Phil Flanagan
Fermanagh and South Tyrone · Sinn Féin · Northern Ireland
“I thank the Minister for his answer. There is an old guise that you should never ask a question that you do not know the answer to. The question that I submitted asked the Minister how many social houses had been started in the 2015-16 financial year, but somehow it was changed.”
“I thank the Minister for his attempt to answer the question. I put him on notice that it was not he who initiated the process, but I am looking for him to intervene and stop it as a locally elected representative. <BR /> <BR />There are roughly 1,000 people on the housing waiting list in Fermanagh, and nearly 300 of those are in stress.”
“Go raibh maith agat, a Cheann Comhairle. Gabhaim buíochas leis an Aire as ucht a fhreagra. I thank the Minister for his answer. The licence has not been extended, but does the Minister accept that the decision to extend InfraStrata's time frame for a work programme sets a dangerous precedent on fracking, particularly given that InfraStrat…”
“How does the Minister square that with the ministerial involvement of his predecessor, Nelson McCausland, interfering in where social houses are built for political, parading or electoral reasons.”
“I thank the Minister for giving way, and I have no difficulty in supporting this request for information sharing, but I have two short questions. First, he said that this is a tax on employment. Does he have any sort of a headline figure as to what the scale of the financial implications of this will be for local employers?”
“<BR /> <BR />Requirements are now being placed on the Department with regard to careers. That is a very positive development that the Minister brought forward after the Committee initiated a review of careers advice, which was then followed up by a piece of work that the Minister commissioned from an expert group on careers.”
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“The gap appears to be wider for older women, women from ethnic minorities, women in certain occupational sectors, such as skilled trades, and women on higher earnings. If we got the information, it would give us a much better insight into the scale of the problem and allow the Department to produce a much more informed strategy on how to deal with it. <BR /> <BR />The Minister said that the timeline was not realistic. Although I do not necessarily agree with him, other Members seem to share his concern, so I am prepared not to move the amendment on the gender pay gap and work with the Minister and other colleagues to find an amendment that meets the Department's needs. The Minister also has concerns about the responsibility for this being put on his Department as opposed to OFMDFM, which currently has responsibility for equality.”
“We have decided to apply a cap of £5,000 per employee because many people feel that a penalty of £5,000 for a large company with 5,000 employees is not much of a sanction, not much of a deterrent and not much of an incentive for companies to comply. A sanction of £5,000 per employee would mean that companies were extremely reluctant not to comply with the legislation. <BR /> <BR />It is clear, even though we do not have the information to the extent that we need it, that there is no one clear cause of the gender pay gap. There are important factors, such as discrimination and the fact that roles predominantly done by women are undervalued by many. Men tend to dominate the best-paid positions, and there is an inequality in the level of caring responsibilities.”
“One of the biggest criticisms of the legislation in England is that there is no mechanism for employees or recognised trade unions to get sight of the information about their employers, so we need the Bill to include a requirement for the information to be shared with company employees and any recognised trade unions. The legislation in England refers to the publication of a report, but what does that mean and where does the report go? It needs to be shared with employees and trade unions. <BR /> <BR />Finally, the amendment would also require the Executive to introduce a strategy to tackle the gender pay gap within 18 months. Another big difference between this Bill and the legislation on the statute books in England is that the proposed sanction for non-compliance is capped at £5,000 in England.”
“I do not necessarily agree with him, but I accept that maybe he has a better understanding of how his Department works than I do. The officials in it certainly have a better understanding. The information that will be published will apply only to companies with 50 or more employees. It will have to set out the extent of the pay gap in each organisation. They also have to carry out an equal pay audit. I have left it up to the Minister to set out much of the detail required, but I have set out some parameters that need to be included in such a report, including a demonstration of the methodology used to calculate any differential in pay between male and female employees.”
“I would have been minded to go for companies with 10 employees or more, but, in the interests of getting maximum political support, 50 is a happy medium. <BR /> <BR />In England, it was largely done in the same way: the 2010 Act was an enabling piece of legislation that allowed the British Government to bring forward regulations to enact it. However, we are still waiting on those regulations to be brought forward. That is why the amendment includes the date of 10 November 2016 by which the first regulations must be made. That date, of course, is Equal Pay Day, which is the day on which, women argue, they stop being paid for the rest of the year in Britain because they are paid 13·9% less. The Minister indicated that there may be some difficulties for his Department in meeting that deadline.”
