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

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


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

Earlier in the debate, I gave a brief overview of the process the scrutiny of the Employment (Miscellaneous Provisions) Bill has undergone to date. It is only right the Bill should be subject to comprehensive scrutiny. What I have difficulty with is that the amendment has not been subject to any scrutiny or consultation with a broad range of stakeholders who are likely to be affected by it. Deputy O'Dea's proposal will certainly benefit from a regulatory impact analysis and pre-legislative scrutiny the same as the Bill or any other significant policy or legislative proposal. It would be unwise for the Oireachtas to pass this amendment into law without the necessary scrutiny the proposal requires.

There are many aspects of the amendment that cause me concern. The Workplace Relations Commission, WRC, appears to be the only body that would be responsible for making determinations under this amendment. The WRC may decide that someone is an employee under the appropriate employment legislation but the scope section of the Department of Employment Affairs and Social Protection or the Revenue Commissioners may also decide the same individual is not an employee for PRSI or tax purposes and therefore three State organisations would be at cross purposes.

The definitions of "employee" vary in employment legislation depending on the purpose of the statute. The definition of employee for the purpose of this Bill are the definition of employee contained in the two Acts the Bill seeks to amend, namely the Terms of Employment (Information) Act 1994 and the Organisation of Working Time Act 1997. The provisions of these Acts do not extend to self-employed individuals. However, one of the possible consequences of this amendment would be to broaden the definition of an employee in this legislation to include genuinely self-employed people. That may not be what is intended but we fear it will be an unintended consequence. It could mean a household engaging a tradesperson for a once-off job would have to provide the person with a statement of terms of employment within the first five days of the person doing the job or leave themselves open to a criminal prosecution if they fail to do so. For example, if I or Deputy O'Dea were to hire a painter to decorate our house where we provided the paint and paintbrushes while the painter supplied the labour only, would we be deemed to be the employer of the painter or decorator? Would we be required to ensure the painter is getting his or her daily or weekly rest breaks under the Organisation of Working Time Act? Am I to instruct the painter to take his 15-minute rest break when he has worked for four and a half hours? I am being flippant but it is just one example of what could arise as a result of the amendment.

Deputies will be aware of the code of practice for determining self-employment status for individuals. The reason the code of practice is not statutory is that every case is fact specific. The WRC, the Labour Court, the scope section of my Department and the Revenue Commissioners are all capable of deciding whether an individual is an employee or not an employee for their purposes. Different circumstances need different prescriptions. When it comes to legislation dealing with employees, one size does not fit all. The code of practice is a guide to the relevant authorities to assist them in determining employment status. However, in the recent Henry Denny case, the Supreme Court noted that each case must be determined in the light of its particular facts and circumstances and it should be left to the statutory bodies that are more than capable of doing this, rather than trying to do the impossible by committing evolving case law into legislation. This is evidenced by the recent case of an adjudicating officer of the WRC when designating six plasterers as employees within the meaning of both Acts that this Bill will amend. They were awarded €18,000 between them. This is just one example of how the existing legislation provisions for determining employment status are working and seem to be working.

Social welfare inspectors inspect a wide range of businesses as part of their ongoing compliance operations. Inspections are also undertaken jointly with other agencies such as the Revenue Commissioners and the WRC and when evidence of non-compliance is detected, we pursue it and we will continue to do so. Where misclassifications of workers as self-employed is detected, the correct class is determined and social insurance arrears are collected as required.

I totally understand what the Deputy is trying to do. I totally support it. I respectfully ask him to consider withdrawing the amendment, publishing the very detailed and comprehensive work as a Private Members' Bill and I will wholeheartedly support it. I will add anti-penalisation measures to it. We could add a definition of what could potentially be called freelance contractors. I know Deputy Penrose and all other Members have ideas about how we can tackle a very concerning and growing problem. I do not believe we have given enough time, enough conversation, enough thought and enough consideration for me to accept the amendment.

I apologise for the length of that diatribe but I had to say what I needed to say.

