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.
Gigification is State-approved misclassification of employees as self-employed in order for some employers to evade PRSI obligations.
Gigification is always bogus self-employment, but bogus self-employment is not always Gigification. The difference is the approval and assistance of the State in creating bogus self-employed workers.
At a meeting between vested interests in the Workplace Relations Commission(WRC), the Gigification of punitive employees was renamed as ‘Contingent Employment’, but don’t let that fool you, Gigification has one purpose and one purpose only – to save ‘selected’ employers circa 30% on labour costs as an enticement to ‘create’ jobs.
Gigification grants illegal state aid, in the form of a secret PRSI exemption, to ‘selected’ employers. It is a secret tax break which puts compliant employers at a distinct economic disadvantage.
The employment status of workers and the rate of PRSI to be paid is entirely the responsibility of the Department of Social Protection to be made in accordance with the law, at least on paper it is.
In practice, the Revenue Commissioners make blanket decisions on the employment status of thousands of workers not in accordance with the law, but instead in accordance with a political imperative to reduce the numbers on the unemployment register by any means.
Unless a punitive employee forced into one of these ‘Special Tax Agreements’ writes to the SCOPE Section of the Department of Social Protection and specifically requests an ‘Insurability of Employment’ decision, the legal sustainability of these politically motivated ‘Special Tax Agreements’ between the Revenue Commissioners and ‘selected’ employers never faces scrutiny.
A Potted History
In 1979, PAYE workers began a series of protests against the PAYE tax system. At that time, PAYE workers were employees, and the burden of income tax, they felt, was unfairly targeted at these employees. Self employed workers paid tax through a self assessment scheme.
In the years that followed, along with changes to the income tax system, an increased focus was put on those working outside the tax net, particularly those working ‘On The Lump’.
The Lump worker is paid cash ‘off the books’ by the employer. No tax or PRSI is deducted at source. The employer pays a lump sum of money for the work the worker does each day or week, hence “working on the lump”. The employer claims that the worker is self-employed.
Working on the lump is the most basic form of bogus self-employment. Working on the lump is also known as working in the ‘Black Economy’.
Following the introduction of Selective Employment Tax (SET) in the UK in 1966, construction industry employers offloaded thousands of directly employed workers and then re-employed them in a “self-employed” capacity.
Many of these workers were Irish and the practice of off-loading employees and rehiring them as self-employed followed them home to Ireland.
In order to combat these workers working on the lump and claiming social welfare at the same time, Governments in the UK and Ireland introduced various forms of tax certificates for these workers and labeled them ‘sub-contractors’.
The social welfare and tax systems in both countries gave generous allowances for travel, clothes, lodgings, tools, etc. The worker then paid income tax on a much smaller amount than a directly employed worker and the employer avoided all responsibility.
Many employers refused to take on direct labour, as they knew that many of them would be trade unionists who would use collective bargaining to improve pay and conditions. Employers blacklisted union and activist workers.
This practice of ad hoc, specifically tailored tax agreements for the construction industry was duplicated in other industries.
The Revenue Commissioners met and negotiated several of these deals with individual employers and industry-wide representatives.
The Denny Case
In February 1992, the SCOPE Section of the Department of Social Welfare opened an ‘Insurability of Employment’ decision making process into the employment status of a young woman called Sandra who worked as a demonstrator in various supermarkets. Sandra was labeled as self-employed by her employer as were all supermarket demonstrators.
Less than 3 months later, on May 6, 1992, the SCOPE Section Deciding Officer, applying all of the available evidence and also the legal principles handed down in various court judgments over the years, issued a decision that Sandra was not self-employed as claimed by her employer. Sandra was an ordinary employee.
Employment status is never just a matter of choice.
Before 1992, SCOPE decisions were legally binding decisions. A notice would be issued to the employer and all PRSI arrears would be demanded. The employer could appeal directly to the minister to reverse the decision or appeal it directly to the courts. In both instances, the department would be required to defend it’s own decision.
This SCOPE decision however, wasn’t appealed to the minister or the courts, it was appealed to the then newly formed Social Welfare Appeals Office (SWAO).