“<BR /> <BR />In the gender pay gap, even though the difference in Britain is, I think, 13·9%, women are actually paid more here than men, but there are some unique explanations for that. However, there is no information as to whether men and women carrying out the same job are being paid differently in the same organisation. Many groups that campaign to eradicate the gender pay gap acknowledge that the first thing we need is accurate information on the scale and extent of the problem to allow it to be addressed. As I said, the British Government introduced similar legislation, but they made it applicable only to organisations that have more than 250 employees. If we were to follow that course of action and go with 250 employees, that would be the minority of employers and employees.”
“However, if you drill down into those statistics and look at them in some detail, you will see that that could be explained by the higher proportion of females employed in the public sector and the fact that jobs in the public sector tend to be better paid than those in the private sector. It is also the case that those statistics were gathered after the complete collapse of the construction industry. The fact is that so many men across the North lost their jobs in a well-paid, skilled trade. As a result, they are unemployed, they emigrated, or they have opted for less-well-paid or even part-time employment. I meet men who have left the construction site and are now stacking shelves in shops on a zero-hours contract. There is a reluctance amongst those people ever to go back into construction.”
“The legislation enacted in Britain was slightly different, and I will highlight some of the differences that exist. Forty six years after the introduction of the first Equal Pay Act, women can still expect to earn significantly less than men over their entire career as a result of differences in caring responsibilities, clustering in low-skilled and low-paid work, the qualifications and skills that women acquire and outright discrimination. Thankfully, discrimination, in that sense, has been made illegal, but that does not mean that it is not happening. The whole premise of the amendment is to shine a light on where women are being paid less than men for doing similar jobs. <BR /> <BR />Recent evidence indicated that, at a macroeconomic level, women here earn more than men.”
“It appears that there is a difference of opinion within the DUP, and it is hard to know why that has changed. I accept that Mr Ross is a long-time advocate of the proposed change and has raised it consistently since 2012. It may well be the case that employers are raising it with him, but I do not think that it is a barrier to job creation or growing our economy. If we made the change, all it would do is erode workers' rights, with no tangible benefit in return for employers. <BR /> <BR />Amendment No 10 is about putting a statutory duty on companies to publish information on the extent of differential levels in pay between male and female employees. It is important to highlight the fact that, as the Minister said, it is largely based on legislation that exists in Britain that was enacted in 2010 but which has never taken shape here.”
“What actually happened in that year when employers in England could sack staff within up to two years without any legal recourse and employers here could only do it within 12 months was that we had record levels of inward investment and job creation facilitated by Invest NI. So, the only evidence that exists highlights that this actually does not present a barrier to job creation at all. <BR /> <BR />As I highlighted to Mr Buchanan earlier, I was really interested to hear the comments from Mr Hilditch at Second Stage when he said that he supported the idea of not following suit with the rest of the UK by deciding not to increase the qualifying period for unfair dismissals from one year to two years. In the same debate, Mr Anderson outlined that he was in favour of extending it to two years.”
“The whole point of it is to allow employers to establish whether employees are fit for the job and to allow employees to figure out how to do the job before an assessment is made of whether or not they are fit for it. Moving to two years does not make any sense. <BR /> <BR />The only evidence that exists in this regard in recent years was the move, within the first year of the coalition Government in England, from a one-year qualification period to a two-year period. We stayed the same and kept the one-year period. We will be told that that is a massive barrier to inward investment and that no companies would come and base themselves here because they could not sack their staff within a year. I do not think that companies come here to hire staff so that they can sack them.”
“So, the employer is saying, "After six months, I will know whether or not you are fit to do this job." However, a minority of Members here want to extend that to two years. Really, all that would do is deny people the right to go to a tribunal. <BR /> <BR />The whole purpose of the rule where you cannot take a claim within one year — I think that one year is probably a bit too long, given that most employers put people on probation for six months — is to allow people to bed in. It is not to allow businesses to downsize and get rid of staff without having to make redundancy payments. No matter what you have been told or what you think, it is not to bring additional flexibility into the workplace.”
