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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“As it stands, without the two amendments that we have tabled, the Bill would allow for multiple deposits to be imposed within one case, and the current maximum of £500 would be set aside. You could see a scenario in which an aggrieved or former employee takes a case to a tribunal for four, five or six different reasons. The judge, or chairperson as they are still called, could say that each of those claims was subject to a £500 deposit. Somebody who has recently lost their job, is working part-time, is in a very low-paid job or who has been badly treated by an employer may be subject to a deposit of £1,500, £2,000 or £3,000 depending on the number of claims. <BR /> <BR />A deposit of £500 is sufficiently high.”
“So, I am glad that the Minister did not pursue the issue of fees, but the issue of deposits being a prohibitive barrier for people trying to access justice remains. Currently, a deposit of up to £500 can be imposed by a fair employment or industrial tribunal in cases where the person who will now be referred to as an employment judge decides that there is little possibility of success. If claimants wish to continue and lose the case, they will forfeit the deposit. <BR /> <BR />Clauses 5 and 9 establish enabling powers that would allow the Department to introduce regulations that are subject to negative Assembly procedure. As we have all said, the change will move that to affirmative resolution.”
“I think that it would be better if we could see a reduction in the number of cases that make it to court, but that needs to happen through the Minister's proposals for early conciliation and trying to get as many of these things settled amicably as early as possible, instead of just denying people the right to get their day in court, to get their good name restored and to get any compensation or back pay that they might be entitled to. <BR /> <BR />The introduction of fees or overly high deposits is a barrier to justice. It largely impacts on the most vulnerable workers in the economy, those people who do not have the same protection as others, who are in non-unionised workplaces and part-time workers. Therefore, it would disproportionately impact on women who are trying to take a case to a tribunal to get a fair hearing.”
“<BR /> <BR />As I said, I am concerned about the direction in which tribunals are going in England. There was a massive push to introduce fees, and I am glad that the Minister very quickly stepped away from introducing fees for accessing tribunals. In England, where the introduction of fees has taken place, there has been a 79% decrease in the number of tribunal cases taken against employers. I do not think that we want to go down a similar route.”
“<BR /> <BR />In the past, that was not required, and we could have had a situation where a change was made to a deposit or a tribunal, and Members in this House could then have dragged the Minister or his successor back into the Chamber to reverse that decision. So, this is for good governance reasons, and it will send out clarity and surety to people who are involved in tribunals, which are a very complex business. The testimony that we received as a Committee about tribunals indicates that it is very complex, and people do not really want to go there, but when they do, it should be made fairly easy for them to do it. So, it is good that there will now be surety for people in that they will know what the maximum deposit is, and subsequent change will need the approval of the House before it happens.”
“However, if we look at what is happening in Britain and how denying people the right to access a tribunal is being used to erode workers' rights, it is very clear that tribunals are becoming a contentious issue. There have been a number of legal challenges in England with regard to the whole issue of tribunals, fees and multiple deposits. So, the whole issue of deposits and fees at tribunals is an area of contention, and I am glad to see that the Minister has accepted the Committee's proposal to make sure that any future changes to deposits must have the consent of the House before the change is made.”
“Instead, I intend to focus my contribution on amendment Nos 2 and 5, which deal with the need for future regulations on deposits in fair employment and industrial tribunals to be approved by draft affirmative resolution, and amendment Nos 1 and 4, which are tabled in my name and that of my colleagues, which would prohibit multiple deposits against somebody taking a claim to either of the two tribunals. <BR /> <BR />First, I welcome the Minister's tabling amendment Nos 2 and 5. I proposed in Committee that we should ask the Minister to bring that forward. Everybody accepts the need for it. When the Minister presented his response to the Committee, he indicated that, historically, deposits at tribunals have not been a contentious issue and, as such, negative resolution may have worked well in the past.”
