Regina Doherty (Meath East, Fine Gael) | Oireachtas source

If it is Deputy O'Dea's view that the Bill will not apply to casual workers it is misinterpretation, because the only derogation regarding casual employment in the Bill is with regard to zero-hour contracts. Every other part of the Bill applies to every other worker. An employer may employ an individual on zero-hour contracts if the work is truly of a casual nature. I distributed some of the examples to which I was referring after Committee Stage. This provision has been in operation in the Organisation of Working Time Act for the past 20 years and it has not led to employees being categorised or miscategorised as casual workers.

It is also important to remember it is simply not the case that employees on casual contracts do not have employment rights. In a recent high-profile case involving an RTÉ employee, the individual was found to have been discriminatorily dismissed on the grounds of age while she was on a casual contract with the organisation. The Workplace Relations Commission found in her favour and duly awarded her €50,000 compensation. In fairness, and we have had conversations about this on other days, the nature of work is changing and jobs that would have been regarded as casual do not exist any more. For argument's sake, there used to be something called a cattle drover, who used to drive cattle from one town to another and from one fair to another. That job no longer exists. Similarly, there are roles in the new world and new economy that we probably have not thought of yet. We are trying to predict exactly what roles will exist in future and, in trying to do so, provide regulations that will adhere to those new roles, which we do not have. It would be unwise for us to do that.

It is not good practice in any legislation, be it in primary or secondary law, to define anything other than essential definitions when the plain ordinary meaning of a word or term is capable of being understood by the bodies that adjudicate on them. The WRC and the Labour Court are capable of examining all of the circumstances of particular cases and then making appropriate judgments as to whether particular arrangements are genuinely casual. It is far better to leave it to the statutory bodies charged with securing compliance with the law than tying both their hands behind their back and defining it in legislation. The most appropriate and effective approach, as this is, has worked very well for the past 20 years.

To return to some points made by Deputies on Committee Stage, it is simply incorrect to suggest the Bill will do nothing for people on if-and-when contracts. The banded hours provision, for example, will apply to people on if-and-when contracts, which means where people have worked an average number of hours over the 12 month reference period, they will be entitled to be placed on a band of hours that reflects the reality of the hours worked.

The amendments to the Terms of Employment (Information) Act will require employers to inform employees by the fifth day of their commencing employment what the employer reasonably expects the normal length of the working day and working week will be. Employers will also be required to state the expected duration of the contract where the contract is temporary or fixed term, and employees on if-and-when contracts will also benefit from the new minimum compensation provisions where they are given notice of hours of work but do not receive those hours of work. Employees on if-and-when contracts will also benefit from the anti-penalisation provisions, so if an employer penalises them for exercising their rights under either Act they will be entitled to pursue the matter to the WRC.

The suggestion was also made on Committee Stage that a person on an if-and-when contract of employment had no recourse to employment rights bodies. It is well established in the jurisprudence of the constitutional courts and the Labour Court that they will look behind the written terms of the contract to establish the true nature of any arrangement. This particular fact was addressed by the Labour Court in the case entitled Ticketline trading as Ticketmaster versus a young lady called Sarah Mullen. In this case, the court accepted on evidence that while the written contract of employment was of the if-and-when type with no mutuality of obligation, the contract was operated on the basis that the employee was required to be available for work at all times and was, thus, entitled to the protection of the Organisation of Working Time Act and, in particular, the compensation provision provided for under section 18 of that Act. She also won her case. For all of these reasons, it would be highly unwise for me to accept this amendment.

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