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An Coiste um Choimirce Shóisialach, Forbairt Pobail agus Tuaithe agus na hOileáin Tuarascáil – Scrúdú ar Fhéinfhostaíocht Bhréagach Meitheamh 2021 Joint Committee on Social Protection, Community and Rural Development, and the Islands Report – Examination of Bogus Self-Employment June 2021 33/SPCRDI/02/2021 TITHE AN OIREACHTAIS AN COMHCHOISTE UM CHOIMIRCE SHÓISIALACH, FORBAIRT POBAIL TUAITHE AGUS NA HOILEÁIN Tuarascáil Scrúdú ar Fhéinfhostaíocht Bhréagach Arna foilsiú Meitheamh 2021 _______________ HOUSES OF THE OIREACHTAS JOINT COMMITTEE ON SOCIAL PROTECTION, COMMUNITY AND RURAL DEVELOPMENT AND THE ISLANDS Report Examination of Bogus Self-Employment Published June 2021 33/SPCRDI/004 CONTENTS Contents CATHAOIRLEACH’S FOREWORD ........................................................................................ 2 RECOMMENDATIONS OF THE COMMITTEE .................................................................. 3 INTRODUCTION ........................................................................................................................... 5 SCOPE SECTION DETERMINATIONS AND THE REMIT OF THE SCOPE SECTION ......................................................................................................................................... 7 CURRENT EMPLOYMENT LAW .......................................................................................... 11 ANTI-VICTIMISATION AND CURRENT DETERRENTS ............................................. 12 Appendix 1 Committee Membership ........................................................................................... 14 Appendix 2 Committee Orders of Reference ............................................................................... 16 Appendix 3 Witnesses .................................................................................................................. 28 Appendix 4 Links to Meeting Transcripts ..................................................................................... 31 Appendix 5 Submissions received from Stakeholders
 on a Draft Report Circulated before Publication ................................................................................................................. 32 1 CATHAOIRLEACH’S FOREWORD The Joint Committee on Social Protection, Community and Rural Development and the Islands have undertaken an examination of the issue of Bogus Self-Employment.
This was an issue that was also considered by the Joint Committee on Employment Affairs and Social Protection in the last Dáil/Seanad.

Bogus Self-Employment, as the Joint Committee understands it, refers to situations where a worker, who is acting as an employee, is misclassified as self-employed largely for PRSI purposes.

This can have long-term effects on those workers’ contributions records and ultimately their ability to access certain social protections.
As such, the Joint Committee felt it was important to complete the work initiated by the previous Committee to ensure that this important issue was addressed.

I would like to thank all the witnesses and stakeholders who provided information to both the Joint Committee and the previous Committee, either through oral hearings or written submissions.

I would also like to thank Deputy Joan Collins T.D.
who acted as our rapporteur on this report for her hard work and dedication to the topic, and the staff in the Committee Secretariat for their assistance.

The Joint Committee has made 13 recommendations throughout the body of the report and is committed to ensuring these recommendations are implemented to create positive change for those effected by the practice of Bogus Self-Employment.
The Joint Committee will continue to engage with both the Minister, and the Department of Social Protection, throughout our Work Programme, and it is my intention that we will seek regular updates from the Department on the implementation of the recommendations set out in this report.

The Joint Committee will also welcome and consider further submissions from interested parties following this publication.

Denis Naughten T.D.
Denis Naughten T.D.

Cathaoirleach Joint Committee on Social Protection, Community and Rural Development and the Islands 16 June 2021 2 RECOMMENDATIONS OF THE COMMITTEE The Committee has made the following recommendations: - 1.
The Committee recommends that the Code of Practice for determining employment or self-employment status of individuals and the use of intermediary arrangements, which includes personal service companies and managed service companies, is updated and placed on a statutory footing by the end of 2021 as stated by the Department of Social Protection; 2.
The Committee recommends that the Department of Social Protection should run an advertisement campaign informing the public that they can apply to have their employment status redetermined if they are aware that they were impacted by the use of ‘test cases’ previously; 3.
The Committee recommends that the Department of Social Protection, in conjunction with the relevant stakeholders, examines whether the registration of individuals as self-employed in the first instance requires greater documentary evidence to be provided by the main contractor or employer; 4.
The Committee recommends that a dedicated and appropriately resourced employment status unit is established in the Workplace Relations Commission to examine and provide determinations on employment status cases regardless of whether they relate to social insurance, employment rights or tax obligations; 5.
The Committee recommends that the relevant Departments, in conjunction with the Office of the Revenue Commissioners, develops a target of inspections to be carried out annually to ensure consistent levels of inspection and compliance.

Targets should be developed for each unit that carries out employment investigations; 6.
The Committee recommends that the Department of Social Protection, in conjunction with the Central Statistics Office, develops a framework for collecting data on areas of employment where there is a potential or known risk of bogus self-employment in the medium to long-term; 7.

The Committee recommends that all applicants to the relevant body for classification of employment status receive a decision within six months; 8.
The Committee recommends that a standard definition of the word ‘employee’ and ‘worker’ is developed and applied to all pieces of employment legislation; 3 9.

The Committee recommends that in its work to update the Code of Practice for Determining Self-Employment Status, it ensures that the next iteration of the Code of Practice acknowledges, and can be applied to, workers engaged in platform working and the gig economy.
The Committee further recommends that the Department should engage with the relevant stakeholders in developing this update; 10.

If the Department finds that current employment law or the Code of Practice cannot address the specific employment circumstances of platform workers, the Committee recommends that the Department identify other measures through which employment legislation can be applied to platform workers; 11.
The Committee recommends that the Department of Social Protection, in conjunction with the Department of Enterprise, Trade and Employment, develops anti- victimisation and blacklisting legislation with the aim of publishing such legislation within six months of receipt of this report; 12.

The Committee recommends that the period for employers to pay backdated PRSI contributions that they previously avoided is increased from six months to six years.
That would mean that the Workplace Relations Act 2015 be amended to allow adjudication officers and the Labour Court consider breaches of employment enactments for up to 6 years rather than the generally 6 months; and 13.

The Committee recommends that the Department of Social Protection responds to the recommendations in this report in the first instance and keeps the Committee appraised of progress on an annual basis thereafter.
4 INTRODUCTION During the course of the 32nd Dáil and 25th Seanad the then Joint Committee on Employment Affairs and Social Protection met seven times with a number of stakeholders to examine the issue of bogus self-employment.
Due to the level of work undertaken during this time, and the importance of the topic, the Joint Committee on Social Protection, Community and Rural Development and the Islands determined that it was important to complete that work using the information provided to the former Joint Committee on Employment Affairs and Social Protection and additional information provided to the current Committee.
Bogus self-employment refers to situations where a worker, who is acting as an employee, is misclassified as self-employed for PRSI purposes.

