Labour law September 22, 2017
Posted by Tomboktu in Employment Rights, Labour relations.add a comment
A while ago, in an e-mail conversation with a barrister acquaintance of mine, the question was asked about what the longest act in Irish law is. He did whatever barristers do with their legal databases and came back with two answers: the Taxes Consolidation Act 1997 or the Companies Act 2014, depending on how you measured the length of an act. The main metrics he cited were the number of sections in the act and the number of pages. And, he added, you could get a different answer if you included the schedules in acts. The tax law has 1,104 sections and the companies one has 1,448 sections. A third possibility I would have suggested before he checked is the social welfare legislation — a quick check on the Internet tells me the current main piece of legislation is the Social Welfare Consolidation Act 2005 — but it’s a minnow in comparison: 364 sections.
Of course, today none of these is a standalone act any more. Each of them has accrued deletions, insertions, and rewordings as amending legislation has been passed over the years. But each has a ‘core’ document that you need to start with you have reason to check something.
I was reminded of that fact when I saw the RTÉ headline about a bill on zero-hour contracts. The areas of tax, companies, and social welfare are each complicated systems, but despite the diversity of internal pieces — for instance: income tax, transactions on land, capital gains tax, farming and market gardening, profit sharing schemes, etc. — each constitutes enough of a whole, of parts that belong together, for our governments over the years to put the law on each of them into a single, albeit lengthy, act.
Not so that system which affects the daily lives of the bulk of people in the State: paid labour. It’s not that we don’t have labour laws — we do, but they’re scattered and piecemeal, with separate, standalone acts for each micro-issue: one act for part-time work, another act for fixed-term work, and yet another for working time; one basic act on the establishment of trade unions, and a different act governing how they exercise their roles in society and the economy. (The act that governs wages? Which aspect: payment of, national minimum, agricultural, for merchant seamen?)
There are plenty of laws on paid work. In fact, a schedule in the Workplace Relations Act lists 20 other acts as “Employment Enactments” (and a series of other acts that contain pieces within them that are regarded as part of the corpus of “employment enactments”).
There would be challenges in collating all of the provisions in the scatter of acts (and regulations implementing EU employment laws) into a single document. It would bring to the surface diverging concepts and applications. For example, there are at least four different provisions on victimisation or penalisation — and both terms are used, although the basic concept is the same — with details on the content that differ in a way that does not seem to be based on any underlying logic. But a more fundamental problem is that despite its heft, our employment law is not intended to be a creative or constructive system that defines and sets the boundaries on the key institution of paid labour for an employer. Rather, it is a hodge-podge of responses to problems that have not merely arisen with paid labour, but which have also then been named and recognised — with struggles and violence, as the early history of trade unions demonstrates. No, the problem with labour law is its starting assumption. Deep in the bowels of the philosophy underpinning employment law is a fiction that employment contracts are contracts between equals and that employment laws are needed only to regulate the bits that have ‘gone wrong’ (and have been proven to have gone wrong). Putting all of the sticking plasters for those ills in one act might reveal just how frail that underlying philosophy is.
Not quite the Department for Employment Affairs August 21, 2017
Posted by Tomboktu in Business, Employment Rights.1 comment so far
In few days, on 2 September, the Department of Jobs, Enterprise and Innovation will officially become the Department of Business, Enterprise and Innovation (PDF here).
The day before that, on 1 September, the ‘labour affairs and labour law’ brief will transfer to the Department of Social Protection (which will become the Department of Employment Affairs and Social Protection (PDF here)).
Well, that’s what the title of the Order signed by the Taoiseach says, but not quite what it does.
The Order has an appendix that lists the pieces of legislation for which responsibility will transfer from the Department of Jobs, Enterprise and Innovation to the Department of Social Protection:
- Minimum Notice and Terms of Employment Acts 1973 to 2005
- Protection of Employment Acts 1977 to 2014
- Payment of Wages Act 1991
- Terms of Employment (Information) Acts 1994 to 2014
- Organisation of Working Time Act 1997
- National Minimum Wage Act 2000
- Protection of Employees (Part-time Work) Act 2001
- Protection of Employees (Fixed-term Work) Act 2003
- Protection of Employment (Exceptional Collective Redundancies and Related Matters) Act 2007
- Protection of Employees (Temporary Agency Work) Act 2012
This is not all of the law that governs employment and the workplace.
