Employment Bill: Consideration Stage

Executive Committee Business – in the Northern Ireland Assembly at 3:30 pm on 9th February 2016.

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Clause 14 (Protected disclosures: reporting requirements)

Debate resumed on amendment No 9, which amendment was:

In page 10, line 28, after "Assembly" insert



"or to the Secretary of State for laying before both Houses of Parliament". — [Dr Farry (The Minister for Employment and Learning).]

The following amendments stood on the Marshalled List:

Amendment Nos 10 -17.

Photo of Roy Beggs Roy Beggs UUP

We will now return to the debate on the second group of amendments in the Consideration Stage of the Employment Bill.

Photo of Phil Flanagan Phil Flanagan Sinn Féin

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.

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.

Zero-hours contracts are one of the biggest issues —

Photo of Phil Flanagan Phil Flanagan Sinn Féin

I certainly will, Stephen, go ahead. You are at it early.

Photo of Stephen Farry Stephen Farry Alliance

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.

Photo of Phil Flanagan Phil Flanagan Sinn Féin

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.

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. It is very important that we take this opportunity to address zero-hours contracts.

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.

Photo of Phil Flanagan Phil Flanagan Sinn Féin

Certainly, Stephen.

Photo of Stephen Farry Stephen Farry Alliance

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.

Photo of Phil Flanagan Phil Flanagan Sinn Féin

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 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.

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. 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. That is one of the big issues with zero-hours contracts.

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.

Photo of Basil McCrea Basil McCrea NI21

Will the Member give way?

Photo of Basil McCrea Basil McCrea NI21

I want to ask the Member whether he has identified these really rogue employers, these really bad people who are absolutely outrageous to those whom they employ. Does he think that we should ban them altogether? Does he think that we should tell them to sling their hook, leave Northern Ireland and not be part of us because we do not want that type of employer here? That is where the logic takes us — if these people are so bad, so heinous and so wrong, there is no saving them. Let us get rid of them all.

Photo of Phil Flanagan Phil Flanagan Sinn Féin

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.

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. 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.

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 —

Photo of Alastair Ross Alastair Ross DUP

Will the Member give way?

Photo of Phil Flanagan Phil Flanagan Sinn Féin

I will, Alastair, yes.

Photo of Alastair Ross Alastair Ross DUP

The Member has posed a series of questions about how many of the employed are on zero-hours contracts. Has he any answers? We need evidence-based policy making. Has he specific answers to the questions that he has posed?

Photo of Phil Flanagan Phil Flanagan Sinn Féin

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.

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. 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.

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. 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.

Photo of Basil McCrea Basil McCrea NI21

Just before the Member moved off the issue of evidence-based policy, he quoted in response to Mr Ross the figure of 28,000. Is he aware that that is a simple pro-rata estimate for Northern Ireland? It is just plucked from the air. We have no real idea what the number is. It is a simple pro-rata estimate, where 4% to 5% gives 28,000 to 35,000. In other places, we say that it is only 1·2% of the employment of Northern Ireland. Before we pass any legislation, would it not be better to get some evidence base?

Photo of Phil Flanagan Phil Flanagan Sinn Féin

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. Employers should not be allowed to treat employees in such a way.

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 —

Photo of Phil Flanagan Phil Flanagan Sinn Féin

— and move away from having full-time, permanent nurses.

Photo of Stephen Farry Stephen Farry Alliance

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.

Photo of Phil Flanagan Phil Flanagan Sinn Féin

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.

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. 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.

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 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?

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. 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.

I will now move off zero-hours contracts and on to the other two amendments. 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?

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.

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. 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.

Photo of Basil McCrea Basil McCrea NI21

Will the Member give way?

Photo of Basil McCrea Basil McCrea NI21

Given that the Member is so keen on evidence-based assessment, how long does he think that it would take an employee who is joining work, having been unemployed in the past, to get up to speed so that he is fully protected? Does he have any figures?

Photo of Phil Flanagan Phil Flanagan Sinn Féin

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. 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.

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. 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.

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. 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.

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. 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.

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. 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.

Recent evidence indicated that, at a macroeconomic level, women here earn more than men. 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.

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. 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.

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. 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.

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.

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. 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.

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. 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.

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. I am happy to discuss those issues with the Minister and, at this stage, am minded not to move the amendment. Hopefully, we will return at Further Consideration Stage with an amendment that meets the approval of the Assembly. Go raibh maith agat.

Photo of Gerard Diver Gerard Diver Social Democratic and Labour Party 4:00 pm, 9th February 2016

I am grateful for the opportunity to speak to the group 2 amendments. There are three issues that I want to touch on: the gender pay gap information; amendment No 14, tabled by Mr Basil McCrea; and amendment No15, which seeks to introduce a new clause on zero-hours contracts.

Amendment No 10 would introduce a new clause on gender pay. I take on board that its proposer has decided not to move it, but it is still appropriate to speak to it. It would be a welcome step towards fully investigating the extent of the gender pay gap in Northern Ireland. There can be no doubt that it is a matter of concern and that such inequality still exists

Last year, the Office for National Statistics (ONS) said that there had been relatively little change in the gender pay gap over recent years. In the UK, the gap between women and men's pay for full-time workers was 9·4% in April 2015 compared with 9·6% in 2014. Even with the legislation in England that Mr Flanagan referred to, the pay gap is still a considerable issue. That was the narrowest difference since figures were first published in 1997, but there has been little change overall.

It is positive to say, and Mr Flanagan touched on this, that there has been better news in Northern Ireland about our ability to address the pay gap. It has lessened here, with full-time female workers often earning more per hour than their male counterparts in 2014-15. That, as Mr Flanagan said, is due to the propensity of people here to work in the public sector. There is, however, a concern about that, with tensions in the public sector and the possibility of its shrinking, and the feeling that, mainly due to cuts in the public sector, people will increasingly be working in the private sector. I accept that many people think that that is the way that our economy should be going, but that seems to be where the greatest risks of pay differentials are. Nevertheless, it is good protocol to investigate gender pay gaps and collect employment information.

The SDLP suggests that it would have been positive to include the Equality Commission in the monitoring and reporting section of amendment No 10.

Photo of Phil Flanagan Phil Flanagan Sinn Féin

I thank the Member for giving way. We had considered that, but, unfortunately, due to the amendment being proposed at Consideration Stage, there was not enough time for the British Secretary of State to grant approval for its inclusion in the Bill, and I certainly did not want to do anything to jeopardise the passage of Minister Farry's flagship Employment Bill.

Photo of Gerard Diver Gerard Diver Social Democratic and Labour Party

Thank you very much for that, which I accept. Obviously, it is a matter of concern. I take on board the fact that the timescales may not have allowed it to happen.

I turn now to Mr McCrea's amendment No 14. I was perplexed, as were my party colleagues, by the amendment. I spoke to Mr McCrea about it, and he explained the rationale behind it. I look forward to hearing an extended explanation, but it will probably not come as any great surprise to him that, as members of a social democratic and labour party, we will not support it. We believe that the amendment would effectively diminish an employee's rights to extending the qualifying period of employment by one year in relation to a written statement of reasons for dismissal. That would be a backward step. I understand the arguments for the embedding period for people in employment, but, speaking as somebody who, in a previous life outside the House, was directly involved in training people for employment, I had a lot of exposure to people, at all sorts of levels, in the early stages of their jobs. In my view, the risk in extending that period by two years would be not so much about its being used to see whether somebody worked out or was an errant employee, for instance, but, in extreme cases, an employer using it as an opportunity to get rid of people if their face did not fit or the employer was not comfortable with them. We are concerned about that. Not all employers adopt that approach, but it has happened.

Photo of Basil McCrea Basil McCrea NI21

I appreciate the Member giving way. I have always wondered about this argument: if an employer takes that action at 11 months, why would he not take it at 23 months or at some other time? If employers are unscrupulous, surely they will just say, "You're gone". You could argue, controversially, that a two-year extension is better, because at least someone got two years before they were unfairly dismissed.

The Member mentioned his expertise, so I want to ask him another question. I asked this question of Mr Flanagan, but he did not know the answer. I have information on how long, on average, it takes an employee who comes in off the street to get up to speed and be a fully functioning employee so that his or her suitability for the business can be assessed. In your experience, how long would it take for someone to get up to speed?