The Social Welfare Appeals Office was established by legislation in 1991. It is an office of the Department of Social Protection responsible for determining appeals against decisions on social welfare entitlement and insurability of employment issues. The Social Welfare Appeals Office is a quasi-judicial tribunal and can, if it so chooses, consider a case ‘de novo’ or afresh.
The Department of Social Protection is required to implement the decision of an Appeals Officer which is deemed to be “final and conclusive” unless a review by the Chief Appeals Officer is requested on a point of law or fact or unless statutory appeal is taken to the High Court on a point of law.
The appeals mechanism is not independent.
The Appeals Office must adjudicate on decisions of the Department of Social Protection, of which it is a part. Appeals Officers are employees of the department, appointed by the Minister for Social Protection, and may return to another department section after working in the Appeals Office.
Furthermore, the fact that decisions on social welfare appeals are not published routinely, means that people appealing decisions are also forced to work in an information vacuum and are unclear how cases are decided. It is worth remembering that people cannot access state legal aid to advise and assist them in what can be a very complicated process.
It was into this new Office of the Department that the contentious decision of SCOPE, another Office of Department, was appealed.
The SCOPE decision was contentious because it challenged the authority of the Revenue Commissioners, so much so, that on December 15, 1992, a letter issued from the Inspector of Taxes, Tralee, indicating his intention not to pursue the question of requiring Kerry Group PLC to deduct income tax under the PAYE system from merchandisers/demonstrators/promoters.
This letter from the Revenue Commissioners exposes that the Revenue Commissioners were operating an industry wide ‘Special Tax Agreement’ to label all merchandisers, demonstrators and promoters as self-employed and were refusing to bound by insurability of employment decisions made by the SCOPE Section.
This letter was submitted to the SWAO appeal of the SCOPE decision as a ‘matter’ for the Appeals Officer’s attention. The Revenue Commissioners were clearly applying pressure to the SWAO to overturn the SCOPE decision in Sandra’s case under threat of totally ignoring any decision that would affect their industry wide ‘special tax agreement’.
An obscure, unreported Civil Court case, Cronin v Kerry Co-operative (24 June 1990), was also submitted to the SWAO appeal to justify the Revenue Commissioner’s refusal to be bound by either SCOPE or SWAO decisions on merchandisers/demonstrators/promoters.
Despite this intense pressure from the Revenue Commissioners, the newly formed SWAO held its ground and fully supported the original SCOPE decision.
The decision was further appealed to the higher courts by the appellant company. Eventually, following a six-year battle, the higher courts ruled that Sandra was an employee.
The original SCOPE decision was strong enough to survive every level of the quasi-judicial and judicial process and became one of the definitive rulings on insurability of employment widely known as Henry Denny & Sons (Ireland) LTD, trading as Kerry Foods v. The Minister for Social Welfare  1 IR 34.
It is worth noting that the details related here would never have become public had the SWAO ruled against SCOPE. The SWAO is a secret quasi-judicial tribunal, all hearings are secret and none of it’s rulings are open to public scrutiny.
This was the first and last time that the Social Welfare Appeals Office supported a SCOPE decision which challenged a pre-existing Revenue ‘Special Tax Agreement’.
In 1993, less than a year after the SCOPE decision that Sandra was not self-employed, the SCOPE Section made an Insurability Of Employment decision that an individual courier was not self-employed as his employer claimed. This decision was immediately appealed to the Social Welfare Appeals Office by the employer.
Taoiseach Leo Varadkar and Minister for Employment Affairs and Social Protection Regina Doherty at the launch of the Government’s Self Employed Benefits Awareness Campaign in City Hall yesterday.
To much fanfare, the Taoiseach and the Social Welfare Minister launched a ‘Self Employment Benefits Awareness’ campaign this week.
This is their happy clappy attempt to distract from the fact that somewhere between 20% and %100 of you (depending on the industry, and yes some industries are 100% bogus self employment), didn’t choose to be self employed, don’t want to be self employed and have no idea at all why you are labeled as self employed.
Maybe you’re new into the workforce and you don’t know any better, maybe you’ve been around for a while and you know that this job you used to do as an employee is no different to the job you are now are forced to do as self employed, but damned if you know how your employer is getting away with it. .
