James Reilly (Fine Gael) | Oireachtas source

I welcome the Bill in so far as it raises an important issue, namely, the unscrupulous exploitation by some employers of workers who are clearly employees rather than independent contractors. In some instances, a variety of methods are used to bully employees into such scenarios and this is a matter of grave concern. People are very concerned about the use of if-and-when contracts which give rise to unpredictability of hours, difficulties in managing work and family life, unstable income, difficulties accessing credit, which is a major problem for those applying for loans or mortgages as they cannot show consistent income, contracts that do not reflect the real numbers of hours worked, insufficient notice being given when being called to work, and a belief that employees will be penalised for not accepting work offered. This is a real threat to a person who cannot be assured of hours on an ongoing basis. Difficulties also arise in accessing social welfare benefits.

Notwithstanding these issues, the Bill presents problems as it is a blunt instrument for dealing with the complexities inherent in this issue. Having said that, I will not oppose the legislation because we all agree with the principle of ensuring workers are protected. We must, in law, protect workers from the unscrupulous practices of certain employers. Under existing legislation, the security and protection available to workers can be undermined through being forced into contracts which ostensibly make workers self-employed but in reality mean they are employees without the protections afforded by legislation.The programme for Government contains a commitment to tackle the problems caused by the increased casualisation of work and to strengthen regulation of precarious work. To this end the Minister for Jobs, Enterprise and Innovation is committed to bringing forward for consideration by Government an appropriate policy response to the report by the University of Limerick, UL, on zero and low-hour contracts. This policy response will take account of the large number of submissions received in response to the public consultation on the study. Those responses reflect a broad range of views, some of which are diametrically opposed. A considerable amount of work has been carried out by the Department in assessing those submissions and in developing proposals that aim to provide balanced and workable solutions to the recommendations in the study. The Minister's proposals will address the issues of insecure low-hours work in a more comprehensive and balanced manner than the approach taken in the Bill. The Minister's proposals will address the concerns expressed in the UL study and in the public consultation about the need to improve the predictability of working hours for workers on insecure low-hour contracts. The issue of contracts indicating low-hour requirements and not reflecting those much higher hours worked over significant periods will be dealt with. The proposals will also seek to ensure that workers are better informed at an early stage in their employment about the nature of their employment arrangements and their core terms and conditions. Currently a contract does not have to issue for up to two months after a person starts working, but the Minister will greatly shorten this to a day or a week. Furthermore, the Minister's proposals will include provisions aimed particularly at the low-paid more vulnerable workers with regard to the minimum compensation for being called in to work and then being sent home again. The Minister does not propose to effectively eliminate casual working as it does suit employees and employers in certain circumstances. The Labour Party Bill, however, would effectively end arrangements in all circumstances, with negative impacts on employment levels and service delivery in sectors such as hospitality, education, health care, elder care and social care, which rely on the flexibility provided by genuine if-and-when contracts and casual employment to meet peaks in demand, customer needs and regulatory requirements.

The Bill is a limited response to the UL study. It does not address a number of recommendations in the report, in particular the recommendation to amend the Terms of Employment (Information) Act 1994, to require employers to provide the written statement of the terms of employment at commencement of employment so that employees are better informed of their terms and conditions of employment at the outset and the UL recommendation to provide for a minimum period of working hours where an employee is required to report for work. The Bill attempts to address an issue raised in the UL report about the employment status of individuals on if-and-when contracts. The UL report, however, was inconclusive on this issue and acknowledged that it was a complex matter that required further consideration. It did not make any recommendations for legislative changes in this regard. The report also found that there was a lack of clarity around the employment status of those who work only on an if-and-when basis because of the lack of mutuality of obligation, that is, if the employer is not obliged to offer any work and the employee is not obliged to accept any work offered. This lack of mutuality of obligation raises questions as to whether individuals on if-and-when contracts would be deemed to be employees for the purpose of employment rights. This has potentially adverse implications for those individuals in their entitlement to protection under various items of employment rights legislation. A number of important points need to be made on this issue. The UL report acknowledges that the employment status of individuals on if-and-when contracts has not been tested to any great extent in Ireland. However it is well established in the jurisprudence of the constitutional courts and of the Labour Court and employment rights bodies, that they would look behind the written terms of a contract to establish the true nature of the arrangement. In the case of Ticketline trading as Ticketmaster v. Sarah Mullen, the court accepted, on the evidence, that while the written contact of employment was on the if-and-when type with no mutuality of obligation, the contract was operated on the basis that the employee was required to be available for work at all times and was thus entitled to the protections of section 18 of the Organisation of Working Time Act.

UL acknowledges that the issue of employment status for those on if-and-when hours only is a complex matter that requires further examination. The employment status issue did not feature prominently among the submissions made in response to the public consultation. Similarly, it is not raised as an issue in the ongoing dialogue process with ICTU and IBEC with regard to the proposals to be brought forward by the Minister.

The Bill contains a number of provisions which, taken together, would make it virtually impossible for genuine casual employment arrangements or genuine if-and-when contracts to operate in the labour market. This would, in our view, be an inappropriate and disproportionate response to the questions raised by the UL report about the use of if-and-when arrangements. The UL study acknowledged that the flexibility offered by genuine if-and-when contracts can be mutually beneficial for employers and employees. In certain sectors these contracts can provide the flexibility needed to run businesses such as in the hospitality and hotel sector where the employer can call in additional staff to service weddings and functions etc., and in the health sector these arrangements can help employers satisfy peak demand and to fill staffing gaps on a short-term basis. The Bill also has universal application and does not focus on low-paid workers. This is problematic for the highly-skilled and highly-paid individuals who would like to benefit from these arrangements. I welcome the issue being raised and I do not propose that Fine Gael will oppose the Bill.