Protection of Employment (Measures to Counter False Self-Employment) Bill 2018: Committee Stage

SECTION 1

It is proposed that section 1 stand part of the Bill. Is that agreed? Agreed. It is proposed that section 2 stand part of the Bill. Is that agreed? Agreed. It is proposed that section 3 stand part of the Bill. Is that agreed?

Is this not a Government Bill?

I do not appear to have the right document.

My apologies. I had presumed it was a Government Bill.

We will go back to section 1. It is proposed that section 1 stand part of the Bill. Those in favour say "Tá". Those against say "Níl". The question is defeated. We can move on to section 2.

I am sorry. We want to vótáil on section 1. It is being opposed.

It is being opposed. Does the Senator want to speak on it?

I want to speak on the Bill broadly. As the Minister knows, bogus self-employment is a massive problem for workers. It is also a huge problem for the State and an enormous problem-----

Just to be careful, I note that I put the question and technically it should not be reopened, but there was confusion, some of which was on my part, so I will allow the Senator to speak briefly.

Question proposed: "That section 1 stand part of the Bill."

I apologise for any distractions. The Minister knows the extent of the problem. She has spoken on the issue and has acknowledged that bogus self-employment is a problem. We differ on the way in which it should be tackled. I will be appealing to the Minister this evening to allow this Bill, in its entirety, to pass on Committee Stage. I know she has her own proposals. This is an urgent problem not just for workers who are caught up in bogus self-employment, but also for businesses whose business models are critically undermined by the fact that too many businesses, albeit a minority, engage in this practice. Business practices, hiring practices and decency in business are being undermined. We are losing incredible sums of money each year in foregone PRSI and tax revenue because of the misclassification of workers.

The Minister is aware of all of those arguments, although we differ on how the issue should be dealt with. Given that the Minister announced through the media earlier this week that she will be developing her own proposals in respect of bogus self-employment, I will be appealing to her to allow this Bill to pass on Committee Stage today. When she has prepared her proposals I will be happy to work with her. I know that other Opposition Members will also be happy to work with her if this House can engage in a meaningful way with the trade union movement and other interested parties to address this issue. I do not believe this issue can be addressed in the fundamental way in which it needs to be addressed if we do not disincentivise the practice of bogus self-employment by ensuring that, for example, those who are evading or avoiding their PRSI responsibilities to the State and to their own employees are disincentivised to do so and feel the full force of the law. That is why we want to reform this law with regard to the State's attitude to evasion and avoidance of PRSI. That is a matter to which we will return later.

In the same vein, one of the most critical aspects of this legislation is the need to define very clearly in primary law the characteristics of false, bogus or disguised self-employment. That is absolutely critical to the success of any legislative initiative that might be taken. Any mere administrative tinkering at the edges of this issue will not go far enough to deal with the problem. It should be the case that people's employment status is defined very clearly in law, although not by means of an exhaustive list. What I am proposing, which we will discuss later, is not an exhaustive list but a number of key tests with which the Minister and the Government will be familiar. These are the same key tests contained in the Competition (Amendment) Act 2017, which was developed by Senator Bacik, approved by both Houses, and enacted in the middle of 2017. The Minister, the Department, and the Government more broadly will therefore be very familiar with those particular tests.

In the Competition (Amendment) Act 2017 those tests only applied to certain categories of workers who were provided with exemptions from competition law for the purposes of collective bargaining, membership of trade unions and so on. We want those kinds of tests applied to the general population of workers.

This should be a matter of law, not somebody's opinion or the understanding of what might be the contractual relationship. Nobody should have the opportunity to opt out of employment law coverage.

We are appealing to the Minister to allow the Bill to pass, although I know she has expressed her opposition to it and she has some concerns about the application of various provisions. In the interests of unity and given that there is a consensus in this House and across the political spectrum that the issue must be fundamentally dealt with one way or the other, I appeal to the Minister and her colleagues in Fine Gael not to block or oppose this Bill. I ask them to let it through so we can work with them to perfect this over a period. There is an urgency about this and the State is losing income hand over fist while workers are losing rights and benefits to which they should be entitled. That is simply not good enough. It is an egregious position. We worked on a cross-party basis in this Chamber and in the Dáil to develop the Employment (Miscellaneous Provisions) Act 2018, which dealt with zero-hour contracts and low and variable hours work, so there is no reason we cannot work together in that same spirit to perfect this legislation, which should apply to the broad population of workers in this country for all the reasons I outlined.

Senators should speak briefly to the section.

I will be brief. I welcome the Minister and commend my colleagues in the Labour Party, particularly Senator Nash, on the Bill. I know how important the Bill is because, as a trade union official, I saw at first hand the abuse of these workers. They were blatantly told that they would have to take jobs on a self-employed basis or they would not get those jobs. We know from reports from the Department that this is a major problem that is costing hundreds of millions of euro in lost revenues each year. I reiterate my total agreement with Senator Nash's comments as we cannot just tinker around the edges with this because the matter is far too important.

I wish to express my frustration because, to my mind, this is a good Bill that is now on its journey. We have amendments aimed at strengthening the Bill but I would be happy to withdraw them with the right to resubmit because I do not want to in any way jeopardise what is a good Bill. Does the Minister accept that there is a major problem in this area? I can assure her that there is but I hope she already knows it. If that is the case, I am at a complete loss as to why we do not work with what is a very good Bill to move it forward, as it would have to complete a journey in the Seanad before going to the Dáil. There would be ample opportunity if amendments must be made or further discussions are to be had; we should have those discussions and move forward with the process.

The idea of waiting for a Government Bill presents a major problem because we have already waited too long. Workers have already waited too long and are suffering. To be frank, there is a high likelihood we will not have the time in this term to deal with a new Bill from start to finish. Is it any wonder people are cynical about politics when, instead of working with what is a good Bill - Sinn Féin believes we should progress this in order to defend workers - the Government appears to be indicating that it cannot do it because it did not publish the legislation? I hope I am wrong about that. Surely we are a bit more mature than that.

I acknowledge that the Minister has done good work in the past and we all co-operated on last year's miscellaneous provisions Bill. All parties had good input and it was a success. We can and we should do the same here. I am happy to withdraw my amendments with the right to resubmit them so as not to hold up this process in any way. It would be a major disservice to thousands of workers in this country if this Bill were to be defeated this evening. Surely we can do better than that.

We will come to the sections in respect of which the Senator has tabled amendments but, from what he said, I understand that he is considering either not moving or withdrawing them in order to resubmit them on Report Stage. That is his prerogative.

We will deal with them as we come to them. We are still on section 1.

I welcome the Minister and commend my colleague, Senator Nash, on bringing forward this initiative and for all his work on the Bill, which has already passed Second Stage in this House. I echo his words and those of Senator Gavan as to how vital this Bill is in addressing the issues of the growing "precariat", in other words, the increasing number of people in very precarious employment relationships who are being referred to as self-employed in a bogus sense. Of course, this Bill should not be seen on its own and, as Senator Nash stated, there have been other initiatives, including our own Competition (Amendment) Act 2017, which was initiated as a Labour Private Members' Bill but passed by the Houses with full support in 2017. We worked very closely and constructively with the Government and officials in getting that legislation through. We delayed different Stages in order to secure an agreed set of amendments and, in general, everybody has been very happy with the final Act. It has addressed a real issue for so many vulnerable workers.

Similarly, Labour initiated the gender pay gap Bill in this House. The Government did not oppose the latter in principle, although it did oppose it because it wanted to introduce its own legislation. At the same time, we have been working with the Government on various aspects of the issue and I am surprised that the Minister seems to be opposing each section of the Bill before us. I am not sure if that will be the case but it seems to be a most peculiar tactic even where the Government does not support the passage of a Bill through Committee Stage. It is certainly not the usual practice for the Government to oppose each section, thereby potentially dividing the House in this case eight times with each of the eight sections of the Bill. That does not seem particularly practical.