“I do not have any figures but I will come on to a piece of evidence in a moment that will explain why there is no economic or social justification for this policy. I make the point to the Member that anybody who has applied for a job in recent years will have seen that, when you apply for a job, one of the criteria states that employees will be on probation for the first six months. I do not understand why employers give a probationary period of six months, yet there is a full 12 months in which an employee cannot take a case for unfair dismissal. Some Members want to extend that qualification period to two years. You go into a job and you get a six-month probationary period.”
“It does not make it one bit easier to hire staff; it makes it easier to fire staff. My understanding is that the whole purpose of having a one-year period in which you cannot take a claim for unfair dismissal is so that the employer has a chance to figure out whether the employee is capable of doing the job and to give the employee a chance to become skilled up and able to do the job so that the employer can make a determination as to whether or not they are capable of doing it. If, after one year, an employer cannot figure out or does not know that an employee is not fit to do that job or that they are not performing, they are never going to know. A full year, 12 months, is enough for an employer to know that that employee is not cutting the mustard.”
“That, in effect, is what is happening with zero-hours contracts. People are turning up at their workplace in the morning or afternoon and either being told that there is work for them or sent home. The employer has absolutely no duty to organise their workplace effectively. It is being done not only to completely erode workers' rights but to cover up for lazy and ineffective management within organisations. <BR /> <BR />I will move on to Mr McCrea's amendment No 14 about extending the qualifying period for unfair dismissal. There is absolutely no justification to warrant this legislative change. Extending the qualifying period for unfair dismissal does not make any sense. The CBI, the FSB and employers' representatives of that nature will tell you that it makes it easier to hire staff.”
“The question that I want to pose to Members is this: do we want to return to a system of employment where workers turn up at the gates of the docks or the workhouse on a Monday, Tuesday, Wednesday, Thursday and Friday morning to see whether they are lucky enough to get pulled in the gate for a day's work?”
“The Minister assured us that his Department and the Department for Social Development were working on a joint departmental approach. A year later, we have not had any kind of update on how the benefits system will be changed to meet the need for flexibility of employees who one week may get 30 hours and the next three or four weeks get none and, because that is the case, do not get any benefits at all. That is another issue to be sorted. It does not appear to be a legislative barrier, and it is something that Departments can work on together. <BR /> <BR />I will now move off zero-hours contracts and on to the other two amendments.”
“I accept that, but that is my party's position on the matter. It is a missed opportunity, however, not to address the issue now when there is an opportunity through the Employment Bill for us to put in place at least some measures to protect employees from abusive employers who base their whole business model on zero-hours contracts and do not understand that people need surety. We are told about the needs of our housing market, but how can people get a mortgage if they are on a zero-hours contract? <BR /> <BR />When the Minister brought forward his proposals to tackle zero-hours contracts, one of the issues that Mr McCann and others put to him was the ability of people in low-paid jobs to access benefits and working tax credits.”
“You had full-time and part-time members of staff and casual workers to come in to do a piece of work when required. The situation now is that employees are called in whenever the employers want. They are not given any notice of when they will be working or when their shift will be cancelled. They are not compensated if the work is cancelled at the last moment, even when they have turned up. There is a vast amount of documentary evidence about the abuse, particularly by employers such as Sports Direct, whose whole business model is based on employing staff on zero-hours contracts. That needs to be addressed. We cannot bury our heads in the sand and say that we are not going to do anything. <BR /> <BR />The debate on zero-hours contracts has gone on long enough, and I accept that, at this stage, we do not have consensus on an outright ban.”
“I largely accept what the Minister says, but I still do not accept that teachers and nurses have to be employed on zero-hours contracts. There has to be some way of getting casual worker contracts — not necessarily through an agency — to meet the need for flexibility in the public sector. However, the target of the amendment is not the health service, the education system or the public sector generally, and I do not think that either service would be negatively affected. <BR /> <BR />I accept, once again, that flexibility is required by some employees and some employers, but the problem is that a small minority of employers are abusing the system, generated in recent years, of zero-hours contracts. It was not a concept that existed 10 years ago.”
“— and move away from having full-time, permanent nurses.”