Photo of Gerard Diver Gerard Diver Social Democratic and Labour Party

The answer to that question is extremely complex, because it depends on the nature of the job that the person is carrying out, what is expected of him or her and the nature of the organisation that he or she is working for. There are variations. I am not satisfied that extending the period to two years is justified in this case. In most cases, employers are able to come to an opinion within normal probationary periods for jobs, which are usually three to six months. I do not think that extending the period to two years is acceptable. The SDLP is not prepared to support that under any circumstances.

I now turn to amendment No 15 on zero-hours contracts. A lot of information on these contracts has come across in the debate, so I do not want to overplay it. The SDLP has been raising the plight of those working on zero-hours contracts for some time at a number of levels: in the House, in Committee and in councils. We are extremely concerned about the issue, as we are about the potential exploitation of people.

I know that Mr McCrea challenged the accuracy of the figure of 28,000. I have to be honest and say that I do not care whether it is 28,000, 24,000 or 15,000, the fact is that we have significant numbers of people in zero-hours contracts at the moment. A lot of those people are under 25. They are young people in the very early stages of their career. Is it right for this society to be exploiting people in that way, where they have uncertainty day and daily, week in and week out, not knowing how to plan for the future or what money they will have at the end of the month?

Photo of Claire Sugden Claire Sugden Independent

I was at university not so long ago. In one of the first jobs that I had to pay my fees whilst I was working through university, I actually had a zero-hours contract. It worked quite well for me because it meant that I was able to prioritise my studies and work my job around those. There was no obligation on me to work set hours. I did actually appreciate the flexibility there. Does the Member have any thoughts on that?

Photo of Gerard Diver Gerard Diver Social Democratic and Labour Party

I thank Ms Sugden for her intervention. I am glad to hear that it worked out very well in her particular case, but I have to say that, for other people, that has not been the anecdotal experience that I have heard about. People have told me that, with zero-hours contracts, it is very difficult for them to plan for the future and almost impossible to get any sort of mortgage or significant loan from the bank on the basis of uncertain income. I am willing to accept that, in some instances, it will work for people, but I think that, generally, it presents a lot of challenges for people.

Photo of Stephen Farry Stephen Farry Alliance

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.

Photo of Gerard Diver Gerard Diver Social Democratic and Labour Party

I understand that that is a perfectly logical approach to the issue. I have to say that, ideologically, I disagree with it. I think that part of the problem here is that we have bought into some sort of neo-liberal view of how people should work. What we need to do is go back to the blackboard, back to scratch, and try to recalibrate things in a way that is fair and by which we can create proper employment opportunities, particularly for our young people. I think we have a responsibility as a community to try to create appropriate employment opportunities and to have them presented in such a way that means that those young people are treated fairly and, even if they are on a relatively low salary, they can at least have some dependency on their likely income month in, month out.

In my and my party's view, zero-hours contracts are a way that can be used by some unscrupulous employers in some cases to avoid paying employees properly and to avoid giving them other reasonable employment rights. A study by the Chartered Institute of Personnel and Development found that over 60% of those in zero-hours contracts wanted more hours and could not get them from their employers. I do not think that is a satisfactory situation.

As regards the Minister's remarks about the likelihood of creating chaos in the health and education sectors, again, I think that goes back to how we calibrate these things and look at creating employment opportunities in those sectors. I do not believe it would actually create chaos. I think there is a need to look at the HR needs in those sectors and at how they can be dealt with and managed properly.

Photo of Alastair Ross Alastair Ross DUP

Will the Member give way?

Photo of Alastair Ross Alastair Ross DUP

The Member mentioned that the survey found that 60% of those in zero-hours contracts wanted more hours and could not get them. Does he acknowledge that that is not actually evidence that those people are being exploited? There are plenty of people on part-time contracts who want more hours and cannot get them. There are others who are on full-time contracts who want additional hours or promotions and cannot get them either. That is not actually evidence that those people are being exploited.

Photo of Gerard Diver Gerard Diver Social Democratic and Labour Party

I am sorry, but I think that, for somebody is in a situation where they are on a zero-hours contract and they have been offered three or four hours a week, if that is the only work that they can get, and they have to take it because they have no alternative, in a way, that is, in my considered view, a form of exploitation because the employer decides. The power resides with the employer to decide the number of hours they are willing to give the employee. The employee needs the work and must work to eat and take their lives forward. In my view, there is an element — potentially at least — of exploitation in that.

Photo of Alastair Ross Alastair Ross DUP

I thank the Member for giving way. He is now using the example of four hours a week. That is not the example that he gave. He talked about 60% of those on zero-hour contracts. He did not say how long those people were contracted to work each week. That is not actually any evidence that those people are being exploited.

Photo of Gerard Diver Gerard Diver Social Democratic and Labour Party 4:15 pm, 9th February 2016

I do not accept that, I am sorry. We will have to agree to disagree on that one.

Photo of Basil McCrea Basil McCrea NI21

Will the Member give way to the back here?

Photo of Basil McCrea Basil McCrea NI21

I just want some clarity. Are you calling for a right to have whatever hours you want to work? Are you saying that if you are on a zero-hours contract, you can say, "I will work 36 hours a week and you must provide it"? You could take an extension to that. Are we putting into a bill of rights that you have to have full employment in Northern Ireland as an absolute right?

Photo of Gerard Diver Gerard Diver Social Democratic and Labour Party

I hear what the Member is saying, but, in some respects, he is being facetious by giving that example. It is not unreasonable that people should expect some minimum threshold of hours, no matter what arrangement they have with an employer, whether it is part-time or full-time. In some instances, in certain sectors, when people have zero-hours contracts, they literally do not know how much they are working from one week to the next. They may present themselves at their place of work to find out that they have work or do not have work that week. I do not think that any employee will be able to dictate to their employer what hours the employer will be able to offer them, but it is not an unreasonable expectation to have some sort of minimum threshold. I accept that that has to be debated in the future. The principle of zero-hours contracts is something that, as a society, we all have to be concerned about.

As I said, the SDLP is against zero-hours contracts and is supportive of the Sinn Féin amendment. That said, we would have liked to have seen greater detail on how the prohibition of zero-hours contracts will be carried out. I accept that, in view of the proposer of the amendment not moving it today, there is potential to flesh out many of these ideas.

We retain some concerns about the Bill. The provisions in group 1 may make tribunal proceedings more onerous for the claimant. We welcome the review amendment submitted at Consideration Stage. We support the Sinn Féin amendments on gender pay equality and zero-hours contracts, and we are extremely concerned about Mr McCrea's amendment to extend the employment qualifying period to two years. That concludes my remarks on the group 2 amendments.

Photo of Alex Easton Alex Easton DUP

Of the group 2 amendments, I will support amendment Nos 9, 11, 12, 13, 14, 16 and 17.

Amendment No 10 will not be moved, but it would have allowed for information to be published by employers on differences and pay gaps between women and men and for employers to give reasons for that. That would have made sure that all employers had to give reasons why, and, if they had not adhered to that, they could potentially be fined. I understand that the Member will not move that amendment and will work with the Minister and the Department. We might see that at a later stage as the Bill progresses.

Amendment No 14, which is Mr McCrea's, would basically allow anyone to take an appeal after one year and extend it to a two-year period. When receiving evidence from the Department, it was pointed that it had consulted quite widely on the issue. Certainly, the CBI and Federation of Small Businesses were in support of two years. On balance, because of that evidence, I tend to support that amendment.

Amendment No 15 is on zero-hours contracts. I believe that that amendment would do untold damage to those who want to work flexible hours and the number of hours. It would do untold damage to the hospitality industry and to nurses because the employer requires flexibility be able to bring in staff when needed for those jobs. I think that it is a badly worded amendment, and I will not support it.

Photo of Basil McCrea Basil McCrea NI21

Nobody but nobody in the Chamber will, I believe, stand up to advocate for rogue employers who are doing bad things to employees. I do not think that anybody would try to make that argument. The argument from a number of people is, "Show me the evidence" or, "The evidence that you have is not correct".

I want to make it clear that in proposing my amendment, I am not seeking to attack workers' rights. One thing that was missed in the debate, but which perhaps came out on the periphery, is the impact of zero-hours contracts in certain circumstances, which people are rightly concerned about. However, there was little discussion about agency working, except when the Minister, in an intervention with Mr Flanagan about teachers, said that this gives even less protection. The problem is that when you start to get over-tightening of labour legislation, people move to other areas. They go into zero-hours contracts or agency working, or they take steps to avoid it.

Why is that important to us? Look at our regional employment statistics. Here is where we rank: the UK employment rate for the three months ending November 2015 shows that the lowest is Northern Ireland with 68·8%. The UK unemployment rate was highest in Northern Ireland at 5·9%. The UK economic inactivity rate is highest in Northern Ireland at 26·7%. The highest UK claimant count was in Northern Ireland at 4·3%. Our economic employment statistics are not good.

