Joe Carey (Clare, Fine Gael) | Oireachtas source

I welcome the opportunity to speak on this important legislation, the Employment (Miscellaneous Provisions) Bill 2017. It addresses key issues which have been identified as areas where current employment rights legislation should be strengthened to the benefit of employees, particularly low-paid, more vulnerable workers, without imposing unnecessarily onerous burdens on employers and businesses. The key objective of the Bill is to improve the security and predictability of working hours for employees on insecure contracts and those working variable hours.

What are the key issues of concern to people? Vulnerable, low-paid workers can be exploited by unscrupulous employers in various ways. For example, employees might not be properly informed of their terms of employment by their employer; employees might not know who is their employer, and specifically the legal entity that employs them; employees may be called into work and then sent home without being given the hours of work or any compensation; and employees on low-hour contracts may consistently work more hours than provided for in their contract, which causes difficulties for workers when they try to get a mortgage or access other financial credit. It may also be used as a means of exercising undue control over employees where the threat of being put back on the lower contract hours hangs over him or her. Employees may feel afraid to exercise their rights for fear of being penalised by their employer. Insecure working arrangements mean employees may not know what hours they will work from one week to the next.

How does the Bill address these matters and achieve its objectives? It will ensure employees are informed of the core terms of employment at an early stage. The Bill also provides that employers must give employees five core terms of employment within five days of commencement of employment. Employers who have not provided this statement after one month will be open to prosecution, which is a new offence. It would also be an offence for an employer to deliberately misrepresent the information required in the statement of five core terms. Currently, 15 terms of employment are required to be given by employers to employees within two months. A University of Limerick study recommended that all 15 items be given on the first day. Following consultation, it was accepted that this would be excessive. Instead, it is proposed that employers must inform employees in writing within five days of commencement of employment of the following five core terms of employment: the full name of the employer and employee; the address of the employer; the expected duration of the contract, whether the contract is temporary or fixed term; the rate or method of calculating pay; and what the employer reasonably expects the normal length of the employee’s working day and week will be. Other required terms of employment should be provided within the current two-month period. Strengthening the sanction for non-compliance will help to promote better work practices and provide greater clarity around the essential elements of the employment relationship for both the employer and the employee.

The Bill will address the issues described earlier by strengthening the existing provisions around zero-hour contracts. It will prohibit zero-hour contracts in most circumstances and improve compensation for low-paid workers called into work but sent home again without the promised work. The Bill will prohibit zero-hours contracts, except in cases of genuine casual work, emergency cover or short-term relief work for that employer. It is intended to delete the phrase "zero hours practice" from the title of section 18 of the Organisation of Working Time Act 1997. The Bill will provide that an employer will no longer be able to engage an employee on a contract within the meaning of section 18 (1)(a) or 18(c), where the stated contracted hours are zero, unless it is genuinely casual work, emergency cover or short-term relief work for the employer. This proposal is to avoid the contagion of an increase in zero-hours practices in this jurisdiction.

The legislation will lead to improved compensation for low-paid workers called into work but sent home again without the promised work. The Bill will introduce a floor payment for low-paid workers who are called into work and then sent home in these circumstances. The University of Limerick study called for a minimum of three continuous working hours where an employee is required to report for work and if there is no work, the employee should be paid for the three hours. The study's recommendation did not differentiate between low-paid workers and high-paid workers, meaning it would result in disproportionate benefits for high-paid employees over low-paid employees and significant costs for employers. Furthermore, the recommendation did not take account of arrangements where it suits both parties to agree a contract of employment for less than three continuous working hours. The recommendation would set aside the possibility of individuals agreeing mutually convenient contracts for less than three continuous hours. Following consultation, it has been accepted that changes in this area should focus on improved compensation for low-paid workers and to this end, the Bill will introduce a new minimum floor payment of three times the national minimum wage or three times the minimum rate set down in an employment regulation order to compensate workers if they are called into work but do not receive the expected hours of work.

The Bill will provide that workers on low-hour contracts who consistently work more hours each week than provided for in their contracts of employment are entitled to be placed in a band of hours that reflects the reality of the hours they have worked over an extended period. The Bill also provides for the creation of a new right for an employee whose contract of employment does not reflect the reality of the hours worked on a consistent basis over a reference period of 18 months to be placed in a band of hours that better reflects the actual hours worked over that reference period.

This will provide greater certainty and a truer reflection of their hours of work and level of earnings, thereby addressing, in particular, difficulties employees may have accessing financial credit, including mortgages.

The reference period of 18 months is considered sufficiently long to allow for the normal peaks and troughs of businesses, including those subject to seasonal changes. The proposals also provide a mechanism for a review of the arrangement after a period of 18 months, that is, after the employee has sought and been placed in a band of hours in exercise of his or her right under this proposal. An employee will be able to seek redress through the Workplace Relations Commission but redress will be limited to being placed in an appropriate band of hours. The proposal includes reasonable defences for employers to refuse an employee’s request where the facts do not support the employee’s claim; significant adverse changes have impacted on the business; in emergency circumstances such as the business having to close due to flooding; and where the hours worked by the employee were due to a genuinely temporary situation such as cover for another employee on maternity leave. The provision will not apply to an employer who has entered into a banded hour arrangement through an agreement by collective bargaining with their employees.

The Bill will strengthen anti-penalisation provisions for employees who try to invoke a right under these proposals. The Bill provides strong anti-penalisation provisions for employees who invoke their rights under this legislation. This is a key element of the Bill particularly for workers in less secure employment who may be afraid to exercise their rights. It is intended to provide against an employer penalising or threatening to penalise an employee for exercising any right under the proposed legislation. It is important that all employees feel safe to exercise their employment rights without fear of being penalised for doing so. The penalisation provisions in this Bill are broadly drafted to provide strong protections for employees. The penalisation provisions are core to the Bill and the new banded hours provisions in particular. Under the Bill’s banded hours provisions, if an employer reduces an employee’s working hours or threatens to do so for the sole reason that the employee sought to exercise his or her rights, the employee can pursue a penalisation case through the Workplace Relations Commission.

Section 10 of the Bill inserts a new section 6C in the Terms of Employment (Information) Act 1994 which prohibits the penalisation of an employee for exercising their rights under the Act. Penalisation is broadly defined in the section and includes threats of penalisation. It is important that employees believe they can exercise their rights under the Act without any repercussions. This is all the more important in the case of vulnerable workers. Section 16 of the Bill amends section 26(1) of the Organisation of Working Time Act 1997 to strengthen the existing protections against penalisation for employees who wish to exercise their rights under the Act.

I support the Bill and look forward to its passage through the Houses of the Oireachtas.

See this speech in context