“Go raibh maith agat, a Cheann Comhairle. I welcome the Consideration Stage of the Employment Bill, and I commend the Minister for getting it this far. As I said at Second Stage, he has had some difficulties in progressing it, but he is flying through it now. I commend the Committee staff and my colleagues on the Committee for the speedy and diligent approach that they took to scrutinising the Bill and progressing it through Committee Stage. <BR /> <BR />Robin highlighted the two amendments that the Committee has brought forward. I largely agree with what others have said, so I do not intend to rehearse the discussion that has taken place around the Committee amendments.”
“Go raibh maith agat, a LeasCheann Comhairle. Gabhaim buíochas leis an Aire as ucht a freagra. I thank the Minister for her answer. Can she elaborate on the comment she made about the review, which is open to appeal, and when it will conclude? Can she also provide an update on the processing of outstanding applications with regards to the discrepancies with active farmers?”
“Go raibh maith agat, a LeasCheann Comhairle. I will dispose with wishing the Minister well, if that is your intention. <BR /> <BR />Can the Minister provide us with an update on how his Department and the Housing Executive are trying to overcome the barriers faced by people who are trying to develop social and affordable housing in rural places like Ederney in Fermanagh, where the waste water treatment plants are full and no further development can be connected? <BR /> <BR />I genuinely do wish the Minister well; I was only joking.”
“The Minister did quite well in not answering the question, as is the nature of some Executive Ministers. I will try again. The Minister specifically said that the moneys that are given to local communities through European funding would be retained for their use. Can the Minister confirm whether he has received an assurance from the British Treasury with regards to that claim?”
“Go raibh maith agat, a Phríomh-LeasCheann Comhairle. I congratulate the Minister on his recent appointment.”
“Go raibh maith agat, a Cheann Comhairle. I thank the Minister for his answer. I am somewhat alarmed that for every job promoted or created west of the Bann there are three comparable jobs east of the Bann. That presents us with a significant social and economic challenge. Does the Minister accept that areas west of the Bann require additional focus from his Department and Invest NI? Will he indicate to the House when the regional opportunities subgroup of the Executive intends to next meet to discuss the issues and the opportunities that present themselves in places like Fermanagh and Tyrone?”
“Go raibh maith agat, a Cheann Comhairle. Gabhaim buíochas leis an Aire as a ráiteas inniu. Can the Minister give us an update on the deliberations of officials on both sides of the border on securing the future of post-primary education at St Mary's High School in Brollagh?”
“It is something that we will have to tackle, and it is getting out of hand. I have mentioned Sports Direct twice in my contribution, but, once again, Sports Direct is another organisation that completely abuses agency workers. As with zero-hour contracts, we need to find a creative and imaginative solution for dealing with the problem of agency workers. I am prepared to sit around the table with Mr McCrea, the Minister and anybody else who is interested in having those discussions to see how we can find those solutions.”
“That is the problem we face: no matter what legislation we bring in here and no matter what solution you put in place, there are some employers out there who just do not want to treat their staff right. That is the case whether they are directly employed or are agency workers. Thankfully, it is a very small number of employers; they are very much in the minority. All the evidence we see is that the vast majority of employers are responsible people who want to pay their staff well, treat them well and give them a good work-life balance. Unfortunately, some companies just do not want to do that, because they see their bottom line in a financial number, without any ethical or moral duty or obligation to their employees as their principal focus. <BR /> <BR />I completely agree with Mr McCrea's comments about agency workers.”
“I thank the Member for his intervention. I make the point that the Committee for Employment and Learning is much the less for his absence. He is sorely missed from it, although his shoes have been ably filled by Mr Swann for a number of years. <BR /> <BR />The anomaly of agency workers is something that the Assembly has tried to address in the past, and I think the Minister has made valiant efforts to resolve that problem. But one of the problems we faced before when we raised the issue of zero-hour contracts was that, if you bring in legislation, some employers who genuinely want to treat their workers badly will find a way to circumvent the legislation.”
“I will in a minute. <BR /> <BR />That enhances the rights of workers and increases productivity. Productivity should be the key thing, not this code word of "competitiveness", which, as I have articulated and outlined, is not a good thing when it is set in that context.”