The Member from Sinn Féin proposing this took great delight in quoting views from different parties, and asking, "Did you really agree this?", so let me return the favour. Apparently, at least 40 people are leaving County Tyrone per week. The high rate of unemployment means that many are looking for jobs in Australia and elsewhere. I wonder if Mr Flanagan would support his colleague the Sinn Féin MLA Barry McElduff in calling for the Government to address the issue of emigration and create jobs where they are most needed — in Tyrone and, presumably, Fermanagh as well. Those are areas where we need to do that.

Photo of Fra McCann Fra McCann Sinn Féin

I thank the Member for giving way. I understand what you are saying in terms of emigration. Going back to the days when you were in the Chair of the Committee for Employment and Learning, that was something we discussed widely. Are you now saying that we should be looking at zero-hours contract, agency and other jobs to try to keep people from emigrating?

Photo of Basil McCrea Basil McCrea NI21

Actually, Mr McCann, quite the contrary.

Photo of Fra McCann Fra McCann Sinn Féin

It does not sound like that.

Photo of Basil McCrea Basil McCrea NI21

Well, you see, what is sometimes missing in this place is an articulate argument, where you set out certain bits of information and come round and say, "But let's look at the alternative". I do not want to upset people. In fact, I was saying to Mr Diver that I am sorry that my contribution seemed to have moved him from, "I'm interested in what Mr McCrea has to say" to "Under no circumstances will we ever support it". Maybe it was not one of my best interventions. My intention is to say it is entirely reasonable for us to be looking for ways to protect people who are exploited by unscrupulous employers. Mr Flanagan made that point, and I agree with it. The point I am making, however, is that when you tighten down information or legislation, you force people to go in the opposite direction.

This is just information. People say, "Would you like evidence?", so here is some evidence about the length of time it takes to get up to speed if you have just started a job. As Mr Diver said, it does depend, but an HR report says:

"The report reveals that new workers joining from the same sector reach optimum productivity in 15 weeks".

For SMEs, it is 24 weeks. For workers joining from another sector, it is 32 weeks. For new graduates, it is 40 weeks, and those coming from unemployment or inactivity take the longest time at 52 weeks. Part of the problem we are looking at here —-

Photo of Alastair Ross Alastair Ross DUP

I thank the Member for giving way. It is a useful statistic to have, but for those going into sales jobs, not only does it take time for them to be trained, there is also a period of time for their performance in sales to be assessed adequately. In many jobs, it takes perhaps six or seven months to train somebody, and you also need a longer period of time to assess how they are performing in that job. That is why the two-year qualifying period is beneficial to employees. They are given adequate time to prove their worth to that employer.

Photo of Basil McCrea Basil McCrea NI21

I am grateful for the argument, and I think that it should be put. I take the argument. You could use a similar argument when Mr Flanagan talks about how good we were for inward investment when the UK changed its rules. There is a lag between performance and outcome. We are trying to argue here on emotion. We are trying to talk here from a philosophical point of view rather than looking at the information. One of the things that I thought that Mr Diver's contribution highlighted is this philosophical stance of, "I am socially democratic, so I think that we should take this response". That is not necessarily the correct logical position, and I think that the word "logic" was in there. We are all trying to look to see what would make things better and how we would get more employment. I read out a list of statistics to show how poor things are in Northern Ireland, and I am going to talk about how poor things are in certain constituencies.

Photo of Gerard Diver Gerard Diver Social Democratic and Labour Party

The Member is talking about how we can make things better, but it seems to me that the thrust of what he is talking about is how we can make things better for employers rather than employees. Obviously, we need to have effective employers who are able to create jobs, but we need to protect the interests of the employees who are being exploited.

Photo of Basil McCrea Basil McCrea NI21

Let me just take that argument. I had a very good meeting with the Irish Congress of Trade Unions (ICTU), which came to me a little bit alarmed about my amendment and asked to talk about it. We had a very good discussion. We agreed on many, many things, including the need to invest in skills and that we want to get early resolution and conciliation. We agreed that the independent assessor was a good idea, and it said, as a union, that it would not support taking anybody through a tribunal case if there was not a reasonable prospect of success. We agreed on all those issues. The representatives even said to me that the current workers' rights are relatively weak and that all that an employer has to do to get rid of anybody is to go through the process. You just go through the process, have the meeting, and do all of that. These are issues that are an existing position. I thought that this was an entirely constructive position for the union because it said that maybe the qualifying period is not the big deal and is a sort of headline figure that we can just ignore.

It may be what the Minister was talking about when he said that you have to be hard on some things and get a negotiation on others. I do not know, but he will maybe say when his turn to speak comes back around. It seems to me that the argument over whether the qualifying period is one year or two years does very little to affect the unfair dismissals claim. In fact, that is what people have said in evidence. They have said that it makes no difference. Mr Flanagan, in earlier contributions, was saying that the numbers went up and the numbers went down, but, actually, it makes no difference.

I will tell you where it does make a difference — not to the employees but to the people who are looking to employ people. Here is our position, which we should all be particularly worried about. About a year ago, a 'Belfast Telegraph' poll focusing on young people showed that 67% of them see their future as being outside Northern Ireland and that 70% of them think that our politicians are incapable of agreeing a joint vision for the future of the country. That is the problem facing us all. The biggest tragedy in Northern Ireland, often not spoken about, is our young people who have to leave to get a job.

Photo of Basil McCrea Basil McCrea NI21

I will give way in just a moment.

This is the issue that I am trying to address. When you do not have a job, you cannot get experience. Therefore, you cannot get another job.

What you want is a mechanism whereby you are given an opportunity to show what you can do. That is key to my amendment. It is not trying to deprive people of rights; it is trying to create an environment in which we will get more jobs for our young people.

Photo of Phil Flanagan Phil Flanagan Sinn Féin 4:30 pm, 9th February 2016

Excellent. I thank the Member for giving way because that is exactly the point that I want to ask him about. Can he please outline to the House how allowing employers to sack staff after up to two years without recourse for any rights for that member of staff leads to the creation of one more single job in our economy? It might well displace jobs and allow some staff to be sacked so, then, somebody else can get that job, but it does not create a new job. You are talking about people wanting or needing to emigrate for employment. They will not stay if they have to get a zero-hours contract or if they face the prospect of being sacked at any stage within the next two years, regardless of the rights or wrongs of the reason for sacking them.

The Member's argument does not make any sense; it does not stack up, and it does not wash. It is based on an illogical position: that giving employers more rights will somehow lead to a position where they will not abuse those rights. I do not accept his narrative or his arguments.

Photo of Basil McCrea Basil McCrea NI21

That would be a no, then?

Photo of Basil McCrea Basil McCrea NI21

I am just checking.

I am not afraid — you probably know this — to stand here on my own and say what I think. I did not know whether anybody would support this amendment. I brought it forward because I thought that we should have the debate. I have already made the point about us ducking the issue by moving it to affirmative procedures rather than negative resolution and about how that will set in stone what will happen. I am open to debate and argument. What I will say to each and every one of you is this: expect me to return the argument. If you make an argument, expect me to challenge it. That does not mean that I disrespect you or that I do not think that you have good points. The proper role of scrutiny is to ask questions.

Mr Flanagan, you have stated quite often that there is no evidence. In fact, I think that even the Minister, in his Civil Service-speak, said that there is no evidence to suggest such and such. You could also have said, however, that there is no evidence to the contrary. In the absence of any research, you might ask yourself why there is no research to inform the debate, given that we started in 2012, if memory serves me, when I was Chair of the Committee, but there is research. If you want research, it comes from the Federation of Small Businesses — a very respected organisation that, I think, many Members in the Chamber have attended and supported.

It talks about small businesses, not the big multinationals, not the ones that have HR committees and not the ones that you can say, "Yes, they have to go and do these procedures". What you find out from the Federation of Small Businesses is that there are 118,000 small businesses in Northern Ireland, but only 32,000 actually have employees. The survey that it brought back says that most of those businesses have between one and five employees. They were asked what problem they faced. If you want to get jobs for our young people or even, dare I say it, for those who are not so young and are having to get a new job after being made redundant, you have to persuade somebody to take them on. Here is the unpalatable truth and the words that maybe you should not say but which should be said, if that makes sense: the world does not owe you a living. People demand a job as a right, but, in the employment world, you have to negotiate with your employer: I will do certain work, and you will give me a certain amount of money. What everybody wants is a chance.

