Building & Allied Trades’ Union (BATU) President Martin Malone (above) and bricklayers Terry Dey and Karl Deregan (pic 2) this morning
This morning.
St James’s Hospital site, Dublin.
SIPTU activists and members of other construction industry unions protest outside the site of the new National Children’s Hospital to highlight bogus self-employment in the construction sector.
Related: Bogus Self Employment: The Abuse That Keeps On Taking
Capt Evan Cullen, president of the Irish Air Line Pilots’ Association
Yesterday.
Capt Evan Cullen, president of the Irish Air Line Pilots’ Association, appeared before the Joint Oireachtas Committee on Employment Affairs and Social Protection to discuss bogus self employment.
Further to this…
Tim O’Brien, in The Irish Times, reports:
Some women pilots [working as self-employed contractors] in Irish-registered airlines are being told they have a choice: terminate their pregnancy or terminate their employment, the president of the Irish Air Line Pilots’ Association (IALPA) has claimed.
…Capt Cullen told the Committee on Employment Affairs and Social Protection that many pilots were afraid to speak up.
He said women pilots were being told not to get pregnant, and that women pilots who present as pregnant were told: “you have a choice, you terminate your employment or you terminate your pregnancy”.
Women pilots told ‘terminate your pregnancy or employment’ (Tim O’Brien, The Irish Times)
Watch back the Oireachtas committee meeting here
Couriers Part 2 (Martin McMahon, Broadsheet, February 26, 2018)
Seamus Dooley, Billy Wall, Patricia King and Brendan O’Hanlon at an Oireachtas committee meeting yesterday
Yesterday…
At a meeting of the Joint Oireachtas Committee on Employment Affairs and Social Protection…
Patricia King, General Secretary of the Irish Congress of Trade Unions; Billy Wall, Chair of the Congress Construction Industry Committee; Seamus Dooley, National Secretary of the National Union of Journalists; and Brendan O’Hanlon, Assistant General Secretary of Fórsa, went before the committee.
As posted yesterday, Ms King estimated that there could be a loss of Revenue to the State in just the construction sector alone of up to €240million a year as a result of bogus self-employment.
Bogus self-employment is where an employer wilfully and wrongly treats an employee as a self-employed contractor in order to avoid tax and social insurance contributions and other employment rights.
Ms King told the committee that the committee doesn’t have to rely on figures from the Irish Council for Trade Unions to understand the potential loss to the State.
She encouraged them to look at the figures from the Comptroller and Auditor General last November and separate figures from the Central Statistics Office.
She explained:
“The C&AG said a person on €100,000, paying tax and PRSI in the normal way, would have a yield to the State of €44,600. So, if you come to a self-employed person, the take to the State would be €29,648. And for a person operating through a company, and so on, the take to the State would be €29,900.
“The difference between the two – so the PAYE contributor and the either self-employed or company person – is €15,000 per individual for the €100,000.”
There are 146,000 people employed in the construction sector in Ireland, Ms King said, with 32,000 of them declared self-employed.
Ms King said there is an issue with resources.
With just 57 labour inspectors “for the entire economy”, she said “why wouldn’t there be a development of a view that ‘you can actually do this and nobody will deal with it'”.
But she said there’s also a “dysfunctionality” in the system whereby nobody is dealing with the matter and added: “But doesn’t it suit those who utilise it to have that dysfunctionality?”.
Ms King also said:
“If you’re a worker on a building site and even if you know you have been misclassified fairly early in the process and you turn around and you say to the employer ‘why did you do that because I’m a worker, I’m filling all the control mechanisms and everything else, I’m a worker?’ Well the answer that you’ll likely get is: if you don’t like it, ‘go somewhere else and take a job’…in most cases, that’s no choice.”
Mr Dooley, of the National Union of Journalists, said there’s a “conspiracy of silence” around the issue and that the State has allowed it to happen.
He also said the reason so few journalists complain about bogus self-employment is because they’re “terrified”, saying “they are as weak and as vulnerable as any other section of workers”.