“We need to look for progressive legislation that enhances the rights of workers —”
“I think a situation where the wages and rights of workers are going up is a good thing. We should look for an economy where people are paid a high rate. For me, that would be a good thing. <BR /> <BR />This talk of competitiveness is a code word for getting rid of well-paid jobs and forcing people to live in poverty. I do not buy the notion that competitiveness is necessarily a good thing when it is coded in the parameters of us having to bring forward an economy and society where people are treated like numbers and not like human beings. That is not good enough, and we should not tolerate that agenda. Making it easier for employers to sack staff and to treat them badly is not increasing competitiveness; it is a smokescreen to allow the reintroduction of centuries-old employment law practices. We should not go down that road.”
“We hear talk in here about competitiveness: "competitive" seems to be a code word from some people for reducing workers' rights, reducing pay to staff and giving employers greater ability to abuse workers. <BR /> <BR />I commend the Minister for the platform piece he has in 'The Irish News' today about the need for the Assembly and the Executive not to disinvest in skills and about the challenges he faces as the Minister with responsibility for further and higher education, but I take umbrage at one point that he raised. He said that we cannot disinvest in FE and HE: I agree with that completely, but the reason he gives for that is that we will then have a situation where there are fewer skilled workers and their wages will go up because of that shortage.”
“The Minister proposed bringing forward what I think was a statutory code of conduct to govern how employers needed to act with zero-hour contracts. It was a fairly sensible proposal and something that I would support. I have no problem with Basil's suggestion that we need to find a middle ground that meets the needs of employers and employees. I accept that draconian legislation may well act as a barrier to investment, but I think that some people argued that with the minimum wage and some people tried to argue it with the living wage. Forcing people to live in poverty with badly paid jobs where they have no rights is not the kind of society that I want to live in, and I hope that it is not the type of society that some in here want to force on our people.”
“I have absolutely no problem in finding a middle ground that meets the needs of employers and employees, but, at the minute, the pendulum has swung too far in the direction of rogue employers who want to abuse their staff. There is absolutely no legal protection for people who are on zero-hours contracts.”
“They have no idea what they will earn in any week or how many hours they will work. There is a massive opportunity for us to take the lead and to bring forward imaginative solutions on how we tackle zero-hours contracts and address them once and for all.”
“There is an opportunity for the Minister and for us as an Assembly to show positive leadership to people who are looking for creative solutions on how to deal with issues such as zero-hours contracts. <BR /> <BR />It seems to be a new problem, and it was not raised 30 or 40 years ago. The problem now is that somebody will tell you that we are nearly in full employment, and very few people are on the dole and claiming benefits. That may be the case, but those people cannot get a full-time job; they cannot get the living wage or enough earnings every week to take them out of poverty. They may not be on the dole and may not count as a statistic because they are not claiming jobseeker's allowance, but they are just as badly off as if they were on the dole. They are precarious workers who have no guaranteed income every week.”
“There is a small number of very bad employers out there, and we need to tackle them. There is an abundance of evidence on how staff are being abused by employers, and the Minister needs our collective goodwill to try to find a solution. I am more than willing to work with him over the coming weeks to try to find such a solution. <BR /> <BR />We are behind the times in dealing with some of these issues. In England, if the Tories were allowed, they would remove every single legislative right for workers and take you back three or four centuries. Thankfully, we do not have that. We are lucky that employment law is a devolved matter, and we need to bring forward legislation that protects the people whom we represent.”
“My problem was that they did not go far enough. The Minister had a legal definition on how to deal with zero-hours contracts. He wanted to ban exclusivity contracts, with some exceptions for specialists such as highly skilled people in some industries, and that is fine. He had a range of progressive measures, but we need to go further than that to make sure that low-paid, non-unionised workers, in particular, are not being abused. Those people should be the focus of the Bill. The Bill should not be about giving rogue employers the chance to abuse their staff. <BR /> <BR />There is an onus on us to protect the most vulnerable in our society. With the Employment Bill, the most vulnerable are those in low pay who are not part of a unionised workforce and are working for bad employers.”