Photo of Steven Agnew Steven Agnew Green

I take on board the Member's point to an extent. However, if you are in a negotiation where one side has the opportunity to sack the other, there is no level playing field or negotiation. The employer calls the shots.

Photo of Basil McCrea Basil McCrea NI21

The point that I made earlier, Mr Agnew, was that you can do that at 11 months as well, because what you get at the moment is churn. Most of the people who are showing up for further employment have been made unemployed after 13 weeks. Look at the casual staff that are taken on over Christmas. What could be worse than turning up for a job and being asked, "In the past five years, how often have you been employed?" and having to say, "Five times for 13 weeks". What you actually want is to get a bit of continuity of experience. You want to work in the one job and get a chance to show what you can do, and, frankly, if it takes you a bit of time to get up the learning curve, so be it. Let us give you the chance to do it. Perhaps it is counter-intuitive, but that is why a one-year constraint does not help anybody. It almost forces employers that are so minded — I am not saying that I agree with them — to act in one year and not two. You would benefit if you could move to doing two years. That is what the Federation of Small Businesses says.

Mr Swann talked about his position. The FSB, I am quite sure, is a reputable organisation in his constituency. In Ballymena, which, I believe, is close to his abode, 1,230 firms employ fewer than 10 people. Many of them replied to the survey. They are saying to him, "We would like to take on more people, but we do not have the HR department to take them on. We are worried about this. Give us a chance, and we will employ your local people — your constituents".

I say to Mr Diver that, in Derry, the figure is 2,500. It is slightly lower, I have to confess, than the economic metropolis of Lisburn. The issue is that you are trying to encourage those people who have work to take on more people, and they are telling you in evidence that they will not do it because they fear the employment law.

Some people in ICTU came forward and said that it is not such a big issue. I think that it said that it was nineteenth on the list, but you have to remember that it is comparing with what happens in GB. It is talking about a country where an SME is fewer than 250 people. Our economy is not like that. Our economy is made up of microbusinesses — businesses that employ fewer than 10 people. They are owner-driven, and you want them to employ people. Just think what would happen if we could encourage each one to take on one person. The real challenge for us is how you make such a thing happen.

There is some discussion about zero-hours contracts, and there was a really good intervention on that issue that they are not bad for everybody. Some people like zero-hours contracts. Of course you do not want people to be exploited, but I was struck by the Minister's proposals for dealing with zero-hours contracts. They were produced about a year ago, and I heard Mr Agnew say to the Minister, "Tell us what your proposals are for this zero-hours business", but the proposals, as I understood them, were that, if you were working for six months or whatever, you would be entitled to a contract. In fact, employers would be forced to state why they were not giving you a contract. All of that works only if you are not working for an agency. I can tell you that, if you make it too difficult to employ people, as is currently happening, people will not take the chance of employing anybody. There is no bigger challenge for our economy or us as legislators in the Assembly than to find a way of getting gainful, local employment.

Photo of Phil Flanagan Phil Flanagan Sinn Féin

I thank the Member for giving way. Once again, he talks about how extending the qualifying period for unfair dismissal makes it easier to hire people. It does not make it easier to hire people; it makes it easier to fire people. Does he accept that the actual outworking of increasing the qualifying period for unfair dismissal does not help employers to create a single job? All that it does is make it easier for them to fire people within two years.

Photo of Basil McCrea Basil McCrea NI21

We are going to go over this again. I am not an expert in employing people, but I will tell you who is: the Federation of Small Businesses, the CBI and engineering employers. Those are the people who actually employ. What you are going through at the moment is shedding labour from the Civil Service. That is our big process. You are going to have to find a way in which to get those people work or else put them on the scrapheap.

Unless you can come up with better information for me or some other alternative evidence, all that I can go for is what people have said. The employers have said that they would like to recruit more people but that they are afraid of the legislation.

Photo of Gerard Diver Gerard Diver Social Democratic and Labour Party

The Member said that employers have a fear of employment law. Part of the question is why we have employment law. We have employment law and protections so that people cannot be exploited as they were in the past. Any employer that treats their employees with dignity and has that fundamental relationship where they work and they are paid in return for the work that they do should not have anything to fear from employment law.

Photo of Basil McCrea Basil McCrea NI21

Mr Diver said that he had some expertise in matters of recruitment. I have here the costs associated with recruiting somebody. It is from an established HR report, which states that, on average, it costs £30,614 to recruit somebody, per employee. You can argue about how they got to that methodology. Part of it includes work loss because of an inefficient process and having to put mentors in or whatever else. Those are the statistics that I gave earlier about how quickly it takes to come up to speed. I can also tell you that it costs about £6,000 in management time, recruitment fees, advertising and whatever. No employer in their right mind will try to waste money; that is not their purpose. They should be trying to recruit people who are right for their job and give them time to show what they can do. Occasionally, those things do not work.

I will tell you this straight off: when I was the Chair of the Employment and Learning Committee, there was an initiative from the Department to try to encourage people to take on workers and to go through a scheme. I went to a very respected organisation in my constituency and said, "Listen. I am really interested in this. I would like you to take people on". You can tell me that it does not happen in your constituency, but they told me that they were also interested but the problem was that, when they take on people who are forced to them on a scheme, they do not really want to work and that the first thing that happens is that they cut their hands on saws or something like that and put in a claim. They told me that they prefer to hire them as agency workers for a couple of years and, if they are OK, they then take them on. That is the point I am making. You cannot look at that one issue in isolation. If you want employment law that encourages employment but also looks after the rights of individuals, you have to look at it as a whole.

I sometimes get a little frustrated when I make these arguments. I get the feeling that people adopt a position that is based on ideological thought processes rather than a rational, logical evidence-based process. All the evidence from those who employ suggests that, if you do the right thing by giving employers some encouragement to take on employees, they will do so. Northern Ireland needs to do that because our employment performance is not good enough.

I put the challenge to those parties that are going to reject my amendment. When you look to those in your constituency, they will ask you whether you do not support those who are trying to create wealth. Are you saying that no members of the FSB are good employers? I heard a lot a lot of talk about Michelin, the tobacco factory and all those people. Are you saying that there are no responsible and reputable employers? I see that most people are trying to do a good thing because it is in their interests to do so.

When you come back to the numbers and to the evidence, the number of people who may be on zero-hours contracts is somewhere between 1·2% and 4%. I would like to know what that figure is before I pass any legislation. I am not saying that I am opposed to zero-hours contracts that are properly regulated. Of course there are abuses and issues, and I am interested to hear more about what the Minister has to say on the matter, but I want it to be evidence-based. When you do not address agency working at all in an employment Bill, there is a huge chasm in the arguments being put forward.

So, when I come to a conclusion on this, I realise that the style of debate that I have had and the challenge that I put out to people does not engender them to go, "Ah what a good fella. Let's go and vote for his amendment after all — you know, it's not so bad". I get all of that. But sometimes you just have to take a stand and say, "You are trying to push this through without considering the full effects".

I do not know if you are part of it or whatever, but I say to you, Minister, that I saw immediately what the procedural moves were about in moving to affirmative action on this. In my opinion, it was not that you might worry about some rogue Minister — heaven forbid we would have rogue Ministers in this place and we would have to go and stop it. I mean, if we had rogue Ministers or rogue employers, where would it all end? Rogue politicians?

This is a procedural thing. I think that we should be having this debate, and I am not trying to tell anybody here that they are wrong. I understand that there are heartfelt feelings on all sides and that people want to see what is best for their constituents. That includes looking after the employers that will employ them. Those are things that we have to deal with. But what I really think is good, even though it has been a bit fractious in this debate, is that at least we have got it out in the open. At least the amendment was put, and we put our position and had our chat, and we can stand on it when it comes to the next election. This is what I believe. But if you really want to know what I think would be good for Northern Ireland on this issue — from a non-partisan position — it is that we could agree to do everything possible to create jobs for our people. Jobs are what it is all about. It is about the economy, stupid. And on that, I will sit down.

Photo of Alastair Ross Alastair Ross DUP 4:45 pm, 9th February 2016

I will try to keep my comments relatively brief. I only want to talk to amendment Nos 14 and 15. I do so because they were two areas that I was particularly interested in when I served on the Employment and Learning Committee for two and a half or three years at the beginning of this mandate. The debate has not moved on an awful lot since then. I remember sparring across the table with Mr McCann, who often rehearsed some of the arguments that we have heard today about whether it was to do with standing up for employers or employees. Unfortunately, that is the kind of debate that we have had again this afternoon; that somehow it has to come down to a competition between employers or employees. Actually, what we want to do — I agree with Mr McCrea on this point — is to get to a position where both benefit, and both benefit from having a productive workforce who are in employment. That is the circumstance that we want to create in Northern Ireland.

