, putting them on the same footing as the limitation periods applicable to other areas of contract law.

A number of these proposals were reflected in the committee’s final recommendations, including putting the code of practice on a statutory footing; establishing a dedicated and resourced employment status unit within the Workplace Relations Commission; and developing standard definitions of the terms "employee" and "worker", and applying them to all employment legislation.

While the current committee hearing relates specifically to governance and culture issues at RTÉ, we know that the practice of misclassified workers' employment status is not confined to the national broadcaster. We would, therefore, urge the committee to consider endorsing the recommendations I have outlined, which, if implemented by the current or a future Government, would go a long way towards addressing bogus self-employment and other forms of precarious working.