The road to bogus self employment.
Martin McMahon continues his expose of the biggest scam Irish tax history.
Part 1 here.
The Courier was represented by a union who provided their own legal team. The courier had lost his job and could not afford to engage representation of his own. 48 hours before the resumed hearing the union had informed the courier that their Barrister was the first cousin of the Manager named in the Social Welfare Inspector’s Report.
That Manager was not at the reconvened hearing. The courier had been notified by the SWAO that he would be fined for non appearance. This Barrister’s Legal Submission broadly followed the Minister’s Legal Submission.
The Appeals Officer dismissed the INS1 forms as ‘not particularly instructive‘ and then instructed the Social Welfare Inspector to read his (falsified) report aloud which he did.
An attempt was made by the Barrister for the courier company to introduce what he called a ‘Written Contract’. Upon examination, it turned out that it wasn’t a written contract. It was a single page ‘Application Form’ the courier had been required to fill out when he joined the company. It asked for his name, address, previous employments and RSI number.
This page had been stapled to the bottom of an extensive contract which the courier had never seen. The Barrister claimed that it was a mistake and withdrew the contract. An account of this is contained in a subsequent ‘Attendance Docket’ written by one of the solicitors present:
“(Barrister for the Courier Company) produced a ‘Contract/Application Form’ which were pinned together, together with a covering sheet. (Opposing Barrister) pointed out that the document produced was never given to (The Courier) and he only got one single page, and that was the reason he signed it. (Courier Company Barrister) made a big deal of the fact that he had signed one page of it and not the other. The effect was that it looked like a complete contract which had been furnished to all couriers, which clearly was not the case. (Barrister for the Courier Company) conceded this.”
And that was it. The Appeal lasted 4 hours. No new evidence was presented. The false written contract the Courier Company attempted to introduce was exposed as a fake and despite being told that they were required to provide Grounds of Appeal in the hearing by the Appeals Officer, the Courier Company never did.
To Hell or the High Court
On June 5, 2001 the Social Welfare Appeals Office issued its first decision:
“I consider that the courier here is employed under a contract of services (employee). As indicated, the circumstances her of the engagement of (courier) by the appellant company are more in keeping with a contract of services (employee) rather than of an employer and employee one. Consequently on the evidence and in law the appeal succeeds.”
Not just once but twice in the Appeals Office decision it says the courier is Contract of Service (employee) and still the appeal is allowed and the courier is classified as self-employed.
Following a telephone call from the courier to the Social Welfare Appeals Office protesting this contradictory decision, another decision is issued on 11 June. This decision repeats word for word that the courier is an employee and that the appeal is allowed.
On June 13, a letter was sent to the courier from the SWAO, it stated:
“Due to a typing error …. the decision sent to you was incorrect”
This time the decision stated that the courier was ‘Contract For Service’ (self employed). The Appeals Officer, a civil servant, then cited both the Denny case AND the McAuliffe case as rationalization for his decision.
On June 29, Solicitors who had been present in the SWAO hearing wrote to the Chief Appeals Officer:
“We are most surprised at the decision reached by Appeals Officer in this case. No new evidence was presented by the Appellant. It is quite clear, that the effect of the decision of the Supreme Court in the Denny case in 1988, when applied to the facts of the (individual courier) case, leads to but one conclusion:- that (the courier) was directly employed by the (Courier Company) on a Contract of Service”
This letter not only represented the views of the Union legal representatives, but also the views of the Minister of Social, Community and Family Affairs Legal representatives.
The Social Welfare Appeals Office refused to budge. It didn’t care what the Supreme Court had ruled, the ruling from the Kangaroo Court overruled the Supreme Court. Policy Direction would forever more supersede Applicable Law in the Social Welfare Appeals Office.
All evidence would be ignored, and the SWAO would always support the employer thus forcing the punitive employee to the High Court to defend the employment status decision made by SCOPE. The High Court is not a financially viable option for any ordinary worker. The cost involved are prohibitive.
The courier did pursue a separate case with the Employment Appeals Tribunal for ‘Constructive Dismissal’ by the employer. The case was heard over 3 full days starting on 23 October 2001.
