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Dáil Éireann debate -
Wednesday, 19 Dec 2018

Vol. 977 No. 3

Employment (Miscellaneous Provisions) Bill 2017: From the Seanad

The Dáil went into Committee to consider amendments from the Seanad.
Seanad amendment No. 1:
Section 1: In page 5, to delete lines 20 to 24 and substitute the following:
"(2) Subject to subsection (3), this Act shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision, and different days may be so appointed for different purposes or different provisions.
(3)This Act, except insofar as it is already in operation pursuant to an order or orders under subsection (2), shall come into operation no later than 3 months after the date of its passing.".

This was accepted as an amendment to Deputy O'Dea's amendment to commence the legislation within six months. It was changed in the Seanad to reduce it to three months.

I understand we have a few contributors but I know they will all act in the spirit of Christmas and keep all of their comments pretty brief.

I will show some leadership in that light.

But ensuring proper legislative scrutiny, of course.

The amendment is a substantial improvement on the amendment I originally tabled on Committee Stage and I will support it.

I will support the amendment but I want some clarity from the Minister. I note she put out a statement last week that she intends to have this signed into law come March of next year. This would be in line with the amendment. We know very vulnerable workers have waited a long time for this. Why must we wait these full three months? There is no reason this could not be signed into law early in January, obviously depending on the President and his availability. The Minister, in conjunction with the Workplace Relations Commission, WRC, intends to roll out a campaign around this and build awareness among workers. Surely the two could be done in tandem. The campaign has gone on for a long time and the Minister is well aware that workers launched a campaign. I think of the Dunnes Stores workers who initiated their campaign three or four years ago. An extra three months might not seem a long time for some but it is a long time for workers, particularly those in precarious employment who are waiting for this legislation to be signed into law. Three months is a long time and an explanation is needed.

The law will become law when the President signs it, so the Deputy might have misunderstood the press release I issued on foot of it passing all Stages in the Seanad. I intend to commence the law on 1 March, which is well within the three months. It is just over two months.

The reason I have agreed with the WRC is that it has asked for a number of weeks to carry out an awareness campaign, not only with employees but, more importantly, with employers. Given that they will all have to comply with this legislation, the least we should do is inform them about the new law. The WRC has asked me give it a couple of weeks to do that and I am happy to do so. I have suggested commencing the legislation in the first week in March.

Seanad amendment agreed to.
Seanad amendment No. 2:
Section 13: In page 11, to delete lines 3 to 8 and substitute the following:
“ ‘collective bargaining’ shall be construed in accordance with the Industrial Relations Acts 1946 to 2015.”.”.

Section 13 of the Bill, as passed by Dáil Éireann, contained a definition of the employment regulation order for the purposes of the Organisation of Working Time Act 1997. There is, however, already a definition of "employment regulation order" in section 16(2) of the Industrial Relations (Amendment) Act 2015 and we felt it was confusing and unnecessary to have two definitions. We have removed the definition on page 11 by deleting lines 3 to 8 and substituting them with the words, "‘collective bargaining’ shall be construed in accordance with the Industrial Relations Acts 1946 to 2015." This is a technical amendment.

Seanad amendment agreed to.
Seanad amendment No. 3:
Section 16: In page 15, to delete lines 11 to 19 and substitute the following:





3 hours

6 hours


6 hours

11 hours


11 hours

16 hours


16 hours

21 hours


21 hours

26 hours


26 hours

31 hours


31 hours

36 hours


36 hours and over

Seanad amendment No. 3 was made to improve the drafting of the table of bands of weekly working hours in section 16 of the Bill, which were put forward by Sinn Féin. It is not intended to alter the width of the bands in any way, shape or form. The amendment emerged because the Office of the Attorney General had advised against using the terms "of more" and "less than" in the table. For example, a person who has worked an average of four hours in a reference period is presumably intended to fall in band A, the three to six hours category. However, an employer could genuinely argue that this person should fall into band G, the 31 to 36 hours category, on the basis that four hours is less than 31 and 36 hours. I know what we are all seeking to achieve in respect of banded hours and nobody wants any ambiguity. We were satisfied, based on the advice of the Office of the Attorney General, that the table of bands proposed in the amendment will remove the uncertainty that would be caused if the amendment was carried, while respecting the bands initiated through the amendment from Sinn Féin and accepted on Committee Stage.

Are Deputies happy with Seanad amendment No. 3?

That is a first.

I am happy enough with the Minister's explanation. We fought for a long time for the bands agreed on Committee Stage. The Minister's initial proposal was narrow, providing for four bands. It is critical that we apply the altered bands for workers and trade unions which campaigned on the issue. These bands are in line with what they were seeking. These bands strengthen the legislation and brings into line with what was sought by the trade unions and workers in precarious employment. On the basis that the Minister is acting on advice from the Office of the Attorney General that the wording should change but the bands will remain in place, Sinn Féin is happy to agree to the amendment.

Seanad amendment agreed to.
Seanad amendment No. 4:
Section 20: In page 17, to delete lines 29 to 33, to delete page 18, and in page 19, to delete lines 1 to 25.

