Gerald Nash (Labour) | Oireachtas source

I move: "That the Bill be now read a Second Time."

I will sharing my time with Senator Ivana Bacik.

I am pleased to welcome the Minister of State, Deputy Paul Kehoe, as well as officials from the Department of Jobs, Enterprise and Employment and representatives of Mandate, the members of which would be directly affected by the policy the Bill intends to cover. I am very pleased to have the opportunity to table and debate this important Bill which the Labour Party is proposing in a context in which the standard employment relationship is declining and the level of atypical work is increasing. Non-standard terms and conditions can be imposed on the vulnerable, the low paid and those with little social protection.When these conditions become a fixed feature of the employment landscape we must sit up, take notice and act. Women, young people and migrant workers are over-represented in non-standard employment sectors, including the retail, hospitality and community care sectors, that pay poorly and encourage practices that are at the outside or at the very least on the extreme edge of our employment protection laws. We all accept that employment policy must strike a fair balance between an enterprise's need for flexibility and the employee's need for a level of predictability in terms of his or her working life.

Section 18 of the Organisation of Working Time Act 1997 deals with workers who have a contract requiring them to make themselves available for work. The section sets out a floor of minimum pay entitlements for a person whose actual hours do not match up to his or her hours on call but what the Act does not deal with is a contract with either very few or no guaranteed hours of work and no requirement, on paper at least, for employees to make themselves available outside of those guaranteed contractual hours. Many workers are now encountering new terms and conditions - the so-called "if-and-when" contract - under which employers are under no obligation to provide work of any description. This has become the arrangement of choice for some large retailers and many employers in the hospitality and community care sectors. For example, a typical contract might state: "The company is under no obligation to provide work to you at any time and you are under no obligation to accept any work offered by the company at any time." It seems to me that these "if-and-when" contracts are not covered by section 18 of the 1997 Act and as such it may be that these workers are completely outside our entire system of employment protection law. This is because, under this kind of arrangement, there is no obligation whatsoever on the employer to provide work and no obligation on the worker to do any work that is offered.

A court requires mutuality of obligations before it can establish whether or not a contract exists such that if there are not any enduring mutual obligations there may not be an enduring contract. If so, then people working under arrangements like these are being told that they are, in effect, casual day workers. These are perverse arrangements aimed at downgrading the status of employment. Imposing such terms and conditions on the vulnerable, the low-paid and those with little social protection is unacceptable to me and my party.I hope that the Government and Members of this House will agree. Workers in these situations are put at risk of job insecurity. From the perspective of the enterprise, there is limited integration into the business, low motivation, low productivity, low job satisfaction and for workers there is entrapment in a succession of short-term, low-quality jobs with little or no social protection and little or no legal protection. The social and economic consequences of failing to actto provide a growing army of precarious workers with greater protections, a basic level of certainty, predictability and income security is incalculable. In allowing the status quo to continue, nobody wins.

I will now speak in more detail to some important provisions of the Bill. Section 4 amends section 18 of the Organisation of Working Time Act 1997. The purpose of that section was to provide a minimum entitlement to payment for employees who are contractually required to make themselves available for work, even when no work is provided. The section is stated to apply where a contract requires employees to make themselves available to work in a week, a particular number of hours or as and when the employer requires them to do so or both a certain number of hours and as and when the employer requires them to do so. However, section 18 further states that a requirement to be available is not held to arise by virtue only of the fact that the employer engaged the employee to do work of a casual nature previously, regardless of the number of previous occasions and of any other circumstances that would give rise to a reasonable expectation of further work. The amendment being made to section 18 by way of this Bill deletes this qualification so that the section in future applies to and, importantly, protects employees who were initially engaged to do work of a casual nature.

Section 5 amends the Protection of Employees (Fixed-Term Work) Act 2003. That Act confers entitlements of fixed-term employees who have completed their third year of continuous employment with an employer. It can be difficult for an employee to prove continuous employment and so section 5 introduces two important new rules to assist them, dealing in the first instance with continuity of service and the use of PAYE information held by the Revenue Commissioners to determine the reality of the contracted working arrangement with the employer. This is an important new innovation.

Section 6 deals with continuity of employment for employees who may otherwise be deemed casual. Section 7 concerns provision for a corrected written statement of hours of work. An employee who has benefitted from these provisions will be entitled to request the employer in writing to correct the employment contract so that particulars of the weekly hours of work reflect the pattern of work actually done per week in the previous six months. An employer may refuse to do so if there was a particular pattern or system to the hours in the previous six months that was due to the seasonal nature of the work or to an emergency or other exceptional circumstances.

Section 8 includes an important anti-victimisation provision which states that an employer shall not penalise or threaten penalisation of an employee for invoking rights or procedures under this Bill. This particular section is very similar to a section I included in the Industrials Relations (Amendment) Act 2015 around collective bargaining.

Sections 9 and 10 provide for complaints to adjudication officers of the Workplace Relations Commission. Section 11 invalidates any provision in an agreement, whether a contract of employment or not and whether made before or after the passing of this Bill, that purports to exclude or limit the application of, or is inconsistent with, any provision of this Bill. However - this is an important point to make - the Bill allows for a registered employment agreement, an employment regulation order or a sectoral employment order to provide that provisions of the Bill do not apply with regard to the employees to whom the agreement or order has effect or to a specified class of those employees. In other words, there are alternatives. We are always seeking to encourage trade unions and employers to engage under the provisions of the 2015 Act and to ensure that they use that Act to create better sectoral terms and conditions and better enterprise-level conditions by way of registered employment agreements and sectoral employment orders because there is no substitute in the workplace for collective bargaining and all it involves in terms of improving the living standards of employees and giving certainty to the enterprise for entrepreneurs and business owners.

I remind the Minister that the programme for Government commits to addressing growing casualisation of the workforce. On this basis, I am hopeful that the Government can and will support this legislation. This legislation can and will prove to have a transformational effect on the lives of working people in this country, particularly those who are caught in perverse if-and-when contract arrangements that are, as I said earlier in my contribution, outside of or at the very edge of the current suite of employment legislation and regulations in place in this country. It is high time that we addressed this issue and that our employment laws and regulations finally catch up with these phenomena that would not have been anticipated, for example, when section 18 of the Organisation of Working Time Act 1997 was being drafted by the then Minister of State, Ms Eithne FitzGerald. Nobody could have anticipated the way the world of work would evolve and how these phenomena would develop in subsequent years. It is important to point out that where these phenomena catch hold, people become disconnected and alienated from society. We do not ever want to see a large cohort of workers - people who work extremely hard to provide for their families - being disengaged from the enterprise in which they work and disconnected from society because dignity for them in the workplace is not respected and they do not feel that they have the respect to which their work entitles them.It should not be beyond us to provide a basic level of predictability in the workforce. I believe all Senators accept that the status quoshould not prevail and it is high time that changes were made in legislation to take account of the problems experienced on if-and-when contracts.