Employment (Miscellaneous Provisions) Bill 2017: Report Stage (Resumed) and Final Stage

Debate resumed on amendment No. 15:
In page 17, after line 35, to insert the following:

“PART 7

MISCELLANEOUS
Designation
20. (1) It shall be an offence for an employer to incorrectly designate an employee as self-employed.
(2) A person guilty of an offence under this section shall be liable on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or to both.
(3) Where an offence under this Act is committed by a body corporate and is proved to have been so committed with the consent or connivance of any person, being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in any such capacity, that person shall, as well as the body corporate, be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
(4) Summary proceedings for an offence under this section may be brought and prosecuted by the Workplace Relations Commission.
(5) Where a person is convicted of an offence under this section the court shall order the person to pay to the Workplace Relations Commission the costs and expenses, measured by the court, incurred by the Workplace Relations Commission in relation to the investigation, detection and prosecution of the offence unless the court is satisfied that there are special and substantial reasons for not so doing.
(6) In proceedings for an offence under this section, it shall be a defence for the accused to prove that he or she exercised due diligence and took reasonable precautions or any person under the control of the accused to ensure that this designation was correct.
(7) Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act 1851, summary proceedings for an offence under this Act may be instituted within 12 months from the date of the offence.
(8) An employee is a person who in performing his or her duties does so as a person not in business on their own account and who is not a free agent or economically independent of the person engaging his or her service. While all of the following factors may not apply, an individual would normally be an employee if he or she—
(a) is under the control of another person who directs as to how, when and where the work is to be carried out,
(b) supplies labour only,
(c) receives a fixed hourly/weekly/monthly wage,
(d) cannot subcontract the work, if the work can be subcontracted and paid on by the person subcontracting the work, the employer/employee relationship may simply be transferred on,
(e) does not supply materials for the job,
(f) does not provide equipment other than the small tools of the trade, the provision of tools or equipment might not have a significant bearing on coming to a conclusion that employment status may be appropriate having regard to all the circumstances of a particular case,
(g) is not exposed to personal financial risk in carrying out the work,
(h) does not assume any responsibility for investment and management in the business,
(i) does not have the opportunity to profit from sound management in the scheduling of engagements or in the performance of tasks arising from the engagements,
(j) works set hours or a given number of hours per week or month,
(k) works for one person or for one business,
(l) receives expense payments to cover subsistence and/or travel expenses,
(m) is entitled to extra pay or time off for overtime.
(9) While all of the following factors may not apply to the job, an individual would normally be self-employed if he or she—
(a) owns his or her own business,
(b) is exposed to financial risk by having to bear the cost of making good faulty or substandard work carried out under the contract,
(c) assumes responsibility for investment and management in the enterprise,
(d) has the opportunity to profit from sound management in the scheduling and performance of engagements and tasks,
(e) has control over what is done, how it is done, when and where it is done and whether he or she does it personally,
(f) is free to hire other people, on his or her terms, to do the work which has been agreed to be undertaken,
(g) can provide the same services to more than one person or business at the same time,
(h) provides the materials for the job,
(i) provides equipment and machinery necessary for the job, other than the small tools of the trade or equipment which in an overall context would not be an indicator of a person in business on their own account,
(j) has a fixed place of business where materials, equipment etc. can be stored,
(k) costs and agrees a price for the job,
(l) provides his or her own insurance cover e.g. public liability cover, etc.,
(m) controls the hours of work in fulfilling the job obligations.”.
- (Deputy Willie O'Dea)

We were about to agree amendment No. 15 but Members kindly awaited the Minister's arrival. She is in possession and we will remember we have to adjourn at 5 p.m..

I apologise for the delay. I was about to start last night when we adjourned.

I share Deputy Willie O'Dea's concerns about bogus self-employment. I think everybody else in the House does too. This Bill is not an appropriate vehicle for the amendment that has been tabled on Report Stage. The amendment would have such an impact and is so detailed and worthy that it should be subject to proper and thorough scrutiny to allow the House and all stakeholders who are at risk of being adversely or positively impacted the opportunity to consider the full implications of what is being proposed.

Deputy O'Dea stated a fortnight ago that I did not draw sufficient attention on Committee Stage to how problematic the amendments were to the penalisation provisions. I beg to differ because if one checks the Official Report, one will see I drew attention to them at that stage. We fixed those last night and I am genuinely grateful. None of us was aware that such a detailed amendment would be tabled on Report Stage. I accept that the amendment is well intentioned. I am particularly concerned about some of its consequences. The amendment could fundamentally change many aspects of employment law and social welfare and revenue law without any consideration of the negative consequences for employees, employers or even consumers. I am worried that the Bill, which we have all worked on for an awfully long time, which we all want passed and which has gone through a comprehensive drafting and scrutiny process, could have inserted into it a new provision that is not in line with the purpose of the Bill but would have far-reaching and unintended consequences. The risk is not just that we would have bad law but that it would not meet the objectives of the Bill and would have adverse impacts on other legal codes that are very much relied upon particularly by employees.

The Bill has been more than three years in the making. It has been through an extensive process of consultation and scrutiny prior to, and during, its consideration in the Oireachtas, including a public consultation carried out by the University of Limerick study and detailed discussions with IBEC and ICTU over six months or more which helped me focus on the drafts and the heads of the Bill which have been subject to detailed analysis and debate since then. It has gone through a regulatory impact analysis, RIA, which was conducted and submitted to Government along with the drafts of the heads of the Bill. The RIA was published at the same time as the heads of the Bill so everybody could have a look at it. The draft heads were referred to the Office of the Parliamentary Counsel for drafting and the office, as normal, worked closely with the Attorney General, the advisory council and my officials in that process.

The heads of the Bill were also referred to the Joint Committee on Jobs, Enterprise and Innovation for pre-legislative scrutiny and, in May 2017, the Minister of State with responsibility for employment and small business addressed the joint committee on the draft Government legislation during an appearance before that committee for pre-legislative scrutiny on the Banded Hours Contract Bill 2016 which was offered to us by Sinn Féin. Subsequently, Department officials briefed the joint committee on the draft legislation in June 2017. The Bill was published in December 2017, completed Second Stage in February and Committee Stage in May.

That is only a brief overview of the process and scrutiny that this Bill has undergone.

It is only right that the Bill should be subject to this comprehensive scrutiny but my difficulty is that the amendment has not been subjected to any scrutiny, consultation or debate with the broad range of stakeholders who are likely to be affected if it is carried, with the Joint Committee on Employment Affairs and Social Protection or with the Members of this House.

As we are not going to conclude proceedings in the next 60 seconds, I ask the Minister to move the adjournment of the debate. We will return to it after the Topical Issues, which will take 48 minutes, and the statements on Northern Ireland, which will take 85 minutes. I have no control over that. The House made a decision in respect of it.

That shows how farcical it is. No wonder people want to leave this place.

It is a complete farce.

How long will it take to conclude proceedings?

It will only take about ten or five minutes. Deputy O'Dea will tell the Leas-Cheann Comhairle that it is-----

Less than ten minutes.

There is an order of the House. The Business Committee should have been thinking of it this morning. I have no Whip making any proposal. We will proceed to Topical Issues.

I put a proposal to the Business Committee an hour ago that we extend the time by ten or 15 minutes in order that we might conclude the debate on this legislation.

I am aware of that but the committee could not reach an agreement. The matter might have been discussed incorporeally but the committee agree. We had better move on to Topical Issues

It is a farce. It was supposed to be two and a half hours.

Debate adjourned.