Do any other Members wish to contribute on this amendment?

It is all very well to say there is some fault in the amendment but what does the Minister propose is done in the area of bogus self-employment, which the Minister knows for years has been an absolute scourge for the people who are forced into it? I and others have raised many times in the Dáil the issue of the building sector, where this practice has become cancerous and widespread. Self-employment is forced on bricklayers and many others leading to massive tax and welfare evasion. Contrary to the rosy picture the Minister has painted of inspections taking place, none of these things have been followed up. These contractors are continually re-engaged by the Government.

The Minister has given a commitment that she will support a Bill. We have a Bill which, I would wager, is quite similar. I am not accusing Deputy O'Dea of plagiarism because ours is much stronger in some of the definitions included in it. The Bill in question is waiting around. I have been in regular contact with building workers for a number of years and they are waiting for this issue to be dealt with. It is not just them. The idea the Government has not been complicit in allowing this to spread is not the case because it happens in building in the education sphere, in particular it is rampant in schools and colleges. There was a strike about four years ago. It has been going on for a long time. It leads to a very dangerous undermining of workers' conditions as well as a loss to Revenue. It has spread. Fair play to "Drivetime", which has done an excellent documentary about the growing practice even in RTÉ.

It is all very well to say this has not been thought about enough. What will the Minister do about it? She has produced nothing in the Bill when she knows it is a key area of exploitation of workers. I can only conclude the Government has an interest in allowing this because these contractors are undercutting others. We all know they have been driving down from Northern Ireland bringing workers down here who we assume are not paying into the system. All of this has been reported by many workers who have been exposed to it. That to which I refer is still going on.

The amendment should be put. It is obviously a very bad time because it is late, it is the final day of the Dáil term and many people may not be around but it should be supported. It is a step in the right direction. The Minister has not said what she will come up with herself. She is saying what she will do if someone produces a Bill but she is the Minister.

It is astonishing that the Minister is now appealing to the Opposition - or friends in government - to withdraw this and bring it forward as stand-alone legislation. The Minister knows quite well, because her Department compiled a report that was published in January 2018, the implications, not only in terms of workers' rights and entitlements to redundancy and holiday pay but all the other things affected as a result of bogus self-employment.

The Minister is also acutely aware that it is costing this State up to €80 million a year in lost pay-related social insurance, PRSI, contributions. For her to appeal to the Opposition to bring forward legislation that she will support sets off alarm bells that no work has been done by her Department on bringing forward legislation to stop this horrendous practice that is rampant, predominantly in the construction sector, but which is also widespread in other areas. Unfortunately, what we have got from the Minister and the Department are public relations, PR, exercises. That is the extent of their response to bogus self-employment, namely, to launch a PR campaign. There is a role for it in pointing out to people who may have ended up in bogus self-employment what they are entitled to and their rights but that is only one small part of it.

I agree with the Minister that it is unfortunate there has been no pre-legislative scrutiny of Deputy O'Dea's amendment. That is why we have Committee Stage, to go through issues like this in detail. This amendment was brought to the table very late in the day and we have not been able to do that. I have concerns about it. This should be a stand-alone Bill, as opposed to being tacked on to the tail end of the Employment (Miscellaneous Provisions) Bill 2017, which seeks to address serious issues facing many workers in precarious employment, on zero-hours contracts, if-and-when contracts and banded-hour contracts and goes some way to addressing those. Some parties have brought forward Bills and I would be interested to hear what the Minister has to say on them. My party and I are working on a Bill which we hope to bring forward just after the summer recess. There will be a multitude of Bills to choose from, with the glaring omission of one from the Minister and the Department. It is up to Deputy O'Dea to decide what he wants to do on this and whether he wants to press it. I will not be able to support because it has not received the scrutiny it needs and deserves.

The Deputy can still support it.

It would be fitting and appropriate to pass this amendment on the day that is in it because one of the most important things to happen in the country today, if not the most important, has been the stand taken by workers at Ryanair for workers' rights in a company where workers' rights have been trampled on for many years. One of the big issues in that company is-----

We are talking about an amendment here-----

It relates to bogus self-employment.

