Tuesday, 4 December 2018
Employment (Miscellaneous Provisions) Bill 2017: Committee Stage
This was an Opposition amendment carried in the Dáil. There was a small deviation from the standard commencement provisions and on the Second Stage debate here, most of the Members of this House expressed their hope that the legislation we are talking about today would be put on the Statute Book as soon as possible, and I want that too. I had no objection to accepting the amendment but there is a slight change needed in drafting to make it different or better – I do not know what the proper word is.
Senator Nash knows a Bill does not become an Act until a President signs it and the issue I had with the amendment in the Dáil was that it did not acknowledge the President's role. This amendment is being brought in to acknowledge the President's role, and subsection (3) states it "shall come into operation no later than 6 months after the date of its passing". That acknowledges that there is more than the Seanad and Dáil involved in the passing of legislation and that the President has a role. We must respect it instead of trying to write him out of the legislation. The principle of the amendment passed in the Dáil states that we will pass it in six months. It will happen more quickly but I do not want to be disrespectful to the President who has a role in the passing of legislation.
If we say for argument's sake that no amendments are made here and the Bill does not have to be returned to the Dáil but is sent to the President to be signed, there is then six months to commence it. How is that materially different from the original proposition? Can it not be the case that the Bill would be enacted at the earliest opportunity, say in January? If, hypothetically, the President signs the Bill before Christmas can it not be commenced on 1 January?
It differs from the amendment in the Dail in that it states no later than six months from the passing of the Bill by Dáil and Seanad Éireann. Dáil and Seanad Éireann and the Members of both Houses are not the only people who have a responsibility in the passage of legislation. I have removed it and that is why it states "no later than 6 months after the date of its passing". That acknowledges that there are processes. It does not specifically state the Dáil, the Seanad and the President but because it removes Dáil and Seanad Éireann it acknowledges that the President very much has a role and he determines within days what he has to do, whether he has to refer it and all that kind of good stuff. However, taking out Dáil and Seanad Éireann acknowledges his very important role. I did not put down the amendment stating six months. This will be passed as quickly as it can, when the Dáil, the Seanad and the President have done their jobs.
I respect what the Minister is saying but I am anxious, as is everyone in the House and the Minister, to have this legislation commenced as quickly as possible. It may not take six months, it could take a month or two days for the President to sign it. If it was the case that we decided not to support that amendment, would it be the case that the President could sign it and then it would be commenced straightaway?
I understand and think it appropriate to acknowledge all stages of legislation and the periods for each stage are set out very clearly but six months is perhaps longer than needs to be allowed in that certainly it is closer to a week or two weeks to allow for further legislative action to be taken. The six-month provision is much wider than is required for the completion of the legislative process as the Minister has set out. I can see on the one hand that we want to get it in place and move it along but on the other I do not think it would be fair or accurate to suggest that six months is needed for the final stage of the legislation, if that was the misapprehension that the House might be under, because I think it is five to seven days and other periods for the final signing. I just want to be clear on that.
The slight is not on anybody in the legislative process. I did not put the six months in. This is the first time and it sets a precedent, which is remarkable in one way. There is no commencement order in any other Bill on our Statute Book. There is legislative process that is denoted by legislation and the Senator is fundamentally right, there are times the Dáil, the Seanad and the President of the day have an obligation to adhere to but there has never been a commencement order in legislation before. I did not put it into this Bill. It was an amendment that came from the Dáil. The amendment from the Dáil was flawed because it did not acknowledge the role of the President and that is all I am trying to do here. I am not trying to fundamentally change the Fianna Fáil amendment and keep the six months which it wanted. We all know it will be passed before the six months but that is neither here nor there. We cannot, however, have an amendment to a Bill that disrespects the third institution's role in the passage of legislation.
I move amendment No. 2:
In page 8, lines 17 to 20, to delete all words from and including “(1) An” in line 17 down to and including line 20.
The rationale for proposing to delete section 6B(1) and the second part of section 6B(3) of the 1994 Act stems from the fact that Fianna Fáil believes these stipulations put significant onus on small companies that may not have a HR section. Many one-man companies are overburdened by employment legislation. We do not intend to make any amendment to section 6B(2), which provides that an employer who deliberately provides false or misleading to an employee or who is reckless as to whether false or misleading information is provided as part of the statement required by section 3(1A) shall be guilty of an offence. However, in respect of section 6B(1), we believe there is a comfort to employees in that if they are not provided with a contract of employment within a six-week period, they have recourse to the Workplace Relations Commission, WRC. The legislation reduces that timeframe but criminal sanctions for small businesses are a step too far. The provisions are putting a significant onus on the small, one-man band type company. The provisions as they stand would have unforeseen consequences for small SMEs. They are unfair and unreasonable.
Sinn Féin considers the provision in writing of the core terms of employment before employment commences to be sufficiently important to merit the provision of a criminal sanction as a possible enforcement mechanism. We would only consider dropping the offence and the sanction of imprisonment if they were to be replaced by a direct route to compensation for workers, in line with other workers' rights legislation. Otherwise it is not a level playing field. This has not been proposed in the Fianna Fáil amendment and, therefore, we will not support it.
We do not support the amendment proposing to remove section 6B(1) and part of section 6B(3), which currently uphold an offence and penalisation of imprisonment, if I read it right, for failure to comply with workers' rights legislation.
The section does not specify a small employer. The section clearly applies to all employers and if the provisions are removed, the obligation on all employers to provide employees with a statement will be removed. In that case, any employer could simply fail, refuse or decline to provide an employee with a statement. We would gut the effective function of the Act. I recognise Senator Ardagh's concerns. Perhaps she might consider a different amendment to the section. The phrase "without reasonable cause" in the section means there is a provision that where there is reasonable cause, for example, a business facing exceptional circumstances such as a threat of liquidation, a case could be made. The courts have been generous in the interpretation of reasonable cause in the past. There is some provision that could cover extenuating circumstances for a small employer. The proposed amendment would completely remove the obligation and a large corporation with 200 employees could simply fail to provide them with a statement. I cannot support it or the proposed amendment to delete the sanction. If we delete that sanction, it will be a toothless Bill. The bad practices which the Bill is endeavouring to stamp out have real impacts. We need to take that change seriously.
I will not support the amendment either for the reasons outlined by Senator Higgins. This issue has been kicked around for several years. It is central to the Bill and to the effectiveness of any legislation we might bring in. The sanction is important and has been scrutinised to within an inch of its life over the past three or four years. I am comfortable with it and anybody who has any interest in vindicating the rights of working people should support it. We will return to this later as there is another amendment in respect of section 20 relating to bogus self-employment. It was introduced by Deputy Willie O'Dea of Fianna Fáil and states that a person guilty of an offence under the section "shall be liable on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months, or to both". One Fianna Fáil Member is saying that an employer who miscategorises employment status in terms of bogus self-employment should face criminal sanction, while another Fianna Fáil Member is arguing that it is fine for someone to put their two fingers up to a worker in a precarious situation who turns up for work without being sure what the hours or contractual arrangements are. I do not accept that. We should retain the provision in the legislation and perhaps Fianna Fáil should get its house in order.
I will also oppose the amendment. This is a good, strong section. Small employers are no different from anybody else. They should have systems in place and when they take on employees, it should be standard from the one-man operation right up to the large multinationals. Senator Higgins adverted to the fact that some companies have large numbers of employees and many of them are designated as being employed by X or Y outside the organisation and as being temporarily hired in. We have seen this in Ryanair and Senator Nash referred to section 20, which we will come to. Many of the IT companies during the 1990s had hundreds working for them, none of whom worked directly for the company. They were all working for recruitment agencies or accountancy firms. We get down to a situation where a small employer has two or three people contracting into a multinational. At the end of the day, they have their responsibilities. We had a situation in my own office which we brought to the attention of the Minister's office. The speed at which her office operates in tracking down these people is to be commended. I believe the Minister should have the strength she is seeking in the Bill.
There is still an onus on employers to provide a contract of employment and there is redress currently within the Unfair Dismissals Act such that if a contract of employment is not provided to an employee, he or she can bring a claim within six weeks and will be compensated accordingly. This section as it stands places an undue burden on small businesses. I do not agree with my colleagues. Small businesses are the backbone of this country. There are more small businesses than large businesses and this will put a massive burden on them. They do not have the luxury of huge HR departments. Most businesses act in good faith, especially small businesses. It takes them a little while - more than five days - to get around to putting a contract of employment in place.Many businesses take on staff at really busy periods when they want to get the work done and people can get their contract in place at this time but this provision penalises small businesses. I am asking the Minister to remove it so that small businesses are not penalised. There is already redress for an employee who is not given a contract of employment. This provision is ridiculous and it goes completely overboard.
The Senator's opinion is not shared by her Dáil colleagues. They argued for exactly the opposite of what she is calling for with this amendment. The offence provision has made both employers and employees sit up and take notice of this Bill. Every single one of us has been lobbied by one or both sides so we have got their attention. We did this because of the sanctions in the Bill. The legislation to which the Senator referred, and which she said addressed the issues, has been there for years and it has obviously not addressed them. Now we have people's attention we are certainly not going to dilute the impression we have given.
