Mr. Ronnie Neville:

In simple terms, the draft legislation must strike a balance between the interests of the worker and the employer. Senator Gavan commented on the potential imbalance in our observations, but the Law Society seeks to identify two main concerns in relation to the Bill as drafted which might allow interested parties, more likely on the employer side, to challenge the two specific provisions highlighted which are, most obviously, potentially susceptible to challenge. The first is that the proposers of the Bill want to ensure, laudably, that there is no abuse of an arrangement. I acknowledge that to be not only commended but supported by the Law Society. However, while there is a six-month timeframe of a look-back in this draft Bill, in reality over the course of a longer period, perhaps a number of years, an employee may be kept on a lower number of hours than is actually being worked. It is obvious to all concerned that an abuse of that type should not be supported and should be stopped. The difficulty with the Bill is that, contrary to the stated intention, it does not simply provide for the employee to be brought up to the average hours he or she was working. It expressly goes further than that. We are merely highlighting it as the Law Society and acknowledging in the interests of both parties that it is a susceptible exposure. There is a potential area of concern that it could be challenged on the basis that constitutional property rights are potentially being breached in circumstances where an employee who historically has been working 25 to 30 hours over a number of years gets bumped up to a higher band of hours. While it might be laudable that the worker should be brought up to the number of hours he or she has been working over a number of years, he or she now actually gets more hours. That is not what was stated to be the intention and it would be a potential concern from the prospect of challenge.

The second major concern in relation to challenge is as follows. Speakers have referred to proportionality. It seems clear that there has to be a proportionate response to the concerns of workers not being entitled to receive as a matter of contract the hours they work over a period of time. Obviously, when an employer receives this request, it needs, in order to protect the workers, to be able to offer a reasonable explanation as to why it is either going to accede or refuse. As the Bill is drafted, the bar is set so high that it gives rise to constitutional property right concerns where the employer would say he or she cannot but accede to this because the only way he or she can lawfully deny the request under the legislation is to prove with financial data if necessary that he or she is in severe financial difficulty such that the business is in jeopardy. Setting the bar so high gives rise to a concern about proportionate interests and the lack of reference to objective justification which is contained in the Long Title. That objective justification should provide for an employer being reasonably entitled to offer an explanation which, if objectively justified, would then permit it to lawfully refuse. As drafted, the Bill has no such objective justification defence. It is merely provided that unless the employer is in severe financial difficulty, it has no choice but to accede to the request.