Stephen Farry
North Down · Alliance Party · Northern Ireland
“Speaking for a party that has a longer pedigree in advocating a public inquiry than both the DUP and Sinn Féin, I nonetheless welcome this announcement, despite the torturous path that we have had and, indeed, the missed opportunities.”
“The first was a reform of the petition of concern to take it back to the original intent when it was designed in 1998. It was clear at that stage that Arlene Foster banged the table and said, "No, never. We are not doing that. That is a way whereby we are going to have to fold on equal marriage: it's not happening".”
“<BR /> <BR />The main points that I make concern the substance of the order. There are probably three aspects that the Minister needs to address properly before the Assembly, and they really relate to what other options he has.”
“That raises the question of why they want to go as far as 2022, especially when I am not sure — I would welcome any clarification to the contrary on it — that there has been formal Executive approval of this.”
“<BR /> <BR />There are three major substantive issues that I do not believe have been properly aired on this: VAT; European Commission infraction proceedings; and, most important, the opportunity foregone to revisit the classification of Northern Ireland Water and the ability, through a separate water charge, to allow it to borrow commerc…”
“While my party was supportive of the Good Friday Agreement back in 1998, at that time, we expressed some reservations around the very detailed nature of the proposals and how those could, in due course, destabilise Northern Ireland and prevent us from realising our full potential. We have been very much vindicated in that analysis.”
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“That takes on board the comments and fears expressed by Mr Buchanan that we are not locked into this being a company with 50 employees and that consideration will be given to what is the appropriate level for Northern Ireland. That regulation will have to come back to the Assembly for consideration. I also recognise what Mr Flanagan said, in that we do not necessarily have to reflect the case in Great Britain, where there is a threshold of 250. That may well be too large for our circumstances in Northern Ireland. Again, that issue can be bottomed out through the public consultation and, in due course, the consideration of the relevant regulation. <BR /> <BR />There is a small complication with how realistic it may be to collect meaningful data from employees around disability, as there can often be an under-reporting of that issue.”
“The responsible Department, having consulted the trade unions, would also be required to publish a strategy, including an action plan, on eliminating gender pay differences. I am pleased to note that the amendments take on board observations that I made at Consideration Stage. <BR /> <BR />As the proposed new clause 16A stands, the responsible Department is OFMDFM. That is much more in keeping with the broad remit of that Department around gender pay and sex discrimination and, indeed, all equality issues. It is important that we do not preside over a fragmentation of policy responsibility relating to those critical matters. Crucially, the amendment is much less prescriptive in matters such as the threshold for the size of companies or organisations. It is right that that be left to public consultation and, in due course, regulations.”
“I am content with that approach. I stress again my appreciation for the positive approach that the Committee has taken, which has enabled the Bill to move to where it is today despite the challenging time constraints. <BR /> <BR />I move now to new clause 16A — amendment No 4 — and the related amendment to clause 25 — amendment No 25 — tabled by Ms McGahan, Mr Flanagan, Mr McCann and Ms Fearon, as well as amendment No 28. The amendments take a revised approach to the gender pay amendment that was tabled but not moved at Consideration Stage. The intention behind them is the same: to set in place regulations requiring employers to publish information on gender pay differences. Where differences are established, employers would be required to publish an action plan to eliminate them.”
“I am grateful to the Committee for taking that concern on board and coming back to the House with these two considered amendments, which address the issue by removing the requirement to report on individual cases and, instead, placing the focus on cases in aggregate. The Bill, amended in that way, will require separate reviews of early conciliation and neutral assessment at the end of one year and again at the end of three years following the commencement of provisions relating to each respective service.”
“That is not to deny that there may be merit in many of the amendments, but there should be proper consideration of the issues involved. There may be a case for some of the amendments to proceed today, but I urge great caution with respect to the majority of them. <BR /> <BR />I turn first to amendment Nos 1 and 2, which, respectively, amend clause 9 and introduce new clause 9A. The amendments have been tabled by the Chair of the Committee for Employment and Learning. At Consideration Stage, I expressed concern that the amendments, as they were then drafted, could have negative consequences for confidentiality in respect of the important new services of early conciliation and neutral assessment.”
