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New legislation silent on 'if & when' contracts

7 December 2017

Statement by Senator Ged Nash
Spokesperson on Employment and Social Protection

Senator Ged Nash has warned that new legislation published today by Minister Regina Doherty may not in fact cover the phenomenon of ‘if & when’ contracts.

Senator Nash said:

“During the process I initiated with the University of Limerick, a new and dubious form of precarious work was identified, the so-called “if & when” contract.

“This type of working arrangement sees employers offer work if and when they have it available, and workers can then supposedly accept or refuse the offer of work. The key point is that there is no obligation on either the employer to offer work or on the employee to take on the work.

“When there is no ‘mutuality of obligation’, the law takes the view that there is no enduring contract of service. This means that the worker does not have the status, or any of the rights and entitlements, of an employee. People working under contracts like these are being told that they are in effect casual day workers.

“Imposing such terms and conditions on the vulnerable, the low paid and those with little social protection is unacceptable. They are put at risk of job insecurity, limited integration in the business, low motivation, low job satisfaction and entrapment in a succession of short-term, low quality jobs with little or no social protection. Erratic pay like this produces massive insecurity and it is entirely destructive of any attempt to plan your finances, to plan a future for yourself and for your family.

“These are perverse arrangements, aimed at downgrading the status of employment, which occur at the extreme edge of our suite of employment laws.

“But today’s Bill, which we are told has been designed to ensure greater certainty over hours and security and stability in terms of income, willapply only to employees who have worked under contract for at least 18 months. This of itself is a major improvement to the status quo and is a very welcome development.

“But the new legislation entirely dodges the question of ‘if & when’ contracts and how such workers are to be treated. It seems that, for most workers trapped in the ‘if & 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.

"While many of the proposals contained in this legislation are welcome and draw heavily from the recommendations I made in late 2015, there is a significant gap that needs to be filled. I will be tabling amendments to the legislation in the New Year in order to address this problem.

"I will propose that, where a period of employment has to be calculated, casual work should be included in the calculations if the casual worker was employed on a regular and systematic basis and if, during the period of service, the worker had a reasonable expectation of on-going employment by the same employer, on a regular and systematic basis.

"The law must have regard to basic facts of working life such as whether the employee was offered work regularly, whether the employee generally accepted work when it was offered and whether, although the amount of work offered might vary, there was a pattern or system to the work offered each week.

"In addition, I will propose amendments to narrow the bands of hours in which workers can be placed under this legislation, and to reduce the 18 month reference period which I consider to be far too long."