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

These issues are not addressed in the Bill, but responsibility falls on me and my Department to ensure people feel comfortable and will be confident that retribution on the part of an employer towards his or her employee, regardless of whether he or she is self-employed, will not be tolerated. I will engage in a public awareness campaign this year to ensure everyone who is self-employed, correctly or incorrectly designated, knows of the State mechanisms in place, exactly what he or she can or cannot do and the track record such that I hope they will have confidence and security in making an application to the scope division. We had a debate on a similar topic in the Dáil last week and later that afternoon a young person who works in the environs of this Parliament brought evidence of disguised unemployment to me to enable me to help them. I am pleased to do so. Even talking about it highlights the issue and gives people confidence and security to speak up, which is great. That is to be applauded, even if we achieve nothing else, although I hope we will.

The Social Welfare Act is robust in that it allows us to recoup social insurance contributions that should have been made from the time an employment started, whether it was disguised or merely a misguided classification of social insurance. The independence of the scope section ensures people receive a fair hearing and that they are included in the correct classification which is back-dated to the time when they started in the employment. As such, the gaps noted by Senator Alice-Mary Higgins are limited to that contract of employment.

There are some technical issues with the Bill into which I will not go at this stage, but we will discuss them further. However, some of the terminology used might be strengthened.Some key terms are not defined and are likely to lead to considerable debate and litigation which we should try to avoid. For example, in section 1 the reference to a "contrary intention” in other enactments could be difficult to determine. In section 2 there is an effort to define the genuinely self-employed in the terms of a client or customer relationship. In reality, that is not how people describe their contract with each other. The implications of treating PRSI as if it were tax, as specified in section 6, need to be given very careful consideration by the Minister for Finance and the Revenue Commissioners. On the proposed amendments to section 811B of the Tax Consolidation Act 1997, Revenue has advised that the section is a specific anti-avoidance provision in relation to certain schemes which involve employment benefit trusts and does not apply to “tax avoidance transactions” as defined in section 811 or section 811C. On that basis, it is considered that the proposed inclusion of the application of section 811B to false self-employments would not be appropriate.

The Government will not be opposing the Bill. I welcome the raising of the issue by Senator Gerald Nash. I agree and concur with the premise of what he is trying to achieve and the Department will consider the Bill very carefully. In defence of my tenure and that of my predecessor and two previous Ministers, Mary Hanafin and Eamon Ó Cuiv, we are all very conscious of what we want to achieve. I know that some of the measures in place are not perfect and that they do not quite do what it says on the tin, but there is a huge range of arrangements in place to deal with complaints of false self-employment. Social welfare inspectors inspect a wide range of businesses in an ad hoc, unannounced way, which is how we catch businesses out. Inspections are also undertaken jointly with other agencies, including the Revenue Commissioners and the Workplace Relations Commission. Where evidence of non-compliance Is detected, I guarantee that it is not tolerated. Where people have been maligned or put in a position where they are in precarious employment or unfair situations, they are rectified when brought to the Department's attention. I look forward to working with Members in full scrutiny of the legislation on Committee Stage. I hope that in working together we can enhance it to secure its goals in placing it on the Statute Book.