“At the outset, I want to put on record my concerns at the considerable number of amendments that have been tabled at this late stage in the legislative process, many of which do not relate to the main provisions of the Bill as originally drafted, and some of which do not even fall under the responsibility of my Department. There has been some public consultation and Committee scrutiny of some of the issues covered by the amendments; however, with respect to several, there has been no public consultation or Committee scrutiny whatsoever. With the period of notice for amendments to primary legislation being, in practice, less than for a no-day-named motion in the Assembly, there is a real danger of bad law being passed.”
“I appreciate the sentiments of the Member, and I probably concur with him on the amendment. However, is it not a little strange to make those comments in light of what happened during the general election in a number of constituencies, including his constituency of Newry and Armagh, as well as East Belfast and Fermanagh and South Tyrone?”
“I thank Mr Hilditch, who spoke on the Committee's behalf, as the sole contributor to the debate. I put on record my thanks, once again, to the Committee for its detailed scrutiny, as always, of the business we put before it. <BR /> <BR />In closing, I reiterate that this does not mark a change in the effect of working time regulations in Northern Ireland but is a simplification, in that we are consolidating a host of different regulations. That should be something that is very much in the interests of employers and employees, and it is a reflection of the overall commitment of the Executive to address regulation and the principles of better regulation as a whole. I commend the motion to the House.”
“<BR /> <BR />I hope that I have provided sufficient explanation of the purpose of these regulations and will, of course, respond to any points made by Members in my closing remarks.”
“This mix of interests helped to ensure that the review was informed by the knowledge and expertise of practitioners and key stakeholders. The project team achieved consensus on a number of actions, including the reduction in administrative burden through consolidation of the regulations. <BR /> <BR />The provisions of the 1998 regulations and the regulations amending it have previously been the subject of public consultation. As the draft regulations largely consolidate and replace the provisions currently contained in those existing regulations, no further public consultation was deemed necessary. <BR /> <BR />I am most grateful to the Committee for Employment and Learning for their detailed scrutiny of the regulations.”
“<BR /> <BR />The working time regulations were chosen for review because they are substantial in content; they impact on a significant number of employers and employees; and they afford the opportunity to cover all elements of better regulation principles. One of the key desired outcomes of the pilot was a reduction in the administrative burden for the regulations, which was to be achieved through a combination of better regulation measures including removal of outdated legislation; updating some legislative references, including making the regulations gender-neutral; consolidating a number of separate legal provisions into a single regulation; and strengthening of existing guidance and support. <BR /> <BR />I am grateful to the project team, representative of employee and employer interests, that reviewed the regulations.”
“They lay down minimum conditions relating to weekly working time, rest entitlements and annual leave, and make special provision for working hours and health assessment in relation to night workers. <BR /> <BR />Under the Executive’s economic strategy, my Department committed to a review of employment legislation in seeking to stimulate business confidence while maintaining the rights of individual employees. As part of the review my Department initiated pilot reviews of a number of substantial sets of employment regulations. The overall aim was to seek to reduce the administrative and financial burden of regulations without impinging on individual employment rights.”
“I am seeking the Assembly’s approval for The Working Time Regulations (Northern Ireland) 2016. They will not come into operation until approved by this Assembly. They will consolidate and replace the provisions of the Working Time Regulations (Northern Ireland) 1998 and ten statutory rules which amended it from 1998 to 2009. A reduction in the administrative burden to employers will be achieved through the consolidation of a number of separate statutory rules into a single set of regulations. This will make navigation of the provisions of the regulations easier for users. <BR /> <BR />The Working Time Regulations, as amended, implement European Council directives on working time and the protection of young people at work.”
“<BR /> <BR />I remind Members that what we are proposing today is about making our employment relations system in Northern Ireland much more efficient and effective in the interest of employers and employees. This does not have to be a zero-sum game of setting one off against the other. The unions and employer organisations support what is in the Bill. Much of what we are doing in alternative dispute resolution is world leading. We are not simply copying what happens in other jurisdictions. We are the people showing leadership and doing things with a degree of creativity and innovation that will set the standard for others to follow.”