“The difficulty with the Minister's argument about the health and education services running into crisis overnight is the different legal status of a worker and an employee. There would certainly remain flexibility for employers of all sorts to have casual workers on the books, including a medical ward that needed to bring in agency or as-and-when staff to cover staff sickness. However, I do not think that it is acceptable to give a health and social care trust carte blanche to hire a significant proportion of its nurses as bank or as-and-when staff —”
“Employers should not be allowed to treat employees in such a way.”
“The Minister engaged in a public consultation to identify the scale and extent of the problem and find out directly from people on zero-hours contracts how they were being treated as employees and whether a zero-hours contract was the right employment contract for them. I think that all of us, as MLAs, received many pieces of correspondence from people who had responded to the public consultation and copied us into their response. Some of the practices of employers who routinely employ people on zero-hours contracts are very alarming. Zero-hours contracts are not illegal. They are not illegal because we have not dealt with them as a legislative body and a case has not been successfully taken through an industrial or fair employment tribunal to make them illegal, but that does not mean that they are ethical or right.”
“However, I do not think that that is necessarily the case in a restaurant, a high-street store or a job where people are not even paid the living wage.”
“I accept that there is a need for flexibility in the workplace for employers and employees, but, at the minute, the pendulum is far too much in favour of employers, and, unfortunately, a minority of employers is abusing that right. <BR /> <BR />If we do not take this opportunity to tackle the scourge of zero-hours contracts, it will be a missed opportunity. To be fair to the Minister, he tried to bring forward some pragmatic solutions that would have dealt with the worst aspects of zero-hours contracts, particularly exclusivity contracts, where somebody works for an employer exclusively and is not allowed to work for another employer. That might be the case or might be justified in some high-end employment places where an extremely rare set of skills is required and confidentiality is required between one employer and another.”
“I have, and it is good to hear a Member on the opposite Benches arguing for evidence-based policy. It is certainly a far cry from some of their previous policies and the Member's support for extending the qualifying period for unfair dismissal. It is clear that there is no evidence to support that policy proposal. <BR /> <BR />The Minister's public consultation highlighted that there were 28,000 people here on a zero-hours contract. You cannot tell me that every one of those 28,000 people wants to have no surety about what hours they work this week, next week or the following week or that they can land into work today at 4.00 pm and be told, "We do not need you; go on home" and not be compensated for that at all. I do not think that that is acceptable.”
“We should bring in a legislative framework that protects workers. That is a fairly basic requirement, and I do not think that it is asking too much. <BR /> <BR />What we are seeing at the minute with workers' rights — the Minister referred to it in his opening remarks — is an increase in casualisation. Staff are now being hired increasingly on zero-hours contracts. We are told that everything is rosy in the garden, that unemployment is going down and that more and more people are in work, but, in reality, how many of those jobs are zero-hours contracts? How many of them are low-paid ? How many of them are for people in underemployment, where people who want to work full-time or want to work more hours cannot get them? The amendment would prohibit —”
“I thank the Member for his intervention. I do not necessarily agree that we should force all those employers to leave. However, we are a legislative Assembly, and we should introduce legislation that they have to comply with that affords dignity and self-respect to workers. I do not think that we should ask Sports Direct to close all their shops and move out just because they treat their staff badly. However, it is a fairly basic requirement that employers operate within the law, and what we propose to do is implement and introduce a law that ensures that workers are treated with a bit of respect and dignity. <BR /> <BR />I do not think that the Member's intervention is rational, and I certainly do not agree that we should ask those who are over-reliant on staff with zero-hours contracts to up and leave.”
“That is one of the big issues with zero-hours contracts. <BR /> <BR />I think it is important to remember that, when the Minister appeared before the Committee, after his consultation closed and I put to him the prospect that zero-hours contracts should be banned, he, more or less, said "We can't do that, because employers would find a new way of treating employees badly". I agree with him; that would be the case. A small minority of employers who want to treat their staff badly, abuse them and not give them any rights as workers or employees, or give them any dignity as human beings, will find a way to circumvent the law.”
“It would actually discourage the health service from using those types of contracts for people who are, in effect, full-time staff but who are down as zero-hours contract staff or employees. This amendment would force people who need casual workers to hire casual workers, instead of hiring employees and giving them zero-hours contracts. What we are seeing is that people are being punished — having their hours put down to zero — if they are not available for work, join a trade union or exercise any rights at all. The employer then has every right to punish them by moving them from a regular 30- or 40-hour-week basis of employment and putting them down to zero. Then, there is no mechanism for an employee to take a case for unfair dismissal or to take it to a tribunal because it is not covered.”
