Mary Fitzpatrick (Fianna Fail)
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I thank the Minister of State for coming to the Seanad this morning. Senator Seery Kearney and I wish to address the issue of the precarious nature of employment being experienced by front-line delivery workers who work in the gig economy. The Minister of State will be aware from going through Dublin city that the streets are empty except for front-line workers such as the emergency services, taxi drivers, bus drivers and bicycle delivery workers. The bicycle delivery workers have provided a vital and essential service to all of us during the pandemic by bringing us groceries and our favourite takeaways to the comfort of our homes or places of work. We thank all of our front-line workers. As I understand it, Deliveroo was set up by an American banker who moved to London, could not cook his own dinner and was frustrated with the poor quality of delivery service available in the UK. He smartly developed a software-driven delivery service that is more efficient, more convenient and smart. When one looks behind the software app, one has to look at the human experience of these workers in the gig economy. These workers are categorised as being self-employed but as part of a subcontracting culture, many young foreign students who come to Ireland to learn English and have a cultural experience are taking this part-time work to pay their way. They are providing us with a vital service but they are in a no man's land in which the company does not provide them with any employment rights or insurance cover if they are robbed, mugged or in any way injured carrying out their work. Senator Seery Kearney will set out our request to the Minister of State.

Mary Seery Kearney (Fine Gael)
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On Friday of last week, the UK Supreme Court found that Uber drivers were entitled to employment protections and were not self-employed. The argument in the case, which was supported by the GMB trade union, was that these drivers were workers who were deserving of employment protections. We saw a similar announcement from the Italian courts yesterday. The UK ruling arose from the fact that there are three categories of employment status in the UK, namely, employed, employee and a hybrid status that marries the gig economy flexible model of self-employment with basic employment rights. We do not have that third category of employment in Ireland.

In my meetings and correspondence with Deliveroo, I have argued that it is not acceptable for a company to establish a business model that does not take cognisance of the different types of employment status that apply and are lawful in a country. Its business model relies, as Senator Fitzpatrick has said, on riders scrambling for deliveries to maximise their incomes during their shifts. There are accidents and in recent times we have seen a sinister development involving criminal and anti-social elements. Deliveroo's business model also facilitates unlawful working by default. Deliveroo's insistence that drivers are self-employed allows someone else to register under a driver's name on the app and carry out the work. This means people are working outside the scope of the permissions of their visas. I do not blame the drivers for doing so and I do not have an issue with it per sebecause these services are a lifeline for communities and the food businesses within them. However, this practice leads to a reluctance to come forward and report attacks when they occur. The drivers are policing the city themselves by designating areas in the city as red zones to which they will not deliver. As a consequence, the communities in question are being stigmatised and denied a service.

I have written to the Minister for Justice and consulted the Garda and Dublin City Council on this. I have highlighted to the Tánaiste and Minister for Enterprise, Trade and Employment, Deputy Varadkar, and the Minister of State at the Department of Enterprise, Trade and Employment, Deputy English, the feasibility of adopting the hybrid category of employment. I have looked at submissions on rights, taxation and supports and I believe we can hold companies such as Deliveroo to account. We can oblige these companies to provide supports to their workers, who are generating profits for them. We need to engage with the model of the gig economy as a new mode of working, while also ensuring we do not facilitate a race to the bottom through the exploitation of these vulnerable workers.

Robert Troy (Longford-Westmeath, Fianna Fail)
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I thank Senators Fitzpatrick and Seery Kearney for raising this important topic. I extend my sympathies to those workers who have suffered from such appalling violence in the course of their work. No one should have to contend with such violent situations. In particular, I offer my sympathies and those of the Government to the family and friends of Thiago Cortes, the Deliveroo cyclist who tragically died in a hit-and-run accident last August. Although An Garda Síochána is heavily involved in supporting public health restrictions, it is continuing in its duties to prevent and investigate crime, including assaults on delivery workers and vulnerable members of our communities.