Bogus self employed workers lose holiday pay, sick pay, maternity pay, workplace protections, including the right to join a union; face an increased tax burden; receive no overtime pay; and may have no recourse for workplace injury violations and disability-related disputes.
The loss of all these rights, your rights as an employee, results in a labour cost saving to your rogue employer of about 30%.
Bogus self employment has become a no brainer for employers. Ireland is the only country in Europe where an employer can register a worker as self employed without the consent, involvement or knowledge of the worker.
There have been no widespread investigations into bogus self employment since 2001. Once in a while, Revenue inspectors will arrive on a building site and pick off a few of the lowest hanging fruits to placate the odd journalist who asks questions, otherwise, it’s a bogus self employment free for all with the full consent and backing of the government through various ‘special tax arrangements’ like the eRCT and the Courier Agreement.
Bogus self employment doesn’t just steal from workers, it is stealing massive amounts from the state too. In 2017, 75,000 construction workers were registered as self-employed out of a total workforce of 130,000.
At least 30% of these self employed workers are bogus self employed workers with no employees of their own. The loss to the state is in the hundreds of millions and it is only the tip of the iceberg.
Rogue employers are now demanding that groups of workers set up companies to filter their wages through so that employers can evade PRSI. These come under the ‘self employed with employees’ category, nobody is even looking at the area for bogus self employment but it is happening and on an ever increasing scale.
When the construction industry collapsed in 2007, we were given the opportunity to have a unique insight into just how much bogus self employment in the construction industry was costing the state.
Between the years of 2008 and 2014 there was a combined total of 500,000 construction workers registered as self-employed. The total tax take in those years from those workers was minus 90 million!
YES – (minus) 90,000,000 euro from 500,000 self-employed contract situations over 6 years. 500,000 employment contracts situations would have netted the exchequer somewhere around 2 billion for the same period.
Now here’s the really astounding thing, these ‘Special Tax Arrangements’ like the eRCT and the Courier Agreement were not established to actually collect revenue, they were established to bring workers, who had traditionally been working in the Black Economy, into the tax net.
As the former Comptroller & Auditor General wrote:
All concerned recognise that it is far from being an ideal system and that there is room for improvement.
But the improvements never came, the Black Economy is still the Black Economy and it is bigger and slicker than it has ever been.
The government has agreed to turn a blind eye to bogus self employment because that’s the price they are willing to pay to reduce the numbers on the unemployment register.
For those outside the construction sector, there has never been any wide or even narrow scale investigations. Don’t bother trying to challenge you employment status, it can take up to 3 years, cost you 10s of thoudands in in legal fees and the fix is already in before you start. Instead, Leo and Regina will make you pay more PRSI for very very limited benefits.
Tom Parlon (top) of the Construction Industry federation (CFI) believes bogus self employment in the construction industry is ‘grossly exaggerated’
In a recent interview with TheJournal.ie, Director General of the CIF Tom Parlon dismissed claims from a new construction union called ‘Connect’ that it would eliminate the Scourge” of bogus self employment in the construction industry.
Assiduously avoiding the term ‘Bogus Self Employment’, Tom told TheJournal.ie that there has been a move away from direct employment, not just in Ireland but internationally. However, he said the scale of this has been “grossly exaggerated”
There has indeed been a move away from direct employment in the construction sector.
In 1998, the share of workers in the construction industry classified as self-employed was 16%. The Office of the Comptroller & Auditor General was, at that time, concerned that a significant portion of those classified as self employed were in fact bogus self-employed.
Partly because of the C&AG’s concerns, the Revenue Commissioners undertook a special program of 6,200 visits to Principle Contractors in the construction industry. During the visits, the status of 63,000 sub-contract situations was examined.
12,000 (19%) of those sub-contract situations were not genuine self-employment, they were bogus self employment.
In 2001, concerns were expressed at the Public Accounts Committee that misclassification was still rife in construction.
The then Chairperson of the Public Accounts Committee, Jim Mitchell, ordered a similar special program of visits to Principle Contractors in the construction industry. The results of this PAC investigation exposed the same high level of bogus self employment in the construction industry – circa 20%.