This amendment addresses a previous amendment proposed by Deputy Willie O'Dea to tackle bogus self-employment. We have agreed to remove the relevant provision from the Bill and confine our efforts to introducing new legislation next year to identify and address the issues that we all know exist. While we may have different views on the extent of these practice, we all accept that it is not acceptable in a modern economy that even a small number of people are being forced into bogus self-employment. We will address that issue next year. On the basis of co-operation and in the spirit of passing this legislation, I thank the Fianna Fáil party and Deputy Willie O'Dea for allowing us to remove this amendment in order that we can pass a genuinely groundbreaking Bill.

This Seanad amendment removes a new section I managed to have inserted in the Bill on Report Stage. The section was designed to deal with the phenomenon of bogus self-employment. I do not agree with the Minister that this is a relatively minor phenomenon. It is a major issue and one that is widespread and growing. Anecdotally, I am coming across examples every day. I have had to take considerable flak from various organisations for introducing the amendment, particularly those representing employers. I emphasised to them, and do so here again, that if an employer and an employee, as it were, want to make their own arrangements and both are willing parties, I have no difficulty with that. Section 20, which is being deleted, was not envisaged as interfering with that arrangement in any way, shape or form. It was designed to deal with a scenario in which people were told by an employer, despite obviously being employees, that they had to register as self-employed and look after their own tax and pay related social insurance, PRSI. As such, they would not enjoy any of the employment rights that have been acquired over many years, including the right not to be unfairly dismissed and the rights to notice periods, redundancy, etc. The inclusion of the section is valid.

I was approached by a number of groups, including the Irish Congress of Trade Unions, ICTU, that told me it was their view that the Minister would have to do much consultation, study and analysis because this was an addendum to the original legislation and quite a detailed section. On that basis, ICTU asked me if I would agree to allow the Minister to remove the section in the Seanad because otherwise the Bill would be delayed. Many people will benefit from this Bill, including many in precarious work. Based on the request made by ICTU, various members of the trade union movement and constituents in precarious employment who wanted the protections brought in immediately, I agreed to allow the section to be removed.

Notwithstanding this, the problem of bogus self-employment has not gone away. The Oireachtas Joint Committee on Employment Affairs and Social Protection is doing a study on bogus self-employment at the moment and I look forward to participating in that. This issue deserves a legislative response. What are the Minister's intentions in that regard? Does she intend to bring in legislative arrangements to deal with the matter and, if so, how soon can we expect to see them?

We will vote for the Bill and subsequent legislation. However, we oppose this amendment to remove a previous amendment to the Bill. Previous speakers made the point that this is an important issue. Workers are being denied holiday pay, the minimum wage and statutory maternity leave entitlements. We are not talking about small numbers of people. In the construction industry alone, there are between 30,000 and 60,000 people affected by bogus self-employment. This practice is spreading into other areas of the economy now. We know of the famous examples of Uber and Deliveroo as well as the case of Ryanair pilots. The issue is much broader than that now.

Deputy O'Dea said he got some flak for introducing this amendment in the summer. He is now getting flak from these benches for agreeing to the Government's proposal to remove this provision. It should be left in the legislation and we will call a vote on this issue because it is too important for too many workers.

It was removed to protect workers. Representations were made from workers and their trade unions to prevent delays in enacting the Bill. Deputy Barry can act as he likes. I like to act responsibly.

We will act as we like.

We will act responsibly in the interests of the tens of thousands of workers who are being exploited day in, day out, week in and week out, through bogus self-employment.

And the Deputy will continue to ignore the representations made.

We will oppose the idea of the issue being kicked down the road.

There is also a significant cost to the State. The Connect trade union reckons that €300 million per annum is being lost in taxes and PRSI that otherwise would be collected if it were not for this scam.

I note the Minister spoke about bringing forward measures next year. If I remember correctly that was said during the debate on this matter during the summer. We want to see that legislation soon. The idea that it will be continually postponed is not acceptable to us. While giving full support to the legislation, in order to highlight the importance of this issue, we will call for a vote on this amendment this evening.

We have to put this legislation into perspective, particularly for the 10,000 Dunnes Stores workers, as well for workers in the retail and hospitality sectors. They need this legislation enacted as quickly as possible. Since the Dunnes Stores workers went out on strike in April 2015, three and a half years ago, this legislation has been on the agenda for these workers. Mandate, the union representing those workers, welcomed this legislation, stating it had merit. However, it supported taking out this amendment. We must have a guarantee from the Minister that this matter will be dealt with in legislation.

Deputy Clare Daly and I put down an amendment on Committee Stage concerning seeking more hours on the basis of the European Council Directive 97/81/EC and clause 4 on part-time work which states:

As far as possible, employers should give consideration to:

(a) requests by workers to transfer from full-time to part-time work that becomes available in the establishment;

(b) requests by workers to transfer from part-time to full-time work or to increase their working time should the opportunity arise;

(c) the provision of timely information on the availability of part-time and full-time positions in the establishment in order to facilitate transfers from full-time to part-time or vice versa

This is an important directive which we need to implement. In 2015, when the lone parent allowance was cut, the Government cited this as an activation measure for lone parents. The argument was that it would incentivise lone parents to seek more hours at work. However, there is nothing in legislation for any worker to seek more hours. Will the Minister explain why this directive has not yet been implemented? Will she give a timeframe as to when we can expect it to be implemented?