I commend Senator Gavan on his much more constructive approach. He has amendments that he wishes to bring forward on behalf of Sinn Féin in order to strengthen the Bill. They are constructive and we are happy to debate them but he is proposing to either not move or withdraw them in the interests of being even more constructive and seeking to ensure that the Bill goes through. We are all in general agreement on the principle, although the Minister is proposing her own legislation to deal with the matter, and Senator Gaven does not propose to divide the House in the context of his amendments. It seems a sensible approach to take with this sort of legislation. I believe I speak for Senator Nash in stating that we would be very happy to engage with the Minister in a constructive manner, possibly delaying the holding or Report Stage so we can work with the Minister and her Department on any amendments they see fit to bring forward and address any concerns they have.

As already stated, opposing each section is an unusual practice. We will have no option but to seek support from across the House for each section of the Bill but it seems unnecessary; if the Government is to oppose the Bill, perhaps it could be opposed at the end of the debate rather than at the end of each section and having a vote on them. That is especially pertinent as we are all in agreement with the very important goal of this Bill.

I thank Senator Nash for his continued interest in this area and he committed to addressing this matter long before I became the Minister with responsibility for employment affairs. The Bill was not opposed on Second Stage by the Government because we all want and hope to see this matter being addressed within a short period. There were some fundamental flaws in the Bill that had to be teased out with the relevant joint committee, which has had a number of hearings and one much work with the Irish Congress of Trade Unions and IBEC, as we have also done. The legal issues have not been addressed because the Bill before us is practically exactly the same as it was on Second Stage.

With respect, I have no choice but to outline why we are opposed to the Bill. It is not because the intention behind it is not absolutely admirable and shared by every person in this House and Dáil Éireann. Deputy O'Dea only launched his own Bill today. He introduced a provision on bogus self-employment as an amendment to the consolidated Act from last year but we had to ask him to remove it. Again, we did not have the opportunity for pre-legislative scrutiny.

We all want the same thing. I am not hung up on whose name is listed at the bottom of the page because there is absolutely no monopoly on wisdom on the part of any government. Legislation is only enriched by the contributions of all Members of both Houses. I believe in that process. The problem is that what we outlined as being at issue a number of months ago is still part of the Bill. It would be unfair to state that sections 1, 2 and 3 are grand without outlining the problems we have with them. I do not mind if we do not have a division at the end of the debate on each section.

Fundamentally, when we finish this debate, I will have no choice because we have not amended the Bill to deal with my concerns. Accordingly, I cannot support it in its current guise. It is fine if Senator Gavan wants to withdraw his amendments and bring them back on Report Stage. However, we need to ensure that whatever legislation is enacted does exactly what we need it to do with regard to this growing issue. It is not a new phenomenon.

Sometimes people believe it is because of the gig economy and how work arrangements are changing. However, we always had people declare themselves as self-employed either willingly or being forced to do so in a variety of industries. Ultimately, there is a loss of employment rights and a whopping loss of revenue to the State. This needs to be addressed properly. I can go through each section to explain our concerns with this Bill. However, I cannot support it at this point.

I support the work done by the Labour Party, Sinn Féin, Fianna Fáil, the Independents and the Government in this regard. For once, we all want the same result, namely to eradicate people being maligned into a particular employment status that they should not be in. More importantly, one cannot be willingly self-employed if the work one does is employment and not self-employment. A clear definition and a code of practice need to be put on a statutory basis as to what self-employment and employment mean. If one is employed, one’s employer will pay the contributions into the Social Insurance Fund which funds all social welfare pensions and schemes. One cannot be allowed to avoid it because two people willingly enter into a self-employed contract when self-employment does not exist.

I am not trying to be difficult. It is not about my legislation introduced in the Dáil this morning versus the Senator’s legislation. I want legislation which has no unintended consequences and is clear in its victimisation and penalties provisions, as well as being clear in its definitions as to self-employed and employed with no ambiguity or wriggle room.

I have no monopoly on wisdom. However, I take it the Government is not prepared for this legislation in its current form. If it opposes Committee Stage, I cannot see how it can progress to Report Stage.

Question put:
The Committee divided: Tá, 10; Níl, 19.

  • Bacik, Ivana.
  • Conway-Walsh, Rose.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Mac Lochlainn, Pádraig.
  • Nash, Gerald.
  • Ó Donnghaile, Niall.
  • Ó Ríordáin, Aodhán.
  • Ruane, Lynn.
  • Warfield, Fintan.

Níl

  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Conway, Martin.
  • Feighan, Frank.
  • Hopkins, Maura.
  • Lawless, Billy.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • Mulherin, Michelle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Ó Céidigh, Pádraig.
  • Reilly, James.
  • Richmond, Neale.
Tellers: Tá, Senators Ivana Bacik and Gerald Nash; Níl, Senators Ray Butler and John O'Mahony.
Question declared lost.
SECTION 2
Question proposed: "That section 2 stand part of the Bill."

Does the Minister wish to speak to section 2?

To reiterate, there are some issues with regard to the other sections but I will not be pressing them to a vote. It is just to put them on the record. There are an enormous number of subsections in section 2 that are very helpful and clarify certain scenarios that would rule out a determination of employment. I have asked the Department to seriously consider, with the Senator's permission, inserting them in the new statutory code of practice. We will liaise with him on that in the coming days.

Subsection (3) of section 2 attempts to define a genuine self-employed relationship in terms of the client or the customer relationship and these are terms that are not defined anywhere. It is clear from the advice we have been given that this could provide conflict and legal challenge. It is on the basis that it would undermine the current legislation, even though that is not strong enough to do what we all want it to do, I cannot support the section.

It seems to me, and I am not judge and jury here, that in terms of the way it is working, if this Bill survives, and it probably will for certain reasons, and if the Government and the Minister are ready, there could be a meeting of minds on it by Report Stage. Obviously, there is a general perception on the part of the Government that there are many positive proposals in this Bill but they are not legally ready. I then scheduled the matter. Does Senator Nash want to speak on section 2?

I do. Section 2 defines, in our opinion, an employment relationship and seeks to make exceptions for those who are genuinely self-employed, in other words, who are in business of their own account. I understand what the Minister is saying in that additional work may need to be done on that to tighten it up but she understands the intention of the section and all of the language around that.

I am particularly heartened by the fact that she acknowledged in her opening statement that one of the areas we need to get serious about is putting into statute effectively what the code of practice tries to prevent happening. The code of practice itself served a purpose at a time and place. It was agreed by the Irish Congress of Trade Unions, IBEC and other players as well but given the experience in the construction industry in particular, and across other sectors of the economy, the code of practice is insufficient for authorities to make decisions regarding the employment status of an individual. However, the language has considerable merit. We have drawn heavily from the noted Dutch case in terms of the determination of employment status - bogus self-employment and so on - and taking all of that into account I believe we can work together to try to nuance and finesse the Bill to strengthen this section and subsequent sections, which may need some work to ensure they work for everybody. I note what the Minister is saying and what she is trying to achieve. There is some common ground in this regard. We may differ on some elements of it and I am happy to work with her on that in the future.

I will speak briefly to section 2. It is very thoughtfully worded and is very much in line with what we are seeing across Europe where there has been increasing pressure to identify what we define as work and an employment relationship. We know that other countries are addressing that issue too including Belgium and many others. The Minister will be aware that we have had a number of hearings on that issue in the Joint Committee on Employment Affairs and Social Protection where we have been examining what is best practice. I believe the section put forward by Senator Nash reflects that quite successfully. I recognise that this is an evolving area to debate and examine further but the section reflects the current thinking on which we need to be very clear. It not only addresses the contract of services but also some of the loopholes which have been used to avoid describing persons as being an employment relationship, for example, when they may be doing work for another party or working as a teleworker or outworker.

