Pat Breen (Clare, Fine Gael) | Oireachtas source

I thank the Ceann Comhairle. I welcome the opportunity to be here this evening for the scrutiny of this report. I acknowledge the good work done by the chairman, Deputy Mary Butler, and the Joint Oireachtas Committee on their detailed scrutiny of Sinn Féin's Banded Hours Contract Bill 2016. I believe they have produced a balanced and very fair report. I am pleased to see that the committee took account of some of the flaws in this Bill, which I pointed out when I spoke here during the Second Stage debate on this Bill in 2016 and as part of the scrutiny process on 23 May 2017.

I propose to comment briefly on recommendations by the committee. They are well-made. Recommendation No. 1 states that the Central Statistics Office should engage with what is now the Department of Business, Enterprise and Innovation, the Low Pay Commission, IBEC and the Irish Congress of Trade Unions to develop statistical measures that will better inform the debate on low pay and low or variable hours work. The committee may be aware that in 2016 the CSO accepted a request from the Low Pay Commission to include a pilot question on the national minimum wage in the Quarterly National Household Survey, QNHS, beginning in the second quarter of 2016. This was a major initiative on the part of the commission and the CSO. The first data from the initiative became available in April 2017 and it followed up-to-date information on the numbers of people who are affected by the minimum wage rates, information that can be used by the commission in its 2017 report. The QNHS also allows for up-to-date profiling of minimum wage workers based on characteristics such as age, gender, education and region of residence.

Recommendation No. 2 proposes that the Sinn Féin Bill requires further amendments to ensure that it is constitutionally sound. I reiterate my views from earlier this year that the Bill that we are discussing today is flawed. Significant amendments would have to be made to address concerns about its constitutionality.

Recommendations Nos. 3 and 12 propose that the severe financial difficulties test be replaced with the objective justification test. This is a very sensible proposal by the committee. The test included in the Government’s legislative proposals includes a test very similar to the objective justification defence.

Recommendation No. 4 of the committee says that an obligation to work the minimum hours of the band should be inserted into this Bill. We welcome this. The Government has already made provision for this in our legislative proposals.

The Government is in full agreement with the committees' fifth recommendation that the definitions being used should be imported from the same Act. That is why the Government intends using the existing definitions from the Terms of Employment (Information) Act 1994 and the Organisation of Working Time Act 1997 in our legislative proposals.

Recommendation No. 6 of the committee proposes that the Sinn Féin Banded Hours Bill includes a penalisation provision. One of the key planks of the Government’s proposals is a strong anti-victimisation provision for employees who seek to invoke their rights. It is very important that employees are not afraid of

repercussions as a result of requesting to be placed on a band of hours. Under the Government proposals, if an employee is treated adversely as a result of invoking any right under the proposed legislation, he or she will be able to pursue a penalisation claim to the Workplace Relations Commission. Either the employer or the employee can appeal the WRC decision to the Labour Court.

Recommendation No. 7 says that provisions should be made for an additional remedy be included beyond being placed on a band of hours. In the Government’s proposals it is not intended to include such a provision as it could lead to frivolous and vexatious complaints. The banded hours provision will be a new statutory right for employees. The whole purpose of the provision is to ensure the employee's contract properly reflects the hours that he or she works on a consistent basis. This is what we want to achieve and the appropriate remedy is to have the employee placed on a band of hours that reflects the reality of the hours that he or she works.

Recommendation No. 8 is that avenues be explored to reduce the recourse to casual work practices. We believe that our proposed legislation is a major step in the right direction towards tackling the problems caused by precarious employment. The Government intends to prohibit zero-hours practices in most circumstances. There will, however, always be circumstances where people need to be employed on an if-and-when basis to provide emergency or short-term relief cover for the employer; panels of substitute teachers or care workers for example.