Well go on but I-----

One of the big issues in this company – I was just about to say the words, a Cheann Comhairle – is bogus self-employment. How many times have we heard on the media today, and we heard it earlier from the Tánaiste that some of the pilots have joined the picket lines today, the implication being that they do not have the support of their colleagues? The reason their colleagues did not come out is that they are not directly employed, they are bogusly self-employed. They wear Ryanair uniforms and fly Ryanair planes but they are forced to sign contracts which say they are officially self-employed. Therefore they are in a vulnerable position and were not able to take a stand today but supported their colleagues who did do so. It would be fitting and appropriate to pass an amendment which promotes the rights of workers who are in bogus self-employment. This does not just apply to construction or the airline industry. This is a growing trend in Irish society.

There is a remarkable similarity between Deputy O'Dea's amendment and the Bill that we put forward late last year-----

Which I have not read.

We will operate on the basis that imitation is the sincerest form of flattery.

I just said I did not read the Bill.

He just said he did not read it.

There are some important differences, particularly on the issue of defining bogus self-employment. Although it is not perhaps as strong as the legislation that we put before the House-----

That is because he did not read it.

-----we think it is a progressive amendment and that parties and individual Deputies who support progressive legislation that will benefit ordinary working people, and I include Sinn Féin in this, should vote for such an amendment if the Deputy allows it to be put.

On the face of it this is a good amendment but we have not had the opportunity to scrutinise it. Bogus self-employment is one of the biggest issues facing workers across the board, from English language teachers, to RTÉ, Ryanair and the construction industry. I recall meeting a guy, whose name I cannot recall, who wrote a book about bogus self-employment. He was a courier in the late 1990s. I think he met the Minister at one stage and explained exactly what bogus self-employment is. It is a very important issue and should have been addressed before now. Deputy O'Dea will decide what way he will go with this but if it is defeated, the Oireachtas Joint Committee on Employment Affairs and Social Protection should consider pulling together the legislation on this issue with the Department speedily in the new term. We could get it through the committee quite quickly, with the support of the Department.

I support this amendment. Leaving aside the politics of the issue, the essence of the amendment is desirable. We know there is a major problem in this country in bogus self-employment, most predominantly in the construction industry where it is estimated that in excess of 100,000 workers are in that category. It is an issue in other areas such as, for example, haulage and pilots have been mentioned. I also refer to the trend towards the gig economy, where employers refuse to take on the responsibilities of employing staff. They are leaving to swing people who are desperate to get employment and to earn an income but who can only do that under the terms set out for them by their employer. Increasingly, they are precarious terms. That leaves the State at the loss of many hundreds of millions of euro in tax income and leaves workers in precarious positions in respect of job security, entitlement to sick pay and social security generally, as well as taking huge risks when it comes to workplace accidents and so on, not having any sick or injury cover.

There is nothing to recommend allowing many people continue in the category of bogus self-employment. It needs to be called out for what it is, a scam, and it needs to be ended. Everybody has been aware of this growing problem for a long time in certain industries. It is time to call a halt to it and to legislate against it. People have spoken about Private Member's Bills, legislation or amendments they are in the process of bringing forward or have brought forward. Be that as it may, there are principles involved here. We should all be united on outlawing this practice. The Minister spoke very strongly about the need to tackle the problem yet, as Minister, has brought forward no proposal whatsoever in this area. We can all say that we could do a better job or will do something else in six months' time but there is an opportunity to do something now.

We know how hard it is to complete a Private Member's Bill, get time for it and see it through to its conclusion without the Government trying to stymie it along the way.

Here is an opportunity to do it and it would be a very worthwhile thing for all of us to agree on doing before the summer recess. On that basis, I am happy to support this Bill and I wish other Members will also.

