Senator Gen Nash and Andy Smith Deputy General Secretary of BATU.
Andy Smith attended the launch of the Protection of Employment Bill 2017,
the bill is intended to address the issue of Bogus Self-Employment.
BATU along with the other Construction Unions fully support this bill.
Bogus Self-Employment is not just a scourge in the construction industry, it also effects workers in the Media, Agriculture, Teaching and other occupations.
BATU will continue to Fight Bogus Self-Employment, we will not accept any worker been treated as a Second Class Citizen with less Rights than their other Workers.
Please support this bill by encouraging your local TDs and Senators to support it.
PROTECTION OF EMPLOYMENT (MEASURES TO COUNTER FALSE SELF-EMPLOYMENT) BILL 2017
1. Application of Act
2. Employment relationship: interpretation
3. Employment relationship: a status relationship governed by law
4. False self-employment
5. Employment via intermediary (e.g., personal service company)
6. Application of general anti-avoidance rule to false self-employment
8. Short title
ACTS REFERRED TO
Protection of Employees (Temporary Agency Work) Act 2012 (No. 13)
Social Welfare Acts
Taxes Consolidation Act 1997 (No. 39)
PROTECTION OF EMPLOYMENT (MEASURES TO COUNTER FALSE SELF-EMPLOYMENT) BILL 2017
An Act to declare the relationship between employer and employee to be a status relationship, to declare the question whether an individual is an employee or is self-employed to be a question of law to be independently determined, to provide that the description given by the parties shall not be conclusive in determining the true status of an employment relationship, to provide protection for persons who are retained to carry out work and are incorrectly not designated as employees, to take certain measures to counter the misrepresentation of the status of employees as if they were working under a contract for services rather than a contract of service, and to provide for related matters.
Be it enacted by the Oireachtas as follows:
Application of Act
1. Except in so far as the contrary intention appears in another enactment, this Act applies to the construction and application of every enactment and rule of law pursuant to which the existence of an employment relationship falls to be determined including, without prejudice to the generality of the foregoing, enactments and rules of law relating to tax, social welfare and social insurance.
Employment relationship: interpretation
2. (1) Subject to subsections (3) and (4), where an individual enters into or works under –
(a) a contract of service or apprenticeship with a person, or
(b) any other contract whereby the individual agrees with a person personally to execute any work or service,
an employment relationship exists between the individual and that person; and “contract of employment”, “employee” and “employer” shall be construed accordingly.
(2) Subsection (1) applies whether the contract concerned is made before or after the passing of this Act, is express or implied and, if express, whether oral or written.
(3) Where an individual agrees personally to execute any work or service for a person whose status by virtue of the contract is that of a client or customer of a profession or business undertaking being carried on by the individual on his or her own account, an employment relationship does not, by virtue of that contract only, exist between them.
(4) Where an individual agrees with an employment agency, within the meaning of the section 2 of the Protection of Employees (Temporary Agency Work) Act 2012, personally to execute any work or service for another person (whether or not that other person is a party to the contract), the employer of the individual shall be established in accordance with that Act.
(5) Where an individual executes work or service for a person under a contract, there may be an employment relationship between them notwithstanding that –
(a) the individual is an employee also of other persons,
(b) the individual is also, in respect of other work being done by him or her, self-employed,
(c) the individual works as an outworker or teleworker,
(d) the individual does part-time work, temporary work, seasonal work or occasional work,
(e) the remuneration of the individual is calculated by reference to the amount of work actually done, or
(f) the hours of work or remuneration of the individual are otherwise uncertain.
Employment relationship: a status relationship governed by law
3. (1) The employment relationship is a status relationship; the creation, continuance, termination and other incidents of the relationship are accordingly governed by law, and not purely by agreement between the parties.
(2) Where an individual executes work or service for another person under a contract, the question as to whether an employment relationship exists is a question of law, to be determined objectively having regard to the true nature of the relationship.