Much thought has gone into this section. I am happy the Minister seems to be open to its ideas but I hope she will also be open to discussing those ideas not simply in terms of the Government's guidelines but also within this Bill. I would love to see this Bill move to Report Stage with amendment, debate and constructive suggestions from all Members across the House from different parties and groups. I urge the Government to not only recognise the positive points being made by Senator Nash but also allow the debate on this Bill, and this proposal, to move forward because it is very constructive.

Question put and agreed to.
SECTION 3
Question, "That section 3 stand part of the Bill", put and declared carried.
SECTION 4

Amendment No. 1 is in the name of Senators Gavan, Conway-Walsh, Devine, Mac Lochlainn, Ó Donnghaile and Warfield. Does Senator Gavan wish to move this amendment?

I move amendment No. 1:

In page 5, lines 4 to 22, to delete all words from and including “an individual who—” in line 4 down to and including line 22 and substitute the following:

“regard may be had to the following:

(a) the degree of autonomy and control that the person performing the work has over the tasks to be performed and how they are to be performed;

(b) the degree of supervision over the person performing the work and his or her working methods;

(c) the degree to which the person performing the work is integrated with others in a relevant workplace or undertaking;

(d) whether the person performing the work supplies his or her own tools, equipment or other capital items for the performance of the work;

(e) the extent, if any, to which the person performing the work has invested capital or other items related to the work performed;

(f) any previous contract of employment between the parties;

(g) whether the person performing the work is free during the engagement to perform work for, to, any person other than a person alleged to be a party to the bogus contract for services;

(h) the extent, if any, to which the person performing the work does perform work for, to, any person other than a person alleged to be a party to the bogus contract for services;

(i) the economic dependency of the person performing the work on the relation in question;

(j) whether the person performing the work advertises his or her availability for performance of that or other work or the provision of those or other services, to any person other than a person alleged to be a party to the bogus contract for services;

(k) whether the person performing the work has had to tender or take other similar steps to secure participation in the relation in question;

(l) whether the worker employs other persons;

(m) the extent, if any, to which the person performing the work carries a risk of financial loss in relation to that performance or provision, and the nature of that risk;

(n) the extent, if any, to which the person performing the work enjoys the opportunity of profit in relation to that performance or provision, and the nature of that opportunity;

(o) the relative strength of the bargaining positions of the parties to the relation and, if applicable, any persons acting on behalf of the parties;

(p) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, a party to the relation;

(q) the extent to which any contract between the parties to the relation provides for remuneration by reference the completion of a particular task, rather than for the payment of, or in the nature of, wages based on time worked;

(r) the extent to which any contract between the parties to the relation provides total remuneration that is, or is likely to be, less than that of an employee performing similar work or providing similar services;

(s) the extent to which the contract is designed to, or would, apart from this Act, relieve the employer from paying the employee the national minimum hourly rate of pay.”.

Is the Senator pressing the amendment?

I will withdraw the amendment with the right to resubmit it on Report Stage.

Amendment, by leave, withdrawn.
Section 4 agreed to.
SECTION 5
Question proposed: "That section 5 stand part of the Bill."

Does Senator Nash wish to speak on section 5?

Any Member who wants to speak on any section, and it could have significance down the line, is quite entitled to do so.

I took the time in recent days to reflect on comments the Minister made in her reply to me on Second Stage in February 2018 when we were in the eye of the storm. It was the day of the big snow and we were all anxious to leave this place early and get back safely to our homes. The Minister expressed some concerns about the impact on what we describe as intermediary arrangements and expressed the view that all intermediary arrangements do not necessarily involve bogus self-employment practices. I understand what she meant by that and I entirely appreciate it but some egregious intermediary arrangement situations are used by key players in the airline industry, for example, to engage staff. These kinds of arrangements are deeply flawed, unethical, immoral and wrong.

Any legislation to which these Houses finally agree needs to address these kinds of issues whereby companies are formed with Byzantine structures to protect the interests and modus operandi of large companies in, for example, the airline industry. As Members know, some very high profile media personalities are engaged in these kinds of practices, although I will not name names. Such behaviour is wrong, as are these corporate structures that are used to avoid PRSI and tax obligations to the State. Often, the people who, deliberately or otherwise, avoid their tax and PRSI obligations through such intermediary arrangements also host programmes on broadcast media, for example, decrying the fact that the State is not spending enough on health services, welfare and housing. To be frank, people involved in those kinds of arrangements have an absolute cheek, given the behaviour of some individuals in that context. Any legislative resolution to this problem needs to capture such intermediary arrangements while accepting that not all of these arrangements are necessarily designed to avoid tax or PRSI or to disguise the employment situation of a director of one of the companies.

I have some minor issues regarding section 5. In regard to intermediary third parties, the Bill refers to functions which "are matters of form only and not of substance". Those terms are not defined anywhere in legislation and I have been advised by the Attorney General that the wording would lead to considerable debate and possibly a large amount of litigation which, obviously, none of us wishes to encounter in regard to the Bill.

In addition, there may be some misunderstanding of the powers of the Department in how it operates these matters. To be clear, under section 300 (2)(a)(vii) of the Social Welfare Consolidation Act 2005, our deciding officers are empowered to determine who is or was the employer of an employed contractor. The deciding officers of the scope section can use this section of the Act to determine that the end user of a person engaged through an intermediary process is, in fact, the employer. That there is a middle man or woman, for want of a better term, does not change the fact that a person should be determined as a specific PRSI class or not. The deciding officer would be required for PRSI purposes to treat the worker as a direct employee and return the worker's and employer's PRSI status to what they ought to be under the current determination. That applies not only to all future payments, but also to payments backdated to when he or she began contracting with the firm.

On that issue, as far as the Minster is concerned, the end user is the person responsible and any intermediary does not matter. One of the areas in which there has been bogus self-employment in the past is the public sector. It strikes me that a Department may be the funding agency, but a subsidiary or other group funded by the Department would have the employees working under its payroll system. The Department could wash its hands of the matter and say that it has nothing to do with it. However, if what the Minister stated is correct, the Department is the ultimate end user and the intermediary has nothing to do with it. If a person is employed in precarious or bogus self-employment, it is not the intermediary group but, rather, the Department that would be ultimately responsible. Is that what the Minister was saying?

To be clear, obviously, no two cases are the same. Many organisations legally use intermediaries and are perfectly entitled to do so and enjoy the benefits that go with that. However, where the deciding officers in the scope section determine that there is an intermediary, that does not preclude us from determining, in the case of a person working through the intermediary to, perhaps, a Department such as that referred to by the Senator or any other organisation, that the end user is the employer. The fact that there is an intermediary body does not automatically mean that the end user receiving the services of the person is not the employer. It also does not automatically mean that the end user is the employer. I am suggesting that the section implies that we do not have powers which we already possess. Our deciding officers can currently decide, notwithstanding an intermediary structure, that the end user receiving the services of a contractor, for want of a better word, or a person who is allegedly self-employed is, in fact, the employer.

As the issue of the intermediary is referred to in this section, I ask the Minister to clarify an issue which, as she will be aware, arose while we were discussing these matters at the Joint Committee on Employment Affairs and Social Protection. Although there is a very strong argument for ensuring that there is responsibility along the supply chain and that end users - which may be organisations - remain responsible even when intermediaries are used, there is also a concern which I raised with the Minister at the committee and on which she may be able to provide clarity, namely, that the Minister is not including the gig economy in the discussion of end users.