All politicians are great at posing for photographs with the FSB, the CBI or other business organisations. Politicians are great at talking about how they want to see more jobs created in their constituency. They are great at calling for the Enterprise, Trade and Investment Minister to get more jobs created in their constituencies. But when it comes to actually creating an environment in Northern Ireland that is business-friendly and job-creation-friendly, I am afraid that some fail to live up to the expectation.

Employment law is important. Earlier, I listened to the Enterprise, Trade and Investment Minister talking about the key components involved in bringing investors to Northern Ireland, and he talked about our skills force. We have a highly skilled population in Northern Ireland. Our universities and further education colleges are excellent, particularly in how they work with employers in making sure that they provide appropriate training. Northern Ireland has a lower cost base than other countries, and that lower wage and office cost base attracts investors.

However, employment law is important, particularly when you think of the bigger companies from the Middle East and the States that are looking at a range of different environments across Europe. The most restrictive employment laws, seen in places like France, turn away investors. So, we need to make sure that we are cognisant of that and have a business-friendly approach. When it comes to a decision about whether to set up their company in Glasgow, Liverpool or Belfast, an employer will look to an area where they have the greatest level of flexibility. That is a significant thing. In 2012, the Government — I think that it was Vince Cable, a man hardly renowned for being a mad right-winger — introduced the employment law reforms and moved the qualifying period for unfair dismissal back up to two years.

Of course, as Mr McCrea pointed out, over the last number of decades, it has continually flipped between two years and one year, back and forth without any significant evidence that it caused any upsurge in employees being treated badly. At that time, Vince Cable and the coalition Government tried to create an environment in which employers were given the confidence to take on additional staff. When employers are telling us that it would give them more confidence, the litmus test is whether they take on more staff or train more people and whether they continue to grow as businesses.

The evidence from Great Britain over the last three years is hardly that the roof has fallen down and, suddenly, people are being abused right across Great Britain. It is simply not the case. What is the case is that Northern Ireland now looks like it is a step behind the rest of the United Kingdom in reforming employment law, and that, I am afraid, concerns me. It is a point that I made three years ago to the Minister and repeatedly made to him in questions for written answer: I asked him when he would follow the lead of Great Britain by reforming our employment law on unfair dismissal. I understand that he has all sorts of difficulties in getting proposals through the Executive and that there are difficulties in getting cross-community support. However, I am disappointed that we talked about it at the very beginning of the mandate, yet only today are we seeing the Bill. That is disappointing, given that the Executive keep talking about doing everything possible to help to create jobs. I am afraid that the Minister has not pushed this agenda forward anywhere near strongly enough, and that concerns me. I support Mr McCrea's amendment and have consistently done so. If Members are serious about ensuring that we are competitive, particularly against countries across the United Kingdom, they should also move towards that position.

I want to touch briefly on Mr Flanagan's amendment on zero-hours contracts. I remember arguing on the Employment and Learning Committee about the merits of zero-hours contracts in a flexible workforce. We want a flexible workforce and an economy that works for employers and employees. In an intervention, the Minister made the point, as did Mr McCrea, that nobody is talking about exploiting employees. If there are circumstances in which employees are being exploited, of course we should take action against the employers — of course we should.

Photo of Steven Agnew Steven Agnew Green

Does he not see how someone being on an exclusive zero-hours contract is a form of exploitation and that we have no proposals to do away even with that?

Photo of Alastair Ross Alastair Ross DUP

That is not what we are discussing today. The amendment does not mention exclusive zero-hours contracts; it deals with all zero-hours contracts. There would need to be a very strong argument and a highly specialised justification for having exclusive zero-hours contracts. One of their benefits is that they give people the flexibility to turn down hours, take on hours or look for work elsewhere. Mr Flanagan made the point that there may be some areas — where someone has a particular skill set or works in a highly sensitive environment — in which certain commercial confidentialities could not be breached. It would be quite rare, I must say, for someone with a particularly high skill set to be on a zero-hours contract — that is unlikely. I do not see how employers would argue that there should be exclusive zero-hours contracts, but that is not what we are discussing today. We are discussing a blanket ban on zero-hours contracts.

Mr Flanagan said that the contracts were bad for workers and bad for the economy. They are not bad for the economy. The fact is that all the major employer organisations say that they give flexibility to and help the job market, and he should listen to them. In a very real example, Ms Sugden said that, when she was trying to get work and was on a zero-hours contract, it worked for her. It works for many students across Northern Ireland who do not want or cannot work regular hours, or perhaps they are busier in one week with university work than in another. They have the opportunity to turn down work if they are too busy but take it on another weekend. That is what a flexible workforce and a flexible labour market are about, and it helps our economy. The same goes for people who may have been out of work for a long time and want to return to the labour market gradually. It is a perfect opportunity for them and gives them the flexibility and control over their hours to do that.

Many Members asked this question: what if you want a mortgage or regular hours? In that case, a zero-hours contract is not for you. You will not take a job on a zero-hours contract if you need a mortgage. It is not suitable for everyone, but nobody is arguing that it is. My argument is that it has to be part of the mix in a flexible labour market. We talked about how zero-hours contracts benefit employers, and bigger employers use them as well. If they get a big order in, they take on more staff and, once the order is complete, they lay off those staff.

I have a real-world example from my constituency. When this was first discussed two or three years ago, a former Member, Mr Ramsey, talked about the potential of tabling a private Member's motion. People came to me and said it would be absolute madness for small businesses in certain industries. The example that I was given was of a small catering company based in Carrickfergus. It had no idea what its order sheet would look like a month in advance. It often took orders on a Monday for the following weekend or the weekend after that, so how busy it would be depended on a very short-term order book. Zero-hours contracts allowed that company to take on such work, knowing that it had a list of people who could come in at short notice to help with a catering job. If the company did not have a big order for the following week — it might have a small order — it would not have as many staff in. However, if a small family company were to keep all those people on a paid salary contract, it could not do business.

Zero-hours contracts are important for a flexible labour market, and they very much help small companies. I really take exception to Mr Flanagan saying that employers who use zero-hours contracts are lazy, inefficient managers. I can tell him that the people from that catering company who came to me work incredibly hard, long hours to ensure that they make a living, and there is nothing lazy about entrepreneurs who go out and try to set up their own companies and strive to get business and employ more people. It is a disgrace that Mr Flanagan used that language here today, but it does not surprise me: he has form.

I will leave it at that. I suggest to the House that, if people are serious about a flexible labour market that creates jobs and helps our economy, they will reject Mr Flanagan's nonsense amendment on banning zero-hours contracts. I endorse Mr McCrea's amendment.

Photo of Claire Sugden Claire Sugden Independent

I welcome the opportunity to speak on the second group of amendments at the Consideration Stage of the Employment Bill. I congratulate the Minister on getting the Bill this far. I also thank the Committee staff for turning the Committee Stage around in such a short time, although it is regrettable that the time was so short. I am no different to other Members in that my focus is drawn towards amendment Nos 10 and 15, which have been tabled by Phil Flanagan, Bronwyn McGahan and Fra McCann, and amendment No 14, which has been tabled by Basil McCrea.

I turn to amendment No 10. The bulk of my contribution will be on the gender pay gap, but I understand that the Members are not seeking to move that amendment. It is important, however, that we have an opportunity to discuss the issue, and I agree in general with the intentions of the proposed new clause. However, I do not agree with the amendment and the wording that has been put forward.

As I said, the proposers are correct to table the amendment, if only to raise the debate and encourage the Minister, the new Minister or, indeed, the Minister of another Department in the new mandate to seek an opportunity to address inequality realistically. As Members said, across the UK, although gender pay equality is improving, it has not changed dramatically over four years. It is thought that pay parity for men and women will take 50 years. In fact, the Prime Minister seems really enthusiastic about getting it within the next generation, so I certainly look forward to my grandchildren having the same opportunities as their male counterparts. In the UK, we are behind by 20%, so that is not a great figure. The figure also varies by occupation. The pay gap is probably biggest in the skilled trades, processed plant machine operations and for managers, directors and senior officials.

