Author Archives: Martin McMahon

Further to yesterday’s exposé of the tax system available for the ‘self-employed…

…another painful diagnosis.

Martin McMahon writes:

Employed or Self-Employed, that is the question for GPs following the Government’ promise to provide free GP care for all at source.

The contract between individual GPs and the State for the provision of medical services labels all such GPs as self-employed.

The Revenue Commissioners have long known that insurability of employment (employed or self-employed) decisions are based on established facts, not assumptions and as such there is no basis for categorisations purely by occupation.

Each case is assessed on it’s own merit in accordance with the general precedents of Irish Law. Operations which seem to be the same, may differ in the actual terms and conditions in any given case. Job title does not define employment status.

The financial implications for the State are substantial.

In the event of a successful application, a ‘Demand Notice’ will issue from the Department of Social Protection to the Health Service Executive to collect the arrears of PRSI contributions due (employee and employer).

If the employer, in this case the HSE, fails to pay up, then the HSE must be pursued by the Department. The Department of Social Protection will credit the contributions to the employee and therefore entitlements to benefits will be secured.

This would mean restoration of contributions to the initial date of employment and immediate entitlement to the relevant benefits in accordance with normal employee conditions.

The Supreme Court has given a definitive judgement on the appropriate test to be applied in determining whether any individual is employed under a contract of services or a contract for services.

The decision concerned is Henry Denny & Sons (Ireland) Limited -v- The Minister for Social Welfare (1988) and indeed the Supreme Court followed that judgement in Tierney -v- An Post (2000).

In the Henry Denny case, Keane J, as he then was, considered firstly how the distinction had formally been drawn up by reference to the degree of control which was exercised by one party over the other in the performance of the work but noted that the fundamental test to be applied is whether the person who was engaged to perform the services is performing them as a person in business on his/her own account.

Keane J said at page 50 of the judgement that, while each case was to be determined in light of its particular facts and circumstances, in general a person will be regarded as providing his or her services under a contract of service and not as an independent contractor where he or she is providing those services for another person and not for himself/herself.The degree of control exercised over how the work is to be performed, although a factor to be taken into account, is not decisive.

It is noteworthy that in the Denny case the contract between the parties was in writing and was drafted with considerable care with a view to ensuring that the punitive employee was regarded in law as an Independent Contractor.

Nevertheless, both the High Court and the Supreme Court confirmed that the person was in fact an employee.

It was not the written contract which determined employment status but instead in the second judgement in the Denny case delivered in the Supreme Court, Murphy J gave implicit approval to the examination of the reality of the relationship to determine it’s true legal import.

Many features of the GMS contract are more in line with a contract of service rather than a contract for service. GPs must render personal service, work set hours and are subject to a great deal of control and direction.

Although convoluted systems are in place for holiday and sick pay, essentially GPs are not free to hire a substitute of their own choosing at a price decided independently between the substitute and the GP, all of which would not normally be the case for self employed persons.

On the substantive issue of being in business on their own account, the contract system restricts competition between GP practices.

The GMS system favours existing GP practices and protects them from competition from newly-qualified GPs. It reduces the number of GP practices available to patients, by creating unnecessary barriers to entry.

Changes in the GMS contract cannot take place without the agreement of the Irish Medical Organisation.

This includes agreement on payments made to GPs under the GMS. Such collective negotiations by “undertakings” on fees are prohibited by Section 4 of the Competition Act 2002 and by Article 101 of the Treaty on the Functioning of the European Union.

The prohibition on collective negotiations is there to protect consumers and the State from concerted practices by independent businesses which could result in them (ie. consumers and/or the State) paying higher prices than necessary for their purchases. In the current instance, its purpose is to protect the State from paying excess prices for GP services purchased by the HSE.

The restrictions on competition arising out of the GMS system affect both private patients and public patients.

Both public and private patients have fewer GP practices to choose from and there is less pressure on GP practices to compete on price for private patients and to be innovative in the service they provide. The impact of the GMS on private patients is often overlooked.

It is assumed that “the market” will take care of them. This ignores the fact that the market for private patients is itself significantly affected by the operation of the GMS.

The GMS system impacts directly on the commercial behaviour of almost every GP practice in the State, affecting decisions on where GPs locate, the number of GP practices established, the nature of such practices and the profitability of individual practices.

This in turn affects the provision of services for private patients and indirectly influences the price GPs charge private patients. The GMS contract severely restricts the ability of a GP to offer his/her services concurrently to others or to profit from sound management or scheduling.