There is a concern that there is some ambiguity in, for example, areas such as food delivery services. Is the end user the person using a delivery service company to have food delivered? Where does that sit? There is a need for clarity in that regard. It would not serve workers or the public well if the individuals accessing services through some kind of platform in the gig economy and those providing services are the only ones visible within the process and that the intermediary - which, in such a case, is basically the company making money out of the process - would somehow be excluded from the obligations and duties appropriate to employment. There has been a heavy focus on the construction industry, but this is another area where concerns have been raised with Members and testimonials given.

The Minister stated that deciding officers of the scope section already have the latitude to decide these issues. However, the fact that decisions are being made on these issues points to the reasonableness of the section. I acknowledge that the Minister raised the danger of the section being legally challenged, but there are already challenge mechanisms and decisions being made. To my mind, section 4 simply provides far more clarity regarding the basis on which those decisions might be made. There is a concern regarding cases in which decisions have been made by the scope section but then overturned by an appeals officer at a later stage. The section brings far more clarity to the process than is the case as matters stand.

Some decisions have been overturned because the individual contract may have been addressed but the sectoral issue may not have been dealt with. That is a slightly different issue and I reserve the right to make suggestions on Report Stage regarding how we could expand from individual cases to an identification of sectoral patterns.

I ask the Minister to address my question on end users and intermediaries.

I point out to the Senator that it is section 5 that relates to intermediaries. I hope I did not miss something in section 4 that-----

I was making reference to the broader discussion of the points that were raised in that regard.

That is fine. I wanted to ensure we are talking about the same thing. No two cases are the same. One could have two people working through an intermediary for the same organisation, one of whom may be self-employed and the other an employee. What I am saying is that the power to determine who is the employer already exists in law and within the powers of the deciding officers. We will change the law in order to enhance and extend the powers of the deciding officers, but the power to make such determinations already exists.

To take it a step further and with regard to the industry referred to by the Senator, the end user is not the person to whom a pizza is delivered. The definition of self-employed must be defined in a statutory code of practice. There is absolutely no ambiguity. One is either self-employed or one is not, although, that said, one may be self-employed and employed at the same time. However, the definition must be clear, as must the parameters that denote whether one is self-employed. It does not matter whether one goes through four companies to get one's payment at the end of the month; what matters is the governance and control of one's daily activities and the work one does. That needs to be enshrined in legislation such that there is no difference in interpretation of the rules by various judges, deciding officers or companies.

I welcome Noel and Sarah Cregan to the Visitors Gallery .

Noel is the son of former Senator, Dino Cregan.

They are very welcome. Not only did I serve with the great Dino Cregan, he served me fish and chips when I was a student.

I call on Senator Craughwell but I do not want us to go around in circles on this matter.

I do not want to go around on circles either. However, this is a critical matter.

In my experience in both the health and education sectors, people have been treated differently because they moved from, for example, one education and training board or one hospital to another. I have always held the view that the employer ultimately was the Department of Education and Skills or the HSE. That has been upheld by some scope section officers but rejected by others. It has been upheld by some appeals officers but rejected by others.

The end user of a nurse's or a teacher's services is the HSE or the Department of Education and Skills because they operate under the guidelines and rules laid down by the Department. Is that what the Minister has said or I have misinterpreted it? One cannot have different rules in different organisations. One institute of technology might apply different rules from another when it comes to self-employment. Who is the end user in those particular cases? Is it the HSE or the Department of Education and Skills? Incidentally, if we look at the pension side of that service, they are all paid by the Paymaster General.

If I gave the Senator that impression, I did not mean to because that it is not the reality.

One can have two people doing the same role but one could be self-employed and the other could be an employee. It is determined on the contract of engagement. For example, take two people teaching Irish. One is in control of his or her working arrangements, time and space, as well as how he or she delivers, while the other is directed to show up from 9 a.m. to 11 a.m. and from 2 p.m. to 4 p.m. They both teach Irish but in a different way. One can work for the same body, delivering the same service but in a different way, namely, be either self-employed or employed.

I am adamant, however, that no agency, company or Government body can be above the law. When we provide a clear definition in statute as to what self-employed versus employed is, then deciding officers will be guided on the basis of that interpretation, not on their understanding. One will always have a route of appeal, the same way we do with our judicial system. If I apply to get a determination and the deciding officer determines I am misclassified and reclassifies me, my employer has the opportunity to appeal that and to provide new information. That decision will either be upheld or overturned. That is the normal practice within any section of the Department. One can appeal an application decision. If one is successful, one gets it. If one is not, then one can go outside the Department.

One can be providing the same service with different sets of circumstances which would denote one being employed versus self-employed to the same end user.

I accept the Minister’s point. The final appeal in all cases is an appeal to the courts. Will she accept that for most employees driven to that level, an appeal to the courts is out of their reach? Will she agree that, as a caring State, we should have rules and regulations which are easily interpreted and can be applied across the board? Employees who have been miscategorised find themselves with no option but to go to the courts. However, they cannot because they cannot simply afford to do so. That is one of the reasons I advocate people are members of trade unions. At least then, one’s trade union will step in and do something.

There cannot be any ambiguity in this. It must be clear the whole way through to ensure people know exactly where they stand. Incidentally, it is not necessarily that employers are bad people. In some cases, they just do not know. At least that is what they say.

We could keep going around in circles. I will let Senator Nash in but I do not want to prolong matters unnecessarily.

Neither do I.

Senator Craughwell went to the heart of the issue. I have said time and again there should be clear tests in law that should determine somebody’s employment status and, with respect, it should not just be someone’s opinion. All the circumstances of the arrangement need to be looked at, not merely at what it states in a contract and what somebody is prepared to sign. That is the point.

Too many citizens are denied justice because of the expense of going to the ultimate end and exhausting the processes available. We will return to this later in another section on the role the WRC should have in determining a worker’s employment status and how that should be done expeditiously. We cannot avoid this. If there is any common ground here at all, which I think there is, it should be about getting to the point where we have those key tests in law.

That is direction of travel across the European Union. We know from the proposed transparent and predictable working conditions directive that Europe may very well make the decision for us over the next short period. We will then have to amend our primary legislation to reflect those changes and to accommodate different forms of working.

Platform work is a big challenge for us in this country. I see this Bill and the Competition (Amendment) Act, which we managed to get through the processes in these Houses two years ago, as future-proofing Irish law and dealing with many evolving circumstances in terms of people’s employment rights and those who are engaging in contracts through platforms. That is an evolving situation and I am sure it is an area in which everybody in the House is interested.

As the traditional employment model continues to fray at the edges, it is not too much to ask that people working for a living have a clear sense of their status. My mind boggles as to why we, as a political system and as a Parliament, have not grappled with this in recent years. It is one of the key issues facing us with which we have not grappled. There has been an unwillingness to date to do that. We need to grapple with this now because we have worked together to deal with areas around precarious work through legislative solutions in recent times. This is probably the most insidious forms of precarious work in which people do not have any rights or entitlements. It is outrageous and we need to deal with urgently.

Question put and agreed to.
SECTION 6
Question proposed: "That section 6 stand part of the Bill."

The section states the Revenue Commissioners may form an opinion on a particular transaction which constitutes false self-employment as a taxation transaction for the purposes of sections 811, 811A, 811B, 811C and 811D of the Taxes Consolidation Act 1997. The difficulty is that all those applications relate to transactions which only commenced on or prior to 23 October 2014. While the anti-avoidance rule contained in section 811C of the Taxes Consolidation Act 1997 relates to the transaction which commence after 23 October 2014, there is no longer a requirement for the Revenue Commissioners to form an opinion that the transaction is a tax avoidance one. The provision has been replaced with a self-assessment basis.