The Courier Company was legally represented, the courier was not. In 2002, the EAT ruled unanimously that the courier was an employee and that he had been constructively dismissed for seeking an ‘Insurability of Employment’ decision from SCOPE (It is worth noting that the Chairperson of the EAT is a Senior Counsel, not a Civil Servant appointed by and serving at the pleasure of the Minister for Social Welfare) :
“At the outset the Tribunal must determine as a preliminary issue whether or not the claimant was an employee as defined in the Unfair Dismissals 1977 to 1993. The claimant claimed to be such. It is contended on behalf of the respondent that the claimant was a self-employed contractor.
In arriving at its decision the Tribunal has given careful consideration to the evidence tendered on behalf of the claimant and the respondent in this case and it has given consideration to the documentation adduced in evidence.
In examining this preliminary issue the Tribunal has carefully considered the established tests enunciated by the courts which have emerged over the years and the Tribunal has considered these tests in the context of the particular circumstances of this case.
Having given such consideration it is the finding of the Tribunal that the respondent company exercised a significant degree of control over the claimant while he was engaged as a motor cycle courier. It is the view of the Tribunal having regard to the evidence given that there was very little opportunity for the claimant to operate “on his own” while operating as a courier for the respondent.
We also consider significant the fact that the rate set per delivery was set essentially by the respondent company. In relation to the risk and profit factors the Tribunal finds that in the course of his work the claimant carried little or no risk. In particular he was not required to have insurance for the goods he carried. It is also clear from the evidence adduced that the claimant had no opportunity to profit from the venture upon which he was engaged.
While the case is being made that the claimant could earn as much or as little as he liked the reality of the case was that the claimant worked a full day almost every day at a rate set by the respondent company. In this the claimant was no different to a piece work employee.
We are therefore satisfied that the claimant was not in business on his own account. It is on this basis and on the basis that the decision in McAuliffe was based on a different set of facts that we distinguish the present case from the learned judgement of the High Court in McAuliffe –v- the Minister for Social Welfare.
In conclusion therefore and having regard to the totality of the evidence in this case and the realities of the working relationship as found by the Tribunal, the Tribunal unanimously finds that the claimant was employed under contract of service and therefore was an employee within the meaning of the Unfair Dismissals Act 1977 to 1993.
The Tribunal therefore determines that it has jurisdiction to deal with the claimant’s alleged unfair dismissal.
As previously set out dismissal as a fact was in issue between the parties. The claimant has set out in evidence the factors which he says left him no option but to leave his employment with the respondent. While the Tribunal heard evidence from the respondent’s General Manager the latter, while stating that it was not the policy of the respondent to abuse or intimidate any worker, was not in a position to counter the claimant’s evidence with regard to other personnel.
While the Tribunal accepts that the reduction in the claimant’s income did largely arise because of certain circumstances beyond the respondent’s control the Tribunal is nevertheless satisfied that the working relationship between the claimant and the respondent did deteriorate following the claimant’s decision to make application to the Department of Social Community & Family Affairs for an insurability decision.
On balance therefore the Tribunal is satisfied that it was his realisation on the 4th January 2001 of the un-sustainability of the working relationship that prompted his leaving the respondent’s employment and not the offer of other work. Accordingly, the Tribunal determines that the claimant was constructively dismissed on the 4th January 2001 which dismissal we find to be unfair for the purposes of the Unfair Dismissals Act 1977 to 1993″
It was in the Employment Appeals Tribunal that the Manager named in the Social Welfare Inspector’s falsified Report finally got to speak. He vehemently denied ever meeting or speaking to the Social Welfare Inspector, he was fully supported in this by the Courier Company’s legal representatives.
The Chairperson of the Employment Appeals Tribunal commented that the Department of Social, Community and Family Affairs should have to answer for this but were not present in the EAT.
This EAT decision was later overturned in the Circuit Court on a point of Jurisdiction. Unless and until the Social Welfare Appeals Office decision was overturned in the High Court, that decision had supremacy over the EAT decision.
