Prohibition of Bogus Self Employment Bill 2019: First Stage

I move:

That leave be granted to introduce a Bill entitled an Act to prohibit employers deliberately designating an employee as self-employed.

I am happy to introduce the Bill, which is designed to deal with the pernicious and growing problem of bogus self-employment. This is a phenomenon which has traditionally been associated with the construction sector but it has now spread into other sectors, such as healthcare, education, the media and even the retail sector. The consequences of somebody having been declared self-employed in a bogus fashion are twofold. First, there is a substantial loss of revenue to the State, which, according to the latest figures, runs into hundreds of millions of euro, which could be spent on social services in this country. Second, it deprives at the stroke of a pen rights that have been built up and legislated for over many decades, many of them stemming from our membership of the European Union.

The growth of the so-called gig economy and the increased casualisation of work has exacerbated this trend. It can often be difficult to determine what category a person falls into because the choice is becoming increasingly blurred. Make no mistake, however, the argument that it is a free choice for an employee as to whether he or she is to be designated as self-employed is not correct. It is not a free choice in most cases, given the bargaining power between the employee and the employer is totally unequal. I recognise there are many skilled professionals and craftsmen who work for several customers and they deserve to be classified as self-employed. However, there are many among the categories of the self-employed, particularly low-paid and unskilled workers, who are obviously not self-employed but have been forced to declare themselves self-employed in order to get the job in the first place. They are in that position, essentially, because the employer is trying to evade his or her obligations as an employer.

Among the other consequences for the cohort of false self-employed is the inability to bargain collectively, as was recently recognised by the European Court of Justice. In putting forward this legislation, I am in no way intending to prevent legitimate arrangements unless it is an obvious and blatant tax avoidance measure. The legislation I put forward today contains a defence which allows for that type of situation and if does not, let me make it clear that I will accept any appropriate amendments if the Government progresses the Bill. I understand that atypical employment is growing and there are more flexible ways of working now, and all of that has to be recognised. However, recognising that does not compel us to turn a blind eye to a patently false assertion that some people are not really employees at all, when it is crystal clear that they are.

My Bill has been criticised on the basis it contains penalties under the criminal law. This was precisely the same approach taken by the Government under the miscellaneous provisions legislation which we debated recently, where the Government provided for, and the Minister argued cogently for, a section which stated that if the employer does not supply his or her proper name and address or place of business within 15 working days, he or she is facing possible imprisonment. I apply the same logic to my proposal as the Minister used during the course of the debate on that Bill.

There are a number of other Bills before the House. I understand the AAA has a Bill - it is People Before Profit or the AAA, although I get confused. In any case, the left has a Bill. The Labour Party has a Bill which is going through the Seanad at present. I am prepared to sit down with the representatives of the parties who put forward those Bills to adopt a coherent approach to this matter. I note the Minister brought a memorandum on bogus self-employment to Cabinet yesterday. From what I know of the contents of that memorandum, it seems to be another gesture to tokenism. Radical action is needed and it is needed sooner rather than later. Therefore, I commend the Bill to the House.

Is the Bill opposed?

Question put and agreed to.

Since this is a Private Members' Bill, Second Stage must, under Standing Orders, be taken in Private Members' time.

I move: "That the Bill be taken in Private Members' time."

Question put and agreed to.