Employees are classified as Class A workers for PRSI purposes.

This requires their employer to pay a PRSI contribution on their behalf which then applies to their contributions record.

Self-employed people are classified as Class S workers and do not receive employer contributions to their PRSI record.
Both Class A and Class S workers’ pay a 4% PRSI contribution from their income.

Workers who are misclassified as self-employed rather than as employees can experience difficulties accessing certain social protections due to the lack of PRSI contributions paid on their behalf by their employer.
The Department of Social Protection informed the Committee that self-employed (Class S) contributors are not able to receive the following: Illness Benefit, Carer’s Benefit, Health and Safety Benefit and Occupational Injuries Benefits.

Therefore, as the Committee understands it, workers who are misclassified as self-employed are unable to obtain these benefits also.
Other consequences workers experience when they are misclassified as self- employed is a lack of access to employment rights, union participation and collective bargaining.

These issues were consistently highlighted by the workers’ representative groups that provided information to the Committee.

Workers can be misclassified as self-employed for a number of reasons.
However, as the Committee understands it, bogus self-employment refers to when an employer deliberately misclassifies a worker as self-employed to avoid their employer obligations under both the tax regime and employment law.

The extent of bogus self-employment in Ireland is largely unknown, however, it is estimated that approximately 12% of Ireland’s workforce are classified as self-employed with no employees.

However, this is not an indication that these workers have been misclassified.
Similarly, the cost of bogus self-employment, through avoided employer PRSI contributions is also unknown.

However, a submission by the Irish Congress of Trade Unions (ICTU) in 2016 estimated that it has cost the Exchequer approximately €600 million in recent years1.

It is also acknowledged that certain industries experience higher instances of self-employment and therefore, it is assumed, potentially higher instances of bogus self-employment.
1 submission_on_bogus_self_employment_march_2016.pdf (ictu.ie) 5 Baring these issues in mind the Committee has focussed on three key areas regarding the process and legal position of bogus self-employment.

These are: - 1.

Scope section determinations and the remit of the section, 2.

The current legal position of employees in Irish employment law, and 3.

Anti-Victimisation and Current Deterrents.


The Committee examines these issues in more detail in the body of the report and has made 13 recommendations it believes can assist in reducing instances of bogus self-employment going forward.

6 SCOPE SECTION DETERMINATIONS AND THE REMIT OF THE SCOPE SECTION Workers who believe that they have been misclassified as self-employed can seek a determination on their employment status from the Scope section in the Department of Social Protection (the Department).
The Department informed the Committee that determinations are made based on the facts of the individual case with reference to social welfare legislation and the Code of Practice for determining employment or self-employment status of individuals (Code of Practice).

In 2019 the Scope section received 60 requests to determine a worker’s employment status.
If a worker and/or their employer disagrees with the determination reached by the Scope section the decision can be appealed through the Social Welfare Appeals Office (SWAO).

In 2019 the SWAO received 29 such appeals.

If a worker or the employer is not satisfied with the outcome of the appeal, the decision of the SWAO can be appealed to the High Court.

In 2019 the previous Committee was informed that the Code of Practice was due to reviewed and updated.
The Department also stated that the Code of Practice was due to be put on statutory footing.

In 2021 the Department provided the Committee with an update stating that it is continuing the update and revision of the Code of Practice and that it expects that it will be published and placed on statutory footing in late 2021.

The Committee is of the opinion that the time to place the revised Code of Practice on a statutory footing by the end of 2021 must be achieved.

Recommendation: 1.
Recommendation: 1.

The Committee recommends that the Code of Practice for determining employment or self-employment status of individuals and the use of intermediary arrangements, which includes personal service companies and managed service companies, is updated and placed on a statutory footing by the end of 2021 as stated by the Department of Social Protection.
The Committee was made aware of concerns in relation to so-called 'test cases' potentially being used to determine an individual’s employment status by either the Scope section or the Social Welfare Appeals Office (SWAO).

While the Department of Social Protection and the SWAO stated that they do not use such test cases, the Committee is firmly of the opinion that all cases for determination must be treated solely on the merits of each individual case.
The Committee also remains concerned that ‘test cases’ that may have been used previously are still affecting workers that were included in them.

The Committee is of the opinion that the Department should take action to resolve the issue of past legal decisions informing subsequent scope determinations and the impacts they continue to have.
7 The committee is of the view that the various tests/diagnostic tools that have emerged from case law of the superior courts in conjunction with the updated code of practice and the actual circumstances of an individual should be central to deciding a person's employment status.

Recommendation: 2.
Recommendation: 2.

The Committee recommends that the Department of Social Protection runs an advertisement campaign informing the public that they can apply to have their employment status redetermined if they are aware that they were impacted by the use of ‘test cases’ previously.

The Committee also heard from a number of stakeholders that there may be benefits to changing the registration of workers as either employees or self-employed/contractors in the first instance.
Currently, individuals who are registered as self-employed by their employers are responsible for proving that they are in fact working as employees.

The Committee was informed by a number of witnesses that they would be in favour of alternating this practice to require the employer to provide proof that those they are engaging as sub-contractors are not acting in an employee capacity.
While the Committee acknowledges that this would be beneficial to those who are wrongly misclassified as self-employed, it is of the opinion that this type of change warrants further scrutiny.

Recommendation: 3.

The Committee recommends that the Department of Social Protection, in conjunction with the relevant stakeholders, examines whether the registration of individuals as self- employed in the first instance requires greater documentary evidence to be provided by the main contractor or employer.
The Committee was informed that the Workplace Relations Commission may preliminarily determine employment status if a worker is seeking a remedy under employment legislation.

The Department also informed the Committee that the WRC has responsibility for promoting and encouraging compliance with employment legislation.
The Committee heard the opinion from a number of organisations that the WRC could be a better way to determine whether a worker has been correctly classified as self-employed as the WRC examines and determines issues surrounding workers’ rights.

The WRC also has the power to provide adjudication services for disputes in workplace relations.
During discussions the Committee heard from employee representative groups that had taken cases to the WRC on behalf of workers who were misclassified as self-employed while working for sub- 8 contractors on State projects.

The Public Procurement Guidelines for Goods and Services2 state that Contracting Authorities have the discretion to exclude candidates from competing in public procurement competitions if they can demonstrate violations of labour law obligations.
The Committee is of the opinion that WRC adjudications could be used to demonstrate violations of labour law and preclude such companies from the public procurement process in the future.
The Department also informed the Committee that the Department of Social Protection, the Office of the Revenue Commissioners (Revenue) and the Department of Enterprise, Trade and Employment/WRC are already in the process of establishing an interdepartmental group to assess how employment status determination could be streamlined between the three bodies.