It is to Hell or the High Court to challenge the Kangaroo Court edict with a guarantee that the Scope evidence will be so tainted by other Dept. of Social Welfare employees that a fair hearing in the High Court is impossible.
Recipients of State Expenditure
Last week, during a Dail debate on Employment Rights Deputy Richard Boyd Barrett referred to ‘Rhatigan’s cases’ and called the Social Welfare Appeals Office a ‘Kangaroo Court’.
Deputy Boyd Barrett was immediately shouted down by the government benches but the Deputy is entirely correct.
I was present at these cases. Along with my long time associate and tireless worker for the employment rights of construction workers, Kenneth O’Connor, we represented the construction workers in the Social Welfare Appeals Office.
As a quasi judicial tribunal acting on the policy directions of a Kangaroo Court convened in the 13 days between 27 July 2000 and 9 August 2000 and not on Applicable Law, the Social Welfare Appeals Office is most definitely acting as a Kangaroo Court.
Construction workers are labeled as self-employed under the Revenue’s ‘Special Tax Agreement’ with Construction Companies. This Special Tax Agreement is called the ‘Electronic Relevant Contracts Tax’ agreement or ‘eRCT’ as it is known in the industry.
The eRCT agreement works on exactly the same principles as the Courier Companies ‘Special Tax Agreement’. Workers are automatically labeled as self-employed by the employer without any input from the worker (Ireland is the only country in the EU where this is allowed to happen). Tax is deducted at source making this a PAYE scheme for supposed ‘self-employed’ workers.
Several years ago, a dispute between dozens of workers and building company JJ Rhatigan & Co. made national headlines. Two of the disputing workers, Garry Gleeson & Luke Fitzpatrick, spent 3 day and 3 nights atop a 200 foot high crane to highlight what they claimed was non-payment because of irregular subcontracting which had replaced legitimate employment (contract of service) across Rhatigan sites. JJ Rhatigan & Co claimed that the conduct of picketing workers was “appalling” and that the company was entitled to injunctions restraining pickets at any of its sites.
In seeking injunctions, Counsel for the company contended in the High Court that no bona fide trade dispute existed because JJ Rhatigan & Co was not not the employer of the workers picketing the sites.
14 of the disputing workers subsequently requested Formal ‘Insurability of Employment’ Decisions from the SCOPE Section of the Department of Social Protection.
In August of 2015, the Formal Decisions in all 14 cases were issued from the SCOPE Section. The Deciding Officer’s Decision confirmed what the 14 men had been claiming all along – they were EMPLOYEES (Contract of Employment) of JJ Rhatigan & Co & not Self-Employed sub-contractors as was claimed by JJ Rhatigan & Co.
All of these men had been labeled as self employed under Revenue’s Electronic Relevant Contracts Tax(eRCT) Special Tax Agreement. The decisions were appealed by the company to the Social Welfare Appeals Office.
Days before the Appeal was due to be held in September 2016, the Union representing the men, the Union which had secured a sizeable settlement for unpaid wages from Rhatigan & Co in the Labour Court, informed the men that they would not be representing them in the Social Welfare Appeals Office.
These men, bricklayers and labourers, were cast alone into what is described by Free Legal Advice Centre(FLAC) as ‘a very complicated process’ where people ‘cannot access state legal aid to advise and assist them’.
On the Union abandonment of the men – there are two parts to this, firstly, every union knows that employer companies are lawyering up to the teeth in the Social Welfare Appeals Office and they’ll have to fight them all the way to the Supreme Court, an expensive business. Secondly, ICTU was part of the Kangaroo Court. Micheal Noonan spelled this out clearly on the 23 June 2015 –
“Guidance on that matter (bogus self employment) is provided in the code of practice for determining employment or self-employment status of Individuals which was prepared jointly by the Irish Congress of Trade Unions, business representative bodies and relevant State agencies”
ICTU immediately replied to then Minister Noonan and attempted to distance themselves from the policy directions of the Kangaroo Court –
‘Congress was indeed involved in drawing up the original “Code of Practice for determining Employment of Self Employment Status”, some years ago in line with our participation on the Hidden Economy Group. As we understood it, the purpose of this code was to ensure the use of agreed objective criteria when determining the appropriate status of employees or contractors within the meaning of the law.’