Over the following 6 years, the rate of self-employment in the construction sector fell almost 3% to 13% with a commensurate reduction in the percentage of Bogus Self Employed. The investigations instigated by the C&AG and the PAC were pivotal to that decrease.
In July 2007, Tom Parlon took up a position as Director General of the Construction Industry Federation. Within five years, in an unprecedented explosion unseen anywhere else in Europe, the percentage of workers in sub-contract situations in the construction sector more than doubled before peaking at almost 31% (Refer to QNHS data below).
Extrapolating from the only the widespread investigations available, instigated by the C&AG and the Public Accounts Committee, Bogus Self Employment in the construction sector was over 40% in 2013 and is currently running at almost a third (30% – 33%) of those classified as self employed in the construction sector.
In 2015, the Irish Congress of Trade Unions released a report which states that Bogus Self Employment in the construction sector was costing the tax payer 80,000,000 euro in PRSI per year.
This figure was based upon 30,000 – 40,000 sub-contract situations but later Dáil replies state that the actual number of sub-contract situations is in excess of 100,000, resulting in a loss to the taxpayer of circa 250,000,000 euro in PRSI per annum.
As was confirmed by the Minister for Social Welfare in recent weeks on Drivetime RTE, there are no official figures available from either Social Welfare or Revenue on Bogus Self Employment, however, the QNHS data is generally accepted as credible, unlike the Pernicious Mr. Parlon.
This week a collective sigh of relief escapes the tortured throats of parents the length and breadth of the country.
Throats hoarse from answering endless questions, issuing cautions and calling little Jack or Katie to get up from, or go to, bed. Work schedule disruption, childminders and the drive to keep your little darlings constructively occupied, all add to the extra workload of summer holidays. They may be hazy days but they sure aren’t lazy days.
It is during the summer holidays that we get to experience the bundles of energy the little ones have really become, or the hormonal roller coaster our teens are on.
That pre-holiday routine of school drops and regular meal and bed times is shot to hell. You haven’t had a quiet evening to goof off in front of the TV for almost two months.
The sometimes chaotic holidays are over, one day this week the uniform will be donned and children will return to school. The change from free spirits to students takes place in the classroom, away from parents, with minimum fuss and disruption.
A week from now the holidays will be a distant memory and scrambling for ‘things to do’ with the kids no longer top of the agenda. For most of us this transition comes easy, it comes easy because we play a very small part in it, the real horse work is done by teachers.
Hardly a week goes by where teachers escape a bashing in the ‘Meeja’. For decades they’ve been an easy target. Sometimes the critics focus on wages but mostly it’s the holidays. Teachers are not paid well, let’s get that out of the way.
If you’ve ever paid for pre-school you know that childminding doesn’t come cheap. You could pay a mortgage on what it costs to put your children in pre-school and then you spend the day worrying that they’re not getting the standard of care you’ve paid for.
In contrast, you can drop your children off at school, for free (theoretically), and drive away without a care in the world for little Katie or Jack’s welfare.
Not only will they be ‘minded’ in a way you can trust, for no extra cost, they will receive an education. Do we pay teachers for acting in loco parentis, do we value their labour with our children as we value our own?
This government certainly doesn’t.
Paschal Donohoe excuses a two tier pay system with ‘not enough money for pay restoration’ but Paschal and the other piggies at the trough made damn sure there was enough money to award themselves significant pay rises. Fine Gael are experts at double standards which invariably benefit themselves whilst screwing others.
That leaves ‘holidays’ the only issue to crucify teachers over. Yes, teachers do have holidays longer than the average working stiff, as do politicians and judges. Unlike politicians or judges, teachers spend their working day exclusively taking care of your most precious assets.
They don’t get to retire at 50 like Gardai, there is no consideration given to the stress of safely managing 30 or more children day after day. That sense of exhaustion you feel at the end of your children’s summer holidays is nothing compared to the exhaustion a teacher experiences near the end of term having ‘minded’ multiples of the number of children that exhausted you.
So the next time you hear “Bloody Teachers” remember we are bloody lucky to have them.