I welcome the Mandate members in the Visitors Gallery who have come to see the Bill passed. It is a great day for the union and its workers. I wish them well. I hope they continue their fight in the tradition of their union for their members.

This is the one amendment I am not excited about.

I salute Dave Gibney and all the Mandate crew, along with Joe Carolan from the New Zealand trade union Unite, who are in the Visitors Gallery. Joe Carolan was with me ten years ago on quite a few pickets with building workers at building sites protesting against bogus self-employment. I and many others stood with many building workers outside Crampton’s building sites in UCD and DCU at 6 o'clock in the morning over this issue. In my area of Ballybrack only a few years ago, three workers, one of one whom passed on recently, were jailed for protesting against bogus self-employment because injunctions were taken out against them.

Bogus self-employment is a poison for workers. While I understand the tactical imperative that some of the unions may have of getting the current legislation passed, which is to be welcomed and we support, I cannot in good conscience vote to take out a provision with which I agree absolutely. I do not see why the Government has a problem with this. When we were on those protests ten years ago, one could not get anybody in politics to talk about bogus self-employment. Now everybody is talking about it. The Government has made a political commitment to address it. I was glad to hear advertisements on the radio from the Government asking that if people believed they were bogusly self-employed to report it. This is progress but it is long overdue. I see no reason we would not progress this issue because it remains a significant problem.

In the past several weeks, I stood on a picket line with workers at the Clúid social housing site just off Sheriff Street – which is funded with public moneys - protesting against bogus self-employment. There were workers on the picket line for a week protesting over the fact they were misclassified by the builder. It has been resolved. A lot of money was paid to those workers by the contractor involved to resolve that dispute. The amount of money involved suggests the contractor knew he was guilty as hell.

The workers also explained the regime run on this and other sites - probably cleared up after the strike. It involved one qualified bricklayer and two or three other workers around them who are not bricklayers. However, they are bogusly self-employed and this is not tracked properly. One wonders why wall ties do not get put into new houses. It is because there are unqualified workers in these bogus self-employed situations. That needs to be stamped out as a matter of urgency. Workers pay a cost for it but so too does society.

It is not disconnected from the sort of stuff we saw in France with the Yellow Vest protests. The problem of precarious work and workers’ rights being trampled is at the base of much of the anger all over Europe. We have 100,000 workers in this country who are the working poor. That number has stayed pretty solid. These are people who are working but remain in poverty because of precarious work. We have to act quickly.

Film industry workers are putting a credible case claiming that the Organisation of Working Time Act is being flouted in the Irish film industry. One is not allowed to flout that Act but it is being done. Several Departments are involved in that industry, such as the Department of Culture, Heritage and the Gaeltacht, the Department of Finance and Revenue. The Minister needs to look into this. She should meet the people who are making these allegations and hear their story. She should also hear the other side of the story. However, these matters need to be looked at. The absolute minimum is that the legal rights and entitlements of workers have to be applied. Abuses of those rights and entitlements have to be closed as a matter of absolute urgency.

I did not hear anybody put a credible argument why anything in this amendment is a problem, given that everybody is acknowledging that we need to deal with bogus self-employment and that the problem has been around for years. Workers have been campaigning and protesting about it for years. What is the problem? Will the Minister tell me if there is something in this amendment that is problematic?

We have engaged in a long process of consultation for years, but we have clear definitions of employment and self-employment. We need strict application of them and serious penalties for those who abuse the law. That is what is contained in the amendment. I do not see what the problem is. On a tactical basis, some have made the decision to get the Bill through and that we will worry about this aspect later. As we have been waiting a long time, I do not see why it cannot be done now.

I participated in the debate that took place in July and when Deputy O'Dea put his amendment; I believe it was on the last sitting day of the session. The Minister was very annoyed at the time, but it received much support from different Deputies who had been receiving reports for a long time from affected workers, especially in the building industry. The practice has been rampant on some sites, including some with a close connection with State-funded projects, such as those in the education sector. As I said, the Minister was annoyed and said she would bring something forward. That was in July and we are now close to Christmas. We have not seen the legislation the Minister was to bring forward. If she felt the matter was delaying the Bill, she could have made a proposal in the heads of a Bill or some discussion.

People are trying to pit Dunnes Stores workers against building workers, but it is not a competition and all workers' rights benefit all workers. I am sure there are Dunnes Stores workers who are married to construction workers, etc. There is no reason to delay the Bill, of which this issue is part. If the Minister felt there was a problem, she could have made a proposal in the intervening five months in the light of what we know and what many socialist Deputies have tried to raise in the construction sector going back three or four years. I am sure other Deputies have raised it also. We saw it recently in the schools built which are now falling down or unsafe. It is definitely related to workers being in bogus self-employment. There were too few such workers who were rushed or put under time constraints. This is dangerous for the rest of society and the workers also. We have seen the same happen in many companies and all know workers who have been affected.

As the Minister has brought nothing forward, we cannot, in good conscience, agree to take out this measure. The entire trade union movement should demand that bogus self-employment be dealt with and eradicated. It is not yet a widespread practice, but we all know, for example, of the Ryanair model which is a form of bogus self-employment, although it is different from what we are discussing. There is no maternity pay, which is why there are no female pilots. There are real consequences for workers. It was good that Deputy O'Dea had this measure included and it should not be removed. We should deal with it now.

