Tony Killeen (Clare, Fianna Fail)

I am aware through a variety of sources that there is particular concern with regard to the alleged practices of some employments in the mushroom industry. The labour inspectorate of the Department is aware that the application of piece-rates is a feature of the remuneration structure of many mushroom enterprises. The payment of such rates is not in itself a contravention of employment rights legislation subject to workers receiving a total remuneration package which is not below the statutory minimum rates of pay for that industry as set out in the appropriate employment regulation order, ERO.

The Deputy will be aware that Irish employment rights law makes a distinction between a contract of service, which applies to an employer-employee relationship, and a contract for service, which applies in the case of an independent sub-contractor. In effect, employment rights legislation does not apply to independent sub-contractors with the exception of the Safety, Health and Welfare at Work Act 1989 and the Equality Act 1998.

In most cases it will be clear whether an individual is employed or self-employed. Where there is doubt as regards the employment status of an individual the relevant Departments and agencies will have regard to the code of practice for determining employment or self-employment status of individuals. This code was drawn up and agreed in 2001 by the Revenue Commissioners, the Department of Social and Family Affairs, the Department of Enterprise, Trade and Employment, the Irish Congress of Trade Unions and the Irish Business and Employers Confederation.

A number of criteria are set out in that code for determining whether an individual is an employee or self-employed. These include whether the person is under the control or direction of another, owns his or her own business, supplies labour only, receives a fixed wage, is exposed to financial risk, assumes responsibility for investment and management, supplies materials for the job, can sub-contract the work or works set hours or a given number of hours per week, month etc.

The labour inspectorate has encountered a claim by an employer in the mushroom industry that workers were engaged on a sub-contract basis and were not, therefore, subject to employment rights legislation. In this case the scope section of the Department of Social and Family Affairs, following consideration of all the relevant facts, decided that the workers involved were employees. This decision facilitated a recent Employment Appeals Tribunal award in favour of a number of former workers in that enterprise.

A major package of measures has been agreed by the parties to Towards 2016, the new social partnership agreement, to provide for enhanced public confidence in the system of compliance. New legislation will be published next year to provide for enhanced employment rights measures, including the establishment of the Office of the Director for Employment Rights Compliance. Providing for greater clarity in the application of employment rights legislation to employees and the self-employed will be considered in the context of drawing up that legislation.

The proposed legislation will also empower the labour inspectorate to join with the Department of Social and Family Affairs and the Revenue Commissioners to work together in joint investigation units. Such units will have a particular focus on the employment status of workers.

In so far as the mushroom concern, details of which have been supplied by the Deputy, is concerned, I can confirm that two inspections of that enterprise have been conducted during 2006, the most recent of which was on 1 November. Breaches of employment rights legislation were detected on both occasions. These breaches have been rectified and all arrears due will be paid to the relevant employees. A file is being prepared for the Office of the Chief State Solicitor.

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