I concur with the objectives of the comprehensive amendment put forward by Deputy O'Dea. I have raised this issue with the Minister on numerous occasions at every opportunity. I have spoken extensively and comprehensively on it and probably more than anybody else in this House. My colleague, Senator Nash, also brought forward a Bill on controlling bogus self-employment. It is a long time out there and he was working on it for a long time. It is out there in the pot. The only concern I have is this is focusing on only one aspect of the designation and all that goes with it. A wider panoply of issues has to be addressed in respect of bogus self-employment. We should not lose sight of that because it could be left there then.

Deputy O'Dea has put a significant level of work has gone into this Bill. I acknowledge that because as someone who drafts Bill I know it is not easy work. All the indicia of what constitutes self-employment and could lead to a person being classified as self-employed are derived from a huge corpus of case law, traversing as it does straight employment cases and Revenue cases. I recognise some of them. One of the problems of being self-employed, and I have spent my life being self-employed, is that sometimes people do not even know they are self-employed. That is the worst of all worlds.

The problem is that if a person does not have public liability insurance or employer's liability and an accident happens, he or she is written off. That is apart from all the other issues that are so important in being an employee. An employee knows that his or her proper PRSI contributions are being paid and are building toward proper pension entitlements when he or she reaches retirement age. The same applies to illness benefits etc. There is also a major loss of tax and PRSI contributions to the Social Insurance Fund. That is extremely important and is there to assist people when they are in the gravest of difficulties. The misclassifications process in designating a person or a group as self-employed is clearly to the benefit of the employer while the employee loses a whole raft and host of various benefits. The one I always remember is the old wet time payment. That was wiped out. If my father, Lord have mercy on him, got wet time, it was reduced money but it was money. If he was self-employed, he would have cycled 15 miles to work and then would have come back with nothing.

The thrust of this amendment is in the right place. I am broadly supportive but I remind Deputy O'Dea that this Bill is going into the Seanad and perhaps we could all put our heads together to widen it a little. Notwithstanding our best efforts, we are not going to have this on the Statute Book until October. Let us be clear about that. There is going to be no magic wand because it has to go to the Seanad. It will wend its way slowly through there because the Senators are entitled, as is their statutory obligation and duty, to ensure they scrutinise this legislation and contribute their tuppenny-ha'penny worth. We have seen the Seanad work to good effect on other legislation and I applaud it for that.

As it then must go to the President, this is not going to happen overnight, as we said last night in respect of other matters. That is notwithstanding our strong desire for this long-awaited legislation to deal with the small minority of employers who abuse their employees. If this goes to the Seanad, whatever Deputy O'Dea is going to do with it, it will be important that we get an opportunity to have some input to strengthen it. It is well drafted. I am referring, however, to trying to identify who is self-employed, which is the biggest problem. There are all sorts of ways of glossing over this and the courts have struggled at times to identify who is self-employed. That may seem strange but they do, as do tribunals sometimes as well. I am familiar with the Henry Denny case mentioned by the Minister and that is a case in point.

Nevertheless, if a legislative tramline is laid down in legislation, it will be of great assistance to the courts. The courts do not just look at the literal interpretation. They also look at the schematic and teleological interpretations and often as well at what is said here in the Dáil. That can be introduced in the arguments in respect of a case. It is useful from that perspective and perhaps in years to come I will use some of those things myself. This issue of self-employment and bogus self-employment has been one of the greatest bugbears in recent years for trade unions and their members but is even a greater bugbear for those who are not members of a trade union and have no protection at all. Trade unions at least get down in the trenches and fight, notwithstanding that they often have been defeated in this area as well. They believe some legislation should be coming forward to deal with this issue.

My support is unequivocal insofar as I want this dealt with but we could do much work in the next three to four months - it will be three to four months regardless of what people say - to get this right. We have one opportunity to get it right and we should do so. Last night we worked hard on this Bill to eradicate anomalies to ensure the objectives we are trying to achieve for workers would not be diluted by us putting in provisions that would lead to a dual interpretation or dual standards of proof. That would mitigate the impact and objective of the Bill and quickly eradicate the benefits. I am not saying that will happen but we could strengthen some of the points. Deputy Brady had a point when he said the definition of bogus self-employment is worthy of primary legislation on its own.