But Noonan is correct, ICTU sat on a Kangaroo Court, where it should never have been. ICTU had no business agreeing ‘criteria’ with vested interests while a case was underway, that was the exclusive duty of the Scope Deciding Officer.
The evening before the Appeal was due to go ahead, the workers contacted me through Kenneth O’Connor. I advised the men to attend but to seek an adjournment in order to obtain legal representation. I told the men that the employer would be lawyered up to the teeth.
An adjournment was granted. Some days later the men wrote to the Chief Appeals Officer and expressed their serious concerns about the Social Welfare Appeals Office process –
”Dear Chief Appeals Officer
I have the following concerns, please address them as soon as possible.
Notice Of Appeal
On the 19th of August 2015, JJ Rhatigan & Co. were informed of the SCOPE decision that I was employed by them under a contract of service (employee).
JJ Rhatigan & Co were advised that they had 21 days to appeal ‘stating clearly the grounds of your appeal’. To date, the grounds of Rhatigan’s appeal remain a mystery. No point of fact nor point of law has been forthcoming. In the absence of a point of fact and/or a point of law appealing this decision, it is invconceivable that the Social Welfare Appeals Office would agree to an appeal. JJ Rhatigan & Co have not appealed the SCOPE decision within 21 days stating clearly the grounds of their appeal.
As 14 of these letters were sent to JJ Rhatigan & Co., there can be no doubt that JJ Rhatigan & Co. are fully aware of their legal obligation to clearly state their grounds of appeal. Considering JJ Rhatigan & Co’s failure to provide clear grounds for appeal, I respectfully request that an appeal be dismissed forthwith.
There appears to be an attempt on the part of the Social Welfare Appeals Office to deal with all 14 decisions and appeals as one case with all to be heard and decided upon in one hearing. I strongly protest this approach, decisions are based on established facts, not assumptions and as such there is no basis for categorisations purely by occupation. Each case must be assessed on its own merits 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.
Further to the issue of individual cases, the Appeals Officer voiced an intent to use these cases as ‘test cases’. I do not wish to be considered as a ‘test case’. Although it is correct to recognise that my case has wideranging implications for the building trade, it is incorrect for the Social Welfare Appeals Office to use it as a test case.
Considering that each case must be assessed on its own merit, it is highly questionable that the SWAO has the authority to adjudicate on the employment status of persons who have not been assessed on their own merit by SCOPE or the SWAO. In essence, to use these cases as ‘test cases’ would be to pass judgement on workers who have not been afforded an opportunity to represent themselves or to have representations made on their behalf.
The only matter before the SWAO is an appeal of the specific SCOPE decision that I was found to be an employee of JJ Rhatigan, it is impossible to see how considerations other than this very specific case fall within the legal powers of the Social Welfare Appeals Office.
At the recently adjourned hearing in the SWAO, I was present without legal representation. The SCOPE section did not have legal representation. JJ Rhatigan & Co. were fully legally represented with barristers and solicitors. I was not informed that JJ Rhatigan & Co. would be legally represented.
I am merely a ‘Notice Party’ to these proceedings. JJ Rhatigan & Co. is the ‘Appellant’ and the Department of Social Welfare is the ‘Respondent’. It is entirely the responsibility of the Department of Social Welfare to defend the SCOPE decision. I was genuinely shocked at the absence of legal representation for SCOPE. A decision with multi-million euro implications, important enough for industry legal representation, wasn’t legally defended by the Minister for Social Welfare.
I would be grateful if you would forward to me, at your earliest convenience, any information on how I can claim legal expenses from the SWAO.
From the moment I entered the SWAO on Wednesday last, I felt ambushed. I’d been given no reason for appeal, no fact or law which I could prepare to defend against. I was faced with JJ Rhatigan’s formidable legal team and a handful of social welfare employees for whom the entire process already seemed to be a fait accompli. I fought and won my right to be recognised as an employee. The system used to classify thousands of workers in the building trade and beyond as ‘contract for service’ (self-employed) is exposed as unjustifiable. Dubious test cases in a secret and unaccountable court to once again shoe horn me into dodgy self-employment is not acceptable.