He added, in relation to “well-paid jobs”:
“Frequently, in organisations, such as the national broadcaster, require people, as a condition of their employment of the offer to register for VAT because of the size of their earnings. And once you are registered for VAT, you are ‘agreeing’, in adverted commas, that you are actually not an employee.
“And yes, you can go down to the Workplace Relations Commission, or the LRC, and, I have done it, and try to prove that you are and employee and the employer who can’t afford to pay you on the proper terms has no hesitation in bringing down an army of lawyers and barristers to prove that Mr Dooley agreed that he was a company and that he registered for VAT.
“So one of the reasons that there are so few complaints, is that people are so, or investigations, is that people are so afraid to make them.”
Mr Dooley went on to say he links ‘bogus self-employment’ with ‘bogus redundancies’.
Referring to a national newspaper group, but without identifying it, he said:
“Frequently….we have a situation where workers are offered, again in adverted commas, what is a bogus voluntary redundancy and then rehired under a contract for service. It’s done in such a way, it’s a voluntary redundancy, the terms are above the statutory rate and you’re rehired under a name within an indecent period of time. That’s happened and it will happen within this city within the next year in one of our large national newspaper groups that I won’t name.”
In relation to RTÉ, Mr Dooley warned the State broadcaster’s failure to provide correct contracts for workers “will have consequences” for RTÉ.
He said workers who have been denied contracts will be seeking retrospection.
He listed the following:
“Of a total of 433 contractors reviewed, 106 have been assessed as having ‘attributes akin to employment’. RTÉ objects to the term ‘bogus self-employment’ so if you would kindly use the phrase ‘attributes akin to employment’ or ‘attributes which are not akin to employment’ that would be very good.
“There are 51 contractors assessed as having attributes akin to both employment and self-employment and 276 were assessed as individuals who would not normally be considered as employees and would require no further individual review.
“According to the PAC period review, January to May 2018, there are 472 contracts of service in RTÉ – 81 are incorporated limited companies.”
He then added:
“All broadcasting and media organisations have a fetish about personalities. There is a belief among broadcasting organisations, in particular, that in, some way, on-screen talent should be treated differently. I reject that notion whether in the public service broadcaster or anything else. It has a number of negative consequences.
“It denies some employees the opportunity of promotion. It favours people who are on contracts for service or limited companies and it has potential for discrimination on age and gender.”
Watch back in full here
Yesterday: “Torturous And Extremely Difficult”
Patricia King gives rough figures of what could be lost to state in Revenue in construction as result of bogus self-employment – €240 million a year in PRSI and tax. Neither Department of Social Protection or Revenue gives any indication of caring much.
— Paul Murphy (@paulmurphy_TD) January 31, 2019
This morning.
At a meeting of the Joint Oireachtas Committee on Employment Affairs and Social Protection.
General Secretary of the Irish Congress of Trade Unions Patricia King (top) and the general secretary of the National Union of Journalists Seamus Dooley (above) addressed the matter of bogus self-employment.
Meanwhile…
The Irish Times reports:
Talks with State broadcaster RTÉ in relation to the employment status of more than 100 of its contractors have been “tortuous and extremely difficult”, the National Union of Journalists has said.
Séamus Dooley, the union’s general secretary, was giving evidence to the joint Oireachtas committee on employment affairs and social protection in relation to “bogus self employment” on Thursday.
Bogus self-employment occurs when workers who should be classified as employees are marked as self-employed, which can lead to benefits for employers who otherwise would have to pay PRSI and sick pay.
RTÉ last year agreed to review the employment status of 106 contractors after an independent report by law firm Eversheds Sutherland found that they have “attributes akin to employment”.
Mr Dooley said he would be meeting with senior management at RTÉ on Friday in relation to the matter. He described the period since the review by Eversheds Sutherland as “tortuous and extremely difficult”.
“I have spent more time in Montrose than any human being should be required to do,” he said, before criticising the culture of media “personalities” that are treated differently to other staff.