It has been asked why we have not done that. We have bogus self-employment Bills hanging around but it is very hard to get into that lottery. I spent three years trying to get into the lottery when I was dealing with wind turbines and trying to stop them wrecking our communities in the midlands. Lo and behold, I could not. I know I am very unlucky because if I was the only person doing the lottery tonight and I had all of the numbers, something would go wrong so that I would not win. My viewpoint about my luck was vindicated in the lottery - I was never selected from the lottery for Bills once in three years. That is why people are sceptical of hanging around waiting for a Bill to come through. There should be a hierarchy of Bills, particularly on employment rights and issues which should be promoted. I await what Deputy O'Dea will say with interest. He has also been on the floor of this House on various issues. Whatever we do, I hope we achieve the ultimate objective of this Bill, which is ending the scourge of bogus self-employment.

I thank everybody who contributed to this amendment. I listened carefully to what has been said. I put forward the amendment because there is a cancer called bogus self-employment. It was originally confined to one or two sectors of the economy, namely, construction etc. It has spread, however, and is spreading. If, as the Minister indicated, the Government is doing this, that and the other about it, whatever it is doing is not working because the problem is growing. People are coming to me regularly who have been forced to designate themselves as self-employed, even when it was blatantly obvious that they were employees. People working on construction sites in Limerick, and still working as we speak - some of them doing work for the Government - have been forced by subcontractors to designate themselves as self-employed. I know people in the retail sector who also have been forced to designate themselves as self-employed, as well as in several other sectors. I will come back to one or two of those in a moment.

It is a growing problem, and there has been no legislative response from the Government on it to date. There has been no hint of a legislative response. Being forced to designate oneself as self-employed when in fact one is just a worker, an ordinary employee, has very serious consequences. Under the influence of the EU, successive governments have introduced a raft of legislation to protect employees, including legislation dealing with unfair dismissal and notice requirements. It is wrong that any employer, no matter who he or she may be, can get rid of those protections at the stroke of a pen, or force the employee to give up his or her right to those protections, which have been hard won over a long time. The question of the considerable loss of revenue also arises. I will not go into it. We know the implications this practice has for PRSI. The Government is losing a very considerable amount of money as a result of this.

The Minister said in response that this amendment had not received proper scrutiny, and Deputy Brady agreed with her. I made an attempt to deal with this on Committee Stage. Everybody, including Deputy Brady, to the best of my recollection, said that what I was proposing was not strong enough, that I was trying to deal with the issue by way of a code of practice and that what was needed was legislation and definitions. I have now produced legislation and definitions. It certainly has come very late in the night, but it will, as Deputy Penrose has rightly said, be scrutinised. The Seanad will have plenty of opportunity to scrutinise this. It will have the opportunity on Second Stage, Committee Stage and Report Stage. The Minister and her officials will have the whole summer now to scrutinise it. If any amendments are required, or any amendments from the Seanad are accepted, they will come back to this House for further scrutiny.

Deputy Penrose says that this probably requires separate legislation, and the Minister has said something similar. That is no reason to vote against this amendment. This amendment could be passed, and separate legislation could be produced by the Department which would strengthen or deal with any defects the Minister sees in this legislation. She can strengthen the provisions or change the definitions. I am not proud. I do not mind if this is seen as merely a holding operation. Incidentally, I genuinely did not read the Bill tabled by Deputy Barry. It must have been an oversight on my part. There is a phrase that great minds think alike. We must have independently reached the same conclusion. That this might warrant a second piece of legislation, that this might not be the appropriate place for this provision, or that the Bill could be strengthened or improved is a classic argument against accepting any proposal from the Opposition that the Government does not want to accept.

