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

Earlier in the debate, I gave a brief overview of the process the scrutiny of the Employment (Miscellaneous Provisions) Bill has undergone to date. It is only right the Bill should be subject to comprehensive scrutiny. What I have difficulty with is that the amendment has not been subject to any scrutiny or consultation with a broad range of stakeholders who are likely to be affected by it. Deputy O'Dea's proposal will certainly benefit from a regulatory impact analysis and pre-legislative scrutiny the same as the Bill or any other significant policy or legislative proposal. It would be unwise for the Oireachtas to pass this amendment into law without the necessary scrutiny the proposal requires.

There are many aspects of the amendment that cause me concern. The Workplace Relations Commission, WRC, appears to be the only body that would be responsible for making determinations under this amendment. The WRC may decide that someone is an employee under the appropriate employment legislation but the scope section of the Department of Employment Affairs and Social Protection or the Revenue Commissioners may also decide the same individual is not an employee for PRSI or tax purposes and therefore three State organisations would be at cross purposes.

The definitions of "employee" vary in employment legislation depending on the purpose of the statute. The definition of employee for the purpose of this Bill are the definition of employee contained in the two Acts the Bill seeks to amend, namely the Terms of Employment (Information) Act 1994 and the Organisation of Working Time Act 1997. The provisions of these Acts do not extend to self-employed individuals. However, one of the possible consequences of this amendment would be to broaden the definition of an employee in this legislation to include genuinely self-employed people. That may not be what is intended but we fear it will be an unintended consequence. It could mean a household engaging a tradesperson for a once-off job would have to provide the person with a statement of terms of employment within the first five days of the person doing the job or leave themselves open to a criminal prosecution if they fail to do so. For example, if I or Deputy O'Dea were to hire a painter to decorate our house where we provided the paint and paintbrushes while the painter supplied the labour only, would we be deemed to be the employer of the painter or decorator? Would we be required to ensure the painter is getting his or her daily or weekly rest breaks under the Organisation of Working Time Act? Am I to instruct the painter to take his 15-minute rest break when he has worked for four and a half hours? I am being flippant but it is just one example of what could arise as a result of the amendment.

Deputies will be aware of the code of practice for determining self-employment status for individuals. The reason the code of practice is not statutory is that every case is fact specific. The WRC, the Labour Court, the scope section of my Department and the Revenue Commissioners are all capable of deciding whether an individual is an employee or not an employee for their purposes. Different circumstances need different prescriptions. When it comes to legislation dealing with employees, one size does not fit all. The code of practice is a guide to the relevant authorities to assist them in determining employment status. However, in the recent Henry Denny case, the Supreme Court noted that each case must be determined in the light of its particular facts and circumstances and it should be left to the statutory bodies that are more than capable of doing this, rather than trying to do the impossible by committing evolving case law into legislation. This is evidenced by the recent case of an adjudicating officer of the WRC when designating six plasterers as employees within the meaning of both Acts that this Bill will amend. They were awarded €18,000 between them. This is just one example of how the existing legislation provisions for determining employment status are working and seem to be working.

Social welfare inspectors inspect a wide range of businesses as part of their ongoing compliance operations. Inspections are also undertaken jointly with other agencies such as the Revenue Commissioners and the WRC and when evidence of non-compliance is detected, we pursue it and we will continue to do so. Where misclassifications of workers as self-employed is detected, the correct class is determined and social insurance arrears are collected as required.

I totally understand what the Deputy is trying to do. I totally support it. I respectfully ask him to consider withdrawing the amendment, publishing the very detailed and comprehensive work as a Private Members' Bill and I will wholeheartedly support it. I will add anti-penalisation measures to it. We could add a definition of what could potentially be called freelance contractors. I know Deputy Penrose and all other Members have ideas about how we can tackle a very concerning and growing problem. I do not believe we have given enough time, enough conversation, enough thought and enough consideration for me to accept the amendment.

I apologise for the length of that diatribe but I had to say what I needed to say.

See this speech in context