The HSE has placed a self-employed label on all GPs. Misclassification is often the result of cost-cutting measures instituted by employers at the expense of their employees.

Misclassified employees lose workplace protections, including the right to join a union; Maternity leave; face an increased tax burden; receive no overtime pay; and may have no recourse for workplace injury violations and disability-related disputes.

Misclassification also causes government to suffer substantial revenue losses as employers circumvent their tax obligations.

Strange that employment status of GPs doesn’t feature at all in the Oireachtas Committee on the Future of Healthcare report.

Martin blogs at RamshornRepublic

Yesterday: Self Employment is Not Working

Choose early rising,
Choose welfare despising,
Choose busting your hump,
For a decreasing lump,
Choose rent over food,
Choose ‘not in the mood’,
Choose scared to get sick,
‘Cause the boss is a prick,
Choose ‘it’s the position redundant’,
When they lay off your soul,
Early risers in Clerys,
What a kick in the hole,
Choose loyalty to master,
He’ll fire you faster,
Choose loans for students,
So fiscally prudent,
To keep them in hoc,
Servants to bankers,
Slaves to the clock,
Choose fleeing this kip,
On a one way trip,
Like millions before you,
This country abhors you,
Choose lying in piss,
On trolley or list,
Your gaff they will steal,
And call it Fair Deal,
Choose knowing but lying,
Early mornings don’t matter,
Your toil kills you quicker,
To make the 1% fatter.

Martin McMahon

Martin blogs at Ramshorne Republic.

Pic: Louise McSharry

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Above From left: Shane Cassells, Damien English, Seán Boylan, Paeder Tobin and John McCallister at the ‘Meath for Unity’ debate last night

A funny thing happened at the Meath For Unity debate…

Martin McMahon writes:

Last evening I attended a ‘Meath for Unity‘ debate in the Newgrange Hotel Navan chaired by Meath GAA legend Seán Boylan. The debate on the issue of Irish unity was organised by Peadar Toibin TD with guest speakers Shane Cassells TD, Junior Minister Damien English and special guest John McCallister former Ulster Unionist Party Member of the Legislative Assembly.

Sean kicked off proceedings with an account of his own personal experiences of north/south relations during his career. Shane followed with a historical context. Damien stressed the importance of consent beyond a 50% + 1 majority for unification. Peadar was excellent with facts, figures and the potential benefits for the Island as a whole should unification occur. John was brutally honest in his view that unification was a distant second for the unionist community behind the more pressing issue of Brexit.

The debate was then thrown open to the floor. Questions about Ireland in the Commonwealth were raised and answered. The need for more private business growth was stressed by Peadar.

I listened with interest to all the questions raised and answered. I was lucky enough to ask the final question. It wasn’t a premeditated question, it had occurred to me while listening to John and trying to see the situation from his perspective. I asked Damien:

“How can we be seen as a country for all the people of Ireland when Fine Gael gift the National Maternity Hospital to a Holy Order?”

The question genuinely electrified the room. Most recognised my effort to look beyond our own insular view of the situation but a sizable group became immediately irate and accused me of ‘Ambushing the Minister’.

It was not my intent to ambush Damien. For me it was the kind of nitty gritty question which would have massive ramifications if we are ever to reach a position where unification is a workable possibility.

Much to the anger of the majority of those present, Damien avoided the question by saying that it was a good deal with which doctors agreed and that we should all read the agreement (I have).

The palpable anger in the room at Damien’s non-answer does not bode well for Fine Gael. The issue of the National Maternity Hospital’s ownership is vital not only for women and their families, it has implications far beyond our current borders and is pivotal in how we in the south are perceived by our northern brethren.

The anger at grassroots level as to how the ownership of the National Maternity Hospital has been handled by Fine Gael is a very bad omen for Fine Gael. I have no doubt that when it comes to election time, the ‘little free stater’ attitude they have displayed on this issue will come back to bite them in a very big way.

The ownership of the National Maternity Hospital is not exclusively a south of Ireland issue, the world is watching, our neighbours are watching, Fine Gael has failed to realise that they are on a bigger stage, a possibility of unification stage.

Martin blogs at RamshornRepublic

Pics via Meath4Unity

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Irish Water protest, O’Connell Street, Dublin 1 in August 2015

This Saturday, April 8, the Sinister Fringers are at it again.

But will you join the Walk of Shame?

Martin McMahon writes:

That rabble, that great unwashed and of course those dirty Dubs will take to the streets on Saturday to crow their victory over us good law abiding citizens.