NUJ critical of ‘tortuous’ talks with RTÉ on contractors (Colin Gleeson, The Irish Times)
Previously: ‘I Don’t Want To Make Employers The Bad Guy’
Meanwhile…
Today at the employment Committee @irishcongress renewed its call for the enactment of new laws, like those contained in the @labour Bill which passed Second Stage last year to #EndBogusSelfEmployment. The govt’s softly-softly approach is allowing dodgy employers off the hook pic.twitter.com/nIw3TgSgzV
— Ged Nash (@geraldnash) January 31, 2019
Minister for Employment Affairs and Social Protection Regina Doherty
Last night.
On RTÉ One’s Drivetime.
Philip Boucher-Hayes interviewed the Minister for Employment Affairs and Social Protection Regina Doherty.
They discussed bogus self-employment – where a worker is forced by an employer to declare themselves as self-employed rather than employees and the employer doesn’t have to pay PRSI.
And they spoke about how the deputy secretary of the Department of Social Protection told an Oireachtas committee in November that the department does not prosecute employers hiring people under bogus self-employment conditions.
During the interview Ms Doherty admitted that her department doesn’t prosecute employers for the practice “for a variety of reasons”.
She later told Mr Boucher-Hayes that she disagreed with him when he said it appears employers are being given a “free pass”.
From the interview…
Philip Boucher-Hayes: “The Deputy Secretary of your department appeared before an Oireachtas committee back in November and said that it was departmental policy not to prosecute employers who were engaging people on bogus self-employment terms. Let’s just play it. It’s only 10-seconds long.”
Regina Doherty: “Sure.”
[plays clip]
“We have not been keeping specific stats on bogus self-employment.”
Boucher-Hayes: “The other clip there is Patricia Murphy saying that it is department policy not to prosecute.”
[plays clip]
“The department itself has not taken a criminal prosecution against employers because we have, in fact, used, in our joint operations, the powers available under the tax acts to attach and apply administrative policies and we consider to be, at this time, more effective, and timely.”
Boucher-Hayes: “You’re not prosecuting employers who break the law but you will pursue benefit fraudsters through the courts. This sounds like one law for white collar criminals and another for blue collar criminals?”
Doherty: “No, it’s certainly not. What we do with regard to the scope environment is that if you presented yourself and I use you as an example because we’re talking: If you presented yourself to ask us to do an investigation into your employment status, we would do it.
“If we determined that you were incorrectly categorised, we would go to your employer and say Philip Boucher-Hayes started working for you on the 1st of January, 19-0-flat – you owe us and him and the Revenue Commissioners X amount of money and we would penalise them.”
Boucher-Hayes: “But what about where I work for somebody who has employed 100 or more people on bogus terms and you can prove that and see that they are systematically breaking the law? Why wouldn’t you prosecute them?”
Doherty: “And again, what we do is we bring everybody in line, in the category that they should be paying. We backdate all of the proceeds that the PRSI claims both the employer and the employee should be making to the Revenue Commissioner and to myself and to my own department…”
Boucher-Hayes: “But Regina Doherty, it is a criminal offence to employ people on these terms, why are you not prosecuting them? Why are you giving them a free pass?”
Doherty: “We’re not giving them a free pass. And we conduct thousands, tens of thousands investigations…”
Boucher-Hayes: “No you are giving them a free pass because the Deputy Secretary General of the department admitted that there had only been one prosecution, in spite of the fact that this is a criminal law, under the statute books but your policy is: not to enforce it.”
Doherty: “Yeah, I think the main determination and the main ambition from the department is to get people correctly classified – that’s the way the department has always worked. We changed our inspection regime in the last year to actively go out and pro-actively conduct uncalled or unannounced inspections in particular industries which we have never done beforehand. And what we’re doing now today is changing two things this year: we’re going to introduce anti-penalisation legislation to make sure that nobody that is in that status of maybe being coerced into being self-employed should be afraid to take a case…”
Boucher-Hayes: “Ok, that’s great. But up until now, you have been…”
Doherty: “Let me finish, for one second…if you just let me finish for one second…I’m also going to take away the attractiveness of employers using people as contract staff at some point, with legislation, in the next 12 months. So if I can tackle this in a number of ways, ultimately, what I want is: I don’t want to penalise anybody. I don’t want to make employers the bad guy…”
Boucher-Hayes: “What do you mean? Hang on a second. You penalise people who are committing benefit fraud. You prosecute them but you don’t do the same for white collar criminals. Why not?”