The purpose of creating the offence provision was to promote better work practices so that employers can know what their responsibilities are to their employees. It is not that a contract of employment needs to be provided in five days. The requirement is for five simple pieces of information which one can write on the back of one's hand. Every person is entitled to know who they are working for, where they are working and how many hours they will be expected to work. It can be given on a piece of paper or an email or even imparted verbally.
If anybody who has difficult circumstances, such as a single employer with no HR department, can make a reasonable defence for not managing to provide the information within five days they have a month to do it. If the Senator had read the legislation she would know that the criminal offences do not kick in for months and months after we have given people the opportunity to fix what they had failed to do in five days.
We have got people's attention in the past couple of years since the legislation was mooted because of how seriously we take the disrespect some employers show their employees. On that basis I cannot support the Senator's amendment.
I move amendment No. 4:
In page 9, between lines 10 and 11, to insert the following:“(9) The Minister shall lay a report before both Houses of the Oireachtas within 12 months of the commencement of this Act on the operation of section 6B of the Act of 1994, as inserted by this section, and the offences and penalties contained therein.”.
This relates to a report on how section 10, and the related section 6B of the 1994 Act, is working. The amendment calls for the Minister to lay a report before both Houses of the Oireachtas within 12 months of the commencement of this Act on the operation of section 6B of the Act of 1994, as inserted by this section, and the offences and penalties contained therein. It would go into the diary for 18 months, at which point we could see how the criminal sanctions have worked in practice.
The WRC has a year to initiate any prosecutions against an employer and that is what section 6B of the Terms of Employment (Information) Act 1994, as inserted by section 10 of this Bill, is going to provide for. It is to match the other offences that are already in existence in employment law. If the report on offences and penalties was to be laid before both Houses of the Oireachtas a year after enactment it would probably be meaningless or consist of a blank page. Most of us know that it takes a number of years for a new piece of legislation to settle and to bed in. Primary legislation, especially if it is not amended every year, is not the appropriate place for seeking progress reports because there is an opportunity cost for officials and Members of both Houses. Amendments would be brought in to delete provisions when they are no longer provided for. I do not have a problem, in principle, with what the Senator is trying to do, which is to make sure the provisions in the Act will do what we hope they will do. It may be more appropriate and useful to meet the concerns of the Senator, and other Members, for the Oireachtas committee to invite the parties involved in the legislation to a meeting after 18 months, or whatever its members feel is an appropriate period of time. It would allow a more meaningful assessment of the provision without having to have a review and an amendment of primary legislation to render what would be a fruitless report. On that basis, I will not be accepting the amendment.
I support the Minister on this. The way forward is to let the committee deal with it. I cannot see anything coming out of a report after the first 12 months and quite a lot of time and effort would need to be expended on providing nothing. The legislation will take two years to bed in so I agree with allowing the committee to discuss it, maybe after two years.
I do not agree with the Minister's suggestion that the report will be fruitless and I support Senator Ardagh's amendment to section 10, calling for a review to be carried out within 12 months. I am not aware of any need to amend the Bill after 12 months have passed, and I see a lot of ancient detail in many pieces of legislation.
I acknowledge what Senator Ardagh and others are saying but I side with the Minister on this. We would only get a big blank page on how the section was operating because it will take a little while for the legislation to bed down and for everybody to understand what their responsibilities and obligations are. The appropriate latitude should be given to the relevant Oireachtas committee to reflect on it on a regular basis. I would be more minded to support an amendment of this nature if it included provision for frequent annual reviews but one report after 12 months does not get my support. It should be open to the Oireachtas committee to do this as part of its routine work.
I was not saying the report would be frivolous in any way, just that I do not see how a report after 12 months would work, something on which I agree with Senator Nash. The committee is the place to establish whether this legislation is working. Any of the representative bodies can make contact with the Chair of the relevant committee and seek a hearing if they feel the Act is not working.
I respect where Senator Ardagh is coming from on this point but the WRC will generally reflect on this type of thing in its annual reports. The WRC will manage the legislation and hear any complaints, if and when they arise. I have every faith in the WRC being able to collate the information and give us its professional expert view on the operation of this section of the Act.
I think it is strange that on the one hand, the Minister has said that the employers are taking notice of us because we have put in these criminal sanctions and that it is fantastic they are finally listening to us, while on the other, the Minister is afraid to commission a report to see if the measures are actually working. I believe that 12 months is a long time but it will not just be 12 months; it will take 18 months because the Minister is giving herself six months to enact the legislation. I stand by the amendment and I will proceed with it.
I am not sure where I gave the Senator the impression that I was afraid. I am absolutely not. I was trying to explain to the Senator that in primary legislation, and especially with regard to the 12 months that has been proposed in the amendment, any such report would be a blank page and would have very little information. It takes a while for new legislation to bed in and come into practice. The reason I stood to my feet was to say what Senator Nash has said earlier, which is that the Workplace Relations Commission, WRC, provides an annual report on every single item of legislation over which it adjudicates. When this legislation is enacted, hopefully early in the new year, it will form part of the WRC's annual reports for 2019, 2020 and 2021. I do not, therefore, feel the need to include that provision in primary legislation. It is the only reason I was not proposing to accept the Senator's amendment.
I wish to speak briefly on section 11. I wish to indicate that an area of concern is the protection against penalisation. I welcome that it is there but as I am looking at one issue in that regard. I may come in with thoughts on section 11 and the issue of penalisation on Report Stage. I simply want to note this for Report Stage.
Section 13 of the Bill as passed by Dáil Éireann contained a definition of "employment regulation order" for the purposes of the Organisation of Working Time Act 1997. Employment regulation order, however, is already defined in section 16(2) of the Industrial Relations (Amendment) Act 2012. Consequently there is no need for two definitions of the term "employment regulation order". We propose to delete this one in the Bill, which is only a technical amendment. It just makes sure that we are all kosher. It makes no substantive amendment to the Bill in any way.
I fully support the sentiment of the Minister with regard to zero hours. The Qualifications and Quality Assurance (Education and Training) (Amendment) Bill 2018 will be before the Seanad tomorrow and I am aware that all of the Senators who are members of the Oireachtas Joint Committee on Education and Skills have been contacted by teachers and different people who have not been given contracts. They have been suffering because of the consequences of zero-hour contracts. I believe that it is more appropriate that it be addressed in this Bill than in the Qualifications and Quality Assurance (Education and Training) (Amendment) Bill 2018 Bill. Perhaps this is something the Minister could consider.
One of the aspects specific to language schools is that so many people working in language schools have been badly hurt by the sharp practices that are operated by these cowboys. Perhaps it does not come under this legislation but I ask the Minister to look at how we might bond workers through any of these companies in order that if such a company decides to close overnight - as happened with Grafton College - there is at least one or two month's pay for each of the staff. The colleges have taken the money from the students and brought staff in on outrageous working hours. It is simply not good enough. We might not be able to do anything in this legislation but I would say that it is very much on the Minister's table at the moment.
If it is appropriate and timely, I support what Senator Byrne and others have said regarding the protection of those who work in the English language schools sector. The sector is very exposed and has had its problems in recent years. Much of what is reflected in this legislation will actually protect some of those who are working in that sector. There are, however, other ways in which that sector is organised that will not be affected by this Bill. Unfortunately, in recent years a lot of these companies have chosen the route of tactical insolvencies. They simply shut up shop.
It is all related with regard to employment conditions, the way in which companies are managed and the way in which company law interacts with employment law. We have seen this in the context of Clery's, in the context of a recent failure of a company in Dundalk that left almost 200 people out on the road without any rights or entitlements. While they have rights and entitlements they are finding it very difficult to get them vindicated. They are being supported by the union and by the Department in their bid to have their social welfare payments paid to them. In the case of these types of companies, we need the relevant provisions of company law to be enforced.
We also need other aspects of company law to be changed and to ensure that the directors of such companies are tackled when tactical insolvencies are arranged and people head off into the sunset, while leaving their staff and other creditors in desperate hock. It is not the first time this issue has been raised in the House, and unfortunately it will not be the last. We cannot allow this to happen. We have seen the problems with Grafton College and we will, inevitably, see it happening again. It is not just about employment law. It is also about enforcement of company law and addressing the issues around tactical insolvencies that are reflected in the proposals made, for example, in the Duffy Cahill report and the later report by the company law review group. It is not just about employment law; it is also about the enforcement of company law.
I was very brief in my initial intervention but since others have expanded, I will give the Minister an indication of the areas of my concern on this section and perhaps a couple of actions that may need to be taken, but which may not need to be legislative.
As other Senators have described, this is an area where we are discovering more and more sections that are affected; areas that people might not have expected to be affected by zero-hour or uncertain hours contracts, such as with bogus self-employment. Ryanair pilots have also spoken up to say they are affected. There is a constant expansion in our knowledge of the sectors affected. On Second Stage I spoke of the University of Limerick's research and how it changed our understanding of what was happening around zero-hour contracts versus if-and-when contracts. At that time I indicated my concern that one of the provisions under this Bill is for at least 25% of the hours in which work had been done in a week. I recognise that this band is not new and is from the previous legislation but one can imagine that many working weeks could be 40-hour working weeks and we may be looking at ten or 15 hours in this regard, whichever is less. In the context of this section, will provision be made to know how many workers fall within that 15, ten or eight-hour window that comprises 25% of the normal working hours? This is in order that we establish what is actually happening for those people on the ground. For many years we were told that Ireland does not have zero-hour contracts and that everybody gets 15 hours at least. When I examined the legislation, however, it became clear that many people may in fact be getting a ten hour or an eight-hour payment, depending on what their normal working week might be. Can a provision be made to monitor what is actually happening for people and to see how many persons whose payments are being made under this section are being paid for four, eight, ten, 12 or the ceiling of 15 hours? It is very important to monitor what happens. There was a misperception for a long time, and I have even heard senior journalists talking about Ireland not having zero-hour contracts, to the effect that everybody gets at least 15 hours. That is not the case. I know this is not the case in the legislation.I recognise this is not a new issue, but because it previously took a long time to be addressed, what provision will the Minister make for effectively tracking what is happening in that regard?