I am more than sympathetic to Sinn Féin's proposal, but it is complicated. It deserves more attention than a last-minute amendment that has not been analysed or consulted on properly. According to 2014 figures, as Members said, we do not have a gender pay gap in Northern Ireland, and, in fact, men are behind women. Although that may indicate that, for once, Northern Ireland is at the forefront on progressive issues, it actually highlights a symptom of a huge public sector compared with a small private sector. I am interested in up-to-date figures, particularly in light of the recent voluntary exit schemes, to see whether that gap has widened any more. Typically, gender pay gaps exist in the private sector, and I imagine that most businesses do not realise that a problem exists until they are forced to look at it. That is why today's debate is helpful.

While the amendment is unlikely to pass, it is important and needs to be considered as we move forward. I think that, particularly as we seek to grow our private sector and shrink the public sector, unless we address this, we could have an unwelcome situation where, as our private sector grows, the gender pay gap also grows. That will mean that we will actually be going backwards.

The detail of amendment No 10 has led me to oppose it. It will not apply to employers who have fewer than 50 employees. England, Scotland and Wales are proposing equal pay legislation for employers who have more than 250 employees as a first step. Whilst I appreciate that Northern Ireland's economy is significantly different from those across the water, with SMEs making up the majority of our private sector, I am unsure about the figure of 50 that has been put forward in the amendment. I cannot come up with a figure because I am as uninformed about it as anyone else in the House. Again, I think that that is due to the lack of consultation and something like this not being proposed sooner.

(Mr Principal Deputy Speaker [Mr Newton] in the Chair)

The amendment also sets out regulations for this to be in effect by 10 November 2016. The Member said that that was because that was Equal Pay Day. Whilst that is quite a nice concept that seems to tie in everything nicely, it seems a little soon to me. I hope that those who tabled the amendment are mindful of the realistic difficulties with implementing legislation that will cost businesses more in the same year as we implement the living wage. Unless the amendment comes alongside government proposals to support private businesses in implementing it, we could be putting pressure on our small businesses.

I do not want to misrepresent myself. Gender pay parity and the living wage are absolutely the right things to do, but we need to be mindful of the current economic climate, particularly in Northern Ireland. Missing from the amendment is something that I hope will inform the debate moving forward: there has been no consideration of the bonus gaps between men and women. That contributes greatly to the figures that seem to show so wide a gap. There are many reasons why men get paid more bonuses than women, and a lot of it is not down to performance. I will not go into the details, but we need legislation that addresses that as well.

For all the reasons above, I will not support the amendment. I do not think that it is the right vehicle. I will not support it at Further Consideration Stage either because I do not think there will be an opportunity to do that. The Bill has been rushed at the end of the mandate, and I feel that there has been no time to consider it properly. I encourage the Government to ensure that it forms a part of the new Programme for Government.

I will not go into too much detail about the other amendments, as other Members have said much of what I feel about zero-hours contracts and increasing the qualifying period of employment from one year to two. Briefly, zero-hours contracts need reform because they are open to abuse. We all know what that looks like. I do not think that an outright ban, however, is appropriate. As I said, in my experience, a zero-hours contract satisfied me to an extent because it allowed me to prioritise something that was more important in my life. I was able to work and earn something to pay for any bills that I had. Equally, it was a bit of a struggle because I had a hire purchase agreement at the time, and I was hoping that I would get enough hours every week to pay for it. Fortunately, the employers were biting the hand off me to work for them as much as I could. That flexibility is important, and, as Mr Ross said, we cannot lose it. As Mr McCrea said, employers will seek other opportunities to get the flexibility they want, again squeezing out the people who maybe would have taken a zero-hours contract in the process.

As others have said, there is the case of teaching staff and lecturers. My partner is a lecturer in the Northern Regional College (NRC) — I declare that interest — and he started his role with NRC on a zero-hours contract. That enabled him to build up experience while he studied and got the qualification that enabled him to have a full-time permanent job. I see the pros and cons of the zero-hours contract, but, as for amending the Bill, our wings are clipped within the lifetime of this Assembly mandate.

In amendment No 14, Basil McCrea proposes increasing the qualifying period from one year to two. To be honest, I think that this is quite an interesting amendment, and I am willing to understand it and explore it further. To be honest, I feel entirely uninformed about it. Just hearing about it in a nutshell before lunch was not enough to convince me that we might not put people at a disadvantage by giving employers more opportunities to sack their staff by extending the period to two years. I recognise the arguments — others have said that industry is quite behind it — but I need more information to consolidate them in my mind. However, I am willing to look at that again as we move into the next mandate.

Photo of Steven Agnew Steven Agnew Green 5:00 pm, 9th February 2016

Like other Members, I plan to speak to amendment Nos 10, 14 and 15. I start with amendment No 15 on zero-hour contracts. There has been considerable debate about it already. We face a stark choice between Mr Flanagan's proposal to ban zero-hour contracts and doing nothing. At Committee Stage and in other public discourse, there has been an acceptance that there is a problem with zero-hour contracts. The difficulty is that the Minister has made no proposals to address that problem. I am open to proposals, and the talk, up until now, was that there needed to be some form of regulation. I thought that there was growing consensus that there needed to be some regulation, starting from the very minimal form, outlined in the Minister's consultation, of banning exclusivity contracts. If that were before us today, I would certainly be attracted to it as the minimum that we should do on zero-hour contracts. It is not in front of us.

We are left with the option of a ban or doing nothing, which means completely unregulated zero-hour contracts. That leaves the opportunity to exploit workers, and I believe that there are exploitative zero-hour contracts. As has been pointed out, if that was not the case, a lot more highly skilled, highly paid professionals would seek the flexibility of zero-hour contracts. Maybe they would like to take three months to travel the world and then come back to their job. The reality, however, is that we do not see it at the high end of the labour market; we see it at the low end. We see unskilled, low-paid workers employed on zero-hour contracts. It touches on Mr McCrea's amendment about the balance of power between employer and employee. Unfortunately, the demand for jobs in our economy is much higher than the supply, and that gives the employer power. The employee, particularly the lower skilled, has very little power. As Mr McCrea said, there is very little negotiation to be had. It boils down to, "Do you want the job? These are the conditions. Take it or leave it".

I have to come back to why we have no proposal from the Minister when there has been so much talk about the issue in the media and in Committee. Indeed, he has consulted on it. The speculation has been that even the minimum regulation — a ban on exclusivity contracts — was too much for the Executive and could not be agreed.

Photo of Stephen Farry Stephen Farry Alliance

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. 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.

Photo of Steven Agnew Steven Agnew Green

I appreciate the Minister's clarification. He probably did save me going off on one particular tangent, so I will go off on a different one, but on a similar point. I ask this question: what is the Minister's role? I have questioned him on a number of issues, including this one. The reforms that he is seeking seem reasonable, but he has not been able to get them through the Executive to be debated here today. I have seen other reasonable reforms proposed by the Minister, such as those trying to make teacher training colleges more efficient and more integrated, not getting through the Executive. At the other end, when I questioned him on what he can do in relation to universities — for example, as regards modern languages at Ulster University — he said that the universities are independent and that, while he funds them, they run their own affairs. I will ask a question that Mr Attwood is fond of asking about knowing the difference between being in government and being in power. The Minister is clearly in the Government, but is he in power? It seems to me that every —

Photo of Steven Agnew Steven Agnew Green

— change that he proposes is blocked at the Executive. I will certainly give way.

Photo of Stephen Farry Stephen Farry Alliance

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.

Photo of Steven Agnew Steven Agnew Green

I thank the Minister for his intervention. He talks about a higher education strategy but, as he does not want to interfere in the universities' business, I wonder if it is worth the paper that it is written on. My point was more about his role within the Executive. If he cannot even get simple reforms through the Executive to be debated — not passed, as the Executive parties can vote against them if they wish, but even debated — I question what his role in the Executive is. That is part of the crux of why we are here debating one extreme, which is to ban zero-hour contracts, and the other extreme, which is to do nothing. As the Minister has outlined, there are other stages in between, but we are left with this stark choice. Given the stark choice that we have, I am, as I have said, more minded towards Mr Flanagan's approach. The labour market already benefits the employer in the sense that the demand for work is much greater than the supply —

Photo of Alastair Ross Alastair Ross DUP

Will the Member give way?

Photo of Steven Agnew Steven Agnew Green

— particularly at the lower-skilled end. I will give way.

