These included the prospect of introducing a new code (or multiple codes) of practice for the determination of employment status, despite the fact that there is already a such a code in existence issued by the Revenue Commissioners, applied consistently and independently by them in determining employment status. No criticism has been made of the operation of that code and a recent joint study from the Departments of Finance and Employment Affairs and Social Protection on the prevalence “The use of intermediary-type structures and self-employment arrangements: Implications for Social Insurance and Tax Revenues” January 2018 of false self-employment did not suggest that this was a widespread or growing problem. No one has claimed that the code is in any way deficient in addressing false self-employment where it arises. In any event, the proposal to replace the existing code does not belong in a Bill designed to address contracts of employment with variable hours.
A further proposed amendment was a suggestion that an employer be obliged to offer any additional available working hours to existing staff before recruiting new employees. This provision, if it were to be accepted, operating in tandem with the amendment placing the onus of proof on the employer that any changes in working hours were not in fact a form of penalisation under the proposed legislation removes any meaningful control that an employer once had to manage his or her business and staff and places that control in the hands of the State. Put simply, this is State micromanagement of contracts of employment.
Ibec is aware of a small number of cases in which difficulties arise for employees due to the lack of predictability of working hours. In the vast majority of these cases, banded hours have already been introduced or the issues have otherwise been resolved within the existing industrial relations and employment rights framework. The fact is that many employees working variable hours arrangements choose to do so, and in some cases, even insist that their employer provides that flexibility. In other cases, it is a necessary by-product of the provision of essential services.
The Bill is now progressing in such a manner that employers will be deterred from deviating from rigid working hours, even where it may be in an employee’s interest to do so. With bands of hours proposed to be narrowed to just 3 hours in some circumstances, it is possible that one unusually good summer could lock a restaurant employer into an irreversible pattern of higher working hours that they cannot sustain, to take just one example.
Ibec urges the legislature to consider carefully how it proceeds with any amendments to the Bill now that it is close to conclusion. We know from previous independent studies that the incidents of variable and low hours work is extremely low. This legislation has developed into a dumping ground for any aspect of the employment relationship or working life which certain cohorts find unpalatable. Allowing the Bill to encroach into new areas of employment regulation without proper consultation and due regard to both parties to the contract of employment would be irresponsible and is no way to regulate a business relationship of such critical importance to the successful operation of Ireland’s economy.
We now urgently need an evidence-based and carefully considered approach to this Bill before we hamstring employers in the running of their businesses and, albeit unintentionally, reduce flexibility for employees.
Thursday, 24 May 2018