The fact that factors other than taxation arising in determining the contract offered to a worker may make it unlikely that the provision could have application as it would be necessary to establish that the primary purpose of the contract was to avoid tax which would now include from my Department, PRSI. Section 811B is a specific anti-avoidance provision in regard to certain schemes involving employment benefit trusts and does not apply to the tax avoidance transactions as set out in the Bill within sections 811 or 811C. Accordingly, inclusion of section 811B of the Taxes Consolidation Act 1997 in regard to false employment is not appropriate in this section or in the Bill.

Section 6 also provides that contributions to the Social Insurance Fund are to be included in the definition of tax in section 811C of the Taxes Consolidation Act 1997, while the Social Welfare Acts are to be amended and included with the definition of the Acts in section 811C of the Taxes Consolidation Act 1997 with the effect of when this Act is passed.

However, Bills dealing with tax matters are money Bills and there are specific rules in that regard, which is probably why such matters are assigned only to the Department of Finance and the rest of us are not allowed near them. The inclusion of PRSI in this section imposes a charge and this can only be done by the Executive. I, therefore, have no choice but to tell the Senator that section 6 is, accordingly, not appropriate.

I thank the Minister for her reply. She has been consistent in her position. She said the same thing to me in her reply on Second Stage on 12 February 2018. We are trying to find a way to stamp out this egregious practice. We all know that rogue employers and tax cheats in many ways only understand one language, which is the language of serious penalties, fines and sanctions up to and including imprisonment if they fall foul of tax laws when avoiding or evading tax. These penalties are imposed on people convicted in that context. It beggars belief that we do not have similar enforcement measures for those who are avoiding their PRSI obligations. While the situation in respect of the PRSI Social Insurance Fund has improved in recent years as employment has grown, we need those resources to fund our benefits system.

The only language people involved in these kinds of practices understand is being hit in the pocket. I understand what the Minister is driving at with respect to the nuances around the tax code, tax Acts and the application of PRSI. I get that, but we are trying to find a way in which serious penalties can be imposed on bad employers who engage in these kinds of practices. I believe the Minister understands that. Given her opposition to this Bill, I would like to hear a little from her about how she intends to penalise employers who engage in these kinds of practices, who break the law, who deceive the Revenue Commissioners and the Department of Employment Affairs and Social Protection, and who do not operate on a level playing pitch. There are good employers out there who are compliant, who pay their tax, and who engage their staff on decent contracts. They do so for all kinds of reasons but primarily it is because they want to run a good business and to be on the right side of the law. Those who are queering the pitch and who are responsible for this are bad businesspeople and should be treated in the same way as tax cheats because, in many ways, that is the only language they understand. I would be very interested to hear how the Minister would enforce a system of penalisation against employers involved in these kinds of practices. What is her vision in that regard?

We know the cost of false or forced self-employment is not only borne by the individual in terms of his or her security, but also by the public. When we have discussed the many things on which the Minister and I would like to spend social protection funds one of the issues that arises is the level of funds and of revenue. The loss of PRSI through false or forced self-employment is immense. The Department's own presentation to the committee really emphasised the huge loss of revenue involved. We know that there is a memorandum of understanding between the Department of Employment Affairs and Social Protection and Revenue. It is avoidance. We have seen cases pulled up in which it is shown that a person should be classified as an employee but has been classified as self-employed. If that same pattern continues, we are in the zone of avoidance. If a company has multiple cases against it and still does not change its overall practices, which comes down to that sectoral issue, it needs to be seen as avoidance and not as misclassification. That is too kind a framing for what it often a very systematic practice.

I understand the Minister has concerns about the inclusion of this section in the Bill, but this is tax avoidance. In that context, I ask the Minister to join in in seeing how it can be tackled. Is there more that can be done in the memoranda of understanding between Departments? Is there more that can be done by way of the finance Bill? Where does the Minister see actions being taken in respect of this issue?

In keeping with what has been said by my two colleagues, bogus self-employment was one of the greatest problems of all during the boom years in this country. When the country hit skid row, the people who suffered the most were those who survived on welfare and who depended on it to bring them forward. I will not focus on any category in particular but will just say that we were all approached by people on welfare who told the most horrendous stories of struggling to survive. These employers are thieves. This is not a matter of employers misdescribing employers; these people are thieves. Let us call them what they are. These are people who are stealing from society by not paying their fair share. While I understand what the Minister is saying about this being a finance issue, I am totally, 100% behind Senator Nash, who has great experience in this area and who is trying to cover this type of thing in the Bill he has brought forward. We need a clear understanding of what exactly is going to happen to these thieves. That is what they are. They are highway gangmen and robbers who are denying this State the money it needs to pay the welfare which is needed badly by some. Nobody is on welfare because they want to be. These guys have been enjoying life in the south of Spain. I have seen them down there myself. They are enjoying life on the money they stole from this country. We need something to tackle this problem.

I will not labour the point. It has already been made very well by my colleagues. I will just say that my experience of working in construction leads me to know that the only people these people fear is the Revenue.

Other than that, it does not matter. I have expressed this to one of the Minister's colleagues in government. They do not care about Workplace Relations Commission judgments against them. They do not care about Circuit Court judgments. They ignore them. They constantly ignore payments due. Revenue is the only body they actually fear. I am frustrated that well over 12 months have passed since Second Stage of this Bill. Surely the capacity was there to work with Senator Nash, to work through the Minister's concerns, and to keep this Bill alive rather than simply saying that this is not the way to do it and announcing that the Minister has her own Bill. As I said earlier, the Minister's own Bill will most likely not finish its journey before the next general election which means that the workers and trade unions involved are effectively being told to wait and wait again. It is not good enough.

In response to Senator Craughwell, this is not a new problem. Sometimes when we have this conversation we talk about it as something that has only arisen in recent years. CSO statistics tell us that there has been no increase in self-employment in generations. We have been a nation of entrepreneurial people forever. The issue is that, as the economy changes, employers are finding other mechanisms within the confines of today's world to force people into situations in which they do not want to be. As part of my responsibilities I also have to consider the enormous number of people who are not forced into being in such situations but who are still not self-employed. This Bill has to manage both. It is not just about bogus self-employment but about correct classification of PRSI status based on a statutory code of governance regarding the definition of self-employed as opposed to employed.

To reply to Senator Higgins regarding the reason this section is not appropriate to this Bill, I am not being disingenuous to Senator Nash in any way, shape or form. It is not my Department's role, and therefore does not fall under the remit of my legislation, to determine the tax code. I do not have the ability to instruct the Revenue Commissioners. There is no memorandum of understanding between my Department and the Revenue Commissioners in respect of PAYE. It is none of my business, just as PRSI collection and classification is none of their business.

So the penalties about which I am talking that exist in practice today is that anybody found to have willingly and knowingly misclassified somebody for the purpose of avoiding tax will be taken to court by us. The problem we have is that the actual determination of that avoidance of tax in a PRSI context is difficult because most employees or bogusly self-employed people are afraid. Without the co-operation of the person who is being forced into it or who actually wants to be in it because it suits him or her, we have no case to make. This is why the law needs to be changed so that anti-victimisation measures are put into this Bill, my Bill or whatever Bill we are talking about. I agree with Senator Nash that extra powers should be given to the WRC to allow it to effectively manage and support people who find themselves in a position of either being victimised or who are afraid of being victimised if they assert their rights. Those are the anti-victimisation measures I want to bring in and the extra powers I want to give the WRC. Members should be under no illusion. If we find a company that has willfully and knowingly misclassified somebody, we have taken it to court in the past. The difficulty is that we could probably count those cases on one hand because it is so difficult to prove that the company was willfully and knowingly avoiding tax due to the State without the co-operation of the employee.