It’s almost as if they don’t know that removing water costs from central taxation and giving the gains away in tax cuts to top earners like us is good for them too. When us rich folks have more money in our pockets, we occasionally drop a few coppers into the grubby outstretched hand of some homeless serf, everybody wins.

When the charges were first introduced the fringers complained that bills in excess of 600 were ‘too high’, I ask you, really? The price of one nice evening at the theatre with dinner afterwards is ‘too high’ a price for them to pay so that we can cut our top rate tax? Pull the other one!

Out of the goodness of our hearts, we agreed to cap the charges at 260 until all the proles were paying before we’d up it over a grand and they still weren’t happy!

Two hundred and focking sixty euro people, that’s 1 bottle of half decent wine, just drink something cheaper for a night, problem solved. Enda was wrong to give an inch to those whingers, should have locked the whole lot of them up.

Now that we’ve ensured  a white collar only jury, that rabble rouser Murphy will get his comeuppance, the naivety of the hard left to think they’d get a fair trail in this country, Anglo friends stick together suckers.

It’s the country people I feel sorry for, forced to live in 6 bedroom mansions on sprawling lawns, they’ve been paying for water forever. Although forcing water charges on the sinister fringers won’t change the need for wells and septic tanks for our less fortunate country cousins, it will make them feel better to see the proles hammered into the ground, fair’s fair.

I hope they choke on their ‘Walk of Shame’, how dare they stand up to us. Why can’t they get it through their thick heads that they don’t matter, their votes don’t matter,

I know exactly where I and those like me won’t be on Saturday April 8th, we won’t be at Connolly or Heuston stations at 2pm.

Martin blogs at RamshornRepublic

Rollingnews

Earlier: A Tide In The Affairs Of Men

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tobin2cluid

From top Fine Gael Meath County Councillor Alan Tobin; Clúid social housing in Meath

The prospect of new social housing in Ashbourne, County Meath is a hoodie-filled horror, warns a Fine Gael councillor.

Ashbourne resident Martin McMahon begs to differ.

Martin writes

Almost a year ago, Fine Gael councillor Alan Tobin, incurred the wrath of dog owners world wide when he announced the erection of signs in Ashbourne, County Meath warning of “Dangerous Breeds of Dogs”.

Barely chastened by that experience, Alan has launched his latest campaign, this time to warn us ‘Snowflake’ Asbournians about “Dangerous Breeds of Human”.

Alan was triggered by the announcement of a new development of 67 houses. The houses are being built in an estate which will be managed by the Clúid Housing Agency with tenants coming from the Meath County Council housing list. Clúid Housing is the largest housing association in Ireland, delivering 155 homes to date in Meath.

Clúid Housing spokesperson Lucinda Murrihy said

“Meath County Council informed us of the need for affordable housing in the area, and supported us in achieving the funding. We conducted a sustainable development audit, as per the Department’s requirements, and all stakeholders agreed that the proposed scheme would be an excellent addition to the local community.”

Clúid are working closely with Meath County Council to ensure a positive mix of tenure; including older people, families, single people, and people with disabilities

In a piece to the Meath Chronicle Alan presented his apocalyptic vision of what was to come:

“In 10 years time, will this estate in Archerstown, Ashbourne next to Ashbourne Golf Club and White Ash Park be an additional no-go area riddled with drugs, burnt out cars, high levels of state dependency and crime?”

In his self-promotional leaflet delivered to Ashbourne Residents this week, Alan answered his own question with:

“Estates similar to this one in Dublin and elsewhere in Meath have proved to encourage unemployment black spots, antisocial behaviour and a ‘them and us’ mentality that we do not want to promote in Ashbourne”

Contrary to this hick hiding behind a haystack with pitchfork in hand yelling “Strangers a comin'” image of Ashbourne evoked by Alan’s fears, Ashbourne is a great place.

We are a hugely diverse community.

My neighbours and friends hark from places as far scattered as Dublin, Thailand, Estonia, Poland, America and on and on. In a very short period, our community has grown from a sleepy village to a substantial stand alone Town fifteen minutes from the M50.

There are already about 3,000 houses in Ashbourne, 67 more beside the golf club won’t tip us over into Armageddon.

There is no ‘them and us’ area in Ashbourne, you can walk through anywhere you want at any time you want, without fear.

You won’t meet a boy with a banjo on the way in, you’ll meet a solid welcoming community, so come on over, we’re happy to have you.

Martin blogs at RamshornRepublic