Just last week, the government announced that it was to introduce new legislation to deal with amongst other things, zero-hour contracts. This legislation is called the Employment (Miscellaneous Provisions) Bill 2017, and at first glance this looked to be a positive move. Of course legislation that aims to tackle job insecurity for workers is always a welcome addition. However, the question is, what will be the impact for people working on a part-time, hourly, insecure basis in Ireland?
The legislation doesn’t tackle more prevalent if-and-when contracts
The legislation is far too lengthy and vast to comment here in detail, however there are three problematic areas. Firstly, the government has already banned zero-hour contracts so this is nothing new. In 1997 the government introduced the Organisation of Working Time Act, which provided that employers give 25% of the hours they require someone to be on call for. Therefore, the University of Limerick’s report on the prevalence of zero hour contracts (2015) revealed that in order to get around the legislation, employers use “if- and- when- contracts”; if they (the employee) are available and when they (the employer) have hours, then they call them for work.
The difference between zero-hour and if-and-when contracts is that for the latter, there is no obligation for the employer to offer work and equally there is no obligation on the part of the employee to accept, meaning that an employee does not have the protection of employment law, including section 18 of the Organisation of Working Time Act, 1997.
Consequently, the government’s Employment (Miscellaneous Provisions) Bill does not tackle if-and-when contracts, which as the University of Limerick’s report on the prevalence of zero hour contracts (2015) explained, is much more prevalent than zero-hour contracts. Furthermore, zero hour contracts already have some statutory protection for employees, whereas If- and- When contracts do not.
The legislation is open to employer’s exploiting legal loopholes
Second, the language is not forceful enough, leaving it open for loopholes that employers can exploit. This type of loose language allowed employers to get around the Organisation of Working Time Act, which led to if-and-when contracts. For example, this legislation claims to ban zero-hour contracts “except in cases of genuine casual work”. This phrase makes it easier for employers in certain sectors to justify the use of such contracts, particularly in sectors such as retail and hospitality where they are prevalent.
Enforcement can be an issue
Third, many aspects of the legislation require enforcement and regulation and this can prove to be problematic. For instance, under this new legislation it proposes that employers must provide workers with “five key terms of employment” within five days of commencing their employment. While in theory this sounds good, it requires adequate funding and resources to enforce a prison sentence or else a fine of 5,000 euro as the legislation promises. We only have to see how problematic it is to enforce the legislation on the minimum wage, where the National Employment Rights Authority (NERA) inspects workplaces to ensure they comply with legislation on pay; there are not enough inspectors to inspect all workplaces.
Difficult to prove a penalisation case
And while it is welcoming to hear that the government strives to strengthen anti-penalisation protections for employees by allowing workers to invoke their rights under the legislation to pursue a penalisation case through the Work Place Relations Commission, this is also problematic; firstly, it is difficult to prove because employers can come up with a range of excuses for reducing their hours, other than to penalise the worker. Secondly, many hourly paid workers don’t want to challenge their employers because they have bills to pay, and are afraid of the repercussions of doing so. In this regard, strong Trade Union legislation would go some way to improving protections for employees on such matters.
Security of hours is an urgent issue that needs to be addressed for ALL hourly paid workers
There are a number of other issues that other commentators have highlighted as problematic with the legislation, and one such commentator was Mandate’s General Secretary John Douglas, who expressed that the banded hours legislation incorporated into the Bill are too large, thus not giving workers the security that this legislation so desires. Accordingly, the bands should be no greater than five hours per week, and that way workers’ pay and weekly hours will not vary too greatly.
As the legislation has not gone through the amendments stage, it is still too early to say what the outcome will be at the end of this process. However, as it stands it does not fully address the stated aim for this legislation, which is to provide more security for hourly workers. Security of hours is something that needs to be addressed urgently. As TASC’s forthcoming Social implications of Precarious work report found, precarious working conditions also produce precarious lives, causing workers to live in poverty, having to depend on welfare supplements when they would prefer to work more and regular hours, where they are unable to afford to find a place to live, struggle to pay the bills or even to access healthcare services.
Dr Sinéad Pembroke is a researcher at TASC on the Social Implications of Precarious Work project. She was an Irish Research Council (IRC) Postgraduate Scholar and completed her PhD in Sociology in University College Dublin. Sinead worked as a Postdoctoral Research Fellow in Trinity College Dublin developing an evidence-based educational resource for self-disclosure strategies for people with epilepsy (How2Tell). She also worked as a Research Fellow in University College Dublin on an Irish Research Council-funded project, “The Magdalene institutions: Recording an oral and archival history”. Sinéad has also worked on numerous health-related projects including co-authoring a report for the WISE UP Programme for Women Living and Working with Social Exclusion for the Irish Family Planning Association (IFPA).