“We need to reflect on the way in which we approach business and how we can move forward on areas where there are disagreements, even minor disagreements, to stop them becoming blockages. Once we are in a constructive place, we can get the issues moving. <BR /> <BR />I rather fear that the zero-hours contract has become the victim of how our Executive work. That was a plea for reform, not a plea for me to abandon all hope and leave things to other parties to get on with. It is an Alliance Minister who has been trying to reform the context of zero-hours contracts, but, in cooperation with the Committee, we have taken forward other reforms that will make the system of employment law in Northern Ireland better and, indeed, the envy of the world.”
“Over the past year, we have wasted the opportunity to do something far more radical than Great Britain and the Republic of Ireland, and we will now be forced into the situation of being left with nothing on the statute book on zero-hours contracts. <BR /> <BR />Mr Agnew seemed to have more interest in my position as an individual than the policy issues. I am not quite sure what was going on there, but I am sure that we can speculate on what was going on in his mind. The simple fact that this did not get through the Executive does not mean that I am without power or influence. In a multi-party Executive, we all have difficulties in getting consensus. I wish that that was not the case. We need a lot more outcome and delivery. However, the deadlock and division in our Executive have affected every Department, and we need to reflect on that.”
“It is important that we are conscious of the implications of what is before us. I point out to those who tabled the amendment that their Ministers have been presiding over the use of zero-hours contracts. They talk about a ban today, but, unilaterally, any of their Ministers could have acted to ban them in their area of responsibility. Why were those opportunities never taken up? I am happy to give way if someone wants to clarify that. <BR /> <BR />Let us be clear: today is more about grandstanding than about a realistic approach to how we address a serious problem. I am deeply frustrated that we have not been able to get consensus.”
“<BR /> <BR />Leaving that aside, there are wider implications that would flow for our health and education sectors. To suggest that we can simply flick a switch and the health and education sectors would reorganise their workforce plans overnight is extremely naive. There would be massive disruption. There would need to be renegotiation on how the systems of supply teachers and bank nurses were delivered. We are talking about a period of months in which the current systems would be de facto illegal and people could take cases to industrial tribunals for breaches of the law.”
“Today, we have a choice between the status quo and an outright ban. Some people seem to be suggesting that an outright ban is probably the lesser of two evils. Let me put it the other way round and make the point extremely clearly: in the context that the Assembly puts through an outright ban on zero-hours contracts, I would not feel in a position to continue with the Bill. Such violence would be done to the Bill that we would have to stall the process. I, for one, am not prepared to stand over a situation where, through lazy legislation and not fully considering the implications, we inadvertently put the jobs of tens of thousands of people in Northern Ireland in jeopardy. That is the implication of what we are talking about.”
“Some people seem to be operating under the illusion that, if we were to ban zero-hours contracts and, in doing so, had a definition that was sufficiently watertight and covered similar contracts or variations of that, we would maintain the same level of employment and employers would keep all their existing staff who are on zero-hours contracts and put them on a different contract. In some cases, that would happen; in other cases, people would lose their job. Employers may choose not to put people on a different contract. They may choose not to employ those people because, for whatever reason, it is not consistent with their business model, for better or worse. <BR /> <BR />My ideal situation is very clear: I want proportionate regulation, but the Executive have not been able to agree on that.”
“In doing so, we have to recognise that we have a responsibility to address abuse as far as we can, at the same time as ensuring that where flexibility works for employers and employees we allow that to happen. We also have to ensure that whatever we do is credible and will address the problem. To be perfectly frank, leaving aside the wider impacts of the proposed amendment, it would be very easy for employers to circumvent the current definition of a zero-hours contract with a different form of casual contract that would add very little protection. The proposed way forward would not actually deliver much in terms of its wider policy intent. <BR /> <BR />At the same time, we need to be very conscious of where this could lead us.”
“<BR /> <BR />I had other ambitions on changing the collective redundancy notice when more than 100 employees were affected, which is a bigger issue for us in terms of our competitive position in attracting investment. That would require primary legislation, and, unfortunately, due to a lack of agreement on that, that will not be immediately available to us. <BR /> <BR />That brings me to the issue of zero-hours contracts, which probably generated most of the discussion on group 2. I stress that my preference is that we have a proportionate regulation. We have to move with the times. Those contracts are becoming an increased feature of our labour market, and it is important that regulation keeps up to speed with the casualisation of the labour market.”