Listening to the Minister's response to section 6, it is unfortunate that we cannot work together constructively to find a way to deal with the issues the Minister has with this provision and the other provisions in the Bill as we do with previous Bills. I reiterate that we are all in agreement with the general purpose of the Bill and its positive purpose. It is unfortunate that we cannot deal with this more constructively.

I know the Minister pointed out earlier that she did not feel the Bill had been changed to reflect her issues with it. If people have an issue with a Bill, it is up to them to bring forward amendments to section 6 or any other section. It is unfortunate that we have not had input from Fianna Fáil on this. I know others-----

It is disgraceful.

I agree with Senator Gavan that it is disgraceful, particularly as we know and as referred to by the Minister, Deputy O'Dea has introduced his own Bill on bogus self-employment in the other House. There is no issue about who takes ownership of this. We all have an interest and a desire to see the issue of bogus self-employment tackled and vulnerable people protected in the workplace. That is what we should all be working towards. It is unfortunate that Fianna Fáil has not seen fit to appear today for this debate.

The one thing I can tell the House is that I contacted the Minister's office about a particular case and it acted swiftly on it so I know she has a genuine concern where there is bogus self-employment and I know that the Department will act as quickly as it can when it is made aware of it. Senator Nash's Bill deserves the opportunity to pass through the system. If this is the only impediment, surely we can bring forward an amendment on Report Stage that will see this Bill go through the House. In the case to which I am referring, the workers were too petrified out of their lives to say a word but a relative of one of them contacted me and told me what was going on. I passed the case on to the Department, which moved swiftly. Workers caught in this position are suddenly told some weeks after they start work "oh by the way, you're self-employed and do remember you're going to have to pay tax and PRSI for yourself." Somebody can be at the bottom scale, for example, a builder's labourer. How can 25 builder's labourers be self-employed? It is just not possible.

We cannot allow a situation where we wait for Deputy O'Dea's Bill, the Department's Bill or another Bill at some other time. We have a perfectly good Bill here and can make the changes the Minister needs. It is open to her to bring forward changes. Let us keep this Bill alive. Let us not kill it at this point. I plead with the Minister not to do this but to think of the people she serves.

Question put and agreed to.
SECTION 7

Amendments Nos. 2 and 3 are related and may be discussed together.

I move amendment No. 2:

In page 6, to delete lines 22 to 28 and substitute the following:

"(b) re-instatement by the employer of the employee in the position which he or she held immediately before the contract for services on the terms and conditions on which he or she was employed immediately before the contract for services,

together with a term that the re-instatement shall be deemed to have commenced on the day of the contract for services or such as is reasonable having regard to all the circumstances,

(c) re-engagement by the employer of the employee either in the position which he or she held immediately before his contract for services or in a different position which would be reasonably suitable on such terms and conditions as are

reasonable having regard to all the circumstances,

(d) direct the employer to pay all contributions under the Act of 2005, in respect of any period of the bogus contract for services concerned, which would have been required to be paid if the worker had a contract of employment,

(e) direct the employer to pay all payments, taxes, charges and penalties under the Tax Acts in respect of any period of the bogus contract for services concerned, which would have been required to be paid if the worker had a contract of employment,

(f) direct the employer to pay all payments, taxes, charges and penalties under the Tax Acts due by the worker resulting from or arising out of any period of the bogus contract for services concerned including any failure by the worker to pay

such taxes, charges or penalties,

(g) (i) if the employee incurred any financial loss attributable to the contract for services, payment to him by the employer of such compensation in respect of the loss as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation as is just and equitable having regard to all the circumstances,

and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the contract for services, as references to the person who, by virtue of the change,

becomes entitled to such ownership.

(4) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee, and

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid.

(5) In calculating financial loss for the purposes of subsection (1), payments to the employee—

(a) under the Social Welfare Acts 1981 to 1993, in respect of any period following the contract for services concerned, or

(b) under the Tax Acts arising by reason of the contract for services, shall be disregarded.

(6) In this section—

"financial loss" includes any actual loss and any estimated prospective loss of income attributable to the bogus contract for services and the value of any loss or diminution, attributable to the bogus contract for services, of the rights of the employee under any enactment;

"remuneration" includes allowances in the nature of pay and benefits in lieu of or in addition to pay.

(7) Where a term or condition of the bogus contract for services contravened any provision of or made under the Tax Acts or the Social Welfare Acts 1981 to 1993, the employee shall, notwithstanding the contravention, be entitled to redress under this

Act.

(8) The Revenue Commissioners may view the use of a bogus contract of service as a tax avoidance transaction under the Taxes Consolidation Act 1997.".

These are simple amendments. Amendment No. 2 seeks to amend section 7 in order to introduce a number of additional actions an employer must take in the event of a decision being made that an employee has been misclassified by an employer. Amendment No. 3 seeks to amend section 8 to ensure that where it is shown that an employee has been misclassified by an employer, Revenue will be notified of said employer. As I said earlier, in a spirit of co-operation, I do not intend to move these amendments this evening. I will reserve them with the right to resubmit them. I appeal to the Minister to join with us in co-operation. This is not our Bill. It is a Labour Party Bill but we support it. We know the issue is urgent. Surely we would be doing a much better service to the people who put us in here by progressing this Bill and working it through rather than killing it. We should be better than this.

In all my consideration of these matters over the years, I always felt it was appropriate and I know the trade union movement - Connect, SIPTU and many others - are adamant that a route to the WRC is required where an complaint can be made and an adjudication officer can consider it based on the tests we are applying through this legislation and make a determination on somebody's employment status. That is not to the exclusion of the role played by the Scope section regarding insurability, which is a separate but related matter. I would be interested in hearing the Minister's view on that. I know her view on that from her reply to me on Second Stage. Employers and trade unions are familiar with the WRC processes. There is a significant amount of trust and confidence in the industrial relations machinery of the State to manage and get these matters right and trust in its independence and status in terms of managing issues like this so it is entirely appropriate that the WRC would have a function. I hope this Bill gets to Report Stage. It would be my intention to amend this section further in a number of different ways to enhance it and make sure that the WRC can expedite cases because, in reality, we are dealing with workers in real-time situations who need a determination of their employment status very quickly because of their inability to access benefits because they may be considered to be self-employed, albeit bogusly self-employed, and the fact that as self-employed individuals, as some would have it, they are not entitled to be represented by a trade union. I strongly believe that any legislative solution to this broad problem requires the use of the WRC and its capacity to deal with cases and to have cases referred to it for determination on employment status.

On this occasion, I must disagree with the Senator because there is no difference between determining whether somebody is employed or self-employed and determining their classification from a social insurance perspective. It is not a separate matter. It is exactly the same thing. With respect, the WRC has no experience in classifying and we already have a section. There are 200 social welfare inspectors who are trained and who have been carrying out this business for years. While I agree that they need to get stuff on a statutory footing and definitions defined in law, I do not see why we would need to create a second separate organisation that does exactly the same thing as the organisation we already have. What I am adamant about is that the anti-penalisation measures need to be inspected, adjudicated and ruled upon by the WRC. When I bring those anti-victimisation measures forward in the social welfare Bill in the spring, that is where they will go.

In response to the Minister, the WRC has experience in related matters. I am aware of many cases taken by trade unions on behalf of members who were considered to be falsely self-employed. One case involved redundancy payments. Broadly speaking, the WRC adjudication officers are quite experienced and have the nous to deal with issues like this.

It is a matter that I know we do not have common ground on and something that I am happy to reflect on. I am adamant that the WRC needs to have a role in employment status. The vision for the entire Bill is that the WRC would have a function. It is, hopefully, something that we can reflect a little bit more on, on Report Stage, to nuance and finesse this legislation. I hope that we get to that point and that this legislation can attract the support of this House.