When Deputy O'Dea set out our party's position on the amendment, the Minister clearly indicated that stand-alone legislation might be brought forward. Deputies Brady, O'Dea and those of us on the committee have embarked on a piece of work on bogus self-employment. There is a lot of anecdotal evidence. Deputy Boyd Barrett referred to the fact that he had heard the advertisements on radio and television-----

-----but while the advertisements were broadcast, they did not achieve the required results. The scope section of the Department did not get the numbers. We need to look behind this discussion to ensure the legislation that might be brought forward would be fit for purpose. People on bogus self-employment contracts face a major loss of entitlements. What worries me just as much as their loss of entitlements is their future loss of entitlements as we move down the road towards auto-enrolment for pensions. If they had an employer, there would be an employer contribution and so forth. As serious as this issue is now, with auto-enrolment, it will become twice as serious and the losses will effectively double.

The committee has embarked on a piece of work and we intend to move on with it early in the new year. We have had our opening sessions. I appeal to the Minister and the Department to work with us to ensure the legislation brought forward will get to the nub of the problem. We have all heard the anecdotal evidence, but when operations are worked through with Revenue and advertisements are run, the scope section of the Department does not have the numbers we think we should see. There is a problem and we must identify exactly where it is. Otherwise, we are not really addressing the underlying issue, about which I have some concerns. I appeal to the Minister to work with the committee in the first couple of months of the new year. If she intends to draft legislation, she should involve the committee throughout the process.

The most interesting contribution so far has been made by Deputy Curran. Like Deputy Boyd Barrett, I heard the advertisements and thought it was great, as we were going to help to protect workers and provide reassurance. Deputy Curran implied it was part of an exercise to gauge the size and gravity of the problem, but the required response was not achieved. I am not surprised by the low level of response because there is no legislation in place to protect workers in bogus self-employment. They are not going to commit suicide by declaring bogus self-employment when we are not protecting them. Are we putting the cart before the horse? That is a strong argument in favour of passing this provision, with the rest of the legislation, or at least giving us the right to vote on it. There can be as many advertisements as we like on television and radio, but they will not protect workers. We need provisions in legislation. Reading through this provision, it sets out penalties for forcing bogus self-employment on somebody and who is an employee and a self-employed person. It is perfectly sensible and not rocket science. I look forward to hearing from the Minister what exactly she objects to.

The committee scrutinised departmental officials on this issue. Once upon a time, when I worked for the Mandate trade union, we commented that there were more dog wardens in the country than labour inspectors. We believed there was a low level of oversight of employers and how they behaved. It was very difficult to win cases in what was then the Labour Relations Commission under employment legislation. Such legislation is weak in this country and not as robust as it is elsewhere in Europe, for example. The best people to ask are Ryanair workers. One of the highlights for all of us in 2018, in addition to repealing the eighth amendment, was the other "R" - Ryanair. Success was achieved across Europe in forcing an intransigent boss who had never had anything to do with unions - he might call them commies living in Stalinist times - to deal with them. Therefore, the first people who could tell us what it is like to be in bogus self-employment are pilots in Ryanair. Many of them have been subject to criminal charges in other countries because of the bogus nature of their employment with that company.

We must hear clearly what the Minister has to say. When we scrutinised the departmental officials, they acknowledged that their numbers had increased. They also acknowledged that they had no idea of the depth, size or prevalence of the problem of bogus self-employment. We asked if, when they visited sites, factories, shops, markets or companies that were delivering food, they looked at the books to see who was employed and what their conditions were. They do not do so; they just walk back out again. We could have found out such information, not with advertisements on radio but by utilising the expertise in the Department to gain that insight into this really despicable way of employing people. We must know how prevalent it is, but this provision does not fly in the face of that knowledge. It would help to protect workers and allow them to come forward and tell us what was happening, how it was happening and where.

People have spoken about anecdotal evidence of bogus self-employment. There are absolutely many such examples. There are also rock solid cases, with real and tangible evidence. The practice is endemic in many employment sectors.

Examples in construction have been given. There have been recent examples in my constituency and other constituencies involving construction workers engaged in publicly funded housing projects. The company has gone into receivership and examinership and the people who should have been in proper employment but were in bogus self-employment ended up getting diddly squat. They got one cent for every euro they were owed. They did not get any of their entitlements. Many were stung. I know of two cases where it happened for the third time but involved different employers. These people should have been properly employed but instead were screwed over. That is one example. There are other examples in this House. I have been made aware of a scoping exercise being undertaken by staff within this House who, to my mind, should be properly employed but have been put in self-employment. Of course, the State broadcaster, RTÉ, is another example. In fairness, Philip Boucher-Hayes has done Trojan work exposing the rot within our national broadcaster. That is rock solid evidence.

I was taken aback when the departmental officials appeared before the committee where a very important piece of work will be undertaken over the next number of months to look at bogus self-employment. The opening statement from the officials said that they did not think it was as widespread as had been portrayed. There is rock solid evidence and anecdotal evidence there, which is why I was very critical of the public relations campaign launched by the Department in the summer that asked people who feel they are in bogus self-employment to come forward and speak out. At that meeting, the officials said that they were taken aback by the low level of people who came forward. People are petrified of coming forward and speaking out because there are no protections for them. This is why there was a low uptake arising out of that campaign. Yes, there needs to be awareness but we also need legislation and protections for people.