“It is an excuse for lazy, ineffective and bad management. Instead of figuring out what staff you will need to run your business, people put everybody down for zero, even if they work 35 or 40 hours every single week. That is an issue that has been raised time and again with me as an MLA, and I am sure it is the same for the Minister and other colleagues in the House. <BR /> <BR />We cannot have a situation where the health service is being run by staff and nurses on zero-hours contracts. There is a reluctance in the health service to give nurses a proper full-time job. The over-reliance on as-and-when staff — or bank staff, as they are called — is a serious problem in the health service. This amendment would not make it worse.”
“I thank the Minister for his intervention. I had intended to return to his allegations that the health and education services would be put into crisis overnight if this amendment were passed. The fact is that casual worker contracts have been in place for generations. It is my view that, with those types of contracts, people were seen as workers rather than employees, because there is a very clear legal difference between the two. It actually suits having people as bank nurses and substitute teachers much better than having them as employees. I do not think that bank nurses and substitute teachers should be seen as employees; I do not think that they should be on a zero-hours contract. I do think that giving staff zero-hours contracts seems to be the new fad that all employers are doing.”
“It is very important that we take this opportunity to address zero-hours contracts. <BR /> <BR />During his public consultation and his presentation to the Employment and Learning Committee afterwards, the Minister acknowledged the negative impact that zero-hours contracts have for many workers, yet the proposals he brought forward to address that were, in my view, totally inadequate. I believe that the best solution for dealing with zero-hours contracts is to ban them, and that is why we have tabled this amendment today. If we allow zero-hours contracts to continue as they are, it will create a further unequal balance between workers' rights and employers' obligations, and, at the minute, that seriously disadvantages workers.”
“I thank the Minister for his intervention. He has taken all the blame now instead of trying to blame Sinn Féin for a change, so that might be a positive development. <BR /> <BR />Zero-hours contracts are one of the biggest issues facing this generation of working people. They have a deeply negative impact on workers' rights and protections and on employment practices. The Minister engaged in a very extensive and laudable public consultation on zero-hours contracts, and I think that the feedback he got was that such contracts are bad for the 28,000 workers who have them. They are also bad for their families, wider society and, indeed, the economy. Zero-hours contracts disproportionately affect women and unskilled workers and, therefore, have an impact on human dignity and self-esteem.”
“I certainly will, Stephen, go ahead. You are at it early.”
“Go raibh maith agat, a LeasCheann Comhairle. I am going to speak on amendment Nos 10, 14 and 15. Amendment Nos 10 and 15 are in my name and those of my two colleagues Bronwyn McGahan and Fra McCann and amendment No 14 is in the name of Mr Basil McCrea. <BR /> <BR />Amendment No 15 deals with the issue of zero-hours contracts. There is widespread acknowledgement in the House that it is an issue that needs to be dealt with. There is still no consensus on this issue, as the Minister and others have said. The Minister brought forward policy proposals to the Executive last February for consideration but, unfortunately, he could not get political consensus on those proposals and withdrew them. <BR /> <BR />Zero-hours contracts are one of the biggest issues —”
“What has happened to the DUP policy since that stage?”
“I thank the Member for giving way. Perhaps he disagrees with what his party colleague, the Member for East Antrim, said on the matter. I am talking about Mr Hilditch, not Mr Ross. At Second Stage, Mr Hilditch said:”
“I thank the Member for giving way. It is good that he acknowledges that he was not here for earlier contributions, because some Members highlighted the fact that the Minister can introduce a change to the system, and, if the Assembly does not agree, it is up to the Assembly to call that in and to try to overturn it, which presents considerable difficulty. The best way to make changes of this nature, which can be controversial and contentious, is through affirmative resolution, whereby, if the Minister wants to make that change, it should be done with the prior approval of the House instead of the House overturning his decision, which, as I am sure you will be concerned, would present the place in a very poor light.”
