OUR BILL MAY BE BIGGEST SINGLE IMPROVEMENT TO EMPLOYMENT LAW SINCE 1972
Issued 28 February 2017
This is a genuinely important measure.
And not just because it may well be the first Opposition Bill to be passed into law by this Dáil.
The Bill has been a long time reaching this far.
I congratulate my colleagues Senators Ivana Bacik and Ged Nash for pursuing it in the other House.
They in turn were reintroducing a measure that was first launched by a former colleague, now President, Michael D Higgins in 2006.
And, although I have been very sceptical about the so-called ‘new politics’, it does look like Minister Mary Mitchell O’Connor is a convert and is anxious to assist the passage of a Bill which she and her Department recognise not just as having obvious merit but as being vitally necessary.
I think it is important to realise that this Bill is not just about voice-over actors, session musicians and freelance journalists, important and all as those professions are.
Irish Equity have, through SIPTU, been pushing this measure from the very start.
The Bill is important because, for the first time, it attempts to define and regulate a phenomenon we have been grappling with for almost half a century – bogus self-employment.
And that phenomenon was as much a feature of the building-site as the newsroom.
In fact the construction industry was riddled was bogus sub-contractors and agency workers – who found themselves without the most basic of safety-nets when the crash came.
We all know about the growth of atypical employment and the decline of the standard, permanent and pensionable, employment model.
Our legislation has adapted, to cover those in full-time work, part-time work, fixed-term work, and so on.
But our law has not properly adapted to deal with those who it is claimed are not workers at all – those who, it is claimed, are really self-employed ‘entrepreneurs’.
The distinction between workers and self-employed still depends of a set of common law rules.
Not many cases come to court, although the Labour Court has regularly had to deal with them.
In administrative terms, the rules are policed by the Revenue Commissioners, the Department of Social Protection and the Department of Jobs and its agencies.
But despite all the policing, or perhaps because the policing is too dispersed and the rules too uncertain, there is widespread, almost institutionalised, abuse.
The victims are the workers, who are lured out of the coverage of our worker protection laws and our social insurance schemes, and the Exchequer.
The result is a growing number of people in precarious, non-standard employment that is not just poorly paid and insecure but is completely outside our employment protection laws.
It is the basic inequality of bargaining power as between employers and workers that forces workers into poor rates of pay combined with low and variable hours, little structured training and limited career progression.
So much for the hype around the ‘gig’ economy, a new term for bogus self-employment.
Employers say they need a level of flexibility in order to operate their business.
And I accept that.
But flexible work is one thing.
Insecure work is quite another.
Not knowing from one week to the next what hours you might be working, what your pay packet will contain, what days you will need childcare or even when you can plan a family get-together.
The abusive relationships created by the casualisation of labour result not just in lower job and income security, and lower job satisfaction, but result also in workers becoming trapped in a succession of short-term, low quality jobs with inadequate social protection.
My and my party’s priorities are all about making sure the benefits of growth are fairly shared.
We have no interest in ‘jobs at any price’ or the spread of casual labour at the lowest wages.
This Government must not preside over an economic recovery that is fuelled by a ruthless race to the bottom.
EU law has brought an amount of clarity to the debate about the distinction between employed work and self-employment.
It is clearly not what the two parties say that matters, since they may be financially induced to mis-describe the situation.
The core point is that someone who is self-employed is ‘in business on his own account’.
He doesn’t do the same work as an employee would do, in the same relationship of subordination, required to follow instructions regarding the time, place and content of their work.
A self-employed contractor takes on commercial risk.
This, and more, is the test set out in the Bill, borrowed from the language of the European Court of Justice.
And the application of this test, initially to just three relatively small sectors, but then across industry, has the capacity I hope and believe to revolutionise our approach to employment protection law.
I think if we adopt this approach today and enforce it diligently, we could be making the biggest single improvement to employment law since we joined the EEC back in 1972.
In conclusion, in its early months this Dáil unanimously accepted a Labour Party motion on workers’ rights.
That motion outlined a programme of work to tackle abusive terms and conditions of employment – low pay, insecure hours, enforced and bogus self-employment.
Approving this Bill and securing its speedy passage into law will give practical reality to the intentions set out in that motion.
It will mean a practical and urgent step to tackle bogus self-employment and bring frankly perverse abuses to an end.