A conservative estimate of how much it is costing the State is €600 million in lost social insurance payments over a three-year period. Leaving aside the financial end, more important is the disappearance of the long fought for and hard-won protections, entitlements, benefits and rights won by workers and their unions over many years because of the existence of bogus self-employment.

When Deputy O'Dea brought forward this amendment on Report Stage, I was a bit critical because I would have much preferred to have seen it brought in on Committee Stage so that proper scrutiny could have been applied to it. I know that on Report Stage, the Minister cited serious concerns that it would delay the passage of the Bill. In my opening remarks this evening, I took issue with the fact that there will be a three-month delay up to 1 March. I would much rather see this Bill come into law straight away as opposed to workers having to wait three months. The Minister said there would be serious delays. Will she expand on that? Certainly workers cannot wait. This needs to be put in place right now.

There is a need for stand-alone legislation to do away with bogus self-employment. I am conscious that a number of Opposition pieces of legislation have been brought forward from, among others, Solidarity. Sinn Féin has said that it would look at doing something. At this stage, we are saying that we will row in behind the Opposition legislation that has been brought forward. It is rock solid legislation so there is no need for the Minister or her officials to go off and start looking at this. If she was serious about dealing with bogus self-employment, and I take her word that she is serious, she would look at the legislation that has been brought forward and advance it as swiftly as possible. Six months have passed since we debated this on Report Stage in June or July and nothing has come forward from the Minister. The Opposition legislation could have been advanced in that space of time to deal with this straight away.

We need this to be brought in straight away. While the issue of bogus self-employment needs to be tackled, I do not think workers in precarious employment can afford to wait three months. I was critical of the Minister when she mentioned 1 March. If workers are told they must wait another six months on top of that, they cannot afford to wait that long. The unions support the withdrawal of the amendment, as does ICTU. On that basis, Sinn Féin and I support the withdrawal of this amendment.

Deputy Brady is right. The Minister did raise some issues on Report Stage about the fact that this had come in on Report Stage rather than on Committee Stage. I put forward an amendment on Committee Stage that only provided for a code of practice. It did not provide for legislative protection. The committee took the view that this was not strong enough and I agreed. This is why the amendment came in late on Report Stage.

To make my position perfectly clear, I do not want to support a proposal to withdraw my amendment. It was my amendment on which I did a lot of work and into which I put a lot of time. I thank Deputies Boyd Barrett, Bríd Smith and Brady for acknowledging that it is perfectly good legislation. If there are any amendments to be made, they will be pretty minor because I have thought about it, worked on it long and hard and taken a lot of advice on it.

Deputy Coppinger said there is no reason to delay, and perhaps she is right, but all I know is that I was told that if I did not agree to this being taken out in the Seanad, the Bill would be delayed. I had a visit from a delegation from ICTU that reiterated that the Bill would be delayed if I insisted on my amendment going forward. I received correspondence from a number of trade unions. I also had correspondence from ICTU which put it in writing subsequent to our meeting. I had a number of representations from individual workers. In that spirit, I agreed not to oppose the Government in respect of taking out the amendment but it was on the basis that it would come forward quickly with its own legislation. I want to make it clear that I have taken that section out and submitted it to the Office of the Ceann Comhairle as stand-alone legislation. I hope the Government will progress it quickly and that it will be supported by all sides of the House. When it goes to Second Stage, I sincerely hope that unlike other legislation I have brought forward here that was debated on Second Stage, it does not disappear into the Bermuda Triangle but will be taken on board and progressed. I look for an assurance from the Minister that she will co-operate in this regard.

I thank everybody for their contributions. The one thing I can safely say is that we are all in agreement regarding the fact that there are people in this country who are made bogusly self-employed through no fault or acquiescence on their part. I do not yet know the size of that cohort of people. I do not know if it is as small as some people say it is or as large as Deputy Brady says it is. I am sorry if Deputy Coppinger thought I was annoyed that night in July. I was not annoyed. Rather, I was desperately upset. I compliment the Deputy on the work involved in bringing forward that amendment at that stage and the work being done by the Oireachtas joint committee of which Deputy O'Dea is a member.

I was so upset that night because it meant I would have to go back to the drawing board and carry out pre-legislative scrutiny and consultation with industry, unions and people with a vested interest in this area to make sure the amendment would do exactly what we wanted it to do. We had not prepared any work or done any research on it. I also had to ensure it would have the desired effect of addressing what we think is the problem within that market. I was genuinely, desperately upset when I went home that night. The House is aware that I lost the vote because of Fine Gael's lack of people in the House that night. I was upset because I do not want this legislation delayed.

Deputy O'Dea brought the other amendment in to put a commencement date on the legislation of not less than six months and I argued on the basis that the amendment discounted the President's role. We amended the legislation in the Seanad to make sure that he was not excluded. There was never any doubt in my mind that I and the people in my Department have spent so much time in the past year to progress this Bill because we want it passed. We do not want to delay it. We do not want to see it sitting on a shelf or waiting to be commenced for months on end. That is the only effect that accepting the amendment that night would have had on this Bill. We would not be standing here tonight with a sense of collective co-operation between all parties in this House and the Members of Seanad Éireann to see this Bill passed, which it is to be hoped will happen here this afternoon. That is the only reason I was upset.

