Employment Bill fails to tackle unfair work practices

New laws aimed at tackling precarious, insecure work “entirely dodges” dealing with “if and when” contracts which are considered to be among the most exploitative.

Social Protection Minister Regina Doherty has published the Employment (Miscellaneous Provisions) Bill 2017 saying the legislation, which she hopes will come into force early in the new year, will offer greater protection to tens of thousands of workers.

The laws will require employers to give:

• Core terms of employment within five days of staff beginning work including the expected duration of the contract;
• The rate or method of calculating pay;
• What the employer “reasonably” expects the normal length of the employee’s working day and week to be.

If the employer does not provide those details within one month, they will be deemed to have committed a criminal offence.

The legislation will also ban zero hours contracts “in most circumstances” — there will be exemptions “in cases of genuine work” or “where they are essential to allow employers to provide cover in emergency situations or to cover short-term absences”.

However, the minister herself admitted that zero hours contracts are “not prevalent in this jurisdiction”.

Senator Ged Nash, who was business minister in the last government and commissioned a University of Limerick study on low hours contracts in 2015, questioned why “if and when” contracts, which are prevalent particularly in the accommodation/food and retail sectors, are not covered by the new laws.

“The new legislation entirely dodges the question of ‘if and when’ contracts and how such workers are to be treated,” he said.

“It seems that, for most workers trapped in the ‘if and when’ spiral, work of that nature will continue to be treated as a casual form of work. This would deny them access to these important reforms, because they would not be classified as ‘employees’ in the first place.”

With “if and whens”, employers offer work if and when it is available, and workers can then accept or refuse the offer of work. Mr Nash said under that type of work, there is no ‘mutuality of obligation’ and the law takes the view there is no enduring contract of service.

The new bill strengthens the provisions around minimum payments to low-paid employees who may be called into work but sent home without any or significantly less work.

There will be a “floor payment” for those workers of 25% of what they would have been paid for that shift with a minimum amount equal to either three times the national minimum wage or three times the Employment Regulation Order rate if there is one in that sector.

The Irish Congress of Trade Unions said overall the bill was “by no means perfect, and requires amendments, but marks some progress on these very important issues for workers”.

Ibec said the contents of the bill were disproportionate and would have significant adverse consequences.

“It will deprive employees and employers of the ability to make their own flexible working arrangements and to adapt to change collaboratively,” said the employers’ body’s director of employer relations, Maeve McElwee.

In particular, Ibec said the legislation would be challenging for health and social care, where it can be difficult to reasonably know the work requirement within the short timeframes proposed for providing core terms; and would impose disproportionate cost and administrative burden incurred in determining the “normal working day” and “normal working week” for every employee.

Ms McElwee said it was of considerable concern for employers that while generating employment, they were potentially at risk of custodial sentences for relatively minor breaches of law.