“<BR /> <BR />Companies such as Sports Direct phone people and tell them that they can come into work, and, when they get there, they are told that there is no work and that they can go home. Those actions are completely unacceptable and should not be allowed. Staff are kept behind after work to be searched to make sure that they are not stealing stuff. Although the time that staff have to remain on site is directed by the company, they are not paid for it. If people arrive one minute late for work, they are docked 15 minutes' wages, which is completely unfair. If you are one minute late for work, you should be docked for being one minute late not 15 minutes late. <BR /> <BR />How do we deal with zero-hours contracts? Some of the measures that the Minister had proposed to bring forward were fine, and I had no problem with them.”
“It is one of the biggest employment issues of our time, and, collectively, we do not yet have solutions. The Minister made valiant efforts to get cross-party support, but, despite those best efforts, no legislative proposals have been brought forward. As a result, the estimated 28,000 workers who are on zero-hours contracts are left without adequate protection from the abuses of some employers. We need to deal with the issue now. Between now and Consideration Stage, we need to try to find consensus on positive interventions that can be made to deal with zero-hours contracts. It is clear that some employers are completely abusing their staff. We have a responsibility to introduce effective legislation that addresses and prevents those abuses.”
“You 1,000 people are losing your jobs. What do you think about that?", it is not much of a consultation. You are not giving the employees much of an argument to engage in a consultation to try to change the minds of the people who make the decisions. Then, maybe, it is not a consultation at all; perhaps it is just some way of closing a factory and putting a positive spin on it. More needs to be done in looking at how other EU member states are doing in providing information when significant numbers of jobs are being lost. That could be explored further through the Bill. <BR /> <BR />One of the biggest opportunities in the Bill — I am surprised that it has not been raised more today; we have not grasped it collectively to date — lies with how we tackle the scourge of zero-hours contracts on our workers.”
“Instead of simply seeking to reduce the length of time that employers need to engage in a consultation period with staff and their representatives, we should explore how those companies that are going to carry out that consultation period — which is a deeply traumatic time for people when they are being told that they and all their work colleagues are losing their jobs and the plant might be closing down — can demonstrate more openness and transparency to set out the details of why they are engaging in such an action. That will give employees and their representatives some chance to engage properly in a consultation period. <BR /> <BR />The Minister said that an argument has been made that it is the quality of the consultation that counts. If the consultation consists of, "We are closing this factory.”
“We have to legislate for all employers, not just for the good ones. We have to introduce legislation here that will stop bad employers abusing their staff. <BR /> <BR />Reducing the requirement for employers who are involved in collective redundancies to engage with employees and their representatives would be a deeply regressive move and is not something that we should be exploring. When a multinational company is considering downsizing one of its sites around the world, one of the key factors that it will take into consideration is the cost of laying off staff. Unfortunately, we do not impose as high a standard here on companies as happens in other parts of the European Union.”
“<BR /> <BR />At an early stage, the Bill also sought to reduce the compulsory collective redundancy consultation period from 90 days to 45 days in respect of consultations involving over 100 employees. I see from some of the consultation responses that were sent to the Department on the early consultation stages that some people actually wanted less than 45 days. Some people argue that it is not the length of time of the consultation but the quality of the consultation that is important. I am happy to see that that has been removed. In recent times, we have seen far too many multinational employers laying off significant numbers of staff. In fairness to some of them, they have been very open and honest with their employees and treated them very well, but not all employers go about their business in such a good way.”
“As I said to the Minister earlier, in the first year after the increase from one year to two years was introduced in England, in the subsequent year here Invest NI secured record levels of investment, so there is absolutely no evidence that having a qualifying period for unfair dismissals has a negative impact on attracting inward investors to this place. Whatever evidence people have brought forward does not stack up, and it is merely a completely unfounded attack on workers' rights. You will have gathered at this stage that I am opposed to any such proposal. I am glad to see that no extension to the qualifying period stands as part of the Bill.”