I totally accept and appreciate that we have a difficulty in this country with people who are bogusly self-employed. I somewhat disagree with Deputy O'Dea's earlier comments that it is okay for people to make their own arrangements with employers about being self-employed. It is not okay. Under such an arrangement, those people are only paying 4.5% to the State while still getting the equalisation of all of the schemes. That is not okay to my mind, so what we are doing here is the right thing for the Government to do, and it is pursuing that. I have a couple of ideas that we are progressing in the Department, one of which is that particular idea of making sure there is an equal and level playing field between those who pay into the Social Insurance Fund and those who draw from it. I expect to progress that after Christmas.

I am also conscious that the current legislation within the Department with regard to classifying and reclassifying people works. I am not being smart when I say that Deputy Boyd Barrett has just told everybody that the legislation works and that the penalties are not small, they are bloody large.

That was a payoff, not a penalty.

The legislation is there and it works. I say to Deputy Bríd Smith that the advertising campaign that was run was not done to try to ascertain the size of the market, for the want of a better word to use. It was done because the vast majority of people in this country do not know that they can reclassify their employment status, that there is a section in the Department to help people who are in one class and feel they should be in a different one, that there is help and legislation there and that the penalties are large. I very much accept, in the spirit of the Deputy's legislation, that the penalisation for people who are victimised as a result of going to our Department, which is causing people to be concerned and anxious and not going to our Department, is lacking in the current legislation. I will attempt to address that.

The threats and innuendo that are being sparked around here this evening are to the effect that if I do not do my job, then it will be done for me. I remind the House that this is a minority Government in a Parliament of 158 people. This is a democracy. There is nothing stopping any Member of the Opposition in this Parliament bringing forth legislation and, with collective responsibility or the agreement of the majority of this House, having it passed and put on the Statute Book. If anyone feels he or she can do a better job, by all means go ahead and do it. If the principle is right and I agree with it, I will wholeheartedly support it.

I was upset that night in July because I knew we would not be here today if I had accepted the Bill because I would have had to have done serious work, not only with the Oireachtas joint committee but also in public consultations with unions and industry. Members of this House have, for years, represented people whom this legislation will directly affect and impact. I genuinely thank them in the spirit of not blocking this Bill and recognising the work they have been doing for years is seriously important and enshrined in this Bill. I thank them for their co-operation.

The amendment that was introduced by Deputies Collins and Clare Daly and not passed on Committee Stage was reintroduced in the Seanad. They may not be aware that we agreed in the Seanad that I would write to the WRC, which I did the next morning, and ask it to conduct a review of the current statutory code of practice with regard to the part-time working directive. If it is not working, I guarantee that I will bring forward legislation to ensure that the principles behind that code of practice are enshrined in legislation and we will work collectively towards that after Christmas.

The legislation is already there. I agree that, potentially, the way we do inspections is not yielding the desired results and we will change that in the new year. We did 1,000 inspections in the construction industry in August and did not find one person who was bogusly self-employed. That does not marry with all the anecdotal evidence and stories we are being told by the people we represent. Therefore, maybe the inspection routines need to be looked at, but what definitely needs to be looked at is the fear that exists in people who are bogusly self-employed and who do not want to report it. We need to introduce the legislation to give those people comfort by ensuring the penalties on the Statute Book are significant enough to deter employers from putting workers in that position in the first place and by ensuring that protections are created for a person who tries to establish his or her rights under the current legislation. We will establish those in the new year.

I thank Fianna Fáil and in particular Deputy O'Dea for acquiescing in this. I know the pressure he was put under and I genuinely appreciate his assistance and help in the passage of the Bill, as indeed I do with every Member of this House and Seanad Éireann. It is to be hoped we will pass this once in a generation legislation that will positively impact tens of thousands of people in this country for the better in the future. We will work collectively and collaboratively after Christmas to look at and establish the size of the bogus self-employment sector and ensure we put provisions in law to protect those people.

We could have brought forward our Prohibition of Bogus Self-Employment Bill. Our impression, when the Minister left the House that summer's evening, was that she was going to bring forward a Bill. She has been talking about that for ages. Even before this Bill, there was talk of a bogus self-employment Bill. I do not know why the Minister has not done that. It has been posed here that we are delaying a vital piece of workers' legislation by putting forward and protecting the rights of other workers. It should not be posed that way. The Minister could have brought forward any legislation in the past five months and we would have happily taken this amendment out of the Bill. That is the point.

We did not have consultation or communication with any union on this, nor did People Before Profit. I do not know who contacted Deputy O'Dea.

We would have happily sat down with the unions but we did not get that contact. We came here to keep this in the Bill and I have not had time to hear from any unions. There are building workers and many others, including journalists, who are affected by this. This issue of the bogusly self-employed applies to other industries. We cannot accept the Minister's word. It is not a case of just taking something out. We have done that before and it has not worked.

I understand why the Minister did not have time to get a Bill through scrutiny and so on, but she could have shown us the heads of a Bill. That would have made all the difference. She has had a lot of time to work on this.