If you want to talk about the ethos and values underpinning Ireland’s approach to workers’ employment rights, then the Industrial Relations Acts 1946 to 2015 and the Trade Union Acts 1871 to 1990 are important. It is those acts that operationalise the minimalist respect for collective bargaining and trade union rights we have in Irish law (though the Supreme Court has a lot to answer for, too), so maybe it shouldn’t be a surprise that somebody drafting the transfer of functions thought it best that they should remain the responsibility of the soon-to-be Department of Business, Enterprise and Innovation.
And despite the seemingly impressive list of employment legislation that is transferring to the new Department Employment Affairs and Social Protection, there’s a catch in the small print. The enforcement of a workers’ rights under those acts is governed by complicated ‘call out’ clauses in those acts that invoke another piece of legislation, the Workplace Relations Act 2015. Quelle suprise: responsibility for its operation remains with the Department of Business, Enterprise and Innovation.
The state agencies to protect workers’ rights set up under Workplace Relations Act are the Workplace Relations Commission and the Labour Court, and in fairness, that act does ensure that they are independent of the department and minister of the day when exercising their quasi-judicial functions when a legal complaint is made by a worker. But the new set up will mean that the department charged with supporting business will retain control of the decisions on the annual budget and the staffing of the body responsible for protecting workers’ rights. And the inspection function that the WRC inherited from the National Employment Rights Agency is not governed by the same quasi-judicial standards on independence.
Finally, along with the backroom say in the operation of the enforcement of workers’ rights, the department will retain its lead role in a few other laws setting out important workers’ rights:
- Safety, Health and Welfare at Work Acts 2005 and 2014
- Employment Equality Acts 1998 to 2015
- Unfair Dismissals Act 1977
- Worker Participation (State Enterprises) Acts 1977 to 2001
- Employees (Provision of Information and Consultation) Act 2006
So, the department that is dropping the reference to employment in its title will keep a grip on the key powers and state agencies governing worker’s rights, while the department getting ‘Employment Affairs’ in its title will take on responsibility for, um, what exactly?
A list that was mentioned in the Dáil November 18, 2014
Posted by Tomboktu in Business, Employment Rights, Uncategorized, Workers Rights.1 comment so far
Looking through the Committee stage debate in the Dáil on the Workplace Relations Bill earlier this month, I came across the following contribution to the debate by the Minister for Jobs, Enterprise and Innovation. Your task, should you choose to accept it, is to identify which category of people intimately associated with a company is missing from the list in the second sentence.
Those remarks were part of a response to an amendment proposed by Sinn Féin’s Peadar Tóibín. He had support on the point from Fianna Fáil’s Dara Calleary:
Often, company law does not respect the fact that people work in companies.
Tóibín followed that with a broader observation:
Often, we get to a position like this and the Minister will go as far as to say that he understands there is a problem but this is simply not the place to sort it out. We had similar debates when discussing the Companies Bill, and we were told then that it was not the right place to sort it out. Most likely, I will bring in legislation to amend the Companies Bill to deal with this issue if we are not successful here. Perhaps the Minister might indicate his openness – I understand he cannot make a promise based on something he has not seen – to tackle this issue of the corporate veil.
Two things strike me as interesting about the Minister’s response to this issue. First, after over three years in his second stint as Minister in the relevant department (and two and a half years in essentially the same department in the 1990s and I don’t know how long as spokesperson when in opposition), he said:
I am not an expert in the field.
The second striking feature of his explanation is that he came back to the following point on why he would not accept Tóibín’s amendment:
The legal advice is very strongly against it.
And stopped at that. He did not summarise that legal advice or explain what the legal problem is. Parliament, when making laws, should have all the legal information it needs to understand barriers it faces in making those laws. Unfortunately, neither Tóibín not Calleary pushed him on what the legal problem is, although Tóibín did indicate that he is looking to introduce a bill to deal with the problem.
