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Flawed legislation must cover dodgy 'if and when' contracts- Nash

13 February 2018

Statement by Senator Ged Nash
Spokesperson on Employment and Social Protection

New legislation aimed at improving conditions for thousands of workers in precarious employment is flawed because it fails to cover dodgy ‘if & when’ contracts.

Speaking ahead of the Dáil debate on the government’s Employment (Miscellaneous Provisions) Bill 2017, Labour’s Employment Affairs & Social Protection spokesperson Senator Ged Nash explained:

“Working with an expert team from the University of Limerick in 2014 and 2015, we identified a relatively new and dubious form of precarious work; the so-called ‘if & when’ contract.

“This long awaited Bill has much to recommend it. However, it is a matter of enormous concern that it entirely sidesteps the ‘if & when’ phenomenon.

“The key difference between a zero hours contract and an ‘if & when’ arrangement is that in the case of zero hours, the employee is contractually required to be ‘on call’. The employer is then obliged to pay a certain amount to the employee for the time they are on call, even if they are not called in to perform duties.

“This contrasts starkly with the experience of an ‘if & when’ worker where it is made clear that the employee may be offered work, ‘if & when’ it is available, but that they are under no obligation to accept that work. In these cases, the employer is not obliged to offer any work at all, or to pay any compensation for hours that may have been spent on call.

“Without some ongoing mutuality of obligation between employer and employee, the law takes the view that there is no enduring contract of any description in place.

“This means that ‘if & when’ workers will not be classed as employees under the Government Bill and will therefore be unable to access any of the remedies in the Bill, to give them more certainty over their working hours and more security in terms of their incomes. 

“Without urgent amendment, the growth of insidious ‘if & when’ arrangements will increasingly become the precarious contract of choice for bad employers. And ‘if & when’ workers in areas like retail, hospitality, social care and education will continue to be treated merely as casual workers with few rights and entitlements, trapped in a spiral of low paid and insecure work, without hope and unable to plan their lives from one end of the week to the next.”

Senator Nash continued: “The Labour Party proposes to amend this Bill to include casual employment carried out on a regular and systematic basis, where the worker has a reasonable expectation of an ongoing, regular and consistent pattern of employment by the same employer.

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

“In addition, we will propose amendments to narrow the bands of hours into which workers can be placed under the legislation, and to reduce the lengthy 18 month reference or ‘look back’ period to 13 months from 18 months as proposed by the Government.”