My colleague has tabled amendments to the Qualifications and Quality Assurance (Education and Training) (Amendment) Bill 2018, which will come before us.
Yes, but the section before us also relates to the issue of English language teachers. This may be an opportunity for the Minister to engage with the Minister for Education and Skills, Deputy McHugh, because I imagine if we raise those issues with her now, she will tell us to talk to him. I ask her to ensure that the English language teacher issue is considered by her Department also. Will she comment on that matter?
I apologise for looking like I did not know what the Senators were talking about, but I did not know until the end.
The banded hours will change the situation and, therefore, we do not have the data. I am not sure where the anecdotal evidence came from to say that everybody is on 15 hours a week because not everybody is. It is our intention that the banded hours will resolve the issue because once the legislation is enacted, anybody who is on what we classify as a low-paid, precarious contract can ask to be put on the band of hours that is reflective of the look-back period, which is specified as 12 months in the legislation. One will, therefore, be put on a contract that reflects the actual work that was done in the previous 12 months. This will mean that contracts will reflect the actual working week as opposed to what the employer merely noted, which could be anything but which could chop and change whenever it suited the employer. Before the legislation, one might get two hours one week, 27 hours another week and three the following week, but there will now be consistency and when someone asks to be placed on a band of hours that reflects the look-back period of the previous 12 months, he or she will also have the certainty that when put on that band of hours, he or she will be kept within that band of hours for at least the following 12-month period, which will level out the anomalies that existed in the past number of years. It will, at the least, give people certainty, which is what we are trying to do with the section.
On the language school in jeopardy, it is not the first and I doubt it will be the last unless we do something. The legislation will give all of those people, who in the main are bogusly self-employed, the security of the employment legislation we are debating. Senator Craughwell may not be aware there is a scheme within our Department that looks after people from a statutory redundancy perspective where companies cannot afford to, as is the case for this company although no application has yet been made to the Department. I invite people and the company to come forward, however.
We have too often found ourselves in a situation where, as the Senator aptly described, someone has taken thousands of euro from unsuspecting students, who do not get a refund and are left high and dry, but suddenly does not have any money to pay anybody anything, which is not a fair practice of any kind of employment law or, as Senator Nash said, company legislation. We need some further consideration of those issues. I agree that the quality and qualifications legislation is probably not the best place to do it but we need to have a conversation about that in the next couple of weeks to look after the staff and students, if we can, and ensure we put something in place in order that nobody can ever exploit this loophole of malpractice again.
I concur with Senator Nash and the Minister. The Office of the Director of Corporate Enforcement, ODCE, does not have adequate resources and cases have fallen apart on the basis of not being properly presented to the court. If the office is to be able to pursue employers like Grafton College, it must be properly resourced. The Minister should convey this matter to her colleagues to address not just this case but others that have fallen asunder because the ODCE was not able to present a case properly and the evidence was askew. The resourcing of that office is a significant part of the debate.
In this case, it is not a matter of resourcing the ODCE. There are at least two key provisions of company law that have been in place for some time in different iterations and have been used and tested. For example, a company's assets can be pursued to reclaim moneys owed to the State through statutory redundancy and so on, but that has not happened. The law is there but it needs to be enforced and its robustness may need to be tested. It is open to any creditor to do that, and in many cases the Department of Employment Affairs and Social Protection or the Revenue Commissioners is the key creditor and is owed the most money. It is also open to the State to take cases to test how robust those provisions are, but that is yet to happen. I was disappointed that the Government which I supported did not take a case after what happened at Clerys, and I would have liked the State to test the various sections of company law because considerable resources are made available from the taxpayer through the Social Insurance Fund to meet the statutory redundancy payments. Too often, however, bad employers ride off into the sunset with impunity and the taxpayer is left holding the bill.
I thank the Minister for her comments on the situation at Grafton College. I attended the protest yesterday evening and many of the teachers had never had any direct involvement with the social protection services. Will the Department provide an official to give them solid advice over the coming days to ensure they get their entitlements? It is a short period between now and Christmas. Some of them are married, while some have never drawn social protection money and would not know where to start. I would appreciate if that was facilitated soon.
I fully support Senator Humphrey's remarks. A similar issue arose with the Clerys group during the previous Government, and the Government acted quickly in that case. I acknowledge my two colleagues from the Labour Party, who were quick on the ball that time. As Senator Humphreys said, tomorrow morning those teachers need to see somebody from the Department who will be present and will take a note of their names. There are some horrific stories, such as people waiting for their salary for two months. If an appearance by an official could be arranged, it would be great although I appreciate the Minister is doing what she can.
On a technical question, I appreciate the Minister's understanding of the provision for 25% of the contract hours. When we consider a banded contract with a window, perhaps it is a question of where the 25% will apply. Will it be at the beginning of the band or the end? The section provides for an entitlement to 25% of the hours one would have expected to work under one's contract where there is a cancellation. I may be misconstruing the matter and, therefore, I propose to follow it up with the Minister after the debate.
Yes, I will. It relates to the hours of compensation when one's working week has been cancelled, and the measures in respect of how that will play out in the new scenario and how it will be tracked. I will, however, discuss the matter with the Minister after the debate.
I understand and I thank the Senator.
On the Senators' gentle inquiries, the Department contacted staff from the school earlier. I cannot take credit for it because I did not make personal contact, but the Department is good and mindful of these issues.
Senator Ardagh may not have heard because the decision was made at Cabinet only this morning, but the Cabinet approved changes that will see the ODCE established today as an independent agency which is entirely separate to the Department of Business, Enterprise and Innovation. The Minister said the organisation will become the corporate enforcement authority and will be given new powers of independence in regulations. It will also be given a raft of resources to ensure what happened in the high-profile case that we have discussed will not happen again. I hope that will put the Senator's mind at rest because these matters should not happen.
I move amendment No. 6:
In page 15, between lines 8 and 9, to insert the following:“(15) In the event of hours becoming available an employer shall be required to offer any surplus hours appropriate to their qualifications to existing part-time employees first.”.
I thank the Minister for appearing before the Seanad and I welcome the Bill. It is strong legislation which, among other provisions, will eliminate the use of zero-hour contracts and offer protections to some of the most vulnerable and precarious workers in the State. I recognise the work of all who brought it to this Stage, including Senator Nash, who was Minister of State when it was first mooted, and the Minister, Deputy Regina Doherty. It is an important law and it recognises that in regulating employment and the conditions of that employment, the State has a responsibility to intervene, regulate and act as a guarantor of the rights of the people to safe, stable and secure employment. My amendment is in the spirit of the rest of the provisions of the Bill. It seeks to provide greater security and protection for part-time workers. It builds on the work done by Deputies Clare Daly and Joan Collins on Committee Stage in the Dáil. I thank them for their help in drafting my amendment. This simple and straightforward amendment would place a requirement on employers to offer additional part-time hours to existing part-time employees before the employer may hire another person to work the same hours. It has a twofold benefit. First, part-time workers would be given more security, more choice and the option to work more hours if they so wish. Second, it would prevent additional workers from being employed in very precarious conditions to do work that could feasibly be done by existing employees, raising employment standards overall.
A similar amendment to the Bill was accepted on Committee Stage in the Dáil after being supported by all parties except Fine Gael, before being deleted on Report Stage because the provision on work being "appropriate to their qualifications" was not in place. We have included that wording in our amendment today and hope to achieve cross-party support as a result.
The policy behind the amendment is based on EU Directive 97/81/EC on part-time work. It seeks to address issues relating to underemployment and low-quality employment, with this amendment seeking to improve the quality of work available to part-time workers. The directive states that employers should consider requests to transfer from full-time work to any part-time work that becomes available and requests to transfer from part-time to full-time work or to increase working time when the opportunity arises, providing timely information on the availability of part-time or full-time jobs.
Our amendment would simply put this on a statutory footing because at the moment there is no legal right for a part-time worker to avail of more hours at work. The amendment would address the insecurity arising from underemployment and casualisation. It benefits individual workers and the economy overall, as employee satisfaction would rise due to increased flexibility and options the statutory rights give, and very much fits into the overall intention of the Bill.
It is not just unemployment that pushes people into poverty; it is low-paid poor-quality work that leaves people so far behind that they cannot afford to keep up payments of mortgage, rent, childcare costs and other basic needs. There is a direct correlation between the increase in the use of food banks and the prevalence of food poverty, and worsening employment conditions and increased precarious work. Employers should be obliged to offer hours to current workers before hiring someone else. It rewards loyal staff and gives them more hours, making it more likely that they will earn a living wage and be able to avail of credit and other financial options. We need to halt the continual deterioration of precarious work and give these vulnerable workers some legal standing.
