Protection of Employment (Uncertain Hours) Bill 2016: Second Stage (Labour Private Members' Bill) Wednesday, 16 November 2016

17 November 2016

Senator Ivana Bacik: I welcome the Minister of State and his officials to the House. I also welcome this opportunity to discuss this important Bill on Second Stage and commend my colleague, Senator Ged Nash, on proposing it. It gives me great pleasure to second the Bill on behalf of the group of Labour Party Senators. I welcome the representatives of the Mandate trade union in the Gallery. In a previous life as a barrister in employment law, I used to give briefings and training to Mandate shop stewards on employment law provisions and I always had great respect for the way in which Mandate worked to represent low-paid and vulnerable workers in the retail sector. I am pleased, therefore, that representatives of the trade union have come to the House to support the legislation.

As Senator Nash stated, the Bill stems from a long-standing Labour Party commitment to the protection of workers, particularly vulnerable workers. It forms part of a commitment the party made in a document published earlier this year, Standing Up for Working People, and demonstrates the seriousness of our intent to proceed with reform. It is another step in a package of measures we hope will be introduced in the lifetime of the Seanad. A second Labour Party Bill, the Competition (Amendment) Bill, completed Report Stage in the House last Thursday with cross-party support. That Bill proposes to give freelance workers the right to be represented by a trade union in collective bargaining negotiations. I am grateful to the Minister for Jobs, Enterprise and Innovation, Deputy Mary Mitchell O'Connor, for accepting the Bill, which will now proceed to the Dáil. The proposed legislation will change the interpretation previously made by the Competition Authority, whereby freelance journalists in a newsroom, for example, were prohibited under the Competition Act from negotiating with their employer on minimum rates of pay. This interpretation had a detrimental and chilling effect on many groups of freelance workers, notably voice-over actors and session musicians. We are pleased the Bill, as amended by the Government through amendments supported by the Labour Party, will change the current interpretation and ensure collective rights for freelance workers.

The passage of the Competition (Amendment) Bill was strongly welcomed by all Senators and the relevant trade unions, specifically SIPTU, the National Union of Journalists and Equity. Just as that Bill constitutes an important component in a necessary package of measures to protect the rights of vulnerable workers, so too will the Protection of Employment (Uncertain Hours) Bill address a particular category of workers. As Senator Nash explained, the Bill deals with people who are on the extreme edge of our employment laws, many of whom work in retail, catering and tourism. These workers are employed on so-called "if-and-when" contracts under which employers are under no obligation to provide them with any work from week to week or sometimes even from day to day and they must be available for work without having an expectation of working particular hours. Workers employed on these contracts have tended to fall outside many of the legislative protections provided to workers generally.

As Senator Nash outlined, section 18 of the Organisation of Working Time Act introduced by the former Minister of State, Ms Eithne FitzGerald, deals with protections for employees working on zero-hours contracts and requires that an employee on a zero-hours contract who works less than 25% of his or her hours in any week be compensated. If the employee is not offered any work, the compensation should be either for 25% of the possible available hours or for 15 hours, whichever is less. This provision provides important protections for employees on so-called zero-hours contracts.

However, the proviso to section 18, as currently constructed, specifically excludes workers who are engaged to work of a casual nature. This proviso is the problem the Bill seeks to address because the current legislation does not provide a definition of the term "casual". We can assume, however, that where the worker is described as "casual", it is likely to mean working under the type of contract I have described, which apparently does not oblige the employer to provide the employee with any work. As Senator Nash stated, in such cases, there may even be a question as to whether a contract of employment could be said to exist. Workers who are in this position lack any kind of job security, protection or pay certainty and are extremely vulnerable. The explanatory memorandum outlines the types of impacts this kind of employment have on individuals. It is appropriate to describe this employment as a perverse arrangement which downgrades any sense of dignity at work.

In modern times, we use the word "precariat" to describe workers who are engaged in atypical work where terms of employment have been so severely casualised as to render the employees extremely vulnerable. While this is a modern phenomenon, it should be recalled that this type of arrangement harks back to an earlier time when employees were employed in a highly casualised manner. At the turn of the 20th century, for example, vast numbers of people in Dublin worked as casual labourers, messengers and domestic workers who were employed on a daily basis at the whim of an employer in what would be currently regarded as a semi-feudal relationship. It was largely in response to this deeply precarious state of affairs that we saw the growth of the trade union movement in Ireland.

While employment conditions today are fortunately much different from those that prevailed in the early 20th century, none the less, it is a cause of great concern to see the rise of precarious employment again in the 21st century. Women are particularly affected by this phenomenon and over-represented in non-standard and low paid employment sectors.

As Ms Esther Lynch of ICTU noted in a paper she gave in 2014 at the National University of Ireland, Maynooth, the modern growth of zero-hours and if-and-when contracts has fundamentally undermined the principle of decent work and dignity in the workplace. Not only is this development damaging for employees in terms of job security and ability to plan for the future of their families, but it is also damaging for employers as it becomes difficult for employers who are known for using these types of contracts to attract and retain high quality staff, which affects productivity levels in the workplace.

Zero-hours and if-and-when contracts have a clear detrimental effect on society in general. Research carried out by the Mandate trade union found many of those on the poverty line are in precarious jobs with zero-hours contracts. While the prevalence of zero-hours contracts in Ireland is not clear, research in Britain shows that more than 1 million employees are on zero-hours contracts, mainly concentrated in specific low-paid sectors. We can assume large numbers of employees in these sectors in Ireland are also on such contracts. Trade unions such as SIPTU and Mandate have engaged in collective bargaining to try to protect the workers affected. Legislation such as this can also offer important protections to workers who are outside current legislation.

Section 4 proposes to amend section 18 of the Organisation of Working Time Act 1997 to delete the proviso to which I referred, thereby ensuring that casual workers are brought within its protections. It is also important to note the wording in section 6, which will provide for continuity of employment for casual workers. Section 7 will create an entitlement to a corrected written statement of hours of work for employees.

We accept the Minister may table amendments to the Bill at later Stages and we look forward to engaging constructively with her and her officials. We very much hope and expect that the Bill will receive cross-party support from the Government and Senators from all parties and none, given the importance of its objectives. I commend Senator Nash again on the initiative he has shown in introducing the Bill on behalf of the Labour Party.