Since the amendments were published I have come under considerable pressure to withdraw this amendment. I have been accused of all sorts of things, including criminalising the flexibility that exists between employers and employees. That is not true. Employees and employers can make whatever arrangements they wish, and I do not want to interfere with those in any way, shape or form. I am seeking to correct a situation in which a person is told that, because it suits the employer for several reasons, his or her job depends on changing his or her status. That person is asked to sign a piece of paper stating that he or she is self-employed and told to contact the tax office or his or her accountant. The Revenue Commissioners and the Department of Employment Affairs and Social Protection have proven totally passive in this situation.

I have received a number of emails on this matter in recent weeks, and I want to read one.

Is this the first contribution the Deputy has made?

It is my first contribution.

It is the second contribution he has made.

I said a few words at the beginning. I am the proposer of the amendment and I am looking for a bit of indulgence.

I received an email from a person who is indirectly employed by the State. He says that he is in bogus self-employment and that he has no rights or protections. As far as he knows, companies do this to avoid paying tax, insurance and holiday pay. He looked for help but the Department of Employment Affairs and Social Protection let him down. He took his case to the scope section, which followed the same trend. He says that he is not the only person facing these issues and believes that it will become a very big headache for the Government very soon. I suggest that it is already a big headache for the Government. I suggest to the Minister, in view of the fact that the Seanad will debate this matter and that she has ample time over the summer to make whatever changes she wishes to make, and the fact that nothing is preventing her from bringing in her own legislation at any stage, that nothing will be lost by including this amendment in the Bill. It will send out a signal that this House is serious about the problem of bogus self-employment and that we intend to deal with it, not just in word but in deed. I am proposing the amendment.

I am a bit surprised to hear that people may vote against this amendment because it has not been scrutinised enough. I stayed for this because it is a big issue. I should probably have tabled an amendment. We have drafted a Bill on this issue that we would like to table. The word will go out from this Chamber that this issue was debated and voted down. I do not believe that workers will be standing on parliamentary cretinism or ceremony. The Minister obviously has an interest in eradicating this practice. We should vote for this amendment. It can be worked on and amended. I am surprised that reason might be used. We have all used these Bills to table amendments, but it would be wrong if it was voted against due to a lack of scrutiny.

As someone who engaged in the entire process, from when the heads of the Bill were published all the way to Committee Stage, who tabled numerous amendments in an attempt to strengthen this legislation, including in areas dealing with banded hours contracts and the look-back period, among other issues, I certainly will not be lectured to by anyone who has played a minimal part-----

I am not lecturing. That is pathetic.

-----in this critical legislation where anyone could put forward amendments at Report Stage. Something has to be done about bogus self-employment. The Minister has acknowledged that, even though no legislation has been brought forward to that end. This legislation will go to the Seanad, with or without this amendment. A number of amendments will be made in the Seanad by Sinn Féin and other parties on different areas of this legislation. Is the Minister sincere about addressing the area of bogus self-employment? There is an opportunity for her, as Minister, to amend this amendment in the Seanad to address the areas where she feels issues might arise, such as any possible impact on the Workplace Relations Commission, WRC. I ask her, over the summer months, to have a look at this amendment, if it is agreed, and to bring forward her own amendments.

If the Minister is sincere, and I have no reason to believe she is not, will she look at possible amendments over the summer to ensure that the Bill does what it says on the tin and addresses the area of bogus self-employment? The practice is rampant, as numerous studies have shown, and is spreading across many areas. I want to see an end to it. The idea of bringing an end to this horrendous blight on our workforce has cross-party support. Not only does it cause the loss of a large amount of money to the State in terms of PRSI, but more importantly, it is having a serious impact on the rights of workers.

That includes their holiday pay and terms and conditions which have been fought for long and hard. I ask that of the Minister.