I shall repeat what was said by my colleague, Senator Bacik. It is very disappointing that we do not have representatives here from the Fianna Fáil Party. In fact, it is deeply ironic on a day where the Fianna Fáil Front Bench spokesperson for employment affairs and social protection, Deputy O'Dea, published a Bill and took it to First Stage in the Dáil. It is the height of disrespect, to be frank. His claims that Fianna Fáil has to be genuinely concerned about this issue are fundamentally undermined by the fact that there is nobody here this evening to represent them. I have no difficulty if they take a view that this Bill is not worth supporting or requires additional amendments. That is fine. That is what this Chamber and democratic process is for and it is what it is designed to do. Committee Stage is designed to get under the bonnet of the legislation and interrogate the provisions of a Bill in great detail. We are having a constructive discussion here this evening, which will be helpful to all of us, but it is outrageous that Fianna Fáil is not represented here this evening. I am often loath to make narrow party political points in this Chamber but the absence of representatives causes me a problem, and it should cause everybody here a problem. They are entitled to determine what their own view is but I would prefer if they did so after hearing the full debate here this evening. Whether individuals from the party will be here to vote on the Bill later on, that is entirely a matter for them. It is a matter that I want to put on the public record and it is gravely disappointing.

Does the Minister wish to comment? A certain proposal has already been put. Does Senator Gavan want to revisit that?

No. I thought that with Committee Stage I would be allowed to come back in again. Is that correct?

The Senator can come in. He said that he was prepared to withdraw amendments Nos. 2 and 3 and re-enter them on Report Stage.

That is still the case.

I do not want the Senator to have two bites of the cherry. I am trying to be fair.

That is okay. We will not fall out.

Amendment No. 2 has been withdrawn with liberty to re-enter on Report Stage.

Is that agreed? Agreed.

Amendment, by leave, withdrawn.
Section 7 agreed to.
NEW SECTION

Amendment No. 3 has already been discussed with amendment No. 2.

I move amendment No. 3:

In page 6, between lines 30 and 31, to insert the following:

“8. Where, in proceedings under this Act, it is shown that a term or condition of a bogus contract for services contravened this Act the adjudication officer or the Labour Court, as may be appropriate, shall notify the Revenue Commissioners or the Minister, as may be appropriate, of the matter.”.

Do I take it that the Senator wishes to withdraw his amendment with a right a re-enter on Report Stage?

Amendment No. 3 has already been discussed so I cannot allow a discussion.

Is that agreed?

People are entitled to speak to the section, if they wish.

On the section but not on amendment No. 3, which is what we are dealing with.

So people are entitled to speak to the section now.

My note states that amendments Nos. 2 and 3 are discussed together by agreement. Once Senator Gavan discussed the two amendments then they are linked and his proposal, I understand, is similar.

Amendment No. 3, as I understand it, was moved with liberty to withdraw.

Withdrawn with the right to resubmit, please.

Is that agreed? Agreed.

Amendment, by leave, withdrawn.
SECTION 8
Question proposed: "That section 8 stand part of the Bill."

If somebody wants to speak on section 8 generally then he or she is quite entitled to, Senator Gavan.

Briefly, if I may?

Yes, of course, on the section. I know it is technical but I am trying to be fair. The Senator can speak on section 8.

I accept that, Chathaoirligh. In fairness, the Cathaoirleach is always fair and I want to put that on the record.

I want to say, because it will probably be my last opportunity to speak on the legislation this evening, that it is such a disgraceful action to have Deputy O'Dea launch his Bill while his party deigns to not even appear here this evening, and it is a huge letdown for workers and trade unions. After being three years in this place I am absolutely sick of people playing politics with issues that are so important. I, respectfully, disagree with the Minister but respect the fact that she is engaging on it. Again, I would appeal to her to recognise the broad support for Senator Nash's Bill. The fact that Fianna Fáil would not even deem it worthy to come in and discuss or acknowledge the issue is just an absolute disgrace because these same people would turn up tomorrow and tell us how they are passionate about the rights of working people. They are no such thing. They are an absolute disgrace and that needs to be put on the record.

The Title of the Bill, as specified is section 8, says it all - the Protection of Employment (Measures to Counter False Self-Employment). What we are all about is seeking to ensure that those employees who should legally be considered employees are not placed in this bogus self-employed category to their own detriment and, indeed, to the detriment of society and the economy, which the Minister has acknowledged.

I agree with Senator Gavan that the Minister has fairly put her points of disagreement and issues with the Bill on the record. Obviously she is entitled to do so and Government parties are entitled to oppose the Bill and its provisions. It is unfortunate when the main Opposition party - Fianna Fáil - having put forward its own version of a Bill, which is very similar and seeks to do the same thing, today does not turn up to explain what its position will be on the Bill. I refer to whether they will support it, take on board the points made by the Minister, think the Bill is flawed or are willing to work with us, as we wish they would and as we wish the Minister would, in a spirit of constructive engagement to improve the Bill, progress it and ensure that the vulnerable employers, whom we seek to protect, will be protected. It is unfortunate that the representatives are not here today and I agree with others in saying that.

Again, I commend Senator Nash on his great initiative in doing this work. As the Minister has acknowledged, he has got a strong track record on workers' rights and seeking to improve the position of workers through legislation, and it is in that spirit that we brought forward this Bill.

This is probably not on the section itself, even though the name of the Bill is what it is, but before we wrap up I wish to say the following. I am totally committed to this. As I said to Senators when we were here on that snowy day - with respect, I feel like I have to defend myself somewhat from the toned accusations that have been made against me, and I am being measured when I say that - we agreed we would work together because we all want the same thing. We have worked together, we have worked on the joint Oireachtas committee, we have had hearings and my own Department has participated. I have also had extensive meetings with my social partners because I cannot advance this without them and their advice as well as, obviously, all of yours. That is where I am at right now. I am poised and ready to bring all of this information forward in the spring Bill, which will be introduced in the next couple of weeks.

I feel mean standing here opposing the Bill. I hate feeling mean because I know absolutely instinctively that Senator Nash has such grá and passion for this, and not just in this Bill but for donkeys' years. I genuinely have no choice but to oppose the Bill for all of the reasons that I have outlined today. That does not mean that I do not genuinely value his contribution. As I have said to him, there are parts of this Bill that are not and were not planned to be in my Bill that I will rob, with his permission, to put them in my Bill. I do not want to send out the wrong message here. This is not about me. As I have told Senators, I do not give a hoot about whose name is on the legislation as long as we all pass a new law that does exactly what we all want to do which, first, is to get money so that we can spend it in the proper way to make sure that the people who are the most deprived actually get looked after in this country. Also, we want to make sure we look after the people who are being maligned by large organisations, the people who have bigger pockets and deeper voices than the people who have been put in various disgusting situations; equally there are those other people who are probably much better paid and are choosing to put themselves in a position of self-employment that absolutely is not self-employment. I want to root out the fellas and the girls up here equally as much as I want to root out the malignant behaviour of the people who are, probably, less well-off paid down this end of the spectrum. I, respectfully, tell Senators to not hold it against me when I do press a vote in a few minutes to say that I cannot accept this Bill but it is not anything to do with their intent and integrity on this issue. I very much value all co-operation by Senators in the next couple of weeks to try to get a piece of law passed before the next general election, and I think it is something that would be very worthwhile.

We worked collectively and co-operatively together to get the employment rights Bill passed after many years. Again, Senator Nash initiated the legislation a number of years ago when he was Minister of State. He has a proven track record and I want to honestly say that I value and appreciate his support and help.

I call Senator Craughwell and ask him to be brief as I thought the Minister was last to speak.

Very briefly. I again commend Senator Nash on bringing forward this Bill. It is about the protection of employees. There has been a lot of talk about who is and is not here. I will let them face the public themselves and explain why they are or are not here, as the case may be.