The Committee acknowledges that any amalgamation of the individual functions currently carried out by each organisation needs to be carefully considered.
However, the Committee is of the opinion that having a dedicated unit in the WRC to manage and oversee the classification of workers and employees would be the most optimal solution.

Recommendation: 4.

The Committee recommends that a dedicated and appropriately resourced employment status unit is established in the Workplace Relations Commission to examine and provide determinations on employment status cases regardless of whether they relate to social insurance, employment rights or tax obligations.
The Committee was also informed that the Department undertakes both random and targeted inspections.

It also works with the Joint Investigations Unit (JIU) in Revenue, to ensure that workers are correctly classified for PRSI purposes.

Targeted inspections appear to achieve substantial results.

The Committee was informed that a JIU inspection of the construction industry in 2018 resulted in 500 workers being reclassified as employees and €62 million being recovered for the Exchequer.
The Committee was also informed that in quarter four 2019 the Department established the Employment Status Investigations Unit (ESIU) to focus on detecting and investigating false self- employment.

The Department explained that the ESIU proactively targets both employers and specific sectors to determine PRSI compliance.

Areas of employment where the ESIU have carried out inspections include the construction industry, meat processing, retail, fitness and the language training sector.
The Minister for Social Protection stated in the Dáil, in response to a Parliamentary Question (PQ), that since it began its operations the ESIU has recovered approximately €279,000 in PRSI savings.

The Department separately explained that the ESIU is just one aspect of its PRSI 2 Office of Government Procurement – Public Procurement Guidelines for Goods and Services (ogp.gov.ie) 9 compliance activities.
The total amount recovered due to employer inspections more broadly in 2019 was €5.3 million and in 2020 savings of over €1 million were made.

The Committee is also of the opinion that due to the level of information available to Revenue that they are best placed to lead investigations into industries and companies that are at high-risk of engaging in bogus self-employment and that this should be taken into consideration when targets are developed.

Recommendation: 5.
Recommendation: 5.

The Committee recommends that the relevant Departments, in conjunction with the Office of the Revenue Commissioners, develops a target of inspections to be carried out annually to ensure consistent levels of inspection and compliance.

Targets should be developed for each unit that carries out employment investigations.
The Committee is of the opinion that in recognition that the extent of bogus self-employment in Ireland is largely unknown, further work should be done by the Department of Social Protection, in collaboration with the Central Statistics Office and other relevant bodies to establish more structured and consistent data collection on the levels, trends and patterns related to bogus self-employment and to properly identify the scale and scope of the kinds of work in Ireland that engages in bogus self- employment.
The Committee is of the opinion that this work would further support more targeted inspections and facilitate a feedback loop of information between inspections and research and data collection.

Recommendation: 6.

The Committee recommends that the Department of Social Protection, in conjunction with the Central Statistics Office, develops a framework for collecting data on areas of employment where there is a potential or known risk of bogus self-employment in the medium to long-term.
The Committee was informed by some witnesses of Scope cases that can take up to four or five years to be resolved.

The Committee is of the opinion that such timeframes are unacceptable.

10 Recommendation: 7.

The Committee recommends that all applications to the relevant body for classification of employment status receive a decision within six months.
CURRENT EMPLOYMENT LAW The Committee was informed that Ireland has a substantial amount of employment legislation that is designed to protect both workers and employers.

However, the Committee was informed that the words ‘employee’ and ‘worker’ are not consistently applied throughout employment law, leading to different interpretations of these words in different pieces of legislation.

The Committee notes that Ireland is not unique in having no singular definition of these words.
However, while the Committee acknowledges that using consistent definitions of the words ‘employee’ and ‘worker’ throughout employment law would not eliminate bogus self-employment, it is of the opinion that it would allow for consistent applications of each piece of employment legislation.

Recommendation: 8.

The Committee recommends that standard definitions of the words ‘employee’ and ‘worker’ are developed and applied to all pieces of employment legislation.
The Committee was also informed that current employment law is based on ‘employees’ and ‘employers’.

The Committee is concerned that this fails to capture the position of platform workers or workers involved in the gig economy who often do not have a well-defined employment status.
As the Committee understands it, and for the purpose of this report, platform working refers to the practice where an individual who is assumed to be self-employed fulfils a contract of service that they obtain through a digital third-party platform.

The absence of a defined employment status for these workers has implications for social insurance coverage as well as employment protection and income security (for example, minimum wage, sick pay, predictable hours).
The Committee wishes to express its stance that anyone engaged in self-employment, through platform working, the gig economy or in other circumstances must be entitled to minimum payments based on both the Joint Labour and Minimum Wage Agreements.
Given the precarious nature under which platform and gig economy workers currently work, the Committee is of the opinion that these workers must not be excluded or left out of employment rights and legislation and that the law must be robust enough to capture this group of workers.

The Committee is also of the opinion that the Code of Practice must recognise and be 11 applicable to these workers as well.
The Committee acknowledges and welcomes the information provided by the Department that the review of the Code of Practice was partly undertaken to ensure that issues surrounding platform working and the gig economy were addressed.

Recommendations: 9.
Recommendations: 9.

The Committee recommends that in its work to update the Code of Practice for Determining Self-Employment Status, it ensures that the next iteration of the Code of Practice acknowledges, and can be applied to, workers engaged in platform working and the gig economy.

The Committee further recommends that the Department should engage with the relevant stakeholders in developing this update; 10.
If the Department finds that current employment law or the Code of Practice cannot address the specific employment circumstances of platform workers, the Committee recommends that the Department identify other measures through which employment legislation can be applied to platform workers.
ANTI-VICTIMISATION AND CURRENT DETERRENTS The Committee recognises that the number of applications to the Scope section for a determination of employment status remains low, particularly when compared to the estimates of how many workers misclassification potentially effects.

The Committee heard from various employee representatives and groups that many workers fear engaging with the Scope section for fear that they will be ‘blacklisted’ and denied work in their respective industries in the future.
The Department informed the Committee in 2019 that anti-victimisation would form a key part of any future employment legislation and that it was working with the Office of the Attorney General to develop this legislation.
In April 2021 the Department informed the Committee that it is consulting with the Department of Enterprise, Trade and Employment on the development of anti-victimisation provisions for workers who wish to query their employment status and that the availability of an appropriate legislative vehicle will be an important factor in the publication date of such legislation.