“It cannot be slipped in through the back door. It could not previously be slipped in through the back door. All we are doing is moving from a situation where there will be a short period in which a Minister could act unilaterally with the prospect of being overruled by the Assembly. That, in itself, would create chaos in our employment law. We have a situation where the Minister and Assembly would have to act before the change could be made. I have outlined where I could see that change happening in the future if the evidence base was there. It could be part of a wider package of reforms. People viewed that as worthy of consideration.”
“When the change occurred in Great Britain, they essentially moved on the basis of anecdotal instinct as opposed to a solid evidence base. Members are perfectly entitled to take a decision to move on that basis, but it is important that they understand the basis on which they may or may not take a decision today. <BR /> <BR />Looking ahead, the issue can return to the Assembly. Any future Minister for the Economy can bring forward regulations to the Assembly to change the qualifying period from one year to two years. The existing law says that that is done through the confirmatory procedure. That means that there has to be a vote in the Assembly. The amendment that is before us changes that to the affirmative procedure. That, in no way, shape or form, changes the balance of voting: there will need to be a vote in the Assembly.”
“<BR /> <BR />On the issue of unfair dismissal, I reiterate that I will certainly retain an open mind and encourage other Members to do so as well. What we are asked to do today is take a final decision on the issue in the context where the evidence base is not yet established for change. If people wish to go back and review the documentation from my Department on the employment law review, they will see that we have made a request for organisations to bring us evidence and that we have not received conclusive evidence from those organisations to justify change. We have also done some comparative international analysis that, again, at this stage does not back up the case for reform. People are making what are essentially anecdotal comments around our competitive base to justify the change in policy.”
“It has to have the opportunity to have the public consultation, consider the implications of the consultation and then bring it through the normal processes in the House. The prospect of that being done by the middle of November are fairly remote; it is ambitious. I give those points to the Member more as potential suggestions, but they are constructive suggestions on how he may find that he is able to garner what may well be, in the main, cross-party support in the Assembly for the way forward on that point. I commend him for at least showing the initiative to bring it forward and for his wisdom in potentially waiting a fortnight or so and reflecting on how the amendment could maybe be crafted somewhat differently.”
“That is not me wishing to argue that we need to take our time on it or drag our feet; we simply have to be realistic about the fact that an election is coming up and a new Department is coming on stream. There will have to be public consultation on the regulations. No matter how much or how little detail goes into the primary legislation, when you have a requirement for regulations where there has been no policy work done in Northern Ireland, there will need to be a formal public consultation. Any Department that tries to bring forward regulations without that public consultation will be successfully judicially reviewed. That consultation has to occur. Any new Department has to do the necessary policy work.”
“We may not want to see a situation where we fragment equality responsibility and give one small sliver of equality issues, particularly in relation to sex discrimination, to the Department for the Economy as opposed to keeping it alongside other aspects of sex discrimination under the Department for Communities. As the Member reflects on that, he will probably see that it is best that equality is kept together. Certainly, the Executive, of which his party is a primary member, would no doubt wish to see equality powers consolidated together rather than split in different areas. Again, that may well be something that the Member wishes to reflect on. <BR /> <BR />We need to be realistic about the timescale.”
“In a similar light, it is important that the Member reflects on which Department he gives the responsibility to. I am not sure whether it was deliberate or otherwise but, as the amendment stands, it refers to "the Department". Clause 25, I think, defines the Department as being the Department for Employment and Learning. That power would subsequently transfer to the new Department for the Economy. While, in the eyes of some people, that may well be the logical place to do it, we have a situation where equality responsibility currently lies with OFMDFM and that is transferring to the Department for Communities.”
“Therefore, no violence would be done to the ambitions that the Member and his colleagues have by simply putting less detail into the amendment and giving more scope for the consultation around any regulations that a future Department will bring forward. That way, you will have much more buy-in from stakeholders, address your policy outcome and have full capacity to do something different from what the case is in Great Britain, but you will also have a much stronger confidence base that what you are doing is something that is going to be workable in the Northern Ireland context.”