Deputy Coppinger gives me too much credit. With the legislative programme and the policy work of the Department, it is not physically possible to progress everything. I think I am deadly, but I am not that deadly. The work has progressed and will be brought forward in the new year.

The work was done for the Minister. Deputy O'Dea did the work.

I have no problem with Deputy O'Dea's amendment except it did not go through any of the pre-legislative scrutiny or public consultation. I was upset here in July because, had we accepted the amendment as we did, I then would have had to go through all of that pre-legislative scrutiny and public consultation before I could bring the Bill to the Seanad. We would not be standing here and passing this groundbreaking legislation. The Deputy can accuse me of anything else, but I cannot be accused of not being thorough. When I am ready to bring forward what I am working on, it will be brought forward and the House will be the first to know about it.

Having listened to the Minister, I am hopeful that things are moving.

By the way, I thought the advertisement was good. It just needed something else with it to say there were legal protections. We have made progress and I take the Minister at her word, but I do not buy the technical argument because there is politics behind it. I am not saying the Minister is being duplicitous, but there are people in the country who do not want this legislation to be passed. When we say we need consultation, they are the ones who will insist on being consulted. Frankly, I do not care about them because this practice has continued for too long and they are the ones who have benefited from bogus self-employment. If there is a technical problem in the scrutiny of legislation, we could keep the amendment in the Bill and pass it. The section would not have to be commenced immediately. Earlier we debated the Child and Family Relations Act 2015 which was passed in 2015. There are still three sections which have not been commenced. Therefore, I do not buy the technical argument. As I said, we could pass the Bill into law and if additional scrutiny of the section is required, it need not be commenced just yet. If necessary, an amendment could be made to it. I see no reason to delay for technical reasons what is perfectly good, sound legislation. It could be amended further and refined, but let us put it in the Statute Book and say the practice is against the law, that fines will have to be paid and that there will be legal protection if there is bogus self-employment. As we all agree, why not do it?

While that sounds incredibly reasonable, the difficulty is that there is an amendment and a subsequent one in the Bill that do not allow me the time to commence them after a couple of months or even after a public consultation process. There is an amendment in the Bill that includes a date, after which the Bill cannot be commenced. Originally it was six months, but we had an argument and now it is three.

I thank the Deputy for respecting my word. I am the daughter of a shop steward and did not grow up in a house that did not have the struggles the people about whom we are talking and whom Solidarity-People Before Profit proclaims to represent have. It is not unique in the knowledge it possesses. This is groundbreaking legislation and I am glad that today collectively we are passing it, but there are other issues and challenges, of which I am totally aware. It is not a surprise that the Department of Employment Affairs and Social Protection has a difficulty with this section. I cannot tell the Deputy anymore than what I am telling him. My bona fides are sincere. I want to address this issue and we will address it, but I cannot do so without knowing its size, scope and different pieces. I will not address one bit of it and then suddenly discover that people want to be self-employed and are co-operating because coercion can happen in an arrangement where one person has the upper hand. When we introduce penalties, change how we conduct inspections and introduce different social insurance classes for persons who are self-employed, it will all collectively resolve the issue for now. However, we all have to genuinely respect the fact and understand the world of work is changing and that in ten years' time, the Deputies who will be lucky enough to be in this House representing their constituencies will be faced with an entirely different world of work. The gig economy will probably be so commonplace we need to ensure the legislation we bring forward today will actually ensure the employment rights we want people to have will continue to be as robust as they will need to be into the future when the world of work changes.

I will move ahead because this matter has been subject to much debate, which is only right because it is serious.

Amendment put:
The Committee divided: Tá, 89; Níl, 12; Staon, 2.

  • Bailey, Maria.
  • Barrett, Seán.
  • Brady, John.
  • Brassil, John.
  • Breen, Pat.
  • Brophy, Colm.
  • Broughan, Thomas P.
  • Bruton, Richard.
  • Burton, Joan.
  • Butler, Mary.
  • Byrne, Catherine.
  • Calleary, Dara.
  • Canney, Seán.
  • Cannon, Ciarán.
  • Carey, Joe.
  • Cassells, Shane.
  • Chambers, Jack.
  • Chambers, Lisa.
  • Corcoran Kennedy, Marcella.
  • Coveney, Simon.
  • Cowen, Barry.
  • Creed, Michael.
  • Crowe, Seán.
  • Curran, John.
  • Daly, Jim.
  • Deering, Pat.
  • Doherty, Regina.
  • Donohoe, Paschal.
  • Dooley, Timmy.
  • Doyle, Andrew.
  • Durkan, Bernard J.
  • Farrell, Alan.
  • Fitzgerald, Frances.
  • Funchion, Kathleen.
  • Grealish, Noel.
  • Griffin, Brendan.
  • Halligan, John.
  • Harris, Simon.
  • Harty, Michael.
  • Haughey, Seán.
  • Heydon, Martin.
  • Howlin, Brendan.
  • Humphreys, Heather.
  • Kehoe, Paul.
  • Kenny, Martin.
  • Kyne, Seán.
  • Lahart, John.
  • Lawless, James.
  • Madigan, Josepha.
  • McEntee, Helen.
  • McGrath, Finian.
  • McGrath, Michael.
  • McHugh, Joe.
  • McLoughlin, Tony.
  • Mitchell O'Connor, Mary.
  • Mitchell, Denise.
  • Moran, Kevin Boxer.
  • Moynihan, Michael.
  • Munster, Imelda.
  • Murphy O'Mahony, Margaret.
  • Murphy, Dara.
  • Murphy, Eoghan.
  • Murphy, Eugene.
  • Naughton, Hildegarde.
  • Neville, Tom.
  • O'Brien, Darragh.
  • O'Callaghan, Jim.
  • O'Connell, Kate.
  • O'Dea, Willie.
  • O'Donovan, Patrick.
  • O'Dowd, Fergus.
  • O'Reilly, Louise.
  • O'Rourke, Frank.
  • O'Sullivan, Jan.
  • Ó Caoláin, Caoimhghín.
  • Ó Cuív, Éamon.
  • Ó Snodaigh, Aengus.
  • Penrose, Willie.
  • Phelan, John Paul.
  • Ring, Michael.
  • Rock, Noel.
  • Ross, Shane.
  • Ryan, Brendan.
  • Sherlock, Sean.
  • Smith, Brendan.
  • Smyth, Niamh.
  • Stanton, David.
  • Troy, Robert.
  • Zappone, Katherine.