From top: Leo Varadkar’s welfare cheats campaign; Minister for Social ProtectionRegina Doherty
Writer and activist Martin McMahon has waged a lengthy campaign to end the situation where one in five self-employed workers in Ireland is not really self-employed.
Recently he got creative.
I saw it happen. I was there. I contacted the Garda National Bureau of Fraud Investigation and attempted to report the crime.
I have no doubt that it is a crime I witnessed, it’s certainly an indictable offence under the relevant Social Welfare legislation. The Garda on the other end of the line in Harcourt Street didn’t want to know, saying:
“There’s noting to see unless the Minister for Social Welfare tells us there’s something to see”
I’ve contacted every Welfare Minister and at least two Justice Ministers since. Dermot Ahern didn’t want to know even though former Taoiseach John Bruton wrote to the Department and asked why nothing was being done.
Mary Coughlan, Seamus Brennan, Martin Cullen, Mary Hanifin and Éamon Ó Cuív all ignored it, 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.
Last year I wrote to Justice Minister Fitzgerald and explained the crime I had witnessed 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.
Four weeks ago, I tweeted to the recently appointed Social Welfare Minister, Regina Doherty-
I wasn’t surprised that the Minister replied. I’d met the Minister and her team at the last general election. They were all decent people, friendly and accommodating.
The Minister contacted me by private message and we arranged to meet in the Pillo Hotel in Ashbourne on the 29th of June. The meeting lasted about an hour.
It was clear from the outset that the Minister had taken the time to read the piece I’d tweeted to her and more importantly had watched the videos attached to the piece.
I explained to the Minister how in January I’d set a trap for the Department of Social Welfare and that they’d walked straight into it, I used those exact words.
That in springing the trap, the Department revealed that it was still knowingly making incorrect insurability of employment decisions based on the crime I had witnessed 16 years earlier.
On the 22nd August 2000, a Social Welfare Inspector wrote and signed a ‘Report’. The report was an account of a meeting he had with 2 representatives of a well known company which took place on 17th August 2000.
The report was submitted by the Social Welfare Inspector as evidence in a then ongoing ‘Insurability of Employment’ determination by the SCOPE office of the Department of Social Welfare, for the purpose of making a legally binding decision.
On March 1, 2001, the Social Welfare Inspector read aloud and submitted as evidence his report in an Appeal Hearing which took place in the quasi-judicial Social Welfare Appeals Office.
The Social Welfare Inspector’s report was (and is) accepted as the primary evidence in it’s overturning of the SCOPE Office decision. This event was witnessed by a Barrister, a Solicitor, A legal representative and the General Manager for the appellant company, a Senior Counsel and State Solicitor for the Social Welfare Mininster, a Barrister and Solicitor and 2 representatives for the Communications Workers Union, 2 representatives from the Scope Office, the Appeals Officer and me.
This event and the evidence contained in the Social Welfare Inspector’s report are reported and quoted in the Appeals Officers written account. The Manager named in the Inspector’s Report was not present in the Social Welfare Appeals Office when evidence attributed to him was accepted as evidence.
On December 6, 2001, in the Employment Appeals Tribunal, the Barrister representing the company (same Barrister as represented the company in the SWAO) objected to the use of the Social Welfare Inspector’s report.
The Barrister informed the Appeals Tribunal that the Company’s Manager named specifically several times in the Inspector’s report had never met the Inspector and that he emphatically did not give that evidence. The Manager named in the report was present in the Appeals Tribunal.
The Chairperson of the Appeals Tribunal commented at the time that the Dept. had questions to answer but was not present.
On the 14th of October 2002 in the Circuit Court, I called the Social Welfare Inspector as a witness. I had sent a summons to the Inspector some weeks previously.
Prior to the hearing, the Social Welfare Inspector pleaded with me not to call him. I refused his request. In the court, I asked the Inspector to read his report (as he had done in the Appeals Office).
The Barrister (same Barrister as previously) objected because the Manager named in the report, who was present in the court, denied that he had ever met or spoken to the Inspector. The Inspector conceded to the Judge that he had never met or spoken to the Manager.
This was a civil case, the Inspector was not on trial, the Judge ruled that the report was inadmissible as evidence. The Judge then addressed the Appeals Officer who was watching the proceedings from the body of the court.
