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

I propose to take Questions Nos. 6, 10, 14, 26 and 39 together.

My job is to progress Government legislation and not to progress Opposition legislation. There is nothing stopping any Member of an Opposition party from progressing his or her own legislation and I certainly would not impede it.

Disguised employment, or bogus self-employment, occurs when businesses deliberately misclassify workers as self-employed when they work as de factoemployees of the business concerned.  This is done largely to avoid payment of the employer portion of social insurance contributions. The extent of disguised employment, together with potential measures to address this issue, was considered by an interdepartmental group in 2017.  Having consulted widely with stakeholders and considered the available evidence, the group concluded that the use of disguised employment arrangements was not very prevalent in Ireland.  The work by the interdepartmental group is reassuring in that it indicates that the overwhelming majority of employers are decent employers who are compliant with employment and social welfare law. The report stated that there was not a gross use of false arrangements but I slightly differ with it on that point. I am of the view that we have always had an issue with bogus self-employment. It has not grown but it is still very evident.

Given the concerns expressed in this House and elsewhere regarding a perceived increase in the incidence of self-employment, and to ensure that people are aware of their rights and the protections available, my Department conducted a survey and an advertising campaign earlier this year on the issue of false self-employment. We did not get an enormous response, which has led people to have certain opinions on it, but we will repeat it because we need to make sure it is consistent and that the people who did not hear what we said last time will hear it next time and the time thereafter, so that they will know what their rights are.

Bogus self-employment is already an offence.  Any deliberate falsification of the employment status of a worker in order to avoid payment of social insurance contributions is an offence under section 252 of the Social Welfare Consolidation Act and is subject to prosecution with penalties, including imprisonment and fines.  Nobody has ever been imprisoned for this, though there have been fines and significant penalties. Establishing guilt can be problematic as employers can claim genuine error.  Employees have to be able to help us to take cases but we are all aware that, in many cases, employees feel lucky to have their job and are very reluctant to pursue it and that the security is not there in the legislation to enable them to establish their rights.

There are already significant legislative powers to investigate and sanction employers and employees who falsely declare their social insurance status as self-employed rather than employed.  However, there are gaps and that is why I am proposing a number of new measures with a view to augmenting and building upon existing protection measures and legislation.  Based on experience from these inspections and recognising that there is a particular challenge when dealing with large companies, I have tasked the Department with establishing a dedicated team to deal with the work involved in such employer inspections.  I expect that this team will be established and functioning within the coming months.

In addition to more rigorous policing of existing law, I intend to implement a number of new legislative measures to further strengthen the powers in our appeals and inspection sections. First, I will seek to put the code of practice for determining employment status on a statutory basis.  This code is being reviewed and updated by an interdepartmental group from the Departments of Employment Affairs and Social Protection and Finance, the Revenue Commissioners and the Workplace Relations Commission, in light of recent cases and to ensure the code is current and robust in its measures.

Second, I intend to bring forward measures to address the victimisation, and potential victimisation, of workers who seek a determination of their employment status, including the hundreds and possibly thousands who are afraid to do so. 

Third, I am exploring the possibility of providing for deciding officers in the scope section in my Department to make determinations on the employment status of groups or classes of workers who are engaged and operate on the same terms and conditions, without having to have a specific complaint or having to investigate each individual worker separately.  This would go a long way to ensuring consistency of status decisions and their timely determination, particularly in some of our larger organisations where the vast majority of employees are self-employed.

Together, these measures are expected to strengthen the framework of protections for workers, while speeding up the dispute resolution process. While the drafting of this legislation is complex, I hope to be in a position to introduce these provisions to the Oireachtas in the spring social welfare Bill in the next number of weeks.

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