Michael McDowell (Independent) | Oireachtas source

If it should be there, it should be there and the fact that it arrives late is immaterial. However, section 20 states: "It shall be an offence for an employer to incorrectly designate an employee as self-employed." It also provides punishments for that offence. This is creating a criminal offence. To find out who commits this offence and who does not, it is necessary to go to section 20(8) which provides two indicative lists which are admitted not to be either exhaustive or in any sense absolutely necessary for a court, presumably, to determine whether someone is or is not an employee, or is or is not self-employed.

There seems to be a drafting error in section 20(6) which states: "In proceedings for an offence under this section, it shall be a defence for the accused to prove that he or she exercised due diligence and took reasonable precautions or any person under the control of the accused to ensure that this designation was correct." I do not blame a Deputy for making an error of this kind, but it would have to be reconsidered.

Page 19 of the Bill deals with indicative characteristics of self-employment. One of the characteristics of employment is that the person, "receives expense payments to cover subsistence and/or travel expenses". I can well imagine self-employed people asking for subsistence or travel expenses in carrying out a function. I do not think that would actually tip the balance one way or another. Sections 20(9)(e), (f) and (g) do not seem to be indicative of self-employment or non-self-employment. Section 20(9)(j)provides that someone, "has a fixed place of business where materials, equipment etc. can be stored". I do not think that the absence of such a fixed place of business is an indication that somebody is not a self-employed person.

I agree with the Minister that the table in section 16 should be amended in the way the draftsman has suggested because it is confusing in its current form. I welcome the Bill. I happen to agree with the Minister on both of those issues. I ask all Members of the House to listen carefully to what she has said. She has made reasonable points. She is not attempting to avoid the problem of false designation of self-employment, but she is asking the following very reasonable questions. Is this the vehicle in which to do it? Will penalisation in a summary offence be effective? Is the formulation of criteria for deciding whether somebody has been falsely designated, as set out in the particular section, apt to underlie a criminal conviction beyond reasonable doubt against an individual who may or may not be trying to do his or her best?