I am advised by the Revenue Commissioners that the question of whether an individual, including share fishermen and crewmen of fishing vessels, is either employed or self employed is, not alone for tax purposes but for many other purposes, a question of general law and determined having regard to the facts and circumstances of each case. In brief, the courts have found that all the possible factors, including written, oral and implied factors, which bear on the relationship between two parties must be examined, given their proper weight and a judgment made about their overall effect to determine whether one such party is an employee of the other.
Similarly, in the case of share fishermen and crewmen of fishing vessels, the precise terms of each individual's engagement, whether written, oral or implied, must be examined to determine whether such individual is either employed or self employed. Revenue and the Department of Social and Family Affairs have prepared guidelines to assist employers and workers to determine whether an individual is employed or self employed and the Deputy may wish to note that for tax purposes some share fishermen and crewmen of fishing vessels are employees whilst others are self employed.
On the other hand, I am informed by the Department of Enterprise, Trade and Employment that a "share fisherman" is deemed under section 2(3)(c) of the Safety, Health and Welfare at Work Act 2005 to be an employee of the owner or skipper of fishing vessel where he or she is remunerated by a share in the catch or the profits or gross earnings of the vessel. The purpose of this is to ensure that a person who works on a fishing vessel, other than as a skipper or as an owner, is given the protective rights of an employee under the Act even if he or she is not an employee.
Where a person, although not an employee, is deemed to be an employee, such deeming is only for the purposes of the specific statute: for example, the deeming under section 2(3)(c) of the Safety, Health and Welfare at Work Act 2005 of share fishermen and crewmen of fishing vessels to be employees of the owners or skippers of a fishing vessel is very narrow and is only for the purposes of that Act. There are no proposals under consideration to change the tax legislation so as to deem all share fishermen and crewmen of fishing vessels to be employees for tax purposes of the owners or skippers of a fishing vessel.