“<BR /> <BR />We all see how employment rights are being eroded all the time. It is important that we protect workers at every opportunity. This is not about making a change; it is about keeping what is currently enshrined in legislation. I am not saying that, at this stage, we should give workers additional rights; I am saying that we maintain what we have at present and do not allow a situation to develop in which former employees trying to take to a tribunal a case against an employer who, they feel, has treated them illegally are forced to pay a deposit of several thousand pounds just to get their day in court. <BR /> <BR />That is all I have to say on this group of amendments. I hope that the Minister has reflected on that and look forward to his response to the comments made.”
“Maybe he is taking the line of the employers who really want to abolish fair employment and industrial tribunals of any nature so that workers do not have any right to recourse through the legal system. I know that that is what some employers want, but I hope that not too many MLAs would adopt such a position. <BR /> <BR />I say to the Minister that affirmative resolution would be an improvement. I am glad that he has accepted the rationale that the Committee put forward, but it would be a mistake for the Assembly not to have a clause prohibiting the use of multiple deposits. That would be a very slippery road to go down, denying people the right to go to an employment or industrial tribunal in order to get back pay, to get an unfair dismissal overturned or for any other reason.”
“The Minister, in his opening remarks, claimed that it was premature to close off the options for multiple deposits. I think that I speak for a significant number in the Chamber when I say that I will never support the introduction of multiple deposits to employment tribunals. It would be good to hear the Minister say that. He says that he does not want to close off the option: can he say that, in the future, he will not support the introduction of multiple deposits? We could have a situation in which a majority of MLAs supported their introduction. We heard Mr Buchanan teeter on the edge of being in favour of it, and we know there are conflicting views on the subject.”
“I accept that this proposal has not been subject to much, if any, scrutiny. It did not go through a consultation process apart from the one carried out by the Minister, in which no evidence was found that introducing multiple deposits was a good thing. It does not protect anybody and does not give employers better rights; all it does is introduce yet another barrier for workers trying to get to a tribunal to access justice.”
“If we make the amendment, it will stop any future Minister trying to bring in a regulation that would not be subject to the same level of scrutiny as primary legislation.”
“When you go to an employment tribunal to have your employment rights enshrined, you are not entitled to legal aid and, as a result of European directives, case law and a range of appeal decisions, it has become so legalistic and complex that most people need a solicitor or barrister to represent them. Most employers feel that they need that representation and, when one side goes in with a solicitor or barrister, those who make claims often feel that they need to do it as well. So, on top of the issue of deposits, there is also the cost of going to employment tribunals. <BR />I am very keen for us to send out a message through the Bill that we will not allow multiple deposits. It is all well and good for the Minister to say that it is not a proposal on the table, but it might come back at some stage.”
“<BR /> <BR />The Minister has carried out a consultation on multiple deposits and other changes to tribunals. I might be misquoting him — it is a good thing that he has the chance to respond at the end — but I think he said that there was no evidence to support the introduction of multiple deposits. I do not see why some are opposing that change when there is no evidence to support the introduction of multiple deposits. In essence, they are a bad thing. As I have said on several occasions, they deny people access to justice, and that is not the purpose of the Bill. <BR /> <BR />Anything over £500 would be a substantial sum of money for people to pay.”
“I thank the Member for his intervention and I agree with him. There are enough problems with people being unable to get to a tribunal. Imposing multiple deposits on claimants would be a regressive step and we should not allow it. I accept that the Minister has said that it is not in the Bill, but it is allowed for. By passing our amendment, the Assembly would write into the Bill that multiple deposits would be prohibited. That would be a good step for us to take. It would send out a message that we will not implement any changes to tribunals that would dissuade or discourage people from taking cases, beyond having to pay a £500 deposit. We have tabled an amendment to put a rule into the Bill that multiple deposits would not be allowed. That is a fairly pragmatic approach.”
“In the second group of amendments, we will deal with other issues that affect the rights of working people but, in this group, we are dealing with the rights of people —”
“If somebody has recently lost their job and wants to take a case to a tribunal, asking them to put up a £500 deposit that they might not get back is a sufficient barrier to stop them taking what employers claim are cases that have no prospect of success and that are only there to waste their time. I think that £500 is sufficient. Going down the road where £500 can be applied to each claim instead of to each claimant would present a massive barrier to people who are trying to access justice. <BR /> <BR />I hear what the Minister has said about any future changes needing to come to the House for approval before they take effect, but the reality is that we are being pushed down a road where workers' rights will be eroded.”