I hope the Minister can accept the amendment which is intended to work in a constructive spirit with the existing provisions of the Bill, which would be stronger for it.
I support my colleague's amendment, which is tabled in good faith. It takes on board the debate in the Dáil and on Second Stage here, where the Minister expressed the concern that hours should not be offered to persons which are not appropriate for their qualifications or to their work. There is a really good State engagement on those issues. If further concerns emerge, I reserve the right to table an amendment on Report Stage to try to ensure we can find something agreeable to the House to address this very real issue.
As we know, underemployment levels are extremely high particularly among women. This is effectively a measure to tackle underemployment. As a member of the Joint Committee on Employment Affairs and Social Protection I recognise we must ensure that people do not need to supplement their family income.
I support the amendment. From my time being involved in the Teachers Union of Ireland, I know it was an issue that caused significant distress to teachers who were employed in professional posts for four or five hours a week. Since they only taught a specific subject they could be kept on that for years.
It always amazed me that employers, particularly education and training boards, would have five, six, seven or maybe more schools under their control, but would be unwilling to share, for example, a physics teacher across three or four schools in order to build up the full 22 hours. There was no excuse for it given that it was the same employer even though the teacher would have been teaching in different schools.
I recently came across a special needs assistant, SNA, working for an organisation that looks after disabled children. The SNA had 15 hours a week and a job came up for another seven hours a week. She was told she had to apply for it. She had already been employed by the company for a number of years. She applied, but did not get the extra seven hours. She asked her manager what went wrong. Her manager, who apparently was a fairly decent person, said, "Look the other person who applied is coming in on a lower rate of pay than the hourly rate we're paying you." The bottom line is that it was easier to give the additional part-time hours to the new person. The problem here was that this person was not a member of a trade union. Anyone working today needs to be represented by a trade union and needs to have good strong representation. A trade union would not allow something like that to happen easily.
In the education area, the Lansdowne Road agreement introduced what is covered under Senator Ruane's amendment. It has taken time in the education sector, but it is beginning to have an impact. We now find that employers cannot advertise hours if they have teachers already on short hours. From that point of view that is good.
It is also happening in the medical world. Strangely one of the worst employers for these breaches is the State. Unless those managers employed in State organisations step up to the plate and recognise the value of looking after workers well, this will continue. My advice, of course, is that every worker in the State or private sector should be a member of a trade union. We would not have these issues if they engaged with their trade union.
Certain institutes of technology, which will be technological universities in the not too distant future, still have lecturers who are not be on full hours for one reason or another. The same applies to secondary schools and education and training board centres. Part of the problem is that college and university degrees have become very specific which tends to limit or put people into a funnel from which there is no way out because the number of subjects they have available is quite small. When I started teaching in 1995, I got a full 22 hours on day one. By 1996 that had changed and by 2000 teachers were being offered five or ten hours a week, which is outrageous for people trying to take care of families.
I remember wanting to write to the Minister for Social Protection, looking for supplementary welfare for those on short hours, but because they were working one hour a day they did not qualify for it. The amendment is really worthwhile and I ask the Minister to accept it.
I support Senator Ruane's amendment, which will benefit many employees across many sectors of society. As Senator Higgins said, it will also disproportionately affect women in a positive way. Many women will benefit from the amendment because, as we know, the majority of those in part-time work are women and much of that work is low-paid work.
I have a concern about who will determine the employment qualification, but that can be ironed at a later stage. At this point I am happy to support the amendment.
I will be cheeky and respond to Senator Higgins on the previous amendment because now I actually know what I am talking about. The 25% of the hours or the 15 hours provision she mentioned is already contained in section 18 of the Organisation of Working Time Act. It is in the compensation section. It has acted as a deterrent against zero-hour contracts in the past. We are simply putting a provision in the existing compensation section to ensure that a worker who is called in gets a minimum of three hours.The 15 hours and that provision are not going to change. If a worker who is subject to that provision is called in and does not get the work, he or she will get the three hours' compensation. That it what it is intended to provide.
I thank Senator Ruane and totally get what she is trying to do, as I did when Deputy Clare Daly proposed the amendment in the Dáil. I could not accept the amendment then. I was on my own on the day it was passed on Committee Stage. I brought the amendment back on Report Stage because by then I had had time to get advice from the Workplace Relations Commission and the Labour Court on what it would mean in practice. Under the Protection of Employees (Part-Time Work) Act of 2001, an employer cannot treat a part-time worker any differently from a full-time worker. There is also a statutory code of practice stating that an employer should give consideration to requests by workers to transfer from a full-time to a part-time position or from a part-time to a full-time position. That code of practice was not designed by politicians but by the former Labour Relations Commission, following extensive consultations with the social partners, unions and employers' organisations.
The code is admissible in evidence in any legal proceedings that anybody might want to take who feels their rights may have been infringed under those provisions. The code sets out best practice and the detailed arrangements that apply to requests by employees to transfer from part-time to full-time work or to increase their working time should the opportunity arise, as well as those arrangements that apply to requests to transfer from full-time to part-time work, which is equally important to people at certain stages in life. Mostly it is women because we have babies and want to be at home with them, which can mean going from a five-day week to a three or four-day week. That cannot legally be refused because of this legislation. By exactly the same token, if someone is working a three-day week and an opportunity comes up to work a five-day week, he or she has to be treated equally under the law with someone who was newly applying for the same full-time job.
There are really strong anti-penalisation provisions in the 2001 Act. We all know who we are talking about so I would also be mindful that if the amendment is passed here as it was in the Dáil, it will not just affect the small group of workers we are talking about. It is going to affect every single employer and employee in the country. Under the provisions of the 2001 Act, part-time workers who feel they are being maligned by practices or actions of employers have the opportunity to take a case without victimisation to the Workplace Relations Commission.
Here is my problem, before I get to all the unintended consequences and the advice from the WRC. When Deputy Clare Daly brought this issue to me, although I totally get what she and Senator Ruane are trying to achieve, I had to say that if this was as big an issue and was as prevalent as was being portrayed to us, there would have to have been cases taken, even a test case or somebody genuinely trying to earn a full-time living and being prevented from doing so. In the history of this Act since 2001, there has never, ever been even a complaint made to the WRC about this instance. Because of all the unintended consequences of the amendment, not least that before the legislation is enacted I will have no choice but to put it out to public consultation to all the social partners, unions and employers' organisations, which will only delay the passage of the Bill - I am not trying to be smart - I sincerely ask the Senator to withdraw the amendment. I ask her instead to bring me some employees so I can actually work with them and take a test case to the WRC, with them or on their behalf, so I can challenge the current employer the Senator is talking about. I will take a test case with them to the WRC and support them all the way.
Even though this amendment is more nuanced than the one that was presented in the Dáil, it is still unworkable as far as the WRC is concerned. Looking at the language of the amendment, apart from the matter of who is going to denote what the appropriate qualifications are, how are the hours to be offered? Do we stick a notice up on the notice board or in the loo? How do I offer the ten employees who are only part time the five hours' extra work that I have next week? If I am to stick a notice on the board - the amendment does not say so because we are not prescribing how they are to make an offer - and ten people apply, on what basis do I then decide that the third person gets it or my favourite, Mary, gets it? What happens when the nine others do not get it and want to take a case of discrimination?
There is so much in what the Senators are trying to achieve that is not in the amendment. It is genuinely unworkable and I would not be able to continue with the legislation before going out for consultation. In order to do exactly what the Senator wants to achieve today, I am asking her to withdraw the amendment and send me the people. We can do it privately and anonymously. I will take the test case to the WRC to get the people who are working for this organisation to be treated with respect and, when there are more hours on offer, for those who are currently part-time workers to get them.
Finally, we always refer to women. The latest CSO labour force survey figures show that 76% of current part-time workers say they are working part time because they want to, not because anybody is making them. Senator Higgins talked about under-employment but the figures are not as bad as the Senator might think. The number of those whom we might classify as under-employed is dropping. Some 25% of those who are working part time are doing so because they do not have a choice. The proposed amendment will only address a particular issue in a particular industry and in respect of one employer. There are other ways for us to crack that nut. I will do everything I can to make sure that if there is a prevalence of what the Senators are talking about, it is addressed. I will support those workers if the amendment is withdrawn.
The Minister mentioned the working time directive. The State is one of the worst culprits in that regard. The Defence Forces have 35 cases before the High Court and the most recent case cost the State €200,000 in legal fees and a five-figure sum to settle the case, which was the seventh. There are 35 more cases in train and there will be further multiples of 35 coming after them. What a waste of money defending the indefensible.
On Senator Ruane's amendment, the historical evidence is not there because those in precarious employment simply will not go through the process. I worked for 25 years as a representative in a teachers' union. I have seen the most appalling things done to teachers. I heard one principal saying in his retirement speech that he was proud of the fact that during his tenure, he had made nobody permanent and, as such, had left a flexible staff behind.
If, as the Minister suggested, there are five employees in a company, the employer could operate a list or panel system whereby casual extra hours could be dished out if they were available. Senator Ruane can correct me but I think she is looking at the type of people I am talking about - teachers, nurses and lecturers in colleges and universities who are watching hours that they could take being allocated to others in order to keep them in precarious employment. Those in precarious employment simply will not go to the Workplace Relations Commission because they are afraid.
