The Employment (Miscellaneous Provisions) Bill 2017 – Dangerous or Necessary?

Bogus self-employment, zero-hour contracts and the status of individuals working within the ‘gig economy’ have been the focus of much media attention of late. Government seeks to address the issue by enacting legislation to improve the security and predictability of working hours for those retained on insecure contracts, yet the proposed provisions are not without controversy.

The key objective of the Employment (Miscellaneous Provisions) Bill 2017, which is making its way through the parliamentary stages of the Houses of the Oireachtas, is to improve the security and predictability of working hours for employees on insecure contracts and those working variable hours.

Key Provisions

The Bill is aimed at tackling exploitative employment arrangements and those unscrupulous employers who do not respect even the most basic rights of employees. It addresses five key issues which have been identified as being areas where current employment law should be strengthened to the benefit of employees without imposing unnecessarily onerous burdens on employers:

1. One is ensuring that employees are better informed about the nature of their employment arrangements, in particular their core terms, at an early stage of their employment. A new offence is being created where employers fail to comply with the new information requirements;
2. A second issue is strengthening the provisions around minimum payments to low-paid, vulnerable employees who may be called in to work for a period but not provided with that work;
3. A third issue is prohibiting zero-hour contracts except in limited, specific circumstances;
4. A fourth issue is ensuring that employees on low hour contracts who consistently work more hours each week than provided for in their contracts are entitled to be placed in a band of hours that better reflects the reality of the hours they have worked on a consistent basis over an extended period;
5. A fifth issue is strengthening the anti-penalisation provisions for employees who invoke or try to invoke a right under these proposals. The Bill seeks to achieve its aims through appropriate amendments to the Terms of Employment (Information) Act 1994 and the Organisation of Working Time Act 1997.

It is crucial for organisations to be cognizant of the future changes in law. Not only will considerable fines be imposed for non-compliance but criminal sanctions for a failure to provide a written statement of core terms within one month of commencement of employment will be introduced, namely, imprisonment not exceeding 12 months or both.

The Bill includes a new requirement that the written statement must include the number of hours which the employer reasonably expects the employee to work in a normal working day and in a normal working week. This is a significant change which has been designed to ensure employees will have much greater clarity and predictability about their daily and weekly hours of work.

Anti-penalisation measures have also been introduced, alongside a proposal for banded hours. The Bill introduces a new right for employees who habitually work more hours each week than is provided for in their contract of employment to request to be placed in a band of weekly working hours that better reflects the reality of the hours they have worked over an extended period. This also acts as a protection for employees from employers who flex up and down hours in an unfair way as a means of exercising control over employees. However, the appropriate bandwidth has been an area of concern, as the larger the bands, the greater the capacity for manipulation.

The Bill offers protection against penalisation of employees who wish to invoke their rights under the Act. It updates the current penalisation provision to extend the range of circumstances where an employee can claim adverse treatment. An employee can pursue a penalisation case to the WRC and if an adjudication officer finds that an employee has been penalised under the Act, they may award up to two years of gross salary. Again, these measures have been branded “insufficient” by several officials, who claim, by failing to provide a definition of “casual work” within the Bill, an individual doing "casual work" is not covered by the terms of the Bill, and the protection and rights afforded by the Bill will therefore not extend to him or her.

Positive or Negative?

Creation of the Bill is significant given the ramifications it will have on those affected. Legislating in this area is undoubtedly a positive step in strengthening the rights of those engaged on insecure contracts. If the proposed measures are properly enforced it is hoped the new legislation will provide some much needed clarity to those who are unsure about the nature of their employment arrangement.

Conversely, the Bill has received a lot of backlash and amendments to the initial draft are currently under review. Officials have criticised key aspects of the Bill, contending the reference period of 18 months is too long; only four bands have been proposed and they are considered to be too wide; the suggested anti-penalisation measures have been described as weak; there has been a failure to prohibit zero-hour contracts; the introduction of criminal sanctions has been deemed to be “too far”; and the issue of bogus self-employment has not been addressed, something which has been labelled a  “glaring omission.”

Ibec, the group that represents Irish business, was shocked and angry at the new legislative proposals which the organisation believes is the clearest sign yet that the current political structure has become dysfunctional. The group described the legislation as “reckless and poorly thought through.” 

“The proposals which have given rise to this alarm are contained within the Employment (Miscellaneous Provisions) Bill and which will significantly damage the Irish business model and erode our competitiveness. The proposal to narrow the bands to less than 5 hours, along with the obligation to offer any available hours to existing part-time staff in the first instance, without regard for skills, qualifications or experience, is unworkable. These proposals undermine the right of employers to manage their businesses.

In addition, the administration and compliance requirements brought about by these proposals will overwhelm small and medium-sized businesses.”

Ibec CEO, Danny McCoy, is urging Government to pause the Bill pending a full evidence-based regulatory impact assessment.

“While we acknowledge that there are instances of poor employment practices, the crippling burden the legislation in this format would impose, is disproportionate to the scale of the issue government is seeking to regulate.

“Ibec is calling for government to remove the potentially discriminatory amendment on distribution of available hours and to broaden the bands of hours to allow businesses some reasonable flexibility to respond to changing business demands. This Bill will have significant negative effects for employers but will also reduce flexibility for all employees. In particular, those workers with disabilities, those with caring responsibilities, and young people who value opportunities to flex hours up and down according to their availability, are likely to be disproportionately impacted.”

Dáil Éireann debate took place on Tuesday, 26 Jun 2018:
https://www.oireachtas.ie/en/debates/debate/dail/2018-06-26/30/ 

The Department of Employment Affairs and Social Protection is running a public information campaign to raise awareness about false self-employment in Ireland. The Department wants to ensure that workers and employers are aware that it can provide a determination on an individual’s employment status. 

Legal-Island is running a half-day seminar on key aspects of the impending Employment (Miscellaneous Provisions) Act entitled 'The Employment Bill: The Impact on Casual and A-Typical Contracts of Employment' and will be held on 9th October 2018, 9.20 am – 1.00 pm, followed by lunch and networking at the Gibson Hotel, Dublin. The event is being held in association with Lewis Silkin Ireland.