However, as this legislation was being explored as early as 2019, the Committee is of the opinion that it must remain a priority.
12 Recommendation: 11.

The Committee recommends that the Department of Social Protection, in conjunction with the Department of Enterprise, Trade and Employment, develops anti-victimisation and blacklisting legislation with the aim of publishing such legislation within six months of receipt of this report.

The Committee also remains concerned that current deterrents are not strong enough to stop prevent employers from intentionally misclassifying workers as self-employed.
The Committee acknowledges that if a worker is reclassified as an employee that their employer is liable to pay the backdated PRSI contributions that they previously avoided.

These are then added to the employee’s contribution record.

The Committee notes that under the Workplace Relations Act 20153 that employer’s found to have wrongly classified someone as self-employed are liable to backdate the PRSI contributions they avoided for a period of six months.
The Committee is of the opinion that avoided PRSI contributions should be backdated by a period of six years as this would act as a stronger deterrent.

Recommendation: 12.

The Committee recommends that the period for employers to pay backdated PRSI contributions that they previously avoided is increased from six months to six years.
That would mean that the Workplace Relations Act 2015 be amended to allow adjudication officers and the Labour Court consider breaches of employment enactments for up to 6 years rather than the generally 6 months.

The Committee is of the opinion that the above recommendations would act as deterrents to employers misclassifying individuals as self-employed.
However, the Committee also acknowledges that these changes would not necessarily make it easier for an individual to request an employment status classification from the scope section, especially without personal support.

The Committee is of the opinion the opinion that that workers can best progress their right under employment and social welfare legislation by exercising their constitutional right to become a member of a trade union.
3 Workplace Relations Act 2015 13 Appendix 1 Committee Membership Deputy Jackie Cahill – Fianna Fáil Deputy Joe Carey - Fine Gael Deputy Marc Ó Cathasaigh – Green Party Deputy Joan Collins - Independent 4 Change Deputy Éamon Ó Cuív – Fianna Fáil Deputy Paul Donnelly – Sinn Féin Deputy Charles Flanagan – Fine Gael Deputy Claire Kerrane – Sinn Féin 14 Deputy Denis Naughten – Independent – Cathaoirleach Senator Paddy Burke – Fine Gael Senator Róisín Garvey – Green Party Senator Paul Gavan – Sinn Fein Senator Eugene Murphy – Fianna Fáil Senator Mark Wall – Labour 15 Appendix 2 Committee Orders of Reference 94.
(1) The Dáil may appoint a Select Committee to consider and, if so permitted, to take evidence upon any Bill, Estimate or matter, and to report its opinion for the information and assistance of the Dáil.

Such motion shall specifically state the orders of reference of the Committee, define the powers devolved upon it, fix the number of members to serve on it, state the quorum, and may appoint a date upon which the Committee shall report back to the Dáil.
(2) It shall be an instruction to each Select Committee that— (a) (b) (c) (d) it may only consider such matters, engage in such activities, exercise such powers and discharge such functions as are specifically authorised under its orders of reference and under Standing Orders; such matters, activities, powers and functions shall be relevant to, and shall arise only in the context of, the preparation of a report to the Dáil; it shall not consider any matter which is being considered, or of which notice has been given of a proposal to consider, by the Joint Committee on Public Petitions in the exercise of its functions under Standing Order 125(1) ¹; and it shall refrain from inquiring into in public session or publishing confidential information regarding any matter if so requested, for stated reasons given in writing, by— (i) a member of the Government or a Minister of State, or (ii) (iii) the principal office-holder of a State body within the responsibility of a Government Department or the principal office-holder of a non-State body which is partly funded by the State, Provided that the Committee may appeal any such request made to the Ceann Comhairle, whose decision shall be final.
(3) It shall be an instruction to all Select Committees to which Bills are referred that they shall ensure that not more than two Select Committees shall meet to consider a Bill on any given day, unless the Dáil, after due notice to the Business Committee by a Chairman of one of the Select Committees concerned, waives this instruction.

16 Scope and Context of Activities of Select Committees 70.
(1) The Seanad may appoint a Select Committee to consider any Bill or matter and to report its opinion for the information and assistance of the Seanad and, in the case of a Bill, whether or not it has amended the Bill.

Such motion shall specifically state the orders of reference of the Committee, define the powers devolved upon it, fix the number of members to serve on it, state the quorum thereof, and may appoint a date upon which the Committee shall report back to the Seanad.
(2) It shall be an instruction to each Select Committee that— (a) (b) (c) (d) it may only consider such matters, engage in such activities, exercise such powers and discharge such functions as are specifically authorised under its orders of reference and under Standing Orders; such matters, activities, powers and functions shall be relevant to, and shall arise only in the context of, the preparation of a report to the Seanad; it shall not consider any matter which is being considered, or of which notice has been given of a proposal to consider, by the Joint Committee on Public Petitions in the exercise of its functions under Standing Order 108 (1) ¹; and it shall refrain from inquiring into in public session or publishing confidential information regarding any matter if so requested, for stated reasons given in writing, by— (i) a member of the Government or a Minister of State, or (ii) the principal office-holder of a State body within the responsibility of a Government Department, or (iii) the principal office-holder of a non-State body which is partly funded by the State, provided that the Committee may appeal any such request made to the Cathaoirleach, whose decision shall be final.
17 Functions of Departmental Select Committees (DSO 95 and SSO 71) 95.
(1) The Dáil may appoint a Departmental Select Committee to consider and, unless otherwise provided for in these Standing Orders or by order, to report to the Dáil on any matter relating to— (a) legislation, policy, governance, expenditure and administration of― (i) a Government Department, and (ii) State bodies within the responsibility of such Department, and (b) the performance of a non-State body in relation to an agreement for the provision of services that it has entered into with any such Government Department or State body.
(2) A Select Committee appointed pursuant to this Standing Order shall also consider such other matters which― (a) (b) stand referred to the Committee by virtue of these Standing Orders or statute law, or shall be referred to the Committee by order of the Dáil.
(3) The principal purpose of Committee consideration of matters of policy, governance, expenditure and administration under paragraph (1) shall be― (a) (b) for the accountability of the relevant Minister or Minister of State, and to assess the performance of the relevant Government Department or of a State body within the responsibility of the relevant Department, in delivering public services while achieving intended outcomes, including value for money.
(4) A Select Committee appointed pursuant to this Standing Order shall not consider any matter relating to accounts audited by, or reports of, the Comptroller and Auditor General unless the Committee of Public Accounts― (a) consents to such consideration, or 18 (b) has reported on such accounts or reports.
(5) A Select Committee appointed pursuant to this Standing Order may be joined with a Select Committee appointed by Seanad Éireann to be and act as a Joint Committee for the purposes of paragraph (1) and such other purposes as may be specified in these Standing Orders or by order of the Dáil: provided that the Joint Committee shall not consider― (a) the Committee Stage of a Bill, (b) Estimates for Public Services, or (c) a proposal contained in a motion for the approval of an international agreement involving a charge upon public funds referred to the Committee by order of the Dáil.
(6) (7) Any report that the Joint Committee proposes to make shall, on adoption by the Joint Committee, be made to both Houses of the Oireachtas.