Photo of Alastair Ross Alastair Ross DUP

It strikes me that the Member is almost saying, "We have an opportunity to either wait and see if we can get amendments brought forward on this and take away the problem area of zero-hour contracts, or we can just have a scorched-earth policy." It seems to me that the logical and rational position would be to say, "Let us see if we can work on getting some agreement on tackling exclusive zero-hour contracts and make sure that we have tight enough regulation over their usage." He seems to be taking the other position of, "Let us not go for the logical thing. Let us just get rid of them all, and to hell with the consequences for the labour market." Why on earth is he taking that approach?

Photo of Steven Agnew Steven Agnew Green

I thank the Member for his intervention. The obvious thing to do would have been to agree that at the Executive and bring it forward in the Bill. That has not happened, and I have no confidence that we are going to see something better at Further Consideration Stage. If he is telling me that he is going to bring that forward —

Photo of Peter Weir Peter Weir DUP

Will the Member give way?

Photo of Steven Agnew Steven Agnew Green

I will when I make this point. If the Member chooses not to move the amendment today and something is going to be brought forward from the Benches opposite, I will be willing to look at it. I stated that there was a stark choice. I do not envisage the same problems if we ban zero-hour contracts that he does. There may be better options, but I do not see it as the worst-case scenario. The worst-case scenario is what we have. I will give way.

Photo of Peter Weir Peter Weir DUP

I am a little bit perplexed. The Member seems to indicate that we are stuck with two extremes, that he is choosing the lesser of two evils, and, essentially, that it is all the Minister's fault for not being able to get this through the Executive. What was to stop the Member, if he has a particular issue, bringing forward an amendment himself? I have not seen him submit any.

Photo of Steven Agnew Steven Agnew Green

I thank the Member for his intervention. As he well knows, I have brought forward plenty of amendments to plenty of Bills. I am one MLA. I brought forward my own private Member's Bill. It was passed and is now an Act. I have done my work in the Chamber. This is a Bill. I am not on the Committee, but I am seeking to provide a contribution, and I will stand over my record happily. Indeed, I will go up against the Member and the Minister in the forthcoming elections and I will put my record to the people. I have no fear in that regard. I am making a contribution on the proposals we have in front of us. There is only so much that you can do, as one MLA, which is why I look forward to my party having more MLAs in the next Assembly. We will contribute further through amendments, questions and holding the Executive to account.

The point has been made that zero-hour contracts work for some people. Ms Sugden gave her own example, but she qualified it — and I am happy to give way if I misrepresent her — by saying that she was under pressure, and, because her particular employer happened to provide a lot of work, that worked for her. I was a student. I needed time to study. I had an eight-hour-a-week contract. That worked for me. I do not see why that was particularly onerous on my employer when, perhaps, there was not so much work available. That was the minimum commitment to me as an employee. I had holiday pay with that, which you do not get with zero-hour contracts. I had the flexibility to take those holidays when I needed time to study for exams. I was fortunate that, when business was up, I got extra hours, which helped fund me throughout the rest of the year. My employer made that minimum commitment to me. They gave me those minimum rights of holiday pay and breaks etc when I was working. If we banned zero-hour contracts today, as some fear, I do not see any reason why low-hour contracts cannot still be a flexible mechanism that give employees some of the basic rights that they should be entitled to.

The issue of the gender pay gap has been debated and discussed. I commend the Members for bringing it forward and bringing it to light. As has been clear in the debate, we have the evidence that there is a gender pay gap. We, perhaps, do not have sufficient evidence as to why that is. The proposal to require employers to look at, monitor and report on the issue is one of the ways in which we could get the data. We need to tackle the issue. There is an assumption among many that gender inequality issues have somehow been resolved and that our employment laws etc provide sufficient protection. The evidence is that we still have a gender pay gap. We should be debating how we tackle that issue.

Amendment No 14 concerns the two-year qualifying period. Mr McCrea said a lot of things that were hard to disagree with, such as wanting to create more jobs and stop emigration. We are back in the situation where more people are leaving Northern Ireland than are coming to live here. That is regrettable. However, I did not hear how his proposal addresses that issue. He said that it gives more power to employers, and so that can only be a good thing. That is not necessarily a good thing. There should be a balance between the employer and employee in terms of rights and roles. Mr McCrea talked about the different scenarios and how long it takes an employee to get up to the optimum level of working. His worst-case scenario, where somebody was coming from unemployment and had not worked in that particular role before, was that it would take 50 weeks to get to the optimum level. I do not see the rationale for saying, "Well, you should have another year, then, in which you can sack that person at will". A year is more than sufficient, as Mr Flanagan pointed out. We give six-month probationary periods. Those time frames are reasonable.

Photo of Alastair Ross Alastair Ross DUP 5:15 pm, 9th February 2016

I thank the Member for giving way. In the circumstances where it takes 50 weeks — we are talking theoretically rather than about a real job — to train somebody and they have not yet been assessed on whether they are good at the job, are you seriously saying that the employer should not have the opportunity to get rid of that staff member if they are not doing their job well after the training period? He seems to be suggesting that once you have gone in you should not be sacked, but that is not how the labour market works. An employer has a right to have productive employees working under them. We want to make sure that we have a fair enough period to allow the employee to prove their worth to their employer. That is the point that I tried to make to Mr McCrea. It is not just about the training period; it is also potentially, in some jobs, the time to prove your worth. So, the two-year period in those circumstances would benefit the employee because they could prove their worth to the employer in that time.

Photo of Steven Agnew Steven Agnew Green

I thank the Member for his intervention. Maybe we are interpreting differently what Mr McCrea presented. I have not read the document, but it seems to me that the time taken for an employee to get to the optimum level of productivity would not include the training period. I do not see that as being the same as the training period; it is about experience and growing in a role not about being productive and contributing. So, I would not equate it with a training period. That is not how I interpreted what Mr McCrea said, although he is not here to answer.

Mr McCrea rightly asked, "If not this, then what?". As I said, I do not feel that he provided a compelling argument for how his amendment will create employment. It gives more flexibility to the employer but fewer rights and less security to the employee.

If we look at the evidence, skills have been mentioned. I do not think that anyone will disagree with that, so I make the point that getting a well-trained workforce is one of the best things that we can do. The other evidence is on the living wage and shows that the better you treat an employee the more you get from them. The living wage is one example of that. The Oxford Economics report showed that if we paid a true living wage — not the Chancellor's proposed increased minimum wage — net employment in Northern Ireland would go up. When you pay people at the lower end of the labour market more, they spend more in the local economy, and there is a greater multiplier effect. The evidence also shows that a worker who is valued by their employer has higher productivity. Those are some of the things that we can do to boost employment. It starts with looking after your employees.

Mr McCrea talked about emigration. One way to stop a person leaving is to pay them well. It is very rarely the low-skilled worker who leaves; it is usually the educated and those with university degrees. It is not because there are not jobs here; it is because there are not jobs with good pay and conditions, or at least such jobs are not in sufficient number. It is normally those with degrees or master's degrees and those who have the family support to travel and take opportunities abroad in the first place who leave. It is not the low-skilled and low-paid workers who leave: unfortunately, they stick around, left with the zero-hours contracts, which, in some cases, are their only options. It is the higher skilled who leave; the brain drain, as it is referred to, is the problem. I see nothing in amendment No14 to address that. It would only add to the problem by saying to graduates and the skilled, "There are other countries and other employers providing better pay and conditions. Chase those jobs, because the jobs are not here in Northern Ireland." For those reasons, I will oppose amendment No14.

Photo of Stephen Farry Stephen Farry Alliance

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". Therefore, we need to be rather careful around some of the points.

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. 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.

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.

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. 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.

Photo of Phil Flanagan Phil Flanagan Sinn Féin

I thank the Minister for giving way. The economy in Britain is somewhat different from the economy here. Siphoning off only companies that have more than 250 employees may well deliver a considerable number of companies to present a picture of the extent of the gender pay gap, allow some information to be delivered on why it exists and maybe present solutions for how to tackle it. However, if we were to adopt a situation here of trying to get information only from companies that have more than 250 employees, you would be looking at a very small information base. That is the rationale for choosing 50. If we went only for companies that have more than 250 employees, the number of companies that you would be looking at would be very small, and the level of information and detail that you would get might not be enough to shine a light on the true extent of the problem.

Photo of Stephen Farry Stephen Farry Alliance

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. 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.

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. 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.

We need to be realistic about the timescale. 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. 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.

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. 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.

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. 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.

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.

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. 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.

At the same time, we need to be very conscious of where this could lead us. 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.

My ideal situation is very clear: I want proportionate regulation, but the Executive have not been able to agree on that. 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.

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.

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.

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. 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.

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. 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.

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.

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.

Amendment No 9 agreed to.