I understand why people are afraid. Generally the most vulnerable are afraid but once that ethos starts in an organisation, nobody will take a case. Once they succeed with the first person, everybody else will fall into line. I really understand the point the Minister is making but I still fully support Senator Ruane. If we fail to get this through, I am likely to take the Minister up on her offer of taking a case to the WRC because I really want this sorted. It is just wrong; it is abuse of workers. It is almost worse than a zero-hours contract because although the person knows he or she has ten hours a week, that is not enough to put bread on the table. I saw one particular school in which there were ten teachers on short hours and the principal made them sit in the staff room every day in case substitution hours might come up.If a person was not in the staff room, he or she could not get the substitution hours. That was an outright abuse of people. Thankfully a lot has been done through the Lansdowne Road and Croke Park agreements. What I have outlined are two of the most horrible things that have happened in my time but in some way we managed to change the terms and conditions of employment of those in short-term work. I see what Senator Ruane is doing here and I still support her. I hope the Minister will take it on board.
I do not mean what I or the Minister might define as "underemployed" when I use that term. It is very positive that we have part-time work. We should probably embrace the concept more. We need to look to quality part-time work. In terms of underemployment, I am speaking to the figures. These figures are from last year so it would be interesting to see how they stack up. The previous figures show that a majority of those who are involuntarily underemployed are women. That is the point I was making. That is the case in terms of those who are underemployed involuntarily and who would like to work more hours.
How hours might be offered is not such a mystery. I am indicating a direction I may go with the amendment I will table in respect of this matter on Report Stage. During my time as a shop steward in Trócaire, where I represented 180 staff members, one of the issues we had was the question of the internal offering of positions. There was a requirement that positions would be offered internally prior to being advertised externally . That was in respect of positions but perhaps there could be a similar mechanism regarding any extra hours that might emerge. Provision could be made for such hours to be advertised internally and to give due opportunity for people to seek to avail of them before their being advertised externally. That mechanism worked very well in quite a large organisation that had a sizeable staff complement. Again, it was something that was won rather than granted, but it worked effectively for many years.
How what is proposed here would work is not such a mystery. We have many good templates. It is something I may look to. The offer should certainly be made internally first but we can look at the mechanism by which that would be done.
The figures show that more than 100,000 people are underemployed. That is 30,000 more than in 2008, so it is obviously a very large number. On my amendment and with due respect to the Minister, there is nothing in this which is not workable. Many people throughout the unions have been lobbying for and seeking this change since 2013. Many of these people may have been part of those original consultations on putting together the regulations and codes but are saying that this is required. How we do that is one thing.
We are not only talking about nurses and teachers, for whom this is a massive problem, but about some of the most vulnerable people who are in low-skilled and low-paid jobs in local shops. If one goes into the Square in Tallaght, one will find people in the pound shops and other shops who are in the position of trying to get hours or extra hours and of never knowing how many hours they are going to work. It is very hard to envisage them having access to, or recognising their own rights in terms of, employment law. I know I would not have been able to take a case or have been aware of case law. These are some of the most vulnerable groups.
We should also take a special look at lone parents. When people are in situations of disadvantage, they sometimes become almost grateful for the few hours their employers will give them and are petrified to rock the boat. I do not understand how a positive measure whereby an employer has to offer any extra hours to employees would have any negative impact. In terms of qualifications, nearly everybody working in a shop would have the same qualifications, unless a manager's job has come up. My amendment takes into account the concern raised when the provision was taken out on Report Stage, which was that hours might not be appropriate to the employee's qualifications.
On the basis of this changing further and it being stated that it is unworkable, I have come to the view that the Minister will, for reasons that are none too clear, be slow to accept this amendment no matter what form it takes and even if we manage to address all of the concerns raised in the advice she is getting. At this point, I am willing to look at everything she has outlined. I have support across the House for this amendment. I am willing to take into account everything the Minister mentioned regarding the advice of the Workplace Relations Commissions, WRC, and the issues it has raised. I have no problem coming back with a further amended version of this amendment which takes those considerations into account. If we are clearly identifying X, Y or Z as the problem, we can make this amendment even stronger and make it workable. I will go back over the transcript to identify everything that was highlighted as being an issue. I will improve on the amendment further at that point.
I thank the Senators. I do not know why Senator Ruane thinks that was the only issue we had in the Dáil. Not only was the provision discussed at length on Committee Stage in the Lower House, it was also discussed at length on Report Stage when I happened to convince enough people that it should not be accepted. That is why we reversed it. I was on my own during the Committee Stage debate in the Dáil and I lost the vote. Recommendations have come back from the Labour Court and the WRC as to why the provision is unworkable. There certainly was not only one condition, namely, that of qualifications. That was one matter which was highlighted with regard to a porter or a nurse in a hospital. That was the example given. There are so many others and the Senator listed them. We could operate a panel, we could operate a list system or we could work out the mechanics in the future. This amendment is nowhere close. We are at the final gates in the context of passing this legislation. This amendment has not undergone any public scrutiny. No interaction has been had with the employers' organisations, the employee organisations or any of our social partners. That would have to be done to consider all of the examples the Senator has given including the list system and sticking hours up on a noticeboard. We would also have to consider how to account for discrimination in cases where hours were given to someone who was tall but not someone who was small. I am not saying what the Senator is trying to do is wrong; I actually agree with her. We have the Protection of Employees (Part-Time Work) Act 2001 and the code of practice, which is actually on a statutory footing.
To reply to Senator Craughwell, the pronouncements and deliberations of the WRC are anonymous so, if people are afraid, we have a body of work to do to tell them that they have absolutely no need to be afraid to take their issues or cases to the WRC. The penalisation measures are there.
I beg Senator Ruane. If she pushes this amendment and it passes - and I have no problem losing - I will have to undertake public consultation and that will delay this Bill by months. None of us want that. I can find another way to do what the Senator wants to do. If taking a test case to the Labour Court does not work the Senator can draft legislation and I will support her. Let us, however, make sure that we get all t's crossed and the i's dotted so that when it does come it will be legislation with which the WRC can work and which the Labour Court can enforce so that people who are brave enough to take on their employers will receive the justification and reward they are looking for, which is just more hours when they come available. That is the best way I can put it.
I know we are saying that we can look at other measures and that we can look at the codes and regulations put in place under previous Acts but 33% of Tesco workers want more hours and cannot get them, and that is with the agreements that have come before. Right now, 33% of Tesco workers want more hours and, despite having an agreement to get them, the company will not give them. That is because there is no legislative footing to enforce the existing agreement.
The Minister has said that the concept of this amendment has not been scrutinised. It has been six months since it was debated in the Dáil. The Bill went through Committee Stage in the Lower house. There has been-----
-----a considerable amount of time on Committee Stage for things to be scrutinised and put in place. If this House was always to state that amendments cannot be included because there would be administrative burdens involved in the context of how they would work, we would never be able to introduce amendments. It is not up to the law-makers to hold consultations on how something would work in practice. The Department will take that on. If this amendment passes, the Department will take on the task of seeing how it would work out in practice.
The same situation arose last year in respect of an amendment to the Adoption (Amendment) Act 2017. We were told that an amendment would be completely unworkable in practice and that it would give rise to too much of an administrative burden. Lo and behold, when it passed, everything necessary fell into place in order for it to work.It is not about a notice hour. That is administrative stuff. It is not about who gets it. It is about making hours available. Perhaps one can apply for those hours. It is not just that a person is picked and is given those hours. Employers will put processes in place where people apply for, and access, those hours. In most cases, it is not going to be just five hours. Someone could leave, and it could be ten hours. These are small groups of people in employment in shops, in shopping centres and in hairdressers. They are cleaners getting minimal amounts of work. If the problem is that this is too wide, where it takes in everyone's employment and all levels of work, then an amendment can be included here that can look at the types of contracts people are on, and where this is made available to them.
It is not fair to say this would be delayed. No legislation would ever pass in this House if that were the case because we introduce amendments to legislation all the time that create new systems which have to be put in place for them to work and for that law to be workable. It is not fair to say this Bill will not be able to move forward because an amendment has been included in it. It is just about finding out how that amendment can work best in practice so that it suits everyone.
The Bill was amended on Committee Stage. This was untested, not scrutinised and not discussed with any of our unions, social partners or employer organisations. The amendment was brought in by Deputy Clare Daly on Committee Stage. It was passed and I lost. The reason it was removed, when I brought an amendment back, was not because I said it would not work and did a little dance and said please do not do that to me. It was because the Labour Relations Commission, LRC, and the Workplace Relations Commission, WRC, came back with advice to say that, as it is currently constituted, it does not mean anything. It means that one can put a sign on the wall that says five hours are available next week. Some 15 people could apply for it and not one of them might get them. Not one of those 15 people could find out why they did not get them. It is meaningless. The only way it becomes meaningful is if one is prescriptive, and in order for it to be prescriptive, one has to tell the employer exactly what one wants, expects, and the desired outcome. That does not do this.