The Chairman of the Select Committee appointed pursuant to this Standing Order shall also be Chairman of the Joint Committee.
(8) Where a Select Committee proposes to consider― (a) (b) (c) (d) EU draft legislative acts standing referred to the Select Committee under Standing Order 133, including the compliance of such acts with the principle of subsidiarity, other proposals for EU legislation and related policy issues, including programmes and guidelines prepared by the European Commission as a basis of possible legislative action, non-legislative documents published by any EU institution in relation to EU policy matters, or matters listed for consideration on the agenda for meetings of the relevant Council (of Ministers) of the European Union and the outcome of such meetings, the following may be notified accordingly and shall have the right to attend and take part in such consideration without having a right to move motions or amendments or the right to vote: (i) members of the European Parliament elected from constituencies in Ireland, 19 (ii) members of the Irish delegation to the Parliamentary Assembly of the Council of Europe, and (iii) at the invitation of the Committee, other members of the European Parliament.
(9) A Select Committee appointed pursuant to this Standing Order may, in respect of any Ombudsman charged with oversight of public services within the policy remit of the relevant Department consider— (a) (b) such motions relating to the appointment of an Ombudsman as may be referred to the Committee, and such Ombudsman reports laid before either or both Houses of the Oireachtas as the Committee may select: Provided that the provisions of Standing Order 130 apply where the Select Committee has not considered the Ombudsman report, or a portion or portions thereof, within two months (excluding Christmas, Easter or summer recess periods) of the report being laid before either or both Houses of the Oireachtas.
Functions of Departmental Select Committees 71.
(1) The Seanad may appoint a Departmental Select Committee to consider and, unless otherwise provided for in these Standing Orders or by order, to report to the Seanad on any matter relating to— (a) legislation, policy, governance, expenditure and administration of- (i) a Government Department, and (ii) State bodies within the responsibility of such Department, and (b) the performance of a non-State body in relation to an agreement for the provision of services that it has entered into with any such Government Department or State body.
(2) A Select Committee appointed pursuant to this Standing Order shall also consider such other matters which – 20 (a) (b) stand referred to the Committee by virtue of these Standing Orders or statute law, or shall be referred to the Committee by order of the Seanad.
(3) The principal purpose of Committee consideration of matters of policy, governance expenditure and administration under paragraph (1) shall be— (a) for the accountability of the relevant Minister or Minister of State, and (b) to assess the performance of the relevant Government Department or a State body within the responsibility of the relevant Department, in delivering public services while achieving intended outcomes, including value for money.
A Select Committee appointed pursuant to this Standing Order shall not consider any matter (4) relating to accounts audited by, or reports of, the Comptroller and Auditor General unless the Committee of Public Accounts - (a) consents to such consideration, or (b) has reported on such accounts or reports.
5) A Select Committee appointed pursuant to this Standing Order may be joined with a Select Committee appointed by Dáil Éireann to be and act as a Joint Committee for the purposes of paragraph (1) and such other purposes as may be specified in these Standing Orders or by order of the Seanad: provided that the Joint Committee shall not consider- (a) the Committee Stage of a Bill, (b) Estimates for Public Services, or (c) a proposal contained in a motion for the approval of an international agreement involving a charge upon public funds referred to the Committee by order of the Dáil.
Any report that the Joint Committee proposes to make shall, on adoption by the Joint (6) Committee, be made to both Houses of the Oireachtas.