Doherty: “Well, we actually do.”
Boucher-Hayes: “No, you don’t. You’ve done it on one occasion and that’s the figure of the Deputy Secretary General of the Department.”
Doherty: “The reason that we don’t prosecute is that there are a variety of reasons. You’re making the assumption that everybody is put on a self-employment status without the knowledge, without the co-operation, without the consent. There are reasons why people find themselves classified in incorrect classifications and when they come to us we’ll investigate, we find those reasons and we correct and impose fines…”
Boucher-Hayes: “You’re not naive to the fact that one of the main reasons is so that employers can duck their PRSI contributions, it’s a money-saving…”
Doherty: “Well. That’s exactly what I just told you is that if I can manage to take away the attractiveness – I think that will fix an awful lot of our problems but what I’m more concerned about…”
Boucher-Hayes: “You might fix an awful lot of your problems by making an example of the kind of people who are doing it and prosecute them through the courts…”
Doherty: “But what I’m more concerned about…what I’m more concerned about Philip is ensuring that those people who are out there, and we ran a campaign this year to let people know that we even exist, because, to be honest with you, a lot of people were not even aware of the scope, the section within my department on what it does: to let the people know that if they need any assistance or investigation into the classification of their status, from a PRSI perspective, we are here, we will make the investigation and we will make the correction.”
Boucher-Hayes: “Ok.”
Doherty: “And anybody that’s found wanting will be penalised financially. I know you’d probably like to see people hung up by their feet. What I want to do is make sure that we take away the attractiveness...”
Boucher-Hayes: “No I think people would like to see everyone being treated equally before the law. That’s the reason that I raised the question because at the moment they’re not being, employers are being given a free pass on this one. Let’s just set that aside…”
Doherty: “I tell you what, let’s just agree to disagree cause I certainly don’t agree with you.”
Boucher-Hayes: “The scope decisions that you have referred to there: People bring their claims and very often, as our investigations established, the scope will find in their favour – that they are indeed bogus self-employed. But when that decision is appealed to the Social Welfare Appeals Office, by the employer, those decisions are routinely overturned our investigations found out.
“Is the system rigged in favour of the employers?”
Doherty: “Again, if I was to give you an example of the amount of people who apply for carers’ allowance that are refused that then have a mechanism to appeal, that are then overturned and found in their favour, would you think that the system is rigged towards people who are getting carers’ allowance or invalid benefits?”
Boucher-Hayes: “We’re talking specifically about bogus self-employment.”
Doherty: “No, no. You’re talking about a culture which you’re trying to assign to the department which is grossly unfair. We have in our department…”
Boucher-Hayes: “I’m not talking about…I’m talking about facts. I don’t know what the culture is. I’m just talking bout the numbers that have exposed themselves – every case that we looked at where the scope decision had gone against an employer was overturned in favour of the employer. The system would appear rigged would it not?”
Doherty: “Well, no, it wouldn’t appear. In so far as when anybody makes an application and there’s an adjudication, everybody – whether you’re an employer or an employee, in this particular section – has the ability to appeal it. If they don’t like that decision they have the ability to appeal it again. And if they don’t like that decision they have the ability to take it to the actual courts of this land.
“The cases that you may have looked at might have been one way or the other particularly, but there is no sign or trend in our department with regard to people being categorised one way or the other.
“What there is in our department is an investigation section so that anybody who thinks that they are misclassified from a social insurance perspective to make a complaint and we will investigate.”
“And if they don’t like the outcome of the investigation, they have the opinion, or the ability, to be able to appeal it, appeal it and review it and there is no trend.”
Listen back in full here
Previously: Bogus Self Employment Cheats Us All
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.
Martin McMahon podcasts with Tony Groves at The Echo Chamber and blogs at RamshornRepublic
Previously: Bogus Self Employment Cheats Us All
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