Some people are being very precious about this, and about who is responsible for bringing forward the proposals. That actually does not matter at all. The fact is that we are debating legislation that is going to become law over the next few months. There is now an opportunity to do something to address the issue of bogus self-employment. We are all aware that it is a widespread problem. It is absolutely wrong. It should be tackled and ended. There is now an opportunity for us to do that. I think for Deputy Brady to say that it can be done in the Seanad, or to appeal to the Minister to do it, is just passing the buck and playing politics. The fact of the matter is that there is an opportunity to do something about it now. It can be scrutinised or tweaked in the Seanad if there are any difficulties with it. It is really important that this House makes a very clear statement to say that we are opposed to the whole practice of bogus self-employment. It is the desire of this House to bring an end to that, and we should make that clear statement tonight. As we go on our summer holidays, there is probably nothing more worthwhile that we can do than to vote to end that practice. If there are any minor difficulties that need to be ironed out, that can be done in the Seanad. Let us stop playing politics with it.

I am always fascinated by some of the contributions when Members get so sarcastic and personal towards each other. Whether we think we are winning each other over or peeving each other off, it is quite interesting to watch.

I want to say again for the record that I totally appreciate what Deputy O'Dea is trying to do. I genuinely do, and I hope he believes me. To answer Deputy Brady's question, we had Second Stage of a Bill brought forward by the Labour Party in the Seanad a number of months ago. The debate was extensive, and we could not agree to accept the Bill that day on the basis that a lot needed to be done with it. Senator Nash agreed that day that we would take it offside. We have been working on it extensively since then, and we hope to come back with that Bill. It is not accurate to say that we have done nothing, although I take the compliment implied in saying that I can juggle seven balls in the air at the same time. I take that compliment for what it is worth.

We are working. We have had numerous conversations during oral questions about the penalisation measures that I want to bring in. The example that people have given here this evening is the construction industry. I wish there were 100,000 people working in the construction industry because then maybe we would get more houses built. However, there are not. That issue is still prevalent in that sector, but it is actually far more prevalent in very highly paid jobs, which nobody seems to have mentioned here today. Our pharmaceutical industry, our IT industry and our gaming industry-----

-----are all run on the basis of contracting and freelance, or whatever we want to call this new world. While those arrangements might have been engaged in co-operatively between the employer and the employee, the State is losing money. It is not the Government that is losing out. People have said on a number of occasions today that the Government is losing money. It is not the Government; it is the State. When we sit down to deal with a social welfare Bill and try to fight over where this fiver or that fiver is going, it is those resources that are diminished.

There are things we genuinely want to do. I want to bring in penalisation measures and a new status and classification, perhaps called a "third worker". They might be a contractor or a freelancer, but they will have all the rights under employment legislation that an employee has today. Members already know that the track record of the last Government was to extend social insurance benefits to people who are genuinely self-employed, or not genuinely self-employed. Our record on this is earnest, albeit that Members might criticise it as too slow. We are going to get there.

I would love to be able to tell Deputy Brady that during the summer we will sit down and try to fix this and come back to the Seanad to amend it, but I will not be dishonest. If I do that, then this Bill is not going to see the Seanad this side of Christmas. I would like to remind all Members that what we have been doing for the past year, very thoroughly, as lots of the Members in this Chamber have pointed out, is that we have been trying to get the people who are working far more hours on a consistent basis, week in, week out, to be put on a banded hours contract that actually reflects the reality of how they are working so that they can go about living their financial lives in a more secure measure. We have actually been trying to ban if-and-when contracts for the past year and bring in penalisation measures so that people who are in those situations have the guts and self-confidence to take cases to the Workplace Relations Commission, WRC, and know that they will win.

This Bill has been delayed long enough, partly because of me and partly because of filibustering. I will not make a commitment that will ensure that it will be delayed further. I was not trying to pass the buck earlier when I asked Deputy O'Dea to take out his amendment and put it as a stand-alone Bill. I said a million times in this House that there is no monopoly on wisdom. I have no problem supporting a Private Members' Bill from any part of the Opposition, whether it is from the smallest party like Solidarity-People Before Profit or the biggest party like Fianna Fáil. We all collectively want the same thing. I encourage Members to acknowledge that this Bill needs to get in and out of the Seanad and back here as quickly as possible, so that the people in Dunnes Stores, who we have been talking about for weeks, can actually get onto the banded hours contracts that they deserve to be on and get the employment rights that we have all been working on over the past year enshrined in legislation. On that basis, I will be voting against the amendment.