“Some of us want to see it reduced and some of us want to see it increased to two years but, from an employer's point of view, if you have not figured out after a year whether the employee is fit for the job, that is not the employee's problem. Twelve months is long enough to figure out whether somebody is fit for the job, whether they need additional training or whether it is just not working out. None of the arguments for extending it to two years washed. <BR /> <BR />As we have heard, the issue of whether the period should be one year or two years is a key factor in determining whether inward investors will locate here and create employment.”
“As the Minister has said, however, there is absolutely no evidence that it delivers a positive impact for the economy, as some tried to argue. All it does is diminish workers' rights without having a knock-on impact for anybody apart from employers that want to treat their staff badly. Some employers will tell you that it makes it easier to hire staff, knowing that you have up to two years to sack them without them having any recourse to an employment tribunal for unfair dismissal. In effect, all it does is make it easier to fire staff, because you have two years when you can get rid of a member of staff for any reason you see fit, and they have absolutely no legal recourse to challenge that decision. <BR /> <BR />I think that offering a year is a good compromise.”
“Moving the qualifying period for unfair dismissal cases to affirmative resolution is a very welcome step. I commend the Minister for it. <BR /> <BR />We have heard that some in the House and some employers want to see the qualifying period extended to two years.”
“As I have said, it changes the rule on amending the qualifying period for unfair dismissal so that the affirmative resolution process is in place and the Assembly must give its consent before any changes take place. I think that that was supported by employers and employees because nobody wants a situation in which the Minister or his successor decides that they will change it to two years, three years, 20 years or 40 years — who knows what a future Minister would decide? It would become law immediately or from whenever the Minister says. There would then be the possibility that the Assembly could overturn that decision. That would introduce chaos into the system because nobody would know what the system was, what the rules were or what the current legal framework was.”
“There was considerable support for it around the Committee table. I would like to hear from the Minister whether that is a change that he would consider bringing forward through a further amendment. <BR /> <BR />The Bill as a whole does strengthen workers' rights in some aspects. I think that everybody would acknowledge that, whether you are on one side of the argument or the other — whether you approach it from protecting and enhancing workers' rights or an effort to reduce and eradicate those rights — the Bill is not as comprehensive as either side wants. What we have is consensus in the middle where we have found agreement on a Bill that does make some changes but does not go as far as either side wants. It strengthens workers' rights in some aspects.”
“I think that we need to change that so that the Minister must get the Assembly's approval before introducing such changes to either tribunals or deposits, as he has proposed to do in changing the qualifying period for unfair dismissal claims. That is a much better way to introduce regulations of that nature. It provides clarity for all those involved in the process because what happens with the negative resolution mechanism is that the law can be changed and then quickly changed back if the Assembly votes to reverse that decision. It would be much better to use affirmative resolution on matters pertaining to tribunal changes in the future. I would like to hear from the Minister whether he would support such a change. We discussed that at length at the Committee last Wednesday.”
“People taking a claim for unfair dismissal or other matters could be hit with a £500 deposit for each of their single claims as opposed to one for the case overall. I would like to hear the Minister give a commitment at the end of the debate that multiple deposits will not actually be included. I would also like to hear whether he would be in favour of putting on the face of the Bill that multiple deposits should not be allowed through future regulations. I am keen to explore that because I am fundamentally opposed to multiple deposits. <BR /> <BR />The way in which future regulations on tribunals and deposits would be dealt with has been outlined. They would be subject to negative resolution so the Minister or, indeed, his successor could decide at any time to change the law without the Assembly's approval.”
“Now, £500 might not seem like a lot of money but, for someone who has just lost their job, potentially through an illegal act by an employer, it is a significant sum. That presents a serious problem for people who want to access justice, particularly for those who are in part-time employment or who work in a non-trade-unionised environment. We need to be very careful that we do not present too many barriers in what seems to be a drive to eradicate workers' rights and that we do not erect barriers that cannot be overcome for some people to access justice. <BR /> <BR />There was, then, the option of a claimant being made subject to multiple deposits for taking a claim. I hope to hear from the Minister that he has absolutely no intention of pursuing multiple deposits, because that would be completely outrageous.”