On the matter being discussed today, it would not be appropriate for me to comment on the employment status of any individuals of groups, as there are existing mechanisms in place for such determinations. The issue of determining employment status is within the remit of the Department of Social Protection, as I am sure both Senators are aware. Where an issue arises with the employment status of an individual, cases are forwarded to the Revenue Commissioners and the scope section of the Department of Social Protection, or both, for investigation. This investigation is carried either solely by the recipient, or jointly by the labour inspectorate of the Workplace Relations Commission, WRC.In most cases, it will be clear whether an individual is employed or self-employed. Where there is doubt in relation to the employment status of an individual, the relevant Department and agencies will have regard to the code of practice for determining the employment or self-employment status of an individual. This code was drawn up and agreed in 2007 by the relevant Departments in collaboration with the Irish Congress of Trade Unions and IBEC.

New unlegislative forms of working arrangements are emerging as the labour market adapts to the opportunities presented by digitalisation, broadband and globalisation. This includes the emergence of more freelance-type working arrangements known as the gig economy as well as new forms of trading known as the sharing economy. It is important that policy adapts to provide social protection for workers in these new and emerging forms of work while not stifling social innovation. The Department of Social Protection, through its Scope and employment status investigation unit, ESIU, is revising and updating the code of practice for determining employment and self-employment status of individuals to reflect new working models and also recent case law in the determination of employment status.

Ireland has a robust suite of employment rights that protects all employees equally. Therefore, once it is clear a person is working on a contract of employment, written or verbal, on a full-time basis or part-time basis, that person has the same protection under employment law as other employees.

All employers carry the same obligation when it comes to compliance with employment rights. Where an individual believes that he or she is being deprived of employment rights applicable to employees, the person may refer a complaint to the Workplace Relations Commission, WRC, where the matter can be dealt with by way of mediation or adjudication leading to a decision that is enforceable through the District Court.

Ireland has always resisted the creation of sub-categories of employment as this will inevitably lead to a race to the bottom where hard-won employment rights are gradually eroded. Therefore, the Government has no plan to create a third category of employment.

Mary Seery Kearney (Fine Gael)
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I have been in many cases in the Workplace Relations Commission, WRC, and the Labour Court. The difficulty is that one can satisfy the criteria of being self-employed while, in fact, be working unlawfully. There is a problem in the model that we have. With due respect, the Department of Enterprise, Trade and Employment needs to address the fact that the gig economy works very differently and Deliveroo is relying on our current criteria for self-employment in order to facilitate the avoidance of rights.

Mary Fitzpatrick (Fianna Fail)
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I thank the Minister of State for his response, but I concur with Senator Seery Kearney. The world has moved on. The gig economy is real, it is alive, and a great many of our citizens are earning an income and a living in the gig economy. The Government needs to respond to that reality.

I appreciate the Minister of State coming to the House, I appreciate that the House has given time to this important issue but I would ask the Minister of State to continue to engage with me and Senator Seery Kearney on this issue.

I also acknowledge that Deliveroo has been in contacted with both of us. I want the company to work with the workers and the Government to address this issue in a sustainable way for everyone.

Robert Troy (Longford-Westmeath, Fianna Fail)
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It is not clear under what criteria a person would be deemed to fall into this third category of employment where he or she would neither be an employee nor self-employed. We would essentially be creating a lesser category of employee who we acknowledge is not self-employed but to whom we would not afford the same full suite of employment rights to which he or she is currently entitled.

It is important to reiterate that the Department of Social Protection is engaged in revising and updating the code of practice to reflect the new working models and also recent case law which the Senator alluded to in the determination of employment status. That code is being updated by way of an interdepartmental working group in consultation with the social partners and it is expected that that update code will be published within the coming months.

I will feed in what has been said by both Senators here today on foot of this Commencement debate to that international working group. If the Senators want to put something formally by way of a written submission, I will ensure that is taken on board also.