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- Developments

Further proposals to criminalise for the misclassification of workers

The private members Bill the Organisation of Working Time (Workers’ Rights and Bogus Self Employment (Amendment) Bill 2019 has been published. The purpose of this bill is to amend the Organisation of Working Time Act 1997 with the aim of bringing the Garda Síochána, Defence Forces, and doctors in training under the protection of the Act. The Bill also aims to “..limit the race to the bottom on workers rights by extending elements of the Act to the self-employed.”

The most significant amendment to the Act will be the insertion of section 8, which had previously governed inspectors but has subsequently been repealed to the Workplace Relations Act 2015. The proposed Section 8A. (1) as drafted sets out that an employment relationship cannot be avoided by drafting contracts that do not accord the reality of the relationship. Section 8A. (2) goes on to outline a number of factors to be considered when assessing the type of working relationship that exists between two parties.

Section 8A. (3) sets out factors that will be considered when determining the existence of a contract of employment. This is quite an extraordinary feet as determining whether a worker is an employee or self-employed has been a contentious issue before the courts for many years. The Supreme Court have commented in a vast majority of decisions on this issue that every case is to be determined on its own facts. The identifying factors outlined in this Bill to determine whether a contract is a contract of employment have been determined to be merely nothing more than guidelines by the Courts, and the relevance depends on the overall facts of each case.  However, this Bill will change the status of these factors.

The Bill proposes that misclassification of a worker as a self-employed individual by any person, then that person will be guilty of an offence under this Act and will be liable for a “summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or both”. It is also noteworthy that it is proposed that an individual that reports a suspected occurrence of subsection 4 to a trade union, Revenue or to the Department of Social protected shall be afforded the same protections as those of a protected disclosure.

This proposed Bill is a second attempt to criminalise employers for misclassification of employees and contractors. There had been a similar clause proposed in the Miscellaneous Provisions Bill 2019 but it was removed before enactment. The criminalisation of Employers for miscategorising employment contracts in the proposed manner may act as a further deterrent for new companies to set up in Ireland.

Link: https://www.oireachtas.ie/en/bills/bill/2019/40/

28th June 2019

Anne O’Connell
Solicitors
Fitzwilliam Hall
Fitzwilliam Place
Dublin 2
www.aocsolicitors.ie

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