“I make this very clear to the Member: I fully accept that the premise of what he is saying is that we may wish to do something different in Northern Ireland from what is being done in Great Britain, so a threshold of 250 in Great Britain does not necessarily have to be carried across into Northern Ireland. The point that I was making is that the rationale for 50, as he outlined, is nonetheless an arbitrary threshold. It could be 40; it could be 60; it could be 100; it could be 10. Those are the sorts of issues that would be best considered through the public consultation around the regulations.”
“That is an issue that may well be better determined after that public consultation. Therefore, a future amendment could make reference to a responsibility to bring forward regulations, state that regulations must consider points a, b, c and d and state that point a, for instance, is the threshold for the number of employees.”
“<BR /> <BR />If I may be so bold as to suggest, in this format, some of the issues that the signatories to the amendment may wish to reflect on, and the reasons that they should wish to reflect on them, I will do so. I think that it would be productive to do so. The first point that I will make is that a balance has to be struck between what is said in the actual wording that goes into primary legislation and what aspects may be left to regulations. Ms Sugden made a valid point about the rationale for the thresholds for the number of employees. Obviously, in Great Britain, they are talking about 250 employees, and the proposer of the amendment discussed a point around 50. That is an issue that may be better left to the public consultation by whatever future Department would be responsible for engaging on the regulations.”
“If there is the ambition that we do it at this time through the Employment Bill, not moving and re-presenting the amendment at Further Consideration Stage is the more responsible thing to do. <BR /> <BR />The amendment does not directly impact on my ministerial responsibilities at this stage, although it may do so in due course, so I do not take a formal view as Minister. Wearing my own hat, may I say that my party colleagues and I would be sympathetic to supporting a revised amendment in principle, subject, of course, to seeing its wording and ensuring that it is something that is going to be viable? Without putting words in other people's mouths, I detect that there would be a similar viewpoint from other corners of the House. Therefore, there is certainly something for the Member and his colleagues to work on.”
“Therefore, we need to be rather careful around some of the points. <BR /> <BR />I will take the amendments in the order in which they appear in the Marshalled List. First, we have the issue of the gender pay gap. I commend Mr Flanagan for what I gather he is going to do, which is to pause and not necessarily move the amendment today at Consideration Stage but consider bringing it back at Further Consideration Stage. I think that that is a wise approach and is very much in the spirit of where the Assembly is today. I appreciate that some Members have said today that they do not believe that we should be addressing the issue at all at this time. I, and probably my officials, have considerable sympathy for that point of view. However, we are where we are.”
“This debate has been an interesting one and certainly took longer than the debate on the group 1 amendments. Obviously, most of the interest has come on the amendments that were not processed by the Department or the Committee. Those amendments came in from Members at the eleventh hour. It is their right to do that, but it brings the disadvantage of there not being proper scrutiny of them or a full understanding of the consequences that would flow from them, deliberate or otherwise. Sometimes, the unintended consequences are the ones that people may not necessarily be aware of. It is important that people bear that in mind when they come to support, or otherwise, the proposals that are before us. It is one of those instances when you could say, "Legislate in haste, repent at leisure".”
“OK. I am not sure if the Member has been paying attention over the past five years, but we have a higher education strategy, a widening participation strategy, an FE strategy, an apprenticeship strategy, a youth training strategy and a NEETs strategy. We have additional STEM places, and we have doubled the number of PhDs. I can go on at length if the Member so wishes. I am in a position to address a large amount of things. I also stress to the Member that he is coming very close to advocating political interference in how universities do their business. I urge caution on that. I am sure that that is not really where he intends to go.”
“Those proposals were rejected by the Executive not because they went too far but because Sinn Féin — no doubt, Mr Flanagan can respond to this in due course — did not feel that they went far enough. They wanted an outright ban. We have been locked into a situation where it has been an outright ban versus the proportionate reforms that I have been trying to get through the Executive for the best part of a year.”