The Judge informed the Appeals Officer that “This matter will need another day in court”. At the conclusion of the hearing, the Appeals Officer shook my hand and congratulated me with a “Well Done”.
The Department of Social Welfare has never sought another day in court about the Inspector’s Report and indeed continues to actively cover up the crime to this day. The Inspector’s false report remains the key evidence in a test case which continues to misclassify thousands of workers as self-employed.
The Inspector’s Report cannot be and is not accepted as credible evidence in any judicial or quasi-judicial proceedings except for the Social Welfare Appeals Office.
In July 2000, I wrote to the SCOPE Office of the Department of Social Welfare. SCOPE is the office charged with deciding whether a person is employed or self-employed. I requested an insurability of employment decision.
I had been working for a number of years in an industry where all workers are labeled as self-employed under an agreement between Employer Representatives and the Revenue Commissioners.
My application for a decision prompted a secret meeting between high level representatives from IBEC, ICTU, Enterprise Trade & Employment, Finance, Revenue and Social Welfare.
This meeting was labeled “The Employment Status Group” and met within days of my application whilst the decision was sub judice. The application I had made was specifically discussed. Revenue, IBEC and Finance instructed that the worker (me) was to be forced to the High Court to overturn the self-employed label.
The Revenue representative at this secret meeting was also the person who had agreed this deal with employers in secret, in the Burlington Hotel on the 3rd of April 1997. The Social Welfare Representative at this secret meeting held a senior position in the Social Welfare Appeals Office until 2009.
The SCOPE Deciding Officer refused to bow to such political pressure in his legal deliberations and ruled that I was not self-employed and was, in fact and in law, an employee.
The Social Welfare Inspector was instructed to issue a ‘Demand Notice’ to the employer Company for arrears of unpaid employer PRSI.
The deal agreed between Revenue and Employers was exposed as creating and facilitating widespread bogus self-employment. The Scope Decision was immediately appealed to the Social Welfare Appeals Office by the Company.
Although not directly involved in the Appeal, the Department’s Representative at the Employment Status Group (also Senior Official in the SWAO) secretly submitted altered evidence and was present in the SWAO as the Appeal was being heard.
He met privately with several parties including a meeting he asked me to step into in a room in the SWAO during a break in proceedings. He told me everybody was ‘happy’ with the secret deal, I asked him how could he know when he hadn’t spoken to those being forced into bogus self-employment. I witnessed him, with my own eyes talking to his subordinate, the Appeals Officer who was hearing the Appeal, whilst it was under appeal!
This was the Appeal where the Social Welfare Inspector read aloud from his report and where it was submitted and accepted as evidence. The SWAO Appeals Officer overturned the Scope Office Decision based upon the Inspectors false report and the Revenue’s secret deal with Employers was safe.
Late last year I got a call from a bricklayer on his way into a hearing in the Social Welfare Appeals Office. He was one of ten workers automatically labeled as self-employed by the Electronic Relevant Contracts Tax system agreed and operated between Revenue and employers in the construction industry.
These men had been in a high profile dispute with one of Ireland’s largest construction companies. As a part of that dispute, the men had individually applied to the Scope Office for insurability of employment decisions. The Scope Office decided that the 10 men were not self-employed and were, if fact and in law, employees.
eRCT is a massive system, many thousands of workers are automatically classified as self-employed under this system. Once again Revenue was facing the prospect of being exposed for operating and facilitating systems which create widespread bogus self employment.
These lads were looking for help when they rang me. I’d been following their dispute closely and wrote about it They had no legal or union representation. The Appeals Officer was pressuring them to have all the cases heard at once in some sort of ‘test case’ for the construction sector.
I hadn’t seen any of the evidence. I advised the lads that once they got in there, they’d be faced with an extensive legal team from the Appellant Company. I advised that they inform the Appeals Officer that they were unaware that they would be facing legal representatives and that they needed an adjournment to consider seeking legal advice. The adjournment was granted.
I instructed each of the men to request from Scope & SWAO all available data under the data protection acts which they did. I read through all the evidence and met with the men a number of times.