8 o'clock
Amendment put:
The Dáil divided: Tá, 46; Níl, 38; Staon, 1.

  • Aylward, Bobby.
  • Barry, Mick.
  • Boyd Barrett, Richard.
  • Brady, John.
  • Breathnach, Declan.
  • Broughan, Thomas P.
  • Browne, James.
  • Butler, Mary.
  • Byrne, Thomas.
  • Cahill, Jackie.
  • Calleary, Dara.
  • Casey, Pat.
  • Cassells, Shane.
  • Chambers, Lisa.
  • Coppinger, Ruth.
  • Cowen, Barry.
  • Curran, John.
  • Dooley, Timmy.
  • Fitzmaurice, Michael.
  • Fleming, Sean.
  • Gallagher, Pat The Cope.
  • Healy, Seamus.
  • Kelleher, Billy.
  • Kenny, Gino.
  • Lahart, John.
  • Lawless, James.
  • Martin, Micheál.
  • McConalogue, Charlie.
  • McGrath, Michael.
  • Moynihan, Michael.
  • Murphy O'Mahony, Margaret.
  • Murphy, Eugene.
  • O'Callaghan, Jim.
  • O'Dea, Willie.
  • O'Keeffe, Kevin.
  • O'Loughlin, Fiona.
  • O'Rourke, Frank.
  • Ó Cuív, Éamon.
  • Ó Laoghaire, Donnchadh.
  • Penrose, Willie.
  • Ryan, Eamon.
  • Scanlon, Eamon.
  • Shortall, Róisín.
  • Smith, Brendan.
  • Smyth, Niamh.
  • Troy, Robert.


  • Bailey, Maria.
  • Barrett, Seán.
  • Breen, Pat.
  • Brophy, Colm.
  • Bruton, Richard.
  • Burke, Peter.
  • Byrne, Catherine.
  • Canney, Seán.
  • Carey, Joe.
  • Corcoran Kennedy, Marcella.
  • Coveney, Simon.
  • D'Arcy, Michael.
  • Daly, Jim.
  • Deering, Pat.
  • Doherty, Regina.
  • Doyle, Andrew.
  • Durkan, Bernard J.
  • English, Damien.
  • Farrell, Alan.
  • Fitzgerald, Frances.
  • Harris, Simon.
  • Heydon, Martin.
  • Humphreys, Heather.
  • Kyne, Seán.
  • Madigan, Josepha.
  • McGrath, Finian.
  • McHugh, Joe.
  • McLoughlin, Tony.
  • Mitchell O'Connor, Mary.
  • Naughten, Denis.
  • Naughton, Hildegarde.
  • Neville, Tom.
  • O'Connell, Kate.
  • O'Donovan, Patrick.
  • Phelan, John Paul.
  • Ring, Michael.
  • Ross, Shane.
  • Stanton, David.


  • Collins, Joan.
Tellers: Tá, Deputies Michael Moynihan and John Lahart; Níl, Deputies Joe McHugh and Tony McLoughlin.
Amendment declared carried.

When is it proposed to take Fifth Stage?

Is that agreed? Agreed.

Question proposed: "That the Bill do now pass."

I thank all the Deputies, particularly the social protection spokespersons and the members of the Oireachtas joint committee, for their input into the Bill over the past year. As I said on a number of occasions today, we have done extensive public consultation. I thank the University of Limerick for the work it did, as well as all the other bodies that were involved, including Mandate, Congress and the workers who are waiting on this Bill to pass into legislation. I also thank business organisations, including ISME and IBEC, that represent small businesses and retailers.

I am genuinely disappointed by this evening's outcome. I will now have to spend the next number of months consulting with businesses, workers and industry to provide amendments to the amendment we have just passed. I will do my absolute best to ensure the Bill is not delayed but I have no doubt that it will.

It is called democracy.

Question put and agreed to.