Clause 14, as amended, ordered to stand part of the Bill.

Clauses 15 and 16 ordered to stand part of the Bill.

Amendment No 10 not moved.

Clause 17 (Careers guidance)

Amendment No 11 made:

In page 11, leave out lines 43 to line 6 on page 12 and insert

<BR/>

&quot;“(4) The Department must make arrangements under this section for providing careers guidance for such persons as the Department considers appropriate.


 


(5) The guidance must?—


 


(a) be provided in an impartial manner; and


 


(b) be in the best interests of the person receiving it.


 


(5A) The Department may by regulations make such provision concerning arrangements under subsection (4) as the Department considers appropriate, including provision requiring the guidance to be delivered or otherwise provided by a person who has such qualifications as the Department may determine.&quot;. — [Dr Farry (The Minister for Employment and Learning).]

Clause 17, as amended, ordered to stand part of the Bill.

Clause 18 (Apprenticeships)

Amendment No 12 made:

In page 12, leave out line 18 and insert



&quot;must be made under this section for providing apprenticeships and traineeships&quot;. — [Dr Farry (The Minister for Employment and Learning).]

Amendment No 13 made:

In page 12, line 20, at end insert



&quot;(8) Regulations under subsection (7) may make provision as to the components of apprenticeships and traineeships.&quot;. — [Dr Farry (The Minister for Employment and Learning).]

Clause 18, as amended, ordered to stand part of the Bill.

New Clause

Amendment No 14 proposed:

After clause 18 insert



&quot;Qualifying period of employment


 


Qualifying period of employment


 


18A.—(1) Article 124 of the Employment Rights (Northern Ireland) Order 1996 (right to written statement of reasons of dismissal) is amended as follows.


 


(2) In paragraph (3), for “one year” substitute “two years”.


 


(3) In Article 140 of that Order (qualifying period of employment), for “one year” substitute “two years”?—


 


(a) in paragraph (1); and


 


(b) in paragraph (2).&quot;. — [Mr B McCrea.]

Question put.

The Assembly divided:

<SPAN STYLE="font-style:italic;"> Ayes 37; Noes 56

AYES

Mr Allister, Mr Anderson, Mr Bell, Ms P Bradley, Mr Buchanan, Mrs Cameron, Mr Clarke, Mr Craig, Mr Douglas, Mr Dunne, Mr Easton, Mrs Foster, Mr Frew, Mr Girvan, Mr Givan, Mrs Hale, Mr Hamilton, Mr Humphrey, Mr Irwin, Mr Lyons, Mr McCallister, Mr McCausland, Mr B McCrea, Mr I McCrea, Mr D McIlveen, Miss M McIlveen, Mr McQuillan, Mr Middleton, Lord Morrow, Mr Moutray, Mrs Pengelly, Mr Poots, Mr G Robinson, Mr Ross, Mr Storey, Mr Weir, Mr Wells

Tellers for the Ayes: Mr B McCrea, Mr G Robinson

NOES

Mr Agnew, Mr Allen, Mr Attwood, Mr Boylan, Mrs Cochrane, Mr Cochrane-Watson, Mr Cree, Mr Dallat, Mr Dickson, Mr Diver, Mrs Dobson, Dr Farry, Ms Fearon, Mr Flanagan, Mr Ford, Ms Hanna, Mr Hazzard, Mr Hussey, Mrs D Kelly, Mr G Kelly, Mr Kennedy, Ms Lo, Mr Lunn, Mr Lynch, Mr Lyttle, Mr McAleer, Mr F McCann, Ms J McCann, Mr McCartney, Ms McCorley, Mr McCrossan, Mr McElduff, Ms McGahan, Mr McGimpsey, Mr McGlone, Mr M McGuinness, Mr McKay, Mrs McKevitt, Mr McKinney, Ms Maeve McLaughlin, Mr McMullan, Mr A Maginness, Mr Maskey, Mr Milne, Mr Murphy, Mr Nesbitt, Ms Ní Chuilín, Mr Ó hOisín, Mr Ó Muilleoir, Mr O'Dowd, Mrs O'Neill, Mrs Overend, Mr Patterson, Ms Ruane, Ms Sugden, Mr Swann

Tellers for the Noes: Mr Diver, Mr Lunn

Question accordingly negatived.

New Clause

Amendment No 15 proposed:

After clause 18 insert



&quot;Zero hour contracts


 


Zero hour contracts


 


18A.—(1) Zero hour contracts are prohibited.


 


(2) Zero hours contracts means a contract of employment or other worker&#x0027;s contract under which?—


 


(a) the undertaking to do or perform work or services is an undertaking to do so conditionally on the employer making work or services available to the worker, and


 


(b) there is no certainty that any such work or services will be made available to the worker.&quot; — [Mr Flanagan.]

Question put, That the amendment be made. The Assembly divided:

Ayes 37; Noes 56

AYES

Mr Agnew, Mr Attwood, Mr Boylan, Mr Dallat, Mr Diver, Ms Fearon, Mr Flanagan, Ms Hanna, Mr Hazzard, Mrs D Kelly, Mr G Kelly, Mr Lynch, Mr McAleer, Mr F McCann, Ms J McCann, Mr McCartney, Ms McCorley, Mr McCrossan, Mr McElduff, Ms McGahan, Mr McGlone, Mr M McGuinness, Mr McKay, Mrs McKevitt, Mr McKinney, Ms Maeve McLaughlin, Mr McMullan, Mr A Maginness, Mr Maskey, Mr Milne, Mr Murphy, Ms Ní Chuilín, Mr Ó hOisín, Mr Ó Muilleoir, Mr O'Dowd, Mrs O'Neill, Ms Ruane

Tellers for the Ayes: Mr Flanagan, Mr F McCann

NOES

Mr Allen, Mr Allister, Mr Anderson, Mr Bell, Ms P Bradley, Mr Buchanan, Mrs Cameron, Mr Clarke, Mrs Cochrane, Mr Cochrane-Watson, Mr Craig, Mr Cree, Mr Dickson, Mrs Dobson, Mr Douglas, Mr Dunne, Mr Easton, Dr Farry, Mr Ford, Mrs Foster, Mr Frew, Mr Girvan, Mr Givan, Mrs Hale, Mr Hamilton, Mr Humphrey, Mr Hussey, Mr Irwin, Mr Kennedy, Ms Lo, Mr Lunn, Mr Lyons, Mr Lyttle, Mr McCallister, Mr McCausland, Mr B McCrea, Mr I McCrea, Mr McGimpsey, Mr D McIlveen, Miss M McIlveen, Mr McQuillan, Mr Middleton, Lord Morrow, Mr Moutray, Mr Nesbitt, Mrs Overend, Mr Patterson, Mrs Pengelly, Mr Poots, Mr G Robinson, Mr Ross, Mr Storey, Ms Sugden, Mr Swann, Mr Weir, Mr Wells

Tellers for the Noes: Ms Lo, Mr Lunn

Question accordingly negatived.

Clause 19 (Indexation of amounts: timing and rounding)

Amendment No 16 made:

In page 12, line 36, at end insert



&quot;(8) An order under paragraph (7) may exclude the application of paragraph (2) in relation to any sum increased or decreased by the order for such period as may be specified in the order.&quot;. — [Dr Farry (The Minister for Employment and Learning).]

Clause 19, as amended, ordered to stand part of the Bill.

Clause 20 (Prohibition on disclosure of information held by the Labour Relations Agency)

Amendment No 17 made:

In page 13, line 31, after &quot;only&quot; insert &quot;by or&quot;. — [Dr Farry (The Minister for Employment and Learning).]

Clause 20, as amended, ordered to stand part of the Bill.

Clauses 21 to 27 ordered to stand part of the Bill.

Schedules 1 to 2 agreed to.

Schedule 3 (Repeals)

Amendment No 18 made:

In page 24, line 21, column 2, at beginning insert













 



&quot;Article 38(1A).


 



 



In Article 46(1), the words from “and to any regulations” to “2003”.&quot;.



— [Dr Farry (The Minister for Employment and Learning).]

Amendment No 19 made:

In page 24, line 33, column 2, at end insert













 



&quot;In Schedule 5, paragraph 4(1) and (2).&quot;.


 


 



 




— [Dr Farry (The Minister for Employment and Learning).]

Schedule 3, as amended, agreed to.

Long title agreed to.

Photo of Robin Newton Robin Newton DUP 5:30 pm, 9th February 2016

That concludes the Consideration Stage of the Employment Bill. The Bill stands referred to the Speaker.