21 The Chairman of a Joint Committee appointed pursuant to this Standing Order shall be a (7) member of Dáil Éireann.
(8) Where a Select Committee proposes to consider– (a) (b) (c) (d) EU draft legislative acts standing referred to the Select Committee under Standing Order 116, including the compliance of such acts with the principle of subsidiarity, other proposals for EU legislation and related policy issues, including programmes and guidelines prepared by the European Commission as a basis of possible legislative action, non-legislative documents published by any EU institution in relation to EU policy matters, or matters listed for consideration on the agenda for meetings of the relevant EC Council (of Ministers) of the European Union and the outcome of such meetings, the following may be notified accordingly and shall have the right to attend and take part in such consideration without having a right to move motions or amendments or the right to vote: (i) members of the European Parliament elected from constituencies in Ireland, (ii) members of the Irish delegation to the Parliamentary Assembly of the Council of Europe, and (iii) at the invitation of the Committee, other members of the European Parliament.
(9) A Select Committee appointed pursuant to this Standing Order may, in respect of any Ombudsman charged with oversight of public services within the policy remit of the relevant Department consider— 22 (a) (b) such motions relating to the appointment of an Ombudsman as may be referred to the Committee, and such Ombudsman reports laid before either or both Houses of the Oireachtas as the Committee may select: Provided that the provisions of Standing Order 113 apply where the Select Committee has not considered the Ombudsman report, or a portion or portions thereof, within two months (excluding Christmas, Easter or summer recess periods) of the report being laid before either or both Houses of the Oireachtas.
Powers of Select Committees (DSO 96 and SSO 72) 96.
Unless the Dáil shall otherwise order, a Committee appointed pursuant to these Standing Orders shall have the following powers: (1) power to invite and receive oral and written evidence and to print and publish from time to time― (a) minutes of such evidence as was heard in public, and (b) such evidence in writing as the Committee thinks fit; (2) power to appoint sub-Committees and to refer to such sub-Committees any matter comprehended by its orders of reference and to delegate any of its powers to such sub- Committees, including power to report directly to the Dáil; (3) power to draft recommendations for legislative change and for new legislation; (4) in relation to any statutory instrument, including those laid or laid in draft before either or both Houses of the Oireachtas, power to― (a) require any Government Department or other concerned to― instrument-making authority (i) submit a memorandum to the Select Committee explaining the statutory instrument, or 23 (ii) attend a meeting of the Select Committee to explain any such statutory instrument: Provided that the authority concerned may decline to attend for reasons given in writing to the Select Committee, which may report thereon to the Dáil, and (b) recommend, where it considers that such action is warranted, that the instrument should be annulled or amended; (5) power to require that a member of the Government or Minister of State shall attend before the Select Committee to discuss― (a) policy, or (b) proposed primary or secondary legislation (prior to such legislation being published).
for which he or she is officially responsible: Provided that a member of the Government or Minister of State may decline to attend for stated reasons given in writing to the Select Committee, which may report thereon to the Dáil: and provided further that a member of the Government or Minister of State may request to attend a meeting of the Select Committee to enable him or her to discuss such policy or proposed legislation.
(6) (7) (8) power to require that a member of the Government or Minister of State shall attend before the Select Committee and provide, in private session if so requested by the attendee, oral briefings in advance of meetings of the relevant EC Council (of Ministers) of the European Union to enable the Select Committee to make known its views: Provided that the Committee may also require such attendance following such meetings; power to require that the Chairperson designate of a body or agency under the aegis of a Department shall, prior to his or her appointment, attend before the Select Committee to discuss his or her strategic priorities for the role; power to require that a member of the Government or Minister of State who is officially responsible for the implementation of an Act shall attend before a Select Committee in relation to the consideration of a report under Standing Order 197; (9) subject to any constraints otherwise prescribed by law, power to require that principal officeholders of a― (a) State body within the responsibility of a Government Department or 24 (b) non-State body which is partly funded by the State, shall attend meetings of the Select Committee, as appropriate, to discuss issues for which they are officially responsible: Provided that such an office-holder may decline to attend for stated reasons given in writing to the Select Committee, which may report thereon to the Dáil; and (10) power to― (a) engage the services of persons with specialist or technical knowledge, to assist it or any of its sub-Committees in considering particular matters; and (b) undertake travel; Provided that the powers under this paragraph are subject to such recommendations as may be made by the Working Group of Committee Chairmen under Standing Order 120(4)(a).
Powers of Select Committees 72.
Unless the Seanad shall otherwise order, a Committee appointed pursuant to these Standing Orders shall have the following powers: (1) power to invite and receive oral and written evidence and to print and publish from time to time – (a) minutes of such evidence as was heard in public, and (b) such evidence in writing as the Committee thinks fit; (2) power to appoint sub-Committees and to refer to such sub-Committees any matter comprehended by its orders of reference and to delegate any of its powers to such sub- Committees, including power to report directly to the Seanad; (3) power to draft recommendations for legislative change and for new legislation; (4) in relation to any statutory instrument, including those laid or laid in draft before either or both Houses of the Oireachtas, power to – 25 (a) require any Government Department or other concerned to – instrument making authority (i) (ii) submit a memorandum to the Select Committee explaining the statutory instrument, or attend a meeting of the Select Committee to explain any such statutory instrument: provided that the authority concerned may decline to attend for reasons given in writing to the Select Committee, which may report thereon to the Seanad, and (b) recommend, where it considers that such action is warranted, that the instrument should be annulled or amended; (5) power to require that a member of the Government or Minister of State shall attend before the Select Committee to discuss– (a) policy, or (b) proposed primary or secondary legislation (prior to such legislation being published), for which he or she is officially responsible: provided that a member of the Government or Minister of State may decline to attend for stated reasons given in writing to the Select Committee, which may report thereon to the Seanad: and provided further that a member of the Government or Minister of State may request to attend a meeting of the Select Committee to enable him or her to discuss such policy or proposed legislation.
power to require that a member of the Government or Minister of State shall attend before the Select Committee and provide, in private session if so requested by the attendee, oral briefings in advance of meetings of the relevant EC Council (of Ministers) of the European Union to enable the Select Committee to make known its views: Provided that the Committee may also require such attendance following such meetings; power to require that the Chairperson designate of a body or agency under the aegis of a Department shall, prior to his or her appointment, attend before the Select Committee to discuss his or her strategic priorities for the role; power to require that a member of the Government or Minister of State who is officially responsible for the implementation of an Act shall attend before a Select Committee in relation to the consideration of a report under Standing Order 168; (6) (7) (8) 26 (9) subject to any constraints otherwise prescribed by law, power to require that principal office-holders of a – (a) State body within the responsibility of a Government Department, or (b) non-State body which is partly funded by the State, shall attend meetings of the Select Committee, as appropriate, to discuss issues for which they are officially responsible: Provided that such an office-holder may decline to attend for stated reasons given in writing to the Select Committee, which may report thereon to the Seanad; and (10) power to- (a) engage the services of persons with specialist or technical knowledge, to assist it or any of its sub-Committees in considering particular matters; and (b) undertake travel; Provided that the powers under this paragraph are subject to such recommendations as may be made by the Working Group of Committee Chairmen under Standing Order 107(4)(a).
27 Appendix 3 Witnesses The following witnesses engaged with the former Joint Committee on Employment Affairs and Social Protection: - 8 NOVEMBER 2018 Department of Employment Affairs and Social Protection Ms Patricia Murphy Mr Seán Reilly Mr. Dermot Sheridan Mr. Jim Lynch Mr. Christopher McCamley 31 JANUARY 2019 Irish Congress of Trade Unions Ms Patricia King Mr. Billy Wall Assistant Secretary General – HR, Facilities & Estates Management, Employment Rights Policy, PRSI Policy & the Scope Section Principal Officer – PRSI Policy, Scope Section & PRSI Refunds Principal Officer – Employment Rights Policy Divisional Manager, Mid-West Division Assistant Principal Officer – Scope Section & PRSI Refunds General Secretary Chair of the Congress Construction Industry Committee SIPTU Ms Karan O’Loughlin Divisional Organiser National Union of Journalists Mr. Seamus Dooley Irish Secretary 28 Fórsa Mr. Brendan O’Hanlon Assistant General Secretary 14 FEBRUARY 2019 National University of Ireland Maynooth Prof. Michael Doherty Professor of Law 28 MARCH 2019 Construction Industry Federation Ms Jean Winters Director - Industrial Relations and Employment Services Mr. Conor O’Connell Regional Director Ibec Ms Maeve McElwee Ms Rhona Murphy 20 JUNE 2019 Director – Employer Relations Head of Employment Law Services Irish Airline Pilots Association Mr. Evan Cullen President 29 UNITE Regional Officer Regional Organiser Branch Secretary – English language Teachers’ Branch UNITE Mr. Thomas Fitzgerald Mr. Robert Kelly Ms Colette Godkin 24 OCTOBER 2019 Mr. Martin McMahon 5 DECEMBER 2019 Department of Employment Affairs and Social Protection Mr. Tim Duggan Ms Clare Dowling Assistant Secretary General Principal Officer Social Welfare Appeals Office Ms Joan Gordon Mr. Brian Duff Chief Appeals Officer Deputy Chief Appeals Officer 30 Appendix 4 Links to Meeting Transcripts The following links are to the engagements the previous Joint Committee on Employment Affairs and Social Protection held on the topic of Bogus Self-Employment: - 1.
8 November 2018, 2.