I sound like I am threatening but I am not. However, to do what the Senator wants to do - this is the only reason I am saying it will delay the Bill - in a meaningful way, I will have to engage in public consultation with the social partners, the unions and the employers to ask them what they would accept in legislation, so that we will have a practice that is fruitful and meaningful. The WRC and the Labour Court came back and said that, as it stood, it was unenforceable. How would they deal with the five people who did not get the extra hours on the week it was advertised versus the person who did? By not being prescriptive, they have no way of making sure that they can enforce it.
Right now we are at a crossroads where we are putting an amendment into the legislation that is unenforceable as far as the Labour Court and the WRC are concerned, and not me, as Minister. What I am saying is that if the Senator wants to do this, it needs to be far more prescriptive, and the only way I can be assured that happens is if we engage in consultation with all the people it will affect, from either an employee's or employer's perspective. We need to get it as detailed and as meaningful as it needs to be before we can progress with the legislation.
The Minister is expressing concern about the issue at hand. Nonetheless, we face a dilemma here and I see her argument in relation to time. We know how long it takes to get legislation through all Stages but is there scope, since she will be going back to the Dáil in any event, for a Government amendment to be brought in on Report Stage in which she can reserve the right to introduce by statutory instrument or otherwise, measures on the particular problem at issue, allowing a period of time for what consultation she sees as necessary? Many issues in many policy areas move forward without extensive periods of consultation. This is one where there has been a flagged concern.
There is also a jeopardy within the Bill. It is a very positive Bill but we do not want a situation where we end up with companies with large numbers of people on the very low bands. We do not want that but that is a jeopardy in the Bill. This potentially, although perhaps not implemented as it is set out here, could have a provision, or a similar provision, as a mechanism to ensure that where more hours are permitted, we have people moving up the bands, as would be appropriate. It is an important factor.
Could the Minister include a provision that within six months, or whatever, that she reserves the power to introduce a statutory instrument, in consultation with the WRC, the LRC, or whoever else she deems fit, measures or regulations in respect of the offering of hours to employees, subject to X, Y or Z. The issue needs to be tackled and it is not really satisfactory given that we have had these rules for so long. The WRC and the LRC have not tackled or addressed it.
Cases have not been taken but the very fact of that shows that these measures are inadequate. We need to reserve an extra stick on this issue. Can the Minister find a way to ensure that power, and that we do not have to wait for a new Bill or a three year review of this Bill, to address this issue?
I want to address point the Minister made on the anonymity of cases. Senators Craughwell and Ruane made the point that many people do not like taking employment rights cases as they are too afraid that it may jeopardise their employment. Cases in the WRC are, in the first instance, held in private. From a practitioners point of view, that causes a lot of issues, and we are hearing anecdotally of many cases being appealed to the Labour Court. We know that employment rights cases in the Labour Court are held in public. There is a big chance that if someone brings a case to the WRC that it will end up in the Labour Court and the person will not have that anonymity. It will be held in public. It is a bit of a misnomer to say it is completely private and anonymous. It is not anonymous if it ends up in the Labour Court.
The Minister's point was that people should be able to bring a case because it is held in private and that they should not be afraid. They could be afraid because it could end up in the Labour Court and the majority of LRC or WRC cases are ending up in the Labour Court these days.
I know what Senator Ruane is trying to achieve and I support that in principle. I remember reading the advice of the WRC around the time the discussion was taking place on Committee Stage in the Dáil and I was quite taken aback by the strength of that. In my experience in these Houses I do not think I have ever seen the WRC provide that kind of advice in advance of an amendment being considered. It was very detailed and it set out its concerns about the operability of legislation, notwithstanding the fact that the principles here are all very sound. We all want to see those who are underemployed having access to hours they should have access to. It makes business, economic and social sense.
I am scared witless that we would delay the enactment of this crucial legislation any longer than we have to. Everyone in this House wants to see this legislation enacted as quickly as possible. Senator Ruane has genuine concerns about this element, or about this cohort of workers who should be better supported through our legislative or regulatory framework. I am not certain how to do that with this amendment. It may require some work. Could agreement be reached in this House this evening to try to come up with a solution between now and Report Stage, where the position could be finessed in a better way to address the concerns I know the Minister and her officials may have and the advice they may have been given, which would be the same as that which the WRC gave on the operability of this? There is no point in us making laws that are extremely well-intentioned but may fall at the first hurdle. We know, and I am aware from my experience, that there are employers with very deep pockets who are only too prepared to go to the courts and throw as much money as they possibly can at demolishing some very significant protections we have in this State for workers.I am concerned that if one or two elements of this legislation were a little unsound or perhaps not properly finessed, then the whole edifice could be toppled. I am not stating that is the case or that it will happen. However, I have some experience in these matters and I know that it often does happen. We run a risk of it happening, although I am not saying that it will happen. I ask that over the next few days we could reflect on this and not divide at this point. I would certainly make whatever contribution I can to trying to resolve this, understanding, as I think I do, where the problems lie. Perhaps we could come up with some sort of a solution that would work for everybody. I am not sure if that is possible but perhaps it would be and we could address this matter on Report Stage.
I do not know if my proposal would be acceptable to Senator Ruane. Let us see. If the House needs to divide, then it will do so and we can deal with that eventuality. In this Legislature, people are entitled to hold their views and press their amendments.
Only about 20% of the cases that go to the WRC are brought to the Labour Court. I acknowledge what the Senator is saying. As I said to Senator Craughwell earlier, if we have a body of work to do in order to convince people who may be afraid, I assure them that they have absolutely nothing to fear. All of the WRC cases are taken in private and only 20% of the cases are taken or appealed to the Labour Court.
I shall now issue a direct response to Senators Ruane and Higgins in the context of what was said of me. First, we did not have any public consultation or scrutiny. The amendment was tabled on Committee Stage in the Dáil and it was only at that point that I had a small window of opportunity - approximately one week - to obtain the advice from the WRC and the Labour Court. It was powerful advice and it convinced everybody in the Dáil, with the exception of Deputy Clare Daly, to undo the effect of the amendment.
Senator Higgins stated there was jeopardy in the Bill in the context of the bands. The section dealing with bands is probably the most powerful aspect of the Bill.
The bands are so effective because not only is there a look-back at the previous 21 months, there is also the security of the position being set for the following 12 months. Once a person has been placed on a band of hours, he or she can never be given fewer hours. He or she can always be given more hours, which would have to be reflected in the next look-back in order to bring the person up to the next band. A person can never be given fewer hours. If one is placed on a band of 15 hours this year, one cannot be given fewer than 15 hours a week. This means that when there is a look-back the following year, a person's employer cannot reduce his or her hours to five. Of all the measures in the Bill, this is the most powerful.
I shall now turn to what the Senators are trying to do. It was brought to my attention this afternoon, and I say this reservedly, that apparently there was some rumour going around earlier that I was not to accept any amendments in the Seanad because the Bill would not go back to the Dáil, or some rubbish like that. This House is as important as the Lower House and provides as much advice, scrutiny, maturity, respect and additions to legislation as any other organ of the legislative process. I do not know where that rumour started but it is completely unfounded. It certainly did not come from me.
I cannot accept the amendment because it will delay the Bill. It is not the case that I can say that we would accept it and I will fix it by next week. I am back in this House next Tuesday to take Report Stage with a view, hopefully, to getting the Bill into the Dáil for the final hour on the 19 December, having it passed and then getting it enacted in January. I am not trying to be funny or smart but I will not pass legislation having been informed by the WRC and the Labour Court that it is unworkable and then just shunting it off to them to say "Off with you now and fix it". I put it to Senator Ruane that it is not the case that the Department comes along, takes an amendment and says "Actually, it has to be done with a blue hat or with green flowers." That is not what we do. The legislation would reflect exactly what is written in this amendment, which is not enforceable. It would not fix or make anything better for those people the Senators are trying to help.
Senator Higgins asked if I could provide guarantees that we would change by regulations. If I we were to try to do what the Senator wants to do, it would not be via this Bill. We would be obliged to amend the Protection of Employees (Part-Time Work) Act 2001 in order to make the additions - with the prescription of what the Senators are trying to do - and effect the proposed change for the people in the particular industries to which the Senators have referred. In order to do that, I need evidence. I do not have such evidence. Again, I am not trying to be smart but for donkey's years we have been listening to one particular union telling us that this is a problem. That union has never taken a test case to the WRC or the Labour Court. I ask the Senators, genuinely, to trust me. I do not think I have ever steered them wrong during the year in which I have been doing this job. We will start a public consultation on this matter after Christmas and the Senators will get me two people - that is all I will need - and I will take the case to the WRC to test it. We will see exactly what needs to be amended to the Protection of Employees (Part-Time Work) Act to ensure those people, who are mainly women, get treated fairly under the Protection of Employees (Part-Time Work) Act. These are people who are involuntarily working part-time and who would give their left arms to be working more. If the current legislation is not fit for purpose and if we were to take a case to the WRC and it does not stand up, we would have the public consultation with evidence behind us to actually draft an amendment to the Protection of Employees (Part-Time Work) Act. The Senator can do it in her name next year and I would fully support her.
It is important to say that it was not only Deputy Clare Daly who was not convinced. The result of vote was in the region of 38 to 35, with the support in Independents 4 Change, the Labour Party, and Sinn Féin. Fianna Fáil abstained and Fine Gael opposed it. When the amendment was before the Dáil, it was definitely not just Deputy Clare Daly who voted to keep it in. The numbers were pretty close, with just one or two votes in it and Fianna Fáil abstaining. Not everyone was convinced.