JobBridge and union discipline June 10, 2014
Posted by Tomboktu in Austerity, Employment Rights, Trade Unions.6 comments
An interesting item in the June 2014 issue of In Touch, the magazine of the Irish National Teachers’ Organisation (INTO), available to read online here.
On page 9, we have the following:
JobBridge Directive
Following extensive consultation with members and discussions at an INTO Branch and District Officers’ Conference on 12 November 2011, the CEC decided at a meeting on 17 November 2011 not to support the JobBridge National Internship Scheme for graduates. The scheme is viewed by INTO as being exploitative of newly qualified teachers.
The union backed that up with a Directive to members “not to participate in the JobBridge National Internship Scheme”.
The article does not clarify what the union means by “participate”. But it has caused problems within the union.
Since May 2013, 28 complaints against 22 members have been received and have/are being processed under Rule 104 and 105 of the INTO Rules and Constitution. These complaints have all been made by members alleging that an identified INTO member breached the INTO directive. In all cases, concilliation was unsuccessfully attempted to bring about a resolution of the matter.
When it was originally issued, that Directive led to queries, and in August 2013 the union’s
CEC confirmed its view to district secretaries […] that the INTO directive on JobBridge applies only to teaching positions within a school, but included posts advertised with other titles that were clearly designed to recruit a qualified primary teacher to a teaching poition.
It is not a good position for a union to be in to have 22 members, even in a large union like the INTO, undergoing a disciplinary process.
What the article does not provide information on is whether the 22 are newly qualified teachers who are alleged to have taken up JobBridge placements or are others such as school principals who are alleged to have recruited or facilitated the recruitment of qualiied teachers into JobBridge placements, or a combination of both.
It would be interesting to see if the directive could have any bite and provide the basis for the union to take legal indistrial action.
Would you want to set up FairPhone? January 14, 2014
Posted by Tomboktu in Choice, Community, Employment Rights, Environment, Ethics, FairPhone, Human Rights, Technology, Workers Rights.5 comments
Who in their right mind would want to set up FairPhone? Obviously you can check out their site to find out who actually did set it up as a Dutch social enterprise, but would you want to?
Park, for a moment, the ‘fair’ bit and think about what is involved setting up a company to make a new smartphone. Smartphones are complex products, with chips, capacitors, resistors, glass, sensors, casings, displays, batteries, cameras, speakers, antennae, sockets and other bits and pieces that I don’t know about. And you’d need software. You would also need to design all of this, or get people to do that for you, and to set up or find a factory to make it.
If you did do it, you would be going into a market with big brands like Samsung, iPhone, Sony, Nokia, HTC, and so on, so you would need a pretty strong selling point to attract customers from the products offered by those heavy-hitters.
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FairPhone June 11, 2013
Posted by Tomboktu in Community, Economics, Employment Rights, Environment, Ethics, Human Rights, Technology.add a comment
[WorldByStorm suggested today that I move this up from a comment to a full post. I’ve uodated it because the time reference in the original is now out of date.]
Last year, I mentioned (in passing) that when I when I first bought a mobile phone, I made a point of buying from a telecoms company that recognises their workers’ union. I did not mention then that I had also done some research to see if I could buy a model that reflected my concerns — where the minerals are from, or union recognition for the people who make the actual phone.
So, I was pleased to see fairphone.com opened their new phone to pre-purchase.
On June 5 they hit their target of 5000 orders in order to go into production, and there are two days left to order one of the first batch.
And at the weekend just gone, they were working on aspects of the design their second phone.
The ethos is summed up in the invitation to the group of designers who participated in that workshop:
FairPhone was created because most people have no idea where the component parts of their mobile phone come from, how they are manufactured, and by whom. Bas: “Mobile phones are part and parcel of a complex economic and political system. We want to make this system visible to everyone. We do that by manufacturing the FairPhone, which unravels that system step by step.”
They recongise that their product is far from perfect — the rights of the workers is not secured through union recognition — but it’s better than any other phone I know of. Worth a look, I would suggest.