31 January 2019, 3.

14 February 2019, 4.

28 March 2019, 5.

20 June 2019, 6.

24 October 2019, and 7.

5 December 2019.
31 Appendix 5 Submissions received from Stakeholders on a Draft Report Circulated before Publication MS JEAN WINTERS, DIRECTOR, CONSTRUCTION INDUSTRY FEDERATION 32 33 34 35 36 MS JOAN GORDON, CHIEF APPEALS OFFICER, SOCIAL WELFARE APPEALS OFFICE 37 38 MR. TIM DUGGAN, ASSISTANT SECRETARY GENERAL, DEPARTMENT OF SOCIAL PROTECTION 39 40 41 42 43 MR. MARTIN MCMAHON 44 MR. MARTIN MCMAHON 45 46 47 48 49 50 51 52 53 54 PROFESSOR MICHAEL DOHERTY, MAYNOOTH UNIVERSITY 55 PROFESSOR MICHAEL DOHERTY, MAYNOOTH UNIVERSITY 56 57 MS PATRICIA KING, GENERAL SECRETARY, IRISH CONGRESS OF TRADE UNIONS 58 59 UNITE THE UNION April 2021 Unite response to draft report examining Bogus Self-Employment prepared by Joint Committee on Social Protection, Community and Rural Development and the Islands Unite welcomes the opportunity to respond to the Committee’s draft report examining bogus self- employment.
As we noted in our statement to the Committee in 2019, bogus self-employment is part of the larger phenomenon of precariousness – a phenomenon which will inevitably increase with the growth of the so-called ‘gig’ economy, or platform economy.
Bogus self-employment is not only about employers or contractors seeking to avoid social insurance payments, although that is a major contributing factor, but it is also a tool used by employers to maximise flexibility in the utilisation of inputs, putting labour on a par with parts, tools, equipment and materials.

The practice also undermines collectivism – since the worker is no longer part of a workforce, but instead an atomised individual provider of labour.
In Unite’s experience some employers also use bogus self-employment and other precarious forms of employment as part of an aggressive union-avoidance policy.

Bogus self-employment distorts those economic sectors where it is practised to the detriment of workers, compliant employers and the Exchequer.
In addition, the non-payment of employer’s PRSI – and the resultant loss of monies to the social insurance fund as well as the diminution of workers’ social insurance entitlements – effectively externalises a portion of non-compliant employers’ business costs to both individual workers and society as a whole.
With regard to the emergence of ‘platform’ or ‘gig’ working, the European Trade Union Confederation has highlighted the unequal power relationships in precarious working relationships – an inequality that goes well beyond the inequality implicit in all employment relationships: “The progression of platform work can be linked to the development of self-employment and non- standard employment relationships.
A European initiative should therefore focus on the protection of all non-standard workers and workers in platform companies (including the self-employed), because a musician, a delivery man, a journalist or a cleaner are in the same situation.

They are similar vis-à-vis: their "order giver"; the absence of or incomplete social protection; the difficulties to organise themselves and bargain collectively; and the inability to enforce their right to a decent income.
Whether one is an employee, an autonomous or a (bogus) self-employed worker, one does not set the 60 rules of the game, neither with a traditional employer nor with the market.

They are workers who have no real possibility of claiming their rights otherwise they will not be called back the next day”4.
As we emerge from the Covid-19 pandemic, addressing bogus self-employment and precarious employment, and ensuring that all workers have full access to employment rights and social insurance protections, is crucial to ensuring a sustainable recovery.

1.

The Committee recommends that the Code of Practice for Determining Self-Employment Status is updated and placed on a statutory footing, as stated by the Department of Social Protection, without delay.

Unite welcomes this draft recommendation.


The process of putting the non-statutory ’Code of Practice’ on a statutory footing must of necessity encompass the important legal principles set out in court judgments, many of which seem to be ignored in individual Appeals Panel decisions.

Unite further argues that we be given an opportunity to input into the new Statutory Code of Practice.
Also we note that the Code currently does not take account of new forms of bogus self-employment such as platform work (as indeed noted by the Committee when discussing Recommendations 8 and 9).

This needs to be addressed in the formulation of the Statutory Code of Practice which must be regularly reviewed and updated.

2.
2.

The Committee recommends that the Department of Social Protection considers extending the remit of the Scope section to determine whether the misclassification of a worker was intentional and that these findings be recorded and published annually.

3.
3.

The Committee recommends that, if the remit of the Scope section cannot be extended to adjudicate on such matters, the Department of Social Protection, in conjunction with the relevant bodies, considers removing PRSI classification determinations from the Scope section and transferring those functions to the Workplace Relations Commission.

4.
4.

The Committee recommends that the Department of Social Protection, in conjunction with the Office of the Revenue Commissioners, develops a target of inspections to be carried out annually to ensure consistent levels of inspection and compliance.

Targets should be developed for each unit that carries out employment investigations.
Recommendations (2), (3) and (4) relate to the same issues: which statutory authority or authorities should be given responsibility for ensuring that workers are not misclassified.

It should be noted at the outset that Unite is concerned that employers are able to use the defence of ‘unintentional’ misclassification.

4 European Trade Union Confederation.

ETUC Resolution on the protection of the rights of non-standard workers and workers in platform companies (including the self-employed).
Accessed 7 April 2021. https://www.etuc.org/en/document/etuc-resolution-protection-rights-non-standard-workers-and-workers- platform-companies 61 At present three agencies are involved in matters relating to bogus self-employment: The Scope section of the Department of Social Protection, which is seriously under-resourced; the Workplace Relations Commission; and the new Employment Status Investigation Unit.
In 2015, the National Employment Rights Authority was merged into the Workplace Relations Commission established to streamline Ireland’s industrial relations system.

When the WRC was established the then Employment Minister Richard Bruton said it would replace a system which he correctly described as “characterised by forum-shopping, overlapping claims, delays, and a high degree of formality that often worked against early and easy resolution of claims”5.
Notwithstanding the establishment of the WRC over five years later matters relating to bogus self- employment are dealt with by different bodies – Scope, the WRC (which currently decides upon both the preliminary and substantive issues of employment and a worker’s status) and the ESIU – and significant delays can arise in determining a case.
Therefore, Unite proposes that the in-house investigation, on-site inspection and adjudication functions relating to employment status currently carried out by these three bodies be merged into one well-resourced statutory unit under the auspices of the WRC, consistent with the enactment of the Statutory Code of Practice.