There has been much commentary that unscrupulous employers will try to circumvent the Government’s proposed legislation by categorising almost all employees as casual. The Organisation of Working Time Act was enacted in 1997. Section 18 of that Act refers to work of a casual nature but does not define it. In the 20 years since enactment this has not led to a regulatory problem of employers incorrectly categorising employees as casual. It is not good practice to put definitions in legislation when the plain, ordinary meaning of a word is capable of being understood by the bodies adjudicating on it. The WRC and the Labour Court are capable of examining all of the circumstances of a particular case and then making the appropriate judgment as to whether or not a particular arrangement is genuinely casual.

The Government is in agreement with the recommendation No. 9 that the definition of a worker in the Sinn Féin Bill requires more precise drafting. In the Government’s draft employment (miscellaneous provisions) Bill careful consideration has been given to the definition of employee and employer to avoid this problem.

Recommendation No. 10 is that the reference period should be 12 months. The Government proposes an 18-month reference period in its draft employment (miscellaneous provisions) Bill to take account of peaks and troughs in business. This reference period was arrived at following discussion with the Irish Congress of Trade Unions and IBEC. Consideration also needs to be given to the fact in the education sector the academic year does not match the calendar year.

Recommendations Nos. 11, 13 and 15 are drafting issues. Recommendation No. 14 is very important and deals with the issue of mediation.

It is Government policy that mediation be used to solve workplace disputes, wherever possible. That is why mediation is provided for in the Government's legislative proposals. Currently, cases taken to the WRC can proceed by way of mediation, if both parties are agreeable, or adjudication. If parties can come to a mutually agreeable resolution during mediation, this is committed to writing by the mediator and the agreement is legally enforceable. We want this constructive process to continue as part of our proposals.

Section 5 of the Sinn Féin Bill introduces an obligation on every employer to display on a weekly or monthly basis in a prominent position in the workplace the number of working hours being allocated to workers, in Irish, English and other languages, as required. The committee recommends that this be amended to provide employees with regular updates on the average hours worked and the bands into which they fall. Employees are already entitled to significant information about rosters, working time and payment under existing legislation, namely the Organisation of Work Time Act 1997 and the Payment of Wages Act 1991. The Government agrees with recommendation No. 17 of the committee that further consideration should be given to the merit of specifying the language of the notice as included in the Sinn Féin Bill. If enacted, this would impose a very significant administrative burden on employers and might leave them wide open to claims of discrimination if the notice was not in all languages of all employees. The Sinn Féin proposal also incorrectly assumes that every employee has a fixed workplace.

The committee's 18th recommendation that, where possible, existing legislation should be amended rather than increasing the regulatory burden is an important one and the Government wholeheartedly agrees with it. I am pleased that the Government has taken account of the committee's 19th recommendation regarding a band below 11.5 hours. The committee's 20th and 21st recommendations are also welcome. However, there are flaws that do not occur in the Government's legislative proposals. As I stated earlier this year, the Bill sponsored by Deputy Cullinane has a laudable aim. All Members have empathy with employees who cannot access a mortgage or even a loan from a credit union because their contracts of employment do not reflect the reality of the hours they work. That is why the Government is bringing forward legislative proposals in this important area of employment rights. Our proposals are balanced and practical. I am pleased to be able to say it is intended that the employment miscellaneous provisions Bill will be published before the end of the year. To tackle the problems caused by the increasing casualisation of work and regulate for precarious work are commitments in the programme for Government. The Government is delivering on its commitments. Our proposals are the result of extensive consultations, including a public consultation on foot of the University of Limerick study on the prevalence of zero-hour contracts in the Irish economy and a detailed dialogue process with ICTU and IBEC over a period of many months.

I thank the joint committee for the significant work it has done on the scrutiny of this Bill. It is really good parliamentary practice. Even if all of the committee's recommendations were taken on board, however, Sinn Féin's Banded Hours Contracts Bill remains a limited response to regulating precarious work. The Government's Bill, on the other hand, will be a comprehensive and balanced response to strengthening employment rights in this area. Indeed, all of the committee's recommendations in relation the Sinn Féin Bill are addressed in, or do not arise in relation to, the draft Government Bill. I thank the Ceann Comhairle for the time and the opportunity to discuss the scrutiny report and I look forward to what other speakers have to say.

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