These 10 cases expose bogus self employment perfectly. I agreed to help the men. I warned them from the outset that the Scope Office decisions would be overturned. I explained that the SWAO was making decisions based on a political edict and not on legal precedent. I wrote about the cases which caused some consternation at high levels in the department –
The ten men had commenced work on site between April 2014 and August 2014. Two were ‘Labourers’, unskilled manual workers, and 8 were bricklayers paid per block laid. All were labeled as self-employed by the principle contractor using the eRCT system.
There is no directory of labourers or bricklayers and positions are generally filled by word of mouth as “Getting a start” on a particular site.
Some of these men had been telephoned by a person who the Company claims was the subcontractor but social welfare records show that the man was not a subcontractor and was indeed in receipt of a social welfare payment at that time.
It is the Department’s evidence that he played little or no part in this issue. The men worked for several weeks without getting paid. Two of the bricklayers were approached by management of the Company. They were informed that the only way they could get paid for the work they were doing, was to set up a company which the principle contractor would pay their wages into.
The managers had the paperwork ready and all it required was the two men’s signatures. Due to the lack of wages, these men were under severe financial pressure. They signed the paperwork and took it to an accountant as they were told to do by the principle contractor.
There was no profit margin in this arrangement, it was a straight forward funneling of the men’s wages through a third party company. The men were not required to provide their own liability insurance and the company agreed that the 10 men would operate under the principal contractor’s insurance.
The arrangement quickly fell apart on advice from the accountant that the company the men had been told to set up to get their wages was operating illegally. Scope had made the only legal decisions they could if the face of such overwhelming evidence, these men were employees of the principal contractor in every fact and practice of their labour.
In January, the appeal of these ten Scope Office decisions by the appellant Company was heard in the Social Welfare Appeals Office. Representatives for the Company stated that it considered these 10 men to be self-employed because they consider every worker below the level of site foreman to be self-employed.
No new evidence was presented at this Appeal and the Scope Office Deciding Officer stated at the end of the hearing that he had heard nothing which would change his original decisions. Springing The Trap
I had two things to prove by setting the trap, the first, that the Social Welfare Appeals Office was making insurability of employment decisions based on a political edict of the Employment Status Group and not based on legal precedent, and the second, that the Appeals Office was deliberately and demonstrably misinterpreting the evidence to accommodate the political edict from the Employment Status Group.
On the 25th of May this year, the Appeals Officer issued his decisions in all ten cases. He upheld the Appellant Company’s Appeals in all cases.
The proof that the Social Welfare Appeals Office is making decisions based on the political edict of the Employment Status Group and not legal precedent comes in the first point of the Appeals Officers comments/conclusions section of the decisions in which he states –
“Comments/Conclusions: The Oireachtas appointed expert group to determine self-employment status provided a definition of a likely self-employed person”
The Oireachtas appointed expert group the Appeals Officer refers to in his decisions is the Employment Status Group which has no legal standing whatsoever.
Determinations of the Employment Status Group are political decisions and cannot be and are not accepted as legal ruling or precedent by the Scope Office, the office charged with making insurability of employment decisions.
The Employment Status Group was not established to determine self-employment status, it was established to prevent punitive employees from exposing that the Revenue Commissioners are knowingly misclassifying employees as self-employed.
Although there are many points in the Appeals Officer’s decisions which expose that the Appeals Office is deliberately and demonstrably misinterpreting the evidence to accommodate the political edict from the Employment Status Group, I draw your attention to a specifically significant point on liability insurance.
As was said previously in this piece, the men all of whom were labeled independent contractors, carried no liability insurance. I raised this point with the Appeals Officer who raised it with the appellant Company.
The company conceded that it had agreed that the men could operate under their liability insurance but stated that the men could lose financially by having to bear the cost of making good faulty or substandard work.
That position was accepted by the Appeals Officer and is quoted in his decision as being one of the factors determined by the Employment Status Group as a likely indicator of a Self-Employed person.
The issue of ‘Financial Risk’ and liability insurance in the context of self employment status was previously considered at length by the Employment Appeals Tribunal which ruled –
“In relation to the risk and profit factors, the Tribunal finds that the claimant carried little or no risk. In particular he was not required to have insurance”
In the construction sector the question of liability for faulty or substandard work is a well publicised hot potato issue in projects such as Priory Hall. Under self-certification of building standards, sub-contractors are responsible for signing off on work they have completed.