  • Barry, Mick.
  • Boyd Barrett, Richard.
  • Collins, Joan.
  • Coppinger, Ruth.
  • Daly, Clare.
  • Healy, Seamus.
  • Kenny, Gino.
  • Murphy, Paul.
  • Pringle, Thomas.
  • Ryan, Eamon.
  • Smith, Bríd.
  • Wallace, Mick.


  • Murphy, Catherine.
  • Shortall, Róisín.
Tellers: Tá, Deputies Seán Kyne and Tony McLoughlin; Níl, Deputies Bríd Smith and Ruth Coppinger.
Amendment declared carried.
Seanad amendments reported.

Agreement to the Seanad amendments is reported to the House. A message will be sent to Seanad Éireann acquainting it accordingly.

I understand Deputy Clare Daly wants to make a brief contribution on this matter.

Do we not all get an opportunity to say something?

No, the Bill has already been passed. We are simply agreeing to the Seanad amendments.

It is an historic occasion and I want to give credit where it is due. That is not necessarily to the Minister or to those in Fianna Fáil, who were back-slapping themselves earlier. I acknowledge the role of Deputy Cullinane, Conor McCabe and Rhona McCord in my office as well as the activists in Mandate and those on the front line - the Dunnes Stores strikers. I have a list of approximately 20 names that I will probably not get an opportunity to read. They are the men and women, in particular, who engaged in strike action during the past three or four years against precarious employment. They are the people we should be thanking for finally delivering a little change in legislation. It is not as good as we would like, but we are glad that it is finally here and that we got to do this job before the term breaks up.

I thank every Member in this House and in Seanad Éireann for their positive constructive participation in recent years on this Bill. One thing this shows is that every Member of this House and the Upper House has compassion and care for people who find themselves in less secure situations than we do. I want to pay particular tribute to a former Member. He is not in this House anymore but he got this ball rolling some years ago. As Senator Gerald Nash is not here to give himself the slap on the back, I would like to do it.

There are people who, once the Bill is signed by the President, will have security where they never had security before. On the day that is in it, I reckon that is a job well done. I thank each and every Member.

This is a major day for workers who are engaged in precarious employment. It is a momentous day and it sends a powerful message to workers engaged in low-paid precarious employment. Full credit has to go to the workers in Dunnes Stores, some of whom are in the Visitors Gallery. They stood on the front lines, went to the Workplace Relations Commission and took on Dunnes Stores and challenged the company.

It is nearly four years to the day since Sinn Féin brought forward legislation to deal with this issue. It is timely that we get it across the line today. There are too many people to thank and to congratulate, but it is a major occasion.

We need to see the end of zero-hour contracts and this should be the start of that process. There was a lengthy debate and conversation on bogus self-employment. Commitments have been given in the House. The next area of focus should be to deal with bogus self-employment, which is endemic throughout employment in the State. The Minister, the Government and the House need to take on that challenge. It is the next big challenge in workers' rights and entitlements.

I will make two brief points. First, what was achieved today was, first and foremost, down to the Dunnes Stores workers on the picket lines. Let us not obscure that in any way. Second, it is clear from the debate that there is demand for bogus self-employment to be dealt with in a serious fashion at the start of 2019. Let us have no delay in that regard.

This is an important day for the advancement of workers' rights. We salute all the workers across various employments, including the Dunnes Stores workers for helping to achieve this.

It is not a day for political hijacking, but many people put a good deal of work into this. The Low Pay Commission was established some years ago by my colleagues. That was an important initial spark, as it were, in this area. The precarious nature of employment has been rampant in various industries, especially those industries mentioned. My colleague, the former Minister of State, Senator Gerald Nash, and those involved in Limerick study were instrumental. Their work represents a pivotal moment.

This is a start but far more work remains to be done. We have spoken about bogus self-employment in this House. We will have to get to the bottom of it. There are too many ifs and buts about it. Everyone has a different view. I trust that since the Minister gave the commitment she gave today, we will see the matter followed through in 2019 and that we will deal with the scourge once and for all.

Success has many fathers.

Sitting suspended at 5.35 p.m. and resumed at 6.35 p.m.