At this point, I am willing to take a breather to think about everything that has been said. I will return with this amendment, or a variation of it, on Report Stage. Perhaps the Minister could come back on Report Stage not necessarily with an amendment to address all of this but with an amendment to the legislation that commits to a public consultation and a review of the section. Regardless of whether this amendment passes, if the Minister were to give a commitment about legislation, it might mean nothing to me in January or February because she might not be here. I am sorry about that but the Minister knows what I mean.
I am just being ironic, but one never knows. If we are to take this section seriously and if we are to really address it we must look for a public consultation on it. The WRC has codes of practice on various matters such as grievances and disciplinary procedures. This is another matter that the WRC could examine and on which it could draw up codes of practice so that we can implement some sort of structure to protect those vulnerable workers. If we can make a commitment within the legislation that this would be carried out, at least then I would know that it is going to happen and that we are going to take it seriously.
I do not know how to respond. I want to say "Yes" to the Senator but I cannot do so yet because I have to check. This shows that one would clearly know I am not in charge. I cannot put a report into legislation. I cannot do it. This is primary legislation. I am not trying to be smart but I will not stand here and make a promise to the Senator that I am going to put something into the legislation next week. I cannot do that. To bring back what Senator Ruane expects me to be able to bring back next week as meaningful and prescriptive would actually take months. I want to be here next week so I cannot tell the Senator that I can come back with a detailed amendment. I also cannot just come back and state that I will stick a report in the legislation. Maybe my word is not good enough for the Senator. Other than giving her my word, all I can do is ask the WRC to look at the current statutory code of practice in respect of the Protection of Employees (Part-Time Work) Act. It is already in place but it has just not been tested. I do not know how I could ask the WRC to change that when it does not have a case to test it with or change it against. While the Senator suggests that I might not be here, I will be here for a while - we have Fianna Fáil's letter to keep us going until March so we will be grand - and I will give a commitment that I will write to the WRC to tell it of our conversation today and that I will be bringing a test case. Perhaps that will result in the WRC having a look at the statutory code of practice. I cannot, however, put that into legislation so the Senator will have to take my word for it. I hope that my word means something.
It is not about mistrusting the Minister's word.As I said, we never know the landscape and how things will change. Of course I trust the Minister's word but I just do not know what will come after that if the Minister is not there. It is not about trusting the Minister; it is just how things are.
We often have in-built reviews and reports in legislation. It is not something new or unusual. Just as the Minister cannot promise us that she will come back next week with the amendment, she also cannot say that she will write to the Workplace Relations Commission and have a test case because she does not know if such a case will come forward for various reasons. It is all very vague and in the hope that we can find someone to take a test case. However, that will not be necessary if we put in the legislation that there will be a review process, as there is in many other items of legislation. I do not ask the Minister to agree to the amendment now. She can look at other legislation with a similar provision built into it in order that she can see it is not unusual for such a measure to be in primary legislation.
I wish to back up what Senator Ruane said. Reports and reviews are often specified depending on which one is more appropriate to prove the effective operation of a measure. We are dealing with the Employment (Miscellaneous Provisions) Bill and a review is appropriate and would fit with the purpose of the Bill. We know the social welfare Bill, for example, regularly has reports attached to it. I accept it may not be pretty and it may affect the framing of the Bill but it is appropriately legal, there is nothing wrong with it and it is very doable. It is a very reasonable proposal. We just want to be sure regarding this issue. We know the Minister has made a commitment in this area. She has driven the issue forward, building on the work of the previous Minister of State, now Senator Nash. The amendment would ensure consistency regardless of who is in the Minister's role.
If we have an election the Minister might get a promotion, yet we would be reassured that the review has been legally put on the agenda and that it will continue regardless of the formation of the Government. That is what is being sought and it is a reasonable request. I accept the Minister has to make a change in terms of how it is done and I urge her to consider it strongly.
Everybody knows what Senator Ruane wants to do and we are all supportive of that, including the Minister. I accept the Minister's commitment in that regard, which I believe she will honour if at all possible. I understand that she cannot put it into legislation but could she give a commitment on Report Stage that, for example, the WRC would be commissioned to carry out a review on it within a certain timeframe? What Senator Nash proposed when he was Minister of State was that one of the universities would be commissioned to do a report. A timeframe was to be given for the report and, when it came back to the Minister, its recommendations would be debated in the House. I fully accept the Minister's word but I understand that Senator Ruane wants something more substantial. I would not like to divide the House and I would be happy for the Minister to commit to coming back on Report Stage to give such a commitment, whether it is the WRC or another independent body to carry out such a review. Such a proposal would be acceptable.
We have gone all around the world. I hope we will end up with an agreement. I will not come back on Report Stage. I will write to the WRC in the morning asking it to review the statutory code of practice of the Organisation of Working Time Act. I will give Members copies of the letter. I will not do what Members normally insist on in the course of the social welfare Bill, which is to put a three-month timeframe on the review. I will ask the WRC how quickly it thinks the review could be done and I will come back to Members and be honest with them. It should not take any longer than four or five months. The social welfare Bill is amended every year so the worst case scenario we are talking about is next October. The amendment should be to the legislation affecting part-time workers, so if there is a requirement to change the code of practice that is on a statutory footing and we can do that with a statutory instrument. If we need to change the legislation we can draft an amendment to it. I will write to the WRC, which does not have a head at the moment - I hope that will not matter - and we will see how quickly it can carry out a review.
I think the WRC will not have any choice because it does not have anything to review given that no case has been taken. It would involve the WRC talking to the social partners, including employers. I will write that letter in the morning.
I am bringing forward this amendment to slightly change the drafting of the table of bands in section 16. This will sound really Irish: we are slightly changing it but we are not altering it. Senators might not be aware that the table currently in the Bill resulted from a Sinn Féin amendment on Committee Stage in the Dáil. While I had concerns at the time I have been won over to the view that the bands are not as narrow as I originally thought. There was broad agreement for the original amendment. However, the Office of the Attorney General is of the view that the way the bands were drafted in the Opposition amendment will cause uncertainty to both employers and employees and none of us want that. The office has advised that using the terms "or more" or "less than" in the table will cause difficulties. The purpose of the amendment is to remove them but it keeps the bands exactly as they were proposed by Sinn Féin on Committee Stage in the Dáil.
I accept that the numbers are the same but if one was in band B originally, which is from six hours or more to less than 11 hours, the achievement of the bands as they are currently drafted is that they are quite narrow and they provide workers with certainty of hours within whichever band they are given.
The proposed change to section 16 seeks to remove the wording "or more" and "less than" and there is a possible consequence of such an amendment. Could, for example, a worker who was given an 11-hour contract be pushed into either the six-hour to 11-hour band rather than the 11 to 16-hour band? Could the Minister comment on whether the amendment would broaden the bands so that workers are opened up to two bands at a time? That would only apply to the hours in the "To" column. I am unclear at present as to whether the amendment would change the position and potentially open up a loophole for unscrupulous employers to exploit.
I appreciate what the Minister is trying to do but if she takes a worker who is on 26 hours, the question arises as to whether he or she is in band E or band F. It reminds me of when I did some computer programming, I was quite amused to find that there are two values of zero. There is a minus zero and a plus zero from the point of view of computer programming. An employer could reasonably argue that somebody was in band E rather than band F. The situation is slightly confusing for me.
I am pleased to have an opportunity to respond to the question. First, it is unusual that when we average out the hours for where somebody would fall that it would be exactly on, for argument's sake, six hours, it is more likely when one averages out hours that somebody would have five and a half hours or six and a half hours so it would be clear and unambiguous. However, if it did fall on exactly six hours or 26 hours, as Senator Craughwell outlined, the way the legislation is drafted it is open to the employee to pick which band he or she wants to be in. For someone on six hours an employee could pick whether he or she would be in band A or band B. It is his or her choice. Someone on 26 hours can go in either band E or band F. The proposed legislation positively discriminates in favour of the employee as opposed to the employer.
I did not read out the full explanation of what the Attorney General said, but as Senator McDowell said on Second Stage, the way the Bill is currently drafted gave rise to the fact that as an employee one might need to seek legal advice because of the risk that one's employer could hoodwink one or try to confuse the issue. This might sound frivolous but he gave us some unintended consequences of the way it was written. For argument's sake, with the "or more" or "less than" if someone was on four hours on average one could conceivably argue that it is less than a 30-hour contract or ten hours is more than however many hours, but one would not argue the case in the other direction. It leaves the interpretation open to question. More often than not, my experience is that when legislation leaves something open to question it is usually the employee who suffers rather than the employer.Removing the "or more" and "less than" only means that in the event of a worker finding himself or herself on the exact number between two bands, he or she may pick the band that he or she prefers. Some people will choose the "more" band and some will choose the "less" band, but it is their choice.
I just received notice earlier today from the Cathaoirleach's office that the amendment is out of order. It relates to if-and-when contracts and a difference of opinion between myself and the Minister on that whole issue. It was ruled out of order on the basis that it could impose a potential charge on the Exchequer. I do not believe that it would. It is bizarre, but this practice is all-too frequent these days. Any legislation passed by these Houses may impose a charge of some description on the Exchequer but that does not mean we should not be in a position to legislate. We are legislating on employment rights, land law, justice issues, and so on, all the time. They all impose a charge. I will reserve the right to resubmit the amendment, or something similar, and I will take up the question of precisely why this was ruled out of order directly with the Cathaoirleach under Standing Order 41.