The workers came out to my home. I explained clearly that no matter what evidence is presented in the Social Welfare Appeals Office, the outcome has already been decided.
It was decided years ago by a cabal of industry barons, top civil servants and Union representatives. I explained that the Social Welfare Appeals Office is a charade, an expensive piece of theatre where all the employer has to do is show up.
I advised that they seek legal representation for themselves and also to pressure the Department of Social Protection to provide legal representation for SCOPE.
The men could not afford legal representation and in reply to a Dail question from Mick Barry TD in September 2016, the then Minister for Social Protection, Leo Varadkar claimed:
“It is not the practice of Scope Section to be represented by legal counsel at Appeal Hearings”
The bricklayers and labourers were instructed by the Social Welfare Appeals Office, under threat of fine, that they had to attend the re-convened Appeal in January 2017, legal representation or no legal representation. In the absence of legal representation, Ken and I agreed to go along with the workers to help them as best as we could.
As was expected, Rhatigan & Co. turned up with top class and very aggressive legal representation. Neither Scope nor the workers were legally represented.
Over the course of 3 days the majority of the men attended appeals one after the other. Some of the men did not make an appearance, one was injured, one had left the country and at least one would not attend for fear of losing his job,
At the end of the appeals, the Social Welfare Appeals Officer asked the Scope Section Deciding Officer had he heard anything that would warrant changing the original SCOPE decisions . The SCOPE Deciding Officer stated that he had heard nothing which would change his original decisions.
The only matter of interest which arose during the appeals was an attempt by the appellant company to use a ‘Health & Safety’ register. This was a multi paged document all workers on site were required to sign on entering the company’s site. In a box beside the workers’ signatures was another box.
The name of a company not the appellant company was written in this box. The intention was to show that the workers had signed both their names and also the name of an entirely different company than the Appellant Company.
About half way through the appeals, it was noticed that the company name had not been written in by the workers but instead that a person unknown had trawled through the extensive document and filled in the spurious company name in the available box beside each signature.
It was conceded by the Company and the Social Welfare Appeals Office that the workers had not written in the spurious company name. No explanation was forthcoming from the company nor was one demanded by the Appeals Officer. It was fake evidence.
Back to the Future
On May 25, 2017, the Social Welfare Appeals Office issued decisions. In every case the Appeal by JJ Rhatigan & Co. had been successful. The SCOPE Section decisions were overturned.
The Social Welfare Appeals Office didn’t even try to hide that it is making decisions based on the policy directions of the Kangaroo Court and not by applicable law. In the first point of all the Social Welfare Appeals Office conclusions, it states –
‘The Oireachtas appointed expert group to determine self-employment status provided a definition of a likely self-employed person’
And this is the difference between how the Scope Section make decisions and how the Social Welfare Appeals Office make decisions. Scope cannot accept the policy directions of a Kangaroo Court ‘Expert Group’ as factors in their deliberations, they must stick strictly to Applicable Law. The Social Welfare Appeals Office quite openly cites these policy directions as a factor in its decisions.
The Kangaroo Court was never an ‘Oireachtas Appointed Expert Group’. It was a hastily convened group of powerful interests who met specifically to discuss an individual case and to replace the Applicable law and SCOPE decisions with policy directions, specifically that the ‘Status quo should remain’ and that the individual must be forced to the High Court to overturn their bogus self employment.
The non-legislative approach of the Kangaroo Court was confirmed as far back as 2002 by the Comptroller & Auditor General. In reply to a letter complaining that Courier Companies were getting a secret tax exemption, he replied:
“The issue of what constitutes a ‘contract of service’ as distinct from a ‘contract for service’ is an interpretational minefield. The recent report of the Employment Status Group (Kangaroo Court) serves to confirm the difficulties in this area as evidenced by their decision shy away from the legislative approach to defining what an employee is”
The Comptroller & Auditor General went on to explain:
“I wouldn’t agree that contractors in the Courier Industry are exempt from taxation laws. What can be said is that the arrangement employed is administratively efficient in collecting tax from a sector which traditionally has been recalcitrant when it comes to paying tax”
PAYE workers don’t get a choice to be ‘Recalcitrant’ when it comes to paying tax. The bogus self employed worker pays exactly the same percentage of PRSI as an Employee. It was, and is, the employer who is evading the loin’s share of PRSI. Regardless of whether the C&AG agrees or not, the fact remains that employers are evading vast amounts of PRSI through gigification.
