Willie Penrose (Longford-Westmeath, Labour) | Oireachtas source

I concur with the objectives of the comprehensive amendment put forward by Deputy O'Dea. I have raised this issue with the Minister on numerous occasions at every opportunity. I have spoken extensively and comprehensively on it and probably more than anybody else in this House. My colleague, Senator Nash, also brought forward a Bill on controlling bogus self-employment. It is a long time out there and he was working on it for a long time. It is out there in the pot. The only concern I have is this is focusing on only one aspect of the designation and all that goes with it. A wider panoply of issues has to be addressed in respect of bogus self-employment. We should not lose sight of that because it could be left there then.

Deputy O'Dea has put a significant level of work has gone into this Bill. I acknowledge that because as someone who drafts Bill I know it is not easy work. All the indiciaof what constitutes self-employment and could lead to a person being classified as self-employed are derived from a huge corpus of case law, traversing as it does straight employment cases and Revenue cases. I recognise some of them. One of the problems of being self-employed, and I have spent my life being self-employed, is that sometimes people do not even know they are self-employed. That is the worst of all worlds.

The problem is that if a person does not have public liability insurance or employer's liability and an accident happens, he or she is written off. That is apart from all the other issues that are so important in being an employee. An employee knows that his or her proper PRSI contributions are being paid and are building toward proper pension entitlements when he or she reaches retirement age. The same applies to illness benefits etc. There is also a major loss of tax and PRSI contributions to the Social Insurance Fund. That is extremely important and is there to assist people when they are in the gravest of difficulties. The misclassifications process in designating a person or a group as self-employed is clearly to the benefit of the employer while the employee loses a whole raft and host of various benefits. The one I always remember is the old wet time payment. That was wiped out. If my father, Lord have mercy on him, got wet time, it was reduced money but it was money. If he was self-employed, he would have cycled 15 miles to work and then would have come back with nothing.

The thrust of this amendment is in the right place. I am broadly supportive but I remind Deputy O'Dea that this Bill is going into the Seanad and perhaps we could all put our heads together to widen it a little. Notwithstanding our best efforts, we are not going to have this on the Statute Book until October. Let us be clear about that. There is going to be no magic wand because it has to go to the Seanad. It will wend its way slowly through there because the Senators are entitled, as is their statutory obligation and duty, to ensure they scrutinise this legislation and contribute their tuppenny-ha'penny worth. We have seen the Seanad work to good effect on other legislation and I applaud it for that.

As it then must go to the President, this is not going to happen overnight, as we said last night in respect of other matters. That is notwithstanding our strong desire for this long-awaited legislation to deal with the small minority of employers who abuse their employees. If this goes to the Seanad, whatever Deputy O'Dea is going to do with it, it will be important that we get an opportunity to have some input to strengthen it. It is well drafted. I am referring, however, to trying to identify who is self-employed, which is the biggest problem. There are all sorts of ways of glossing over this and the courts have struggled at times to identify who is self-employed. That may seem strange but they do, as do tribunals sometimes as well. I am familiar with the Henry Denny case mentioned by the Minister and that is a case in point.

Nevertheless, if a legislative tramline is laid down in legislation, it will be of great assistance to the courts. The courts do not just look at the literal interpretation. They also look at the schematic and teleological interpretations and often as well at what is said here in the Dáil. That can be introduced in the arguments in respect of a case. It is useful from that perspective and perhaps in years to come I will use some of those things myself. This issue of self-employment and bogus self-employment has been one of the greatest bugbears in recent years for trade unions and their members but is even a greater bugbear for those who are not members of a trade union and have no protection at all. Trade unions at least get down in the trenches and fight, notwithstanding that they often have been defeated in this area as well. They believe some legislation should be coming forward to deal with this issue.

My support is unequivocal insofar as I want this dealt with but we could do much work in the next three to four months - it will be three to four months regardless of what people say - to get this right. We have one opportunity to get it right and we should do so. Last night we worked hard on this Bill to eradicate anomalies to ensure the objectives we are trying to achieve for workers would not be diluted by us putting in provisions that would lead to a dual interpretation or dual standards of proof. That would mitigate the impact and objective of the Bill and quickly eradicate the benefits. I am not saying that will happen but we could strengthen some of the points. Deputy Brady had a point when he said the definition of bogus self-employment is worthy of primary legislation on its own.

It has been asked why we have not done that. We have bogus self-employment Bills hanging around but it is very hard to get into that lottery. I spent three years trying to get into the lottery when I was dealing with wind turbines and trying to stop them wrecking our communities in the midlands. Lo and behold, I could not. I know I am very unlucky because if I was the only person doing the lottery tonight and I had all of the numbers, something would go wrong so that I would not win. My viewpoint about my luck was vindicated in the lottery - I was never selected from the lottery for Bills once in three years. That is why people are sceptical of hanging around waiting for a Bill to come through. There should be a hierarchy of Bills, particularly on employment rights and issues which should be promoted. I await what Deputy O'Dea will say with interest. He has also been on the floor of this House on various issues. Whatever we do, I hope we achieve the ultimate objective of this Bill, which is ending the scourge of bogus self-employment.

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