“I will save the Member from five minutes of speculating erroneously. The context is that we have had a significant paper, which I mentioned in my opening statement on this group of amendments, before the Executive since February 2015. It made a number of proposals, including a ban on exclusivity. Frankly, the Executive and the Assembly agreeing to ban exclusivity would just be a drop in the ocean. Something like 2% of zero-hour contracts are exclusive, so it would be scratching the surface. We were looking for a statutory code of practice and an expectation that an employer would have to justify not giving someone who has fulfilled a normal working pattern over a set period a regular contract.”
“Surely the logic, therefore, of what he is saying is that we need to devise a system that allows us to tackle abuse where it exists and to devise a system that allows the flexibility that benefits people to continue. That way, everyone wins. Surely an outright ban, as the Member is potentially about to endorse, would prevent us from having that ability to adapt to the particular circumstances that people find themselves in.”
“It is important that the Member be aware that supply teachers, who were previously regarded as agency workers, are now regarded as employees with zero-hours contracts. There are good reasons for that shift having taken place. Casualisation, which, as the Member implies, can occur on an agency basis, would be an even more retrograde step, not just because of its impact on staff rights. It also opens up issues around inefficiency. For example, one area is child protection and how schools would engage with people who are even more at arm's length from them if they were on a de facto supply teacher list as opposed to a de facto zero-hours contract.”
“Does the Member, therefore, feel that his colleague the Minister of Education has been guilty of exploiting workers, given that he, his predecessor and the Sinn Féin Minister before that presided over a system where supply teachers were used in schools? That is a form of zero-hours contract.”
“Just for the record, I did not withdraw the proposals because I was not getting political consensus; that hope still lies before me. I withdrew them because we were effectively out of time to draft the complex clauses that would have put the Executive paper into effect.”
“This is slightly separate from the original topical question but, in one word, the apprenticeship strategy.”
“The process is at a different stage with Michelin, because the 90-day consultation period on the collective redundancies has not formally come to an end. That will happen at the beginning of March. At that stage, the nature of the engagement will change gear quite significantly.”
“The Member will know that there was a meeting yesterday of the task force, which the council is coordinating with a view to addressing a range of different points on manufacturing and skills. Obviously, my Department plays a role within that, as do DETI and some other Departments. <BR /> <BR />Beyond the broader issues, there are particular points around JTI Gallaher and Michelin. Obviously, as the Member will appreciate, the two processes are at different points. The JTI Gallaher announcement is well advanced, and we have been investing, with my Department funding some very particular interventions around courses that are not otherwise available. Also, there have been some particular interventions around essential skills for some of the staff.”
“We cannot simply recoup that money, and anyone who thinks that we are going to get a big pay cheque from the UK Treasury to make up the shortfall for the European money that we would lose is in la-la land.”
“There really is no plan B. If we lose the European money, we lose the European money, and we will suffer as a consequence. That will be very much to our detriment. In addition to Horizon 2020, my Department probably avails itself of more pots of European funding than any other Department. Obviously, we would lose ERASMUS+, which, again, would not just be an issue of funding; it is also about opening up opportunities for our young people to experience learning in different parts of the European Union and elsewhere, which is incredibly important. That programme has been extended to apprentices, so we can have exchanges outside the context of university students. <BR /> <BR />Obviously, we have the European social fund, which makes an enormous difference and allows us to do things that we simply could not do within our mainstream budgets.”
“That would not happen to the same extent if the UK was going alone. Some people may argue that additional funding would be made available to research, but you would lose the added value that comes from the potential for international collaboration between academics from different jurisdictions.”
“That sounds almost like a planted question. It would be quite catastrophic. As the Member will know, we are talking about a fund that amounts to close to €80 billion over the next seven years. That is a Europe-wide intervention and provides added value to what can be done through the quality-related research (QR) funding that we give domestically to our universities. <BR /> <BR />We have other pots of international funding that we can also access, but Horizon 2020 provides new openings and the opportunity for partnerships to be built across national boundaries. That is very important in the modern world of research, where things do not exist in a bubble. Particularly on some very sophisticated research projects, you need to have that scalability and be able to bring a lot of partners in from different institutions.”