Additional legal protections for casual and temporary workers proposed
On 2 May 2017, the government approved proposals for draft legislation to increase the employment protections for casual and temporary workers. This follows a commitment in the Programme for Government to address the increased casualisation of work and to strengthen the regulation of precarious work.The CIPD in Ireland welcomes the recognition that additional protection is needed for low paid workers in precarious employment, but is concerned about the way the proposals can increase the administrative burden and costs on employers and hence impact job creation.
The draft proposals are far-reaching and aim to legislate on employment contracts, the removal of zero hour contracts, a minimum payment for low hours work, and increase access to a contractual commitment to higher banded hours. While these changes are stated to be targeted at low-paid workers, they go beyond this and will have impact on all future employment relationships, with the need to give employment contracts within 5 days of commencing employment and prohibiting zero hours contracts.
The CIPD understands the following are the main points of the proposals.
1 Providing basic employment contracts in the first week of employment
Under the new proposals, employers would have to inform employees in writing, within five days of commencement of employment, of the following five core terms of employment:
- The full name of the employer and employee
- The address of the employer
- The expected duration of the contract (where the contract is temporary or (fixed-term)
- The rate of method of calculating pay
- What the employer reasonably expects the normal length of the employee's working day and week will be
This will cause a significant added administrative burden especially on small employers who depend on a single professional to produce such documents. An employer will still be required to give the current 15 terms of employment to employees within the current two month period. In essence, to avoid duplication of effort, it will be in the interest of both HR and employees to apply good practice and provide such details in advance of, or on the first day of the employment relationship, and hence avoid the proposed new offences.
2 Increasing minimum payments to those on minimum wage when called in to work but not provided with minimum work
It is intended to introduce a floor payment for low-paid workers who are called into work and then sent home. Under the proposals, there will be a new minimum floor payment, of three times the national minimum wage or three times the minimum rate set down in an Employment Regulation Order (ERO), to compensate workers if they are called in to work but do not receive the expected hours of work.
It is unclear what is expected to happen where individuals have agreed mutually convenient contracts for less than three continuous hours, and this needs to be clarified. CIPD research in the UK has found that there are a cohort of part time employees who opt to work low hours, and these need to be catered for.
3 Prohibiting zero hours contracts in most circumstances
It is intended to delete the phrase 'zero hours practice' from the title of Section 18 of the Organisation of Working Time Act 1997. The proposals will provide that an employer will no longer be able to engage an employee on a contract within the meaning of Section18(1)(a) or 18(1)(c) where the stated contracted hours are zero, unless it is genuinely casual work, emergency cover or short-term relief work.
4 Entitlement to move from a low hour contract to a band of hours that reflects the hours worked
The proposals provide for the creation of a new right for an employee, whose contract of employment does not reflect the reality of the hours worked on a consistent basis. After a reference period of 18 months, employees will be able to request and be placed in a band of hours that better reflects the actual hours worked over that period. This aims to provide a truer reflection of an individual’s working hours and improve the predictability of both hours of work and earnings. The reference period of 18 months is designed to allow for normal peaks and troughs, including seasonal fluctuations.
This provision will not apply to an employer who has entered into a banded hour arrangement following collective bargaining with their employees. Redress will be through the Workplace Relations Commission (WRC) but limited to being placed in an appropriate band of hours.
5 Strengthen the anti-victimisation provisions for employees who try to invoke a right under these proposals
It is intended to provide protection for employees against an employer penalising or threatening to penalise them for exercising their rights under the proposed legislation.
The proposals follow the 2015 University of Limerick report on the prevalence of zero hour and low hour contracts and their impact on employees. They have also been the subject of a dialogue process by the Department of Jobs, Enterprise and Employment with ICTU and Ibec over a number of months.
The proposals will now be referred to the Office of the Attorney General for priority drafting of a Bill.
Further information is available on the Department’s website.