Louise O'Reilly (Dublin Fingal, Sinn Fein) | Oireachtas source

I thank the Minister of State, Deputy Joe O'Brien, for being here this evening.

A fortnight ago, the Supreme Court published its long-awaited decision on defining employment status. The court ruled that delivery drivers for Domino's Pizza should be treated as employees and not as contractors. The Supreme Court ruling has massive implications in the battle against bogus self-employment. The Government needs to set out in primary legislation how a worker's employment status will now be determined following that landmark decision. In particular, we want to see the Government bring forward legislation that includes a comprehensive statutory definition of what constitutes a contract of employment. This is definitely needed.

The Supreme Court stated that a question of whether a contract is one of service or for services should be resolved by reference to five questions. These are: whether the contract involves the exchange of wage or other remuneration for work; if so, is the agreement one pursuant to which the worker is agreeing to provide his or her own services and not those of a third party to the employer; and if so, does the employer exercise sufficient control over the putative employee to render the agreement one that is capable of being an employment agreement. If these three requirements are met, the decision-maker must then determine whether the terms of the contract between the employer and worker, interpreted in light of the admissible factual matrix and having regard to the working arrangements between the parties as disclosed by the evidence, are consistent with a contract of employment or with some other form of contract, having regard, in particular, to whether the arrangements point to the employee working for himself or herself or for the putative employer. The final aspect is that it should be determined whether there is anything in the particular legislative regime under consideration that requires the court to adjust or supplement any of the questions outlined.

Basically, the courts have kicked the ball into the Government's court. It is for the Government to act. While there is no definitive or composite test that can be applied in all cases to distinguish a worker from an independent contractor and each case is looked at on its own facts, there are, however, four basic factors that tend to recur in these decided cases which must always be regarded as important. The first is the need for personal service, which is the hallmark of a contract. The second is the degree of economic risk involved, and the opportunity to make a profit will always be an important factor. The third is a requirement to provide premises, tools or equipment is a key factor indicating a contract for services. The fourth is that the label that the parties attach to the contract is not decisive. Therefore, my request to the Minister of State is that, in amending the law to reflect the Supreme Court decision, he should bring forward an updated comprehensive statutory definition of what constitutes a contract of employment.

We are talking about thousands of workers who will be impacted by this. These are some very vulnerable workers. They are basically told, "There is your phone. There is an app. Now you are an independent contractor. Go off and make a fortune." Many of these people are working for below the minimum wage. They have no rights or entitlements at work until their status is clarified. They exist in that half-in-half-out status. It is difficult for trade unions to reach them to organise. It is difficult for them to get to know what are their rights and entitlements at work.

We have heard suggestions that definitions used in the Employment Equality Acts or the National Minimum Wage Acts or the definition of a worker provided for in the Industrial Relations Acts could be used. All of these should be looked at. The use of these definitions would allow for the determination of whether an employee is engaged in a contract of service by two basic questions as to whether the parties are bound by a contract and whether the putative worker is personally providing services under that contract. Updating the statutory definition of what constitutes a contract of employment would do away with the need for a technical legal analysis of what determines a contract of service over a contract for service. Will the Minister of State or a member of the Government be bringing forward legislation to give effect to the Supreme Court judgment?

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