I propose the deletion of section 20. On Report Stage, I noted that while I am in full agreement with Deputy O'Dea's wish to tackle bogus self-employment, from a policy perspective the Bill is not the place to do that. We need proper hearings at the joint committee or public consultation. In the meantime, we have beefed-up and changed how we do our inspections in the Scope division. I have undertaken to produce a report under the social welfare Bill this year that will look specifically at all the issues Deputy O'Dea has brought up. There is genuinely broad agreement, which this House will share, that while false employment deprives the State of revenue, that is probably the least of our concerns, as it also makes people's situations unstable, prevents them from having access to most of Department of Employment and Social Protection schemes. We are moving to change that, although the rate at which we are doing this not fast enough, as we cannot afford that. It deprives people of a myriad of employment rights and self esteem and it should not be allowed to continue. I will look at this matter and hope to address it in separate legislation this year, however, this will only be after public consultation and hearings at the joint committee. The report that we publish will determine what we will do.
I am ad idemwith Deputy O'Dea on this matter and most of the provisions in this Bill. Bogus self-employment is not unique to the private sector, but is also an issue in the public sector. Many State organisations also have employees in bogus-employment situations. We welcome that the Minister will undertake a report on this matter. If this goes to a vote, we will abstain.
Ryanair is probably one of the best examples of people being allegedly self-employed, even thought they are on very good salaries. It denies revenue to the State and so on. It works its way down through the system. One computer manufacturer in this country had about 6,000 employees, with not one working for the company. Most recently I have heard of builders' labourers being told after four weeks that they are not employees, but are self-employed subcontractors. This was telling a fellow going around with a wheelbarrow that he was self-employed. I know that the Minister's Department and Revenue are very good at following up on complaints about this type of thing but the truth is that they should not have to.
When the likes of Ryanair and computer manufacturers or software testing companies are all at it, it suggests the legal and accountancy professions spend a great deal of time trying to find ways around legislation. I have no doubt that as we are discussing this legislation tonight there are others who have been charged with the job of going through it to find the holes that we have not found and to find ways of circumventing it. Bogus self-employment must be tackled. It is as much a plague on employment as zero-hour contracts. I know the Minister is concerned and that she has acted on any occasion she has been asked, so I am sure we are at one in this instance.
As a result, Ryanair does not have to pay PRSI contributions for those pilots, the pilots do not have employment rights such as maternity or paternity leave and they have no rights to collective bargaining or industrial action. Senator Ardagh mentioned the work undertaken by Deputy O'Dea. His amendment is well intended. Sinn Féin has acknowledged this issue must be dealt with and done so through primary legislation. We believe all parties should work together to do this. We want to see a rigorous investigation on bogus self-employment with the relevant stakeholders. The Joint Committee on Employment Affairs and Social Protection has prioritised that work on its agenda. We do not feel that this legislation is the appropriate place to deal with this really important matter. Therefore, we are prepared to support the deletion of section 20.
I was remiss in not mentioning something and thank Senator Warfield for reminding me. The joint committee has already started its hearings. Officials from my Department were the first group to be invited in, although I do not believe they were too pleased about that. Nevertheless, there was a robust set of hearings. We need to sit down collectively and discuss areas such as unannounced inspections. We need particular targeted plans for particular industries. The construction industry is an obvious one, but there are loads, from places where one gets ones nails and hair done up to the pharmaceutical and IT industry. The slight difference between the cases cited by Senator Craughwell - I will not use the names of employers - is that in the larger companies, it is not always the case that the self-employment is bogus because both parties co-operatively decide that it is beneficial for both for different reasons that the workers classify themselves as contractors or self-employed. We need another plan of action to deal with the people who are knowingly declaring as self-employed rather than being forced to being declared as self-employed. We should deal with the people who are unhappy with their situation first and then we can get to the others, hopefully, by the middle of next year. I expect that by the end of the first quarter or the beginning of the second next year that the body of work will be sufficient to decide how to move forward.
It is counter-intuitive for me to vote against this section. I like that it is there, and that steps have been taken. If it is pushed, I will support it but I understand that the prevailing wind in the House is for its removal. I would not want the fact that we in the joint committee are undertaking hearings to be a reason for not including it. I regret that we were not able to debate the amendment tabled by the Labour Party for an alternative way of addressing the matter.It would be easier to support the removal of the section if there had been due consideration of the proposal they put forward. We are having hearings on it and the concerns are serious even in the early stages of those, as the Minister will be well aware. There are extraordinarily few cases which are followed up or in respect of which prosecutions take place. At the last hearing, there was an indication that there was a preference not to prosecute in this area. There are also very serious questions about how the determination of self-employment is being made and that, even when it is made by the scope unit, it may be overturned by the Department itself. It is a serious concern when one has a measure that barely functions then being undermined. The system is not functioning as we already know from just one hearing. This is a very dangerous issue. It is physically dangerous for persons who operate as supposedly self-employed persons with none of the protections and who are often in extremely vulnerable positions. We have looked, for example, at couriers and food delivery persons. There is a huge area. No issue is more serious than that of airline pilots. The idea that the person flying one's plane may be a self-employed person who has happened to be picked to fly the aircraft today is outrageous in respect of any normal level of safety, responsibility and culpability. It is wrong. I have a concern. It feels counterintuitive to take what appears to be a step backwards by removing this section. While there is a commitment to take two steps forward, I have been disheartened by the initial part of our hearings in the committee.
The reason the scope section is included is that it must mirror every other section in the organisation. We have deciding officers. This is what our scope inspectors do. One brings forward one's complaint and a deciding officer determines whether one is on the right classification. The reason we do not prosecute is that all we are concerned about is ensuring someone is on the right classification and that the backdated payments for the term of that employment are paid to ensure the person meets all the qualifying criteria historically to access the proper social insurance schemes should that prove necessary in future. We are more concerned about righting the wrong than putting people in the blocks for it. Perhaps that needs to change; I do not know. The reason there is a section providing for an appeal from a deciding officer's decision is exactly the same as the reason appeals are provided in respect of carer's allowance and so on. From the judicial review perspective of our Department, it provides a person with the opportunity to get a second opinion. When we have conversations like this in the Dáil, Seanad or at committees, people are often under the impression that it is the employers who appeal decisions to change an employee's designation from "S" to "A". Nine times out of ten, it is the other way around and it is a positive decision for the employee nor the employer. Either way, there is also the option to take the appeal to the High Court. That is just the way it is structured. It does not mean it is right or suitable but we must look at it in the next couple of months to determine what we want to do for the people who are being maligned and forced into self-employment against their will and what we want to do with people who are doing it with their will in co-operation and conjunction with their employees.
We do not know what nine out of ten of those cases are about because we were not provided with information on the appeals. Information on the number of cases appealed and their outcomes has not been provided to us yet and that is a concern. The Minister talked about the individual taking the case. There is a huge onus then on the individual to go through the High Court in some cases or the Labour Court. I can tell the Minister about cases where there are concerns about that. Prosecution is an issue where there are patterns of abuse and it is simply not a matter of one employee. Usually, this happens as part of a pattern and it is costing money. It is a significant cost not simply for the individual but for the Department in respect of the unpaid PRSI payments which should have been provided to support our social protection budget. That is why there is an onus to seek a higher level of prosecutions of employers in respect of which there is a systematic problem. There is an onus under fiscal responsibility for the Department to take much more serious action. It should be borne in mind that there is no time limit on the recouping of unpaid PRSI payments. If we discover a case involving two or three employees over a period of ten years, we should automatically ask whether there are 100 other such employees. It may be that money from ten or 20 years ago can be recouped by the State. Where that money is owed to the State, it is not simply about a better situation going forward. There are huge financial implications of this issue. While we will get to unpack them in the committee as we go forward, I urge a movement away from simply thinking about this in terms of single cases and individual High Court proceedings. We should look at our very serious responsibility to prevent the hollowing out of our social protection system. These practices threaten to do that.
If I gave the Senator the wrong impression, I apologise. All our prosecutions are a matter of the best interest of the person who brings the complaint to us. That is the employee who feels he or she is being categorised incorrectly. There is no determination or length of time we will not go back. If I am working for Kellogg's Corn Flakes - and I hope that is not a proper company - for ten or 20 years, that is how far back we will recoup the money, for as long as the employee was misclassified. We will reclassify the person and the company will have no choice but to pay us. The only thing that has changed significantly this year is that we are now doing proactive inspections with the Revenue Commissioners. In August alone, we carried out 1,000 inspections on construction sites nationally. While it seems obvious that there must be many bogus self-employed on those sites, the 1,000 inspections did not achieve a whopping change in classifications. We keep talking about these issues and magnify them as if they are enormous but there is never any evidence about the size of the problem. Let us fix the issues based on fact and actual evidence. Regarding tailored legislation to ensure part-time people get more work or people being maligned and not getting the right social protection and employment rights because of misclassification, let us find out the exact size of the problem so that we do not use a sledgehammer to crack a nut. If we need a sledgehammer, that is fine, but if we do not, let us know what we are talking about and put the right legislation on the books.