Paul Gavan (Sinn Fein) | Oireachtas source

I move amendment No. 2:

In page 6, to delete lines 22 to 28 and substitute the following:"(b) re-instatement by the employer of the employee in the position which he or she held immediately before the contract for services on the terms and conditions on which he or she was employed immediately before the contract for services,

together with a term that the re-instatement shall be deemed to have commenced on the day of the contract for services or such as is reasonable having regard to all the circumstances,

(c) re-engagement by the employer of the employee either in the position which he or she held immediately before his contract for services or in a different position which would be reasonably suitable on such terms and conditions as are

reasonable having regard to all the circumstances,

(d) direct the employer to pay all contributions under the Act of 2005, in respect of any period of the bogus contract for services concerned, which would have been required to be paid if the worker had a contract of employment,

(e) direct the employer to pay all payments, taxes, charges and penalties under the Tax Acts in respect of any period of the bogus contract for services concerned, which would have been required to be paid if the worker had a contract of employment,

(f) direct the employer to pay all payments, taxes, charges and penalties under the Tax Acts due by the worker resulting from or arising out of any period of the bogus contract for services concerned including any failure by the worker to pay

such taxes, charges or penalties,

(g) (i) if the employee incurred any financial loss attributable to the contract for services, payment to him by the employer of such compensation in respect of the loss as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation as is just and equitable having regard to all the circumstances,

and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the contract for services, as references to the person who, by virtue of the change,

becomes entitled to such ownership.

(4) Without prejudice to the generality of subsection (1)of this section, in determining the amount of compensation payable under that subsection regard shall be had to—(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee, and

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid.(5) In calculating financial loss for the purposes of subsection (1), payments to the employee—(a) under the Social Welfare Acts 1981 to 1993, in respect of any period following the contract for services concerned, or

(b) under the Tax Acts arising by reason of the contract for services, shall be disregarded.(6) In this section—"financial loss" includes any actual loss and any estimated prospective loss of income attributable to the bogus contract for services and the value of any loss or diminution, attributable to the bogus contract for services, of the rights of the employee under any enactment;

"remuneration" includes allowances in the nature of pay and benefits in lieu of or in addition to pay.(7) Where a term or condition of the bogus contract for services contravened any provision of or made under the Tax Acts or the Social Welfare Acts 1981 to 1993, the employee shall, notwithstanding the contravention, be entitled to redress under this

Act.

(8) The Revenue Commissioners may view the use of a bogus contract of service as a tax avoidance transaction under the Taxes Consolidation Act 1997.".

These are simple amendments. Amendment No. 2 seeks to amend section 7 in order to introduce a number of additional actions an employer must take in the event of a decision being made that an employee has been misclassified by an employer. Amendment No. 3 seeks to amend section 8 to ensure that where it is shown that an employee has been misclassified by an employer, Revenue will be notified of said employer. As I said earlier, in a spirit of co-operation, I do not intend to move these amendments this evening. I will reserve them with the right to resubmit them. I appeal to the Minister to join with us in co-operation. This is not our Bill. It is a Labour Party Bill but we support it. We know the issue is urgent. Surely we would be doing a much better service to the people who put us in here by progressing this Bill and working it through rather than killing it. We should be better than this.