Dáil Éireann Debate, Tuesday - 2 October 2018
596. Deputy Charlie McConalogue asked the Minister for Employment Affairs and Social Protection if her Department has addressed the concerns raised in correspondence (details supplied); and if she will make a statement on the matter. [39675/18]
View answerI have received a number of representations on behalf of employers expressing concerns about the Employment (Miscellaneous Provisions) Bill 2017, some of which are similar to the concerns raised in the representations made by the Deputy on behalf of the Irish Organic Association (IOA). In my response of last week to the particular representations made by the Deputy I explained a number of key points in relation to the Bill.
Firstly, it is important to understand that we are not saying that all casual or flexible working arrangements are wrong and should be stopped. The flexibility offered by genuine casual work can be mutually beneficial for employees and employers. This is recognised in the Bill, which prohibits zero hours contracts in most circumstances but it is not an outright prohibition. Employers will be permitted to use zero hour contracts in limited circumstances, including in respect of casual work. In this regard there is no change to the existing law, Section 18 of the Organisation of Working Time Act 1997, as it applies to casual work. The term “work of a casual nature” has been used in Section 18 of the 1997 Act for over twenty years and has not caused problems. The WRC and Labour Court are capable of determining if work is casual or not, should an employee pursue such a case.
Secondly, it is important to understand the rationale for the banded hours provision, which is to ensure that workers on low hour contracts, who consistently work more hours each week than provided for in their contracts of employment, are entitled to be placed in a band of hours that better reflects the reality of the hours they have worked over an extended period. Under this provision an employee must request to be placed in a band of hours. Employees are only entitled to be placed on a band of hours that reflects what they actually worked over the previous 12 months. There are four robust defences for employers to refuse an employee’s request:
1. If there is no evidence to support the claim i.e. the employee worked less hours than claimed.
2. Where there has been a significant adverse change to the business e.g. an organic grower losing a contract with a supermarket.
3. Emergency circumstances e.g. a flood.
4. When the average hours worked by the employee during the reference period were affected by a temporary situation that no longer exists e.g. covering a maternity leave.
It is also important to remember that a person placed on a band of hours is expected to work those hours i.e. they do not get paid for hours that they do not work.
To take account of seasonal work, the Banded Hours provision does not require an employer to offer hours of work in a week where the employee was not expected to work or require an employer to offer hours of work in a week where the employer’s business is not being carried out – see Section 16 of the Bill as passed by Dáil Éireann (subsection 13 of new section 18A to be inserted into the 1997 Act).
Finally, it should be noted that the definition of employee does not change on foot of the Bill. If the inspectors employed by the Irish Organic Association currently meet the definition of employee within the Terms of Employment (Information) Act 1994 or the Organisation of Working Time Act 1997, they will continue to be regarded as employees under those Acts when the Employment (Miscellaneous Provisions) Bill is enacted.
For all the above reasons, I do not consider that the exemption sought by the IAO is necessary or appropriate.