This would mean that workers would have access to one point of contact to assess whether or not their rights have been breached and to provide remedies in real time.
Unite argues that this would not only be easier to access for workers, but would also result in cost savings due to streamlining and the elimination of duplication.

These savings should be invested in increased investigation and inspection resources.

In addition to these efficiency savings a well-resourced unit would be in a position to recoup significant monies.
In his report6 published in September 2018, the Controller and Auditor General noted that, in 2017, the Joint Investigation Unit (for which staff are drawn from the Department of Social Protection’s Special Investigation Unit, Revenue’s own Joint Investigations Unit, and the Workplace Relations Commission) initiated a campaign specifically focused on the construction sector, resulting in €60.2 million being recovered by the Revenue Commissioners and nearly 500 subcontractors reclassified as employees.
It is reasonable to assume that this represented just the tip of a non-compliance iceberg, and that a dedicated, well-resourced unit as proposed above would be able to recoup significant more monies – which in itself would deter employers from engaging in abusive practices.

Consideration should also 5 Workplace Relations Commission.

Bruton launches new era for employment rights and industrial relations.

1 October 2015.
1 October 2015.

Accessed 7 April 2021 https://www.workplacerelations.ie/en/news- media/workplace_relations_notices/bruton_launches_new_era_for_employment_rights_and_industrial_relati ons.html 6 Comptroller and Auditor General, Report on the Accounts of the Public Services 2017.

September 2018.
September 2018.

Accessed 7 April 2021. https://www.audit.gov.ie/en/find- report/publications/report%20on%20the%20accounts%20of%20the%20public%20services/report-on-the- accounts-of-the-public-services-2017.pdf 62 be given to levying employers found to be in breach with a set percentage of any award made to a worker by the WRC, with the monies thus raised to be ring-fenced for the integrated unit.
Such a body should provide accessible information in a range of languages, bearing in mind that migrant workers are especially vulnerable to labour abuses.

5.

The Committee recommends that the Department of Social Protection, in conjunction with the Central Statistics Office, develops a framework for collecting data and data publishing on areas of employment where there is a potential or known risk of bogus self-employment in the medium to long-term.

Unite welcomes this draft recommendation.


Unions have significant on-the-ground knowledge of the areas where bogus self-employment is a current, emerging or potential issue, and should therefore be afforded an opportunity to input into the data collection framework.

6.

The Committee recommends that all applicants to the Scope section for classification of employment status receive a decision within six months.

See our response and recommendation at (4) above.

7.
7.

The Committee recommends that a standard definition of the word ‘employee’ is developed and applied to all pieces of employment legislation.

Unite strongly welcomes this recommendation and further notes that there also needs to be a uniform definition of the term ‘worker’.

These definitions should be set out in the Statutory Code of Practice.
Employment status in Ireland currently flows from the legal difference between a contract of employment (known as a 'contract of service') and a contract for services.

A contract of employment applies to an employee-employer relationship.

A contract for services applies in the case of an independent or self-employed contractor.
In this regard, the ETUC has noted that “The presumption of an employment relationship is closely linked to the definition of worker, which is essential for the application of national labour legislation and for the national social partners to conclude collective agreements on employment and working conditions, while taking into account the general principles of the union legislation and case law established by the Court of Justice of the European Union.
Based on this assumption a reversal of burden of proof is needed.

Criteria should be based on ECJ decisions, or the California test or ILO conventions”7.

Unite argued in our original submission, and reiterates now, to the Committee that an employment relationship should be presumed to exist unless it can be proven otherwise: hence, the burden of proof in the event of a disputed relationship must be on the employer, rather than on the worker.

7 European Trade Union Confederation.


ETUC Resolution on the protection of the rights of non-standard workers and workers in platform companies (including the self-employed).

Accessed 7 April 2021. https://www.etuc.org/en/document/etuc-resolution-protection-rights-non-standard-workers-and-workers- platform-companies 63 8.
The Committee recommends that in its work to update the Code of Practice for Determining Self- Employment Status, it ensures that the next iteration of the Code acknowledges, and can be applied to, workers engaged in platform working and the gig economy; 9.
If the Department finds that current Employment law or the Code of Practice cannot address the specific employment circumstances of platform workers, the Committee recommends that the Department identify other measures through which employment legislation can be applied to platform workers.

Unite believes that the legal tests and principles needed to determine the difference between a ‘Contract of Service’ and a ‘Contract for Services’ are already set out in a variety of judgments of the higher courts.
As set out at point 4, what is required now is a Statutory Code of Practice encompassing these tests and principles with determinations henceforth being made by a properly resourced specific unit of the Workplace Relations Commission (WRC).

10.

The Committee recommends that the Department of Social Protection continues to develop anti- victimisation legislation with the aim of publishing such legislation by September 2021.
Unite supports this recommendation and notes that victimisation can take the form of blacklisting by one employer or by a group of employers acting collectively and even across whole sectors.

Unite regularly represent workers subject to sector-wide blacklisting.

In this regard we note anti-blacklisting regulations were introduced in the UK in 2010 and extended to Northern Ireland in 2014.
Unite argues that specific anti-blacklisting legislation (as opposed to simple anti-victimisation legislation) should also be introduced in Ireland but that we should learn from the experience in the UK and Northern Ireland and ensure that such regulations - • Grant an automatic right to compensation for any worker who discovers that they have been • blacklisted; and Ensure that, where a blacklist is found to have operated, workers have an automatic right to be informed of their inclusion on such a blacklist.
11.

The Committee recommends that the Department of Social Protection examines whether there is potential to develop a penalty system for employers that intentionally misclassify workers as self- employed.

As noted above, Unite is concerned that employers should not be able to resort to a defence of ‘unintentional action’.

We would also note that a penalty system would require primary or secondary legislation, which could prove cumbersome.
Instead, Unite argues that one effective deterrent would be to change the current time limitation periods for filing statutory employment claims, including claims in respect of bogus self-employment.

Generally, the current time limit is six months which may be extended by the WRC for another six months in certain circumstances – still significantly less than the various time limits provided for in the 1957 Statute of Limitations.

The cognisable period (i.e.


the retrospective period to which a claim filed relates) is also six months in most cases.

64 Unite strongly argues that the limitation periods applicable to breaches of employment law should be no less than those applicable to other areas of contract law, which can have retrospection of up to six years.
Such changes would have no adverse implications for good employers but would act as a deterrent to poor employers and would help improve overall employment standards to the benefit not only of workers but also of compliant employers.

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