(3) Without prejudice to the generality of subsection (2), for the purposes of determining whether an employment relationship exists:
(a) regard shall be had to all the circumstances of the case and to the substance, rather than the form, of the arrangements under which the individual works;
(b) an agreement purporting to define or govern the individual’s employment status, or to evidence the belief or intention of the individual or of other persons in relation to that status, shall not be conclusive; and
(c) any perceived advantage or disadvantage to a party or parties arising from the determination, in relation to –
(i) liability to tax or to social insurance contributions, or
(ii) the applicability of enactments or rules of law for the protection of employees,
shall, save to the extent that it may provide a motive for misrepresenting the nature of the agreement, be disregarded.
4. (1) Without prejudice to the generality of section 3, for the purposes of determining whether an employment relationship exists, an individual who –
(a) executes for another person under a contract (whether express or implied and if express, whether orally or in writing), the same work or service as an employee of the other person would do,
(b) has a relationship of subordination in relation to the other person for the duration of the contractual relationship,
(c) is required to follow the instructions of the other person regarding the time, place and content of his or her work,
(d) does not share in the other person’s commercial risk,
(e) has no independence as regards the determination of the time schedule, place and manner of performing the tasks assigned to him or her, and
(f) for the duration of the contractual relationship, forms an integral part of the other person’s undertaking,
shall, notwithstanding –
(i) any belief or intention, or
(ii) any decision, transaction, course of action or conduct or arrangement,
by or of any of the persons concerned, be determined to be an employee.
(2) Subsection (1) is indicative but not exhaustive of the circumstances in which it may be determined that an employment relationship exists.
Employment via intermediary (e.g., personal service company)
5. (1) In applying the provisions of this Act to the question as to whether an individual who personally executes any work or service for a person is an employee of that person or is self-employed, the fact that the agreement under which the individual works is made between the person and a third person may, if the functions of the third person in relation to the arrangement are matters of form only and not of substance, be disregarded.
(2) Subsection (1) does not apply to an agreement whereby an individual agrees with an employment agency within the meaning of section 2 of the Protection of Employees (Temporary Agency Work) Act 2012 personally to execute any work or service for a third person.
Application of general anti-avoidance rule to false self-employment
6. (1) The Revenue Commissioners may form the opinion that a transaction, course of action or conduct or arrangement which is calculated to misrepresent any work or service as being executed under a contract for services, rather than a contract of service, is a tax avoidance transaction within the meaning and for the purposes of sections 811, 811A, 811B, 811C and 811D of the Taxes Consolidation Act 1997.
(2) For the purposes of subsection (1) –
(a) employment contributions by employed contributors and by employers to the Social Insurance Fund, and self-employment contributions to that Fund, shall be included within the definition of “tax” in section 811C (1) (a), and
(b) the Social Welfare Acts shall be included within the definition of “the Acts” in that section.
(3) Subsection (2) does not apply to contributions to the Social Insurance Fund which were paid or were payable in respect of work done prior to the passing of this Act.
7. (1) An individual who is party to a contract under which work or service is executed for a person, or a trade union of which the individual is a member, with the consent of the individual, may refer a dispute as to whether an employment relationship exists to the Director General of the Workplace Relations Commission.
(2) Where a dispute is referred under subsection (1), it shall be treated as a dispute referred under section 41 of the Workplace Relations Act 2015 and Part 4 of that Act shall, with any necessary modifications, apply accordingly.
(2) A decision on a dispute referred under subsection (1) shall do one or more of the following, namely –
(a) declare that an employment relationship exists or, as the case may be, does not exist,
(b) require an employer to take a specified course of action (including making any necessary adjustment to the employee’s terms and conditions of employment, or to tax and social insurance arrangements made by the employer in relation to the employee), or
(c) require an employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration in respect of the employee’s employment.
(3) This section does not prevent any court or tribunal from applying this Act to the circumstances of a case before that court or tribunal.
8. This Act may be cited as the Protection of Employment (Measures to Counter False Self-Employment) Act 2017.