The Comptroller & Auditor did accept that special tax agreements were not ideal:
“All concerned recognize that it is far from being an ideal system and there is room for improvement”
In the 16 years since the C&AG wrote this letter, no improvements ever came. The ‘far from being an ideal system’ has become the norm.
Meeting the Minister
I’ve contacted every Welfare Minister and at least two Justice Ministers since Dermot Ahern (SW & Justice). Mary Coughlan, Seamus Brennan, Martin Cullen, Mary Hanifin & Éamon Ó Cuív all ignored me, Fianna Fail were a brick wall.
I sat down with Dominic Hannigan and explained it to him. Dominic got it straight away, in fairness anybody who has taken the time ‘gets it’. Dominic took it to Joan Burton as Social Welfare Minister, Joan replied that it was “Not currently an issue”. Since leaving office, Joan has a new found interest and pontificates regularly on why it is now an issue.
More recently, I wrote to Justice Minister Fitzgerald and explained what I believed to be the criminality involved and the implications. Minister Fitzgerald, against my wishes, forwarded it on to the then Social Welfare Minister Leo Varadkar. Like all of his predecessors, Leo did nothing, didn’t even acknowledge that he had received it from Minister Fitzgerald.
Before the Dail broke for last summer, the newly appointed Minister for Social Protection agreed to meet me. We met for an hour in Ashbourne, Co. Meath. I explained to the Minister exactly as I have done here. The Minister said that she would be in touch with me, she hasn’t been.
Between 2011 and 2015 the Government claims to have created 140k new jobs. Figures from the CSO show that 38.5k of the 140k jobs are classified as self-employed, that’s 1 in every 3.5 jobs, more than four times the EU average.
Seetec is not distinguishing between employed, self employed and bogus self employed. Thousand of people are being forced into bogus self employment by the Department of Social Protection. The Department is a conveyor belt of victims for gigification.
Once trapped in bogus self employment, you don’t turn up on the unemployment register, even and invariably when you are out of work.
The downsides to bogus self employment are immense. Many times more is defrauded through gigification than is defrauded through claimant fraud but as Gene Kerrigan recently put it –
“Attacking people on “welfare” plays well with the right-wing set. Thieving employers who fund their trophy mansions out of stolen PRSI may be far more socially harmful – but attacking them wouldn’t stir the class hatred that solidified Mr Varadkar’s support”
And that is the point here, Gigification is stealing from the early risers, from the PAYE payers, from compliant employers. In recent weeks, the Taoiseach and the Minister for Social Protection announced Social Welfare benefits for supposed self employed workers. Once again the genuine PAYE employee and employer are taking the hit for PRSI evading employers.
There is significantly less in the PRSI pot to fund social services. There are many other far reaching consequences such as sub-contractor self certification in construction but the most socially damaging aspect is pensions.
This government is hell bent on linking pensions to PRSI contributions, but many early risers are denied their employer’s contributions through State instituted bogus self employment using Gigification.
Employer’s lobby groups have long campaigned against employer’s PRSI. It is worth pausing a moment and considering what PRSI, ‘Pay Related Social Insurance’, really is. PRSI is an agreement between government and citizens that work will be rewarded with a safety net funded by the early riser with a larger proportion funded by compliant employers. It is the price of employing people in Ireland and Ireland has among the lowest prices for prospective employers in the EU.
This government also proposes merging PRSI and USC. The net effect will be to make it impossible to measure the missing employer PRSI contributions. Every time you hear that government advert on the radio praising themselves for extending social welfare benefits to all self employed people, remember it is you paying the price for PRSI evading employers.
