Ibec Director of Employer Relations, Maeve McElwee said: “This crude, disproportionate, proposed Bill has significant adverse consequences which very few people would want. It would deprive employees and employers of the ability to make their own flexible working arrangements and to adapt to change collaboratively.
“The proposed Bill represents a punitive piece of legislation that goes far beyond its intended purpose of protecting workers with low pay/low hour contracts. The result creates a significant cost and administrative burden for the majority of employers who should not fall within the scope of the legislative proposals.”
Amongst the negative consequences arising from the proposed Bill are:
- Legislating for banded hours would have very negative effects for employers across all sectors, not least due to the disproportionate cost and administrative burden incurred in determining the average weekly hours worked by every employee, including salaried employees.
- It would pose particular obstacles to health and social care, where it can be difficult to reasonably know the work requirement within the short timeframes proposed for providing core terms.
- The prospect that failure to comply, could quickly give rise to prosecution of a criminal offence is of grave concern to employers.
In May 2017 the Government approved draft legislative proposals brought forward by then Minister for Jobs, Enterprise and Innovation, Mary Mitchell O’Connor TD, and then Minister for Employment and Small Business, Pat Breen TD, in response to the commitment in the Programme for Government to address problems caused by a perceived increased casualisation of work and to strengthen the regulation of precarious work. The draft proposals were approved by the Minister for Jobs, Enterprise and Innovation and sent to the Attorney General’s Office for priority drafting of a Bill.
Based on the draft proposals, it is anticipated that the Employment (Miscellaneous Provisions) Bill to address zero hour contracts, low hour contracts and banded hours may feature:
- A requirement that employers inform employees in writing, within 5 days of the commencement of their employment, of five core terms of their employment, including what the employer reasonably expects the length of the employee's working day and week will be;
- The creation of a new offence for the failure of an employer to provide the required statement within one month of the commencement of employment;
- Introducing a minimum payment for low paid employees who are required to report for work but who are not provided with the expected hours of work. The proposals would introduce a minimum payment of three times the national minimum wage, or three times the minimum rate set down in an employment regulation order for the relevant employment sector;
- Prohibiting zero hours contracts, except in cases of genuine casual work, emergency cover, or short-term relief work for the employer;
- Amending Section 18 of the Organisation of Working Time Act 1997 to remove reference to ‘zero hours working practices’, and to provide that an employer will no longer be able to engage an employee on a contract for a certain number of hours, where the stated contractual hours are zero;
- Ensuring that employees on low hour contracts who consistently work more hours each week than provided for in their contract of employment will be entitled to be placed in a band of hours that reflects the reality of the hours that they have worked over an extended period;
- The creation of a new right for employees to be placed in a band of hours that reflects the actual hours worked over a given reference period of 18 months. The 18 month reference period is intended to allow for normal fluctuations in working hours due to seasonal or other factors. Under the proposals, an employee will be able to refer a complaint to the Workplace Relations Commission as against his or her employer with a view to being placed in the appropriate band of hours.
- The introduction of protections from penalisation for employees who exercise their rights under the proposed legislation.