Tuesday, 16 June 2020
Department of Employment Affairs and Social Protection
961. To ask the Minister for Employment Affairs and Social Protection her plans to address bogus self-employment in the acting sector; the way in which she plans to address those in the sector who have failed to qualify for the pandemic unemployment payment as a consequence of misclassification of their employment status; and if she will make a statement on the matter. [10492/20]
977. To ask the Minister for Employment Affairs and Social Protection if her attention has been drawn to the fact that bogus self-employment practices are still in use in RTÉ; and if she will make a statement on the matter. [10665/20]
978. To ask the Minister for Employment Affairs and Social Protection if her attention has been drawn to a deadline for the publication of a report (details supplied) reviewing actors' contracts at RTÉ to ascertain if they have attributes akin to employment; and if she will make a statement on the matter. [10666/20]
I propose to take Questions Nos. 961, 977 and 978 together.
I am on record as stating that I and my Department am committed to tackling the issue of false self-employment. The deliberate misclassification of a worker as a self-employed contractor, in a situation where they are actually working as an employee, is wrong. There are robust arrangements in place for dealing with complaints of bogus self-employment through my Department. I also progressed a number of new initiatives over the past year to combat this phenomenon.
Firstly, I established a new, dedicated unit of Social Welfare Inspectors – the Employment Status Investigation Unit (ESIU) – with a special focus on targeting and reducing false self-employment nationwide for the purpose of supporting employment rights and the integrity of the Social Insurance Fund.
Additionally, there are approximately 350 Social Welfare Inspectors appointed nationwide who carry out work across the various social welfare schemes, some of whom are specifically engaged in a programme of employer inspections. Collaboration is also ongoing between my Department and other agencies including the Revenue Commissioners and the Workplace Relations Commission.
Legislative proposals are also in train including:
- anti-victimisation measures to give workers recourse to the Workplace Relations Commission if they feel they have been victimised by their employer as a result of questioning their employment status, and
- the introduction of a new criminal offence of wilfully misclassifying a worker as being self-employed.
The Department will investigate and make a formal decision in relation to any case of employment status that comes before it. Where misclassification of workers is detected, the correct status and class is determined and social insurance arrears are collected. Under the Social Welfare Consolidation Act, 2005, as amended, there are specific offences in relation to employment contributions. On conviction, fines and/or imprisonment can ultimately be imposed. Where evidence of non-compliance is detected, this will be pursued.
While I am advised that there have been no targeted investigations of the acting sector to date, and there has been no case recently raised with the Department by anyone from that sector, the Department is aware that RTÉ requested Eversheds solicitors to conduct a review of the employment status of Fair City actors. (This review is separate and distinct from RTÉ's recently completed contractor review). I am informed that the finalisation of the review has been delayed due to the impact of the Covid-19 pandemic and RTÉ anticipates that a report will be forthcoming by the second week in July 2020. The Department will seek further information from RTÉ when the review has been completed.
With regard to the Pandemic Unemployment Payment scheme, this emergency scheme is open to employees and self-employed alike. The issue of false self-employment is not a factor in the qualifying conditions for the scheme.
I trust this clarifies matters for the Deputy.
962. To ask the Minister for Employment Affairs and Social Protection her plans for a complete moratorium on the facility for employers to dismiss workers on grounds of redundancy during the period in which section 12 of the Redundancy Payments Act 1967 remains suspended; and if she will make a statement on the matter. [10495/20]
Firstly, I would like to say that my thoughts are with all workers who are dealing with job losses or facing the prospect of redundancies at this difficult time. I want to assure you that my Department is assisting affected workers through its Intreo service to help them in whatever way we can in terms of income supports and job-seeking over the coming weeks and months and will continue to do so.
An all-of-Government approach has been taken to financially support workers and businesses alike during the emergency period. In addition to the existing range of social welfare support schemes, the Government has put in place the ‘National COVID-19 Income Support Scheme’. This includes-
- the temporary wage subsidy scheme to help affected companies keep paying their employees, maintain the employment relationship and keep businesses viable in order to prevent redundancies;
- the emergency Pandemic Unemployment Payment for both employed and self-employed workers who have suffered a collapse in income.
The emergency legislation which was enacted recently effectively suspends the provisions of Section 12 of the Redundancy Payments Act 1967 (as amended) which relate to the rights of an employee to claim a redundancy entitlement from their employer after temporary periods of lay-off and short-time work during the Covid-19 emergency period. This was done to mitigate against the increased risk of insolvencies in the event of mass redundancies over a short period of time, which would only exacerbate the risk of further permanent job losses and redundancies. It is also important to ensure that employees have a continued link to their job and have a pathway to return to their employment.
In implementing all of the above the Government has already put in place significant measures which are helping to prevent redundancies.
I fully understand that the proposal to withdraw an employer's right to make employees redundant for the same period as the suspension of Section 12 is motivated by a desire to protect employee rights. However, there are considerable difficulties with the principle of the proposal and it could have far reaching and significant unintended consequences, including an interference with individual contracts of employment. Furthermore, it cannot be said that all employees will want the redundancy provision removed as is suggested. Employees may have significant service with an employer, and as significant stakeholders in a business be aware that the business is struggling and redundancy may be the better option for some of them. Restricting their right to access a redundancy payment and seek new work opportunities or reskilling opportunities is a very real issue for them.
The proposal could also create a risk to an employee's right to a redundancy payment. The State does not have the power to stop a business closing or to prevent liquidations once the provisions of company law are complied with. Unfortunately the closure of the business will happen in some circumstances and this is a very real concern for many business right now, including many small businesses endeavouring to stay in business. If the right of the employer to make an employee redundant is taken away this could jeopardise an employee’s right to compensation by way of a redundancy payment while the liquidation of that company is underway.
It is also important to bear in mind why redundancy provisions are used. If a business is in trading and in financial difficulties very often one of the mechanisms used to save that business (which in turn saves some jobs) is redundancy. An employer may downsize their business and reduce their workforce by way of redundancies in order to continue to be viable. If the right of the employer to make employees redundant is removed it could result in more permanent job losses.
Employers have to make decisions on the ongoing viability of their firms in real time and having regard to real circumstances – particularly in circumstances where revenues have collapsed for many firms. The proposal could involve compelling an employer to continue trading. Directors of firms have, under company law provisions, very serious and personal responsibilities to ensure that they are in a position to continue to trade and importantly not to trade whilst insolvent.
Finally, and this is important for employees who may be in a position to negotiate a redundancy package with the many genuine employers in our economy, if a company is restricted from making employees redundant and has to retain them on payroll, the assets of that company will dissipate and mean that any negotiated redundancy package has less chance of success.