What Gets Measured Gets Done
Last week the Minister for Social Protection justified the Government’s lack of action on bogus self employment with –
“Data from the recent CSO Quarterly National Household Survey record 312,000 individuals as self-employed in 2017, or 15% of total employment. This is consistent with the average levels of self-employment within the EU. There is no evidence of a significant change in the level of self-employment over the past 16 years, since we started collecting the data”
This government is not measuring bogus self employment.
The Quarterly National Household Survey shows a significant surge in the ratio of self-employed to employed workers in the constructions sector since 2007. This is the reverse of what would be expected to happen.
After 2007, the number of workers in the construction sector dropped dramatically. Precarious work, sub contracting/self employment, would be expected to drop faster than employed positions, but the reverse happened. Employers in the construction sector did exactly what construction sector employers did in the UK following the introduction of Selective Employment Tax (SET) in the UK in 1966: After 2007, Irish construction industry employers offloaded thousands of directly employed workers and then re-employed them in a “self-employed” capacity as a cost cutting measure.
Only 2 accurate, widescale, investigations have been carried out into bogus self employment in Ireland. Both put the rate of Bogus Self Employment at circa 20% and that was back between 1999 & 2001. Since the Kangaroo Court issued its policy directions, no widescale investigations have been conducted.
As for the Minister’s claim that Ireland is :
“Consistent with the average levels of self-employment within the EU
Five countries have more than nine out of ten working persons as employees (Denmark, Germany, Estonia, Sweden as well as the EFTA country Norway).
Italy has the second highest rate of ‘self-employment’ second only to Greece.
What if I was to tell you that self employment rate is not a positive indicator but instead a negative one.
Don’t believe me?
Greece, Italy & Poland have the highest rates of self employment. The lowest rates of ‘Self-Employment’ are in Luxembourg, Sweden and Germany.
Any guesses which economies are doing better?
The rates of self employment EU wide show that Greece is by far the most entrepreneurial country, twice as entrepreneurial as Ireland, 4 times as entrepreneurial as Luxembourg.
When was the last time you heard of any country sending delegations to Greece to see how they have achieved this astounding entrepreneurial recovery?
The entire EU knows that the rates of self-employment are bullshit. What is missing from the graph is the rate of bogus self employment, working for cash, the black economy, Gigification.
The difference between Germany and Greece or Ireland and Greece is not some genetic predisposition toward entrepreneurialism, it is in the policing of the black economy, the ‘lump’ worker, the fraudulent employer.
Until recently, the Employment Appeals Tribunal was the only other credible avenue for a bogus self employed worker to have their employment status examined. It wasn’t easy, but as this piece shows, it was possible.
Recent changes to the industrial relations process have added an extra layer of adjudication for the worker to navigate before reaching the EAT. This has resulted in an effective ban on workers claiming to bogus self employed gaining access to the EAT (I have experience of this in the past few weeks).
Infinitely more concerning is the change to secrecy in WRC proceedings. It is secrecy which has allowed fake witnesses, fake reports and fake statements flourish in the Social Welfare Insurability of Employment process and most particularly in the Social Welfare Appeals Office.
When some of the biggest employers in the country are appealing their PRSI obligations, that is a matter of public interest and should never be done in secret.
It is somewhat heartening to see that WRC secrecy has not gone unnoticed in the Law Library.
And finally ….. (for real this time) …… When I met with the Minister for Social Protection, my overriding concern was that there was no way for the bogus self employed worker to overturn their self employment misclassification.
SCOPE doesn’t work, it is deliberately sidelined. If the State is on your side it takes 6 years and costs maybe a million euro in legal fees, but the State hasn’t been on anybody’s side since 2000 meaning that SCOPE is a rabbit hole into which you will disappear forever. The Minister announced her solution to bogus self employment last week :
“Any worker who has concerns about his or her employment and-or PRSI status should contact my Department (SCOPE) and the matter will be investigated. This can only happen with the co-operation of the worker”
Really Regina, is that it, is that the best you can do?
Martin McMahon is an employment rights campaigner, blogger, 1 half of @echochamber, author or ‘Ramshorn Republic, To Hell or the High Court’ .