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

The minimum wage will increase in January.

The ERO fixes minimum rates of payment and conditions of employment for workers usually in the low-wage sectors. EROs are in place for the contract cleaning and security industries. There have been requests from some quarters to define casual work. However, the term "work of a casual nature" has existed in the Organisation of Working Time Act since 1997 without ever having to be defined. It has not led to a regulatory problem of employers incorrectly categorising employees as casual in the 20 years since its enactment. It is not good practice to put definitions in legislation when the plain, ordinary meaning of a word is capable of being understood by the bodies adjudicating on it. The WRC and the Labour Court are capable of examining all of the circumstances of a particular case and then making an appropriate judgment as to whether an arrangement is genuinely casual. They have been doing a sterling job up until now.

Section 16 inserts a new section 18A into the Organisation of Working Time Act. It introduces a new right for employees who habitually work more hours each week than is provided for in their contracts of employment to request to be placed in a band of weekly working hours that better reflects the reality of the hours they have worked over the previous 12 months. There was much debate in the Dáil about how workers on low-hour contracts who consistently work more hours than provided for in their contracts have difficulties in applying for mortgages, loans from their credit unions or any interaction that involves a financial arrangement.The situation is also open to abuse by an employer who may use it as a means of exercising undue control over employees where the threat of being put back on the lower contract hours hangs over the employee.

How will the banded hours provision work? An employee will request in writing to be placed in the relevant band of hours. The employer has four weeks to consider the request. The section provides reasonable defences for employers to refuse an employee's request where, perhaps, the facts do not support the employee's claim; significant adverse changes have impacted on the business - an example would be the loss of an important contract and the employer might not be able to offer the same kind of work; an emergency situation for example some businesses have recently been subject to major adverse weather conditions such as flooding which would impact on their business arrangements; and where the hours worked by the employee were due to a genuinely temporary situation such as, for example, providing cover for somebody on maternity leave. The latter would not be considered to be an ongoing arrangement. Where a claim is disputed or refused the employee can refer it to the WRC for mediation or adjudication. If the adjudication officer finds in the employee's favour, the redress will be that he or she will be placed in the appropriate band of hours. No other compensation is provided in order to avoid vexatious or frivolous claims. An appeal against an adjudication officer's decision will be to the Labour Court. Enforcement of a WRC or Labour Court decision will be by way of a District Court order. The section will not apply to employers who have entered into banded hours arrangements through agreements arrived at as a result of collective bargaining with employees. This is to recognise that in some sectors, particularly the retail sector, banded hours arrangements have been agreed between the employer and employees for years and years and have been working exceptionally well. It is important to remember that an employer is not obliged to offer hours of work in a week where the employees were not expected to work or when the business is not open. I refer here, for example, to a hotel in a west of Ireland seaside town that closes for the winter months and that would not be obliged to pay a waiter while the premises is closed.

The Government will be tabling an amendment on Committee Stage to address a drafting issue with the Opposition amendment that was carried. It will be to remove the phrases "more than" and "less than". The Office of the Parliamentary Counsel has advised that if these phrases remain, it will cause confusion and uncertainty to both employers and employees attempting to understand the rights provided to them under the Bill. The amendment will be to improve the drafting of the provision only; it is not the intention to interfere with the width of the bands agreed in the Dáil.

Section 17 replaces the existing section 26 of the Organisation of Working Time Act 1997 to strengthen the protection against penalisation of employees who wish to invoke their rights under that Act. Employees need to feel safe in vindicating an employment right. If an employee believes he or she has been penalised or threatened with penalisation for invoking any right under the Organisation of Working Time Act, the adjudication officer may award up to two years of salary.

Section 18 is introduced on foot of the recommendations of the Low Pay Commission, LPC, in respect of current sub-minima rates of the national minimum wage. The current system allows for reduced rates of the national minimum wage to apply for those under 18 and for those over 18 in the first and second year of their first employment, and for certain types of traineeships. The LPC's recommendations are straightforward: first, the commission recommended the abolition of the trainee rates, which it felt lacked clear definition of the nature of what constituted appropriate training, and were, in any event, relatively little used; and, second, that the age-based and first employment rates should be retained in light of the statutory protections offered by other employment rights legislation, and in order to protect younger workers' access to the labour market, but on a simplified basis to improve both compliance and the ease of operation. This section will mean that nobody who is aged 20 or over can be placed on a sub-minima rate of minimum wage. The current legislation has no upper age limit in circumstances where it is a person's first employment. It also makes provision for the percentages at which these sub-minima wages are set to be adjusted in the future by statutory instrument, taking into account the labour market conditions at the time. This provision will permit possible further upward adjustment in the rates in a controlled manner where the possibility of any negative impacts on employment for young people can be monitored and assessed. The LPC recommendations in this matter, grounded on research carried out by the Economic and Social Research Institute, ESRI, were, for the first time, supported by all nine members of the commission, employer and employee interests, and by the independent members. Section 19 will allow an inspector of the WRC to issue a fixed payment notice where the inspector has reasonable grounds for believing that a person has committed an offence, that is, by not providing the written statement of core terms of employment within the prescribed time or by deliberately or recklessly providing false or misleading information as part of the statement. Such fixed payment notices are already issued under the Payment of Wages Act 1991 and the National Minimum Wage Act 2000. This is considered to be an effective way of securing compliance with the relevant provisions and an effective alternative to prosecution.

Section 20 deals with the false designation of self-employment. I said on Report Stage in the Dáil that I genuinely shared Deputy O'Dea's interest in tackling bogus self-employment. From a policy perspective, however, the Bill is not the appropriate vehicle for reaching a collective agreement on how to tackle it. The amendment is of such potential impact that it should be subject to proper and thorough scrutiny at a pre-legislative forum in order to provide the Houses of the Oireachtas and all stakeholders with the opportunity to consider the full implications of what is being proposed. There is broad agreement that the issue of false self-employment deprives employees of important employment rights and the State of important revenues. However, we already have significant and comprehensive provisions in legislation to tackle it. We will do more to identify, investigate and enforce the false declaration of employment as self-employment. I am pleased to note that the Joint Committee on Employment Affairs and Social Protection recently commenced hearings on this very issue and has indicated that it intends to examine the issue in a comprehensive manner with a wide range of stakeholders. It is envisaged that this work will take a number of months. The joint committee's work in this area is timely and I welcome. My Department has already been represented a hearing of the committee and is committed to assisting the committee further in its work. Against this background, it makes sense for this section to be removed from the Bill to allow the Bill complete its passage through the Oireachtas as quickly as possible. I will be tabling a Government amendment to this effect on Committee Stage.

Legislation can be a stubborn creature. It tends to remain on the Statute Book and we must be cognisant that employment legislation has a significant influence on the labour market. That is why it is really important that we get this legislation right the first time. I hope that we can work together to ensure that this important legislation, which I believe is probably the most significant employment rights legislation in a generation, can be put on the Statute Book prior to Christmas. The Bill is intended to help those employees in precarious employment and most in need of stronger employment protections. They have waited long enough for this legislation. They are relying on us to finalise this Bill as quickly as possible. I urge Senators to work with me to make that a reality.