At this last minute, I ask the Minister to reconsider and not allow this Bill to be killed today. That is my final word on the matter.

I thank the Minister for her kind comments and I really appreciate them. They are generous, honest and honourably extended.

I thank the Senator and I also appreciate his comments. This is a fundamental matter for our society, as people define themselves by the work they do. It is a definition of status in society and their contribution to their families and community. I hope the message coming from everybody in this House is that it is completely unacceptable for people to be put into precarious and insecure positions by bad employers. The Minister is correct that some people put themselves in the line of fire because there is short-term financial gain. We know from the context of the economic crash that many people regret such a course of action. When they lost their positions, they had no redundancy payments or statutory redundancy, nor did they have an entitlement to jobseeker payments and other supports.

We have spoken about our hearts going out to people but my heart goes out to the trade union official who wants to represent these individuals but is prevented from doing so. Such people may be trying to organise a sector and working hard to try to engage, under the auspices of the Labour Court, and establish sectoral employment orders under legislation we introduced in 2015 to level the playing pitch and ensure everybody in the construction industry, for example, electricians or other tradespeople could be given access to the same legal minimum statutory pay rates, sick pay, pension schemes and so on. That has not been enabled for many people. According to the CSO, approximately one quarter of those working in the construction sector are self-employed with no employees. That amounts to thousands of people and they are not all genuine entrepreneurs. We all value the function of genuine entrepreneurs in society and we would not have the strong market economy that we have without those people taking those risks and working day and night to implement a vision. They employ people in good circumstances and on good contracts.

This legislation is as much for the decent businesses as it is for workers. It is about levelling that playing pitch and making sure an employment model is not so critically undermined as to ensure a race to the bottom, with good businesses being damaged. Focusing again on construction, too many businesses use the competitive advantage that this facilitates with impunity to get contracts - public contracts in some cases - when they are on a wholesale basis employing people through bogus self-employment contracts. It is not on and it should be unacceptable. I am aware of at least one individual working in the environs of these Houses who is taking a case currently with the assistance of the Minister's Department. This issue is close to home, although I will clearly not name any individuals because it would be entirely inappropriate. We are not hermetically sealed from the matter nonetheless and it cuts across every economic sector. I mentioned highly trained pilots in the transport sector earlier and it also affects construction workers, information technology professionals and financial services workers. I met people involved with legal services recently who are engaged with these kinds of arrangements as well. It is Hobson's choice as a person may want a job but will only get it on the basis that he or she is defined and registered as self-employed. So many people, particularly in the construction sector, only figure out that they are in bogus self-employment when they go looking for their rights or entitlements as the main contractor may have decided to use an online system to register those people as self-employed. That happens against their will and, in many cases, when these people are totally aware of the scenario.

I am making an eleventh hour appeal to the Minister. Based on her comments, there is some common ground. If she allows the Bill to pass, we can work with her to amend it. We have engaged in similar initiatives in recent years to the benefit of the quality of legislation emanating from the House. This House is particularly well equipped to do it because we are not as adversarial as the Dáil. We tend to take a more considered opinion of legislation, and I reflected on that during the short period when I was a Minister of State. It was often a pleasant experience to come here to listen to numbers of experts and people representing particular panels with considerable expertise, whether that was in administration, labour affairs, industry or commerce and so on. Senators brought some added value to the legislative process and we can do that here if the Minister continues to engage with us and discuss the Bill in more detail on Report Stage. We differ in some approaches to this but, broadly, we are of a similar mind.

There are some issues on which we will continue to have battles in this regard because we need to take a belt and braces approach to the matter. There is no point in just introducing additional administrative measures and tinkering at the edges, and there should be fundamental radical changes to the law in terms of how we define someone's employment status. All too many of the people engaged in these kinds of practices are getting away with them with absolute impunity and they must be hit in the pocket. They must learn that this is unacceptable and that their bottom line will be affected. It is the only language some people understand.

I have listened to the debate as a person who has passionately represented the self-employed since I came here seven and a half or eight years ago. I was told at a committee meeting at the time that it would not be viable to put a stamp in place for the self-employed to give them benefits. This year, for the first time, a self-employed person will be entitled to a jobseeker's payment, and I hope in the next budget we will be able to look at sick pay. The Minister has been excellent since she took over the portfolio in pushing for benefits for the self-employed.

Senator Nash has a strong track record in the area. Like the Minister, I am sympathetic to his Bill. We want to work with him and all the Members in the House because we saw what went on during the crash after the Celtic tiger when people who had been in bogus self-employment went looking for their entitlements. They were entitled to absolutely nothing and it was only because of the Minister of the day, Deputy Joan Burton, reducing thresholds that we could get some social protection for those people. They would have starved otherwise because of that bogus self-employment. We saw that in the construction game, the courier business and other areas. The courier business, in particular, is well known for this bogus self-employment, as people were given a job on the basis that they would be self-employed. They would have to look after their own books and get their own accountants. Although people may have been paid well, God forbid if anything went wrong, as they were on their own.

I spoke to the Minister at a social protection committee meeting about one matter. When a person gets a P45 or P60, we should be clearer about the benefits brought by a stamp. If we ask 90% of people what they are entitled to because of a stamp, they would not have a clue. We must educate people about what type of stamp they are paying and how much is coming from their wages as a result. We must also educate them on what entitlements come with this stamp. If people have to look for sick pay or social welfare, they would then know where to go. The information is usually printed on the corner of a P60 or P45 but one would need a magnifying glass to see it. That is if Mystic Meg was not required to find it in the first place. I acknowledge the Minister has overseen an advertising campaign from the Department on the entitlements that come with a stamp but we need to push this more so people will know it exactly. If they have the misfortune to find themselves in bogus self-employment, they will at least know to what they are entitled if something goes wrong. They are currently entitled to nothing and they would be out on their own. That might make them think.

Senator Nash is correct that people may have to take these jobs because there is no alternative. I have no problem in saying the Minister will sort this out. I have total faith in her because she is so passionate about self-employed people. She has done much over the past 12 or 18 months for them.

Unfortunately, because of various provisions that are not legally binding we will have to oppose it tonight. However, we are passionate about what we want done for self-employed people, especially bogus self-employed people.

We have had a long debate on the Short Title to the Bill, which is provided for in section 8.

It has been brought to my attention that a Member was taking photographs in the Chamber. If that is the case, then serious consequences might come to that Member. Photography in the Chamber, either in the Gallery or by Members, is absolutely out of the question. I will deal with that if it arises. If someone sends photographs from the Chamber, there will be serious consequences.

Question put and agreed to.
Title agreed to.
Bill reported without amendment.

When is it proposed to take Report Stage?

Is that agreed?

Question put: "That Report Stage be taken next Tuesday."
The Seanad divided: Tá, 15; Níl, 17.

  • Bacik, Ivana.
  • Conway-Walsh, Rose.
  • Craughwell, Gerard P.
  • Daly, Mark.
  • Daly, Paul.
  • Devine, Máire.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Mac Lochlainn, Pádraig.
  • Marshall, Ian.
  • Nash, Gerald.
  • Ó Donnghaile, Niall.
  • Ó Ríordáin, Aodhán.
  • Ruane, Lynn.
  • Warfield, Fintan.

Níl

  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coghlan, Paul.
  • Feighan, Frank.
  • Hopkins, Maura.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • Mulherin, Michelle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Reilly, James.
  • Richmond, Neale.
Tellers: Tá, Senators Ivana Bacik and Gerald Nash; Níl, Senators Ray Butler and John O'Mahony.
Question declared lost.

When is it proposed to sit again?

At 10.30 a.m. tomorrow morning.

The Seanad adjourned at 7.35 p.m. until 10.30 a.m. on Thursday, 28 March 2019.