Yet these subcontractors were not required to have public liability insurance. If in 1, 5 or 10 years the walls these men built collapse, there is no public liability insurance to insure the public.
For the Appeals Office to accept that the men bore some vague concept of losing “financially by having to bear the cost of making good faulty or substandard work” in lieu of a legal requirement to have liability insurance as an indicator of self-employment, the Appeal Office exposes that it is deliberately and demonstrably misinterpreting the evidence to accommodate the political edict from the Employment Status Group and in the process of doing so, is leaving the public exposed to extensive financial and physical risk.
Bearing the cost of making good faulty or substantial work is a common practice for all workers and is not specific to the self-employed. Liability insurance to cover the cost of faulty or substandard work is not common to all workers and is specific only to independent contractors.
This deliberate misinterpretation by the Social Welfare Appeals Office is at the very heart of why insurability of employment decisions are so vital to the safety of the general public.
The Only Way Forward
Throughout this briefing, Minister Doherty asked intelligent and pertinent questions. The Minister explained to me that this was how she liked to do things.
The Minister acknowledged that the figures provided by ICTU on the cost of bogus self employment far exceeded the figures used to justify Leo Varadkar’s campaign against social welfare cheats.
The Minister accepted that the Social Welfare Inspector’s ‘Report’ could not be relied upon as evidence by the Social Welfare Appeals Office. The Minister committed to arranging a meeting with the same Senior Counsel who had represented the Minister for Social Welfare in the 2001 Social Welfare Appeals Office hearing with a view to me meeting with him also.
I explained to the Minister the only legitimate way forward was under the provisions of social welfare legislation.
Under Section 263 of the Social Welfare Consolidation Act 1993, the Chief Appeals Officer can set aside any Appeals Office decision the Chief Appeals Officer believes erred in law or fact. It is a fact that the Social Welfare Inspectors Report cannot be accepted as evidence in any proceedings and that this decision must be set aside pending judicial review.
It is also a fact that the 10 decisions of the construction workers erred in fact and in law with the SWAO’s acceptance that independent contractors can operate under a principle contractors liability insurance and that a political determination by the Employment Status Group in relation to liability insurance superseded the legal precedents and case law handed down over the years from the higher courts. In light of these facts, the Chief Appeals Officer has no choice but to set aside the 10 Appeals Office decisions pending judicial review.
There is no other legally prescribed route for the minister to determine which of the two offices (Scope & SWAO) under her control is erring in law and fact and one of them demonstrably is.
On what way to proceed in relation to the Social Welfare Inspector’s Report, I left that entirely to the Minister’s discretion. As far as I’m concerned, I’ve reported to the highest authority available evidence of a crime which has led to substantial financial losses for the Department of Social Welfare.
As far as I’m concerned the Minister has no choice but to request a full investigation by An Garda Siochana regardless of whether the Chief Appeals Officer sets aside the decisions or not.
The meeting ended with the Minister committing to meet me again in the near future. Later that evening the minister thanked me on twitter for bringing it to her attention and for trusting her with it.
On Saturday last the Minister contacted meand told me that she was ‘up to speed’. She asked was I available to meet last Friday. I confirmed that I was.
On Friday the Minister contacted me by twitter and at first confirmed that we would meet later that afternoon but later cancelled the meeting and asked for my phone number to have a telephone conversation and to rearrange our meeting for sometime after the holidays.
I have never doubted the Minister’s sincerity on this issue and I still firmly believe that the Minister is committed to tackling all social welfare fraud including bogus self-employment.
I am not disappointed that the Minister has not yet telephoned nor that our meeting was cancelled. I completely understand that the Minister has a heavy brief. I don’t need to be informed immediately that the Minister is taking action on foot of our meeting.
I do ask, in the current economic climate. if the Minister can afford to wait over a situation which is accepted to be costing the Department of Social Welfare at least 2 million euro every week ….. and the real cost is likely to be far higher.
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.
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.
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.
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.