“Some of the proposals that were under consideration and that, thankfully, have been rejected by the Minister to date present a very worrying picture. In England, fees have been introduced on claimants seeking to access a tribunal. This has led to a significant decrease in the number of claims and a knock-on denial of rights through reduced access to justice. I am glad that the Minister, from the outset, has rejected the approach of introducing fees for people who want to access employment tribunals because, the way that it is going, it is already costly to hire legal representation to get into an employment tribunal, and adding fees to that would be a significant barrier. At present, tribunals can impose deposits of up to £500 on some claims, which would be retained in the event of a case being lost.”
“The fact that you have to hire a solicitor or barrister to have any realistic chance of winning presents a barrier to people accessing justice. We need to review that.”
“I would like to hear from the Minister, in his closing remarks, a concrete commitment that such a matter will play a role in that review, rather than him saying that the Department is open to considering its inclusion. Maybe the Minister will reflect on that between now and his making his closing remarks. <BR /> <BR />Employment tribunals, by their nature, are complex for all parties, and changes need to be made to make them easier for everyone to access. It should not be the case that, for a worker or employer to go to an employment tribunal, they need to hire solicitors and barristers and pay out thousands of pounds to take a case or to defend themselves, because, generally, the cases that go to employment tribunals are often of a low value.”
“So, it was good to get confirmation from the Minister, today, and from his officials, last week, that renaming employment tribunal chairpersons as judges will not change that and give them the right to sit in isolation on a panel. That was one of our major concerns, so it was good to get that clarity from the Minister. <BR /> <BR />Providing an option for adjudication for straightforward, low-value claims is something that we should do more work on before the Bill reaches the end. The Minister and his Department have said that they are open to considering its potential as part of their proposed review of the Labour Relations Agency's arbitration scheme.”
“However, as a result of complexities in employment law, due to directives from Europe, and a large number of appeals to decisions of employment tribunal panels, there now seems to be a requirement for solicitors and barristers to be involved in employment tribunals. That brings me on to one of the issues that the Minister and the Committee Chairperson raised in their eloquent contributions in which they summarised the issues around the Bill. The renaming of employment tribunal chairpersons to judges has caused concern. The majority of that concern comes from the potential for an individual to be sitting alone in an employment tribunal.”
“The formal tribunal setting has significant costs for the former employee who is taking the case and for the employer who is defending themselves, and the running of the tribunals has a significant cost for the public purse. So, it is important that we find a way that meets the needs of everybody and tries to remove what is a very stressful environment from everybody. <BR /> <BR />If we look back at the history of employment tribunals, we see that they were set up with the intention of being similar to the small claims court, where there would have been little need for legal representation.”
“<BR /> <BR />In the broadest sense, one of the clearest messages that all of us got back through the consultation period was that employers and employees want to see these matters dealt with in as informal a way as possible. The majority of people want to see conciliation or agreement reached outside a formal tribunal setting, if that can be done. Nobody wants to have to go through a formal employment tribunal, because it is a complex and burdensome process. Offering opportunities for resolutions to issues of this nature outside the formal tribunal setting is something that we should continue to explore at every opportunity. However, that should not be done in a way that reduces the rights of workers or employers to defend themselves against claims for maltreatment.”
“There is an onus on us, and we have a duty here, to make sure that such abuses are not tolerated, and it is important that we use an opportunity such as this to tackle those abuses. All too often, we see the individual — the worker — being treated disgracefully by their employer. We see the likes of Sports Direct, which is completely out of control, with zero-hour contracts and how it treats its staff. There is a responsibility on us as an Assembly to make sure that there is proper legislation and regulation in place to protect those workers, and then to ensure that workers have the right to challenge those practices and to bring them forward in whatever setting best meets their circumstances.”