Employment Bill: Further Consideration Stage

Executive Committee Business – in the Northern Ireland Assembly at 1:00 pm on 22nd February 2016.

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Photo of Robin Newton Robin Newton DUP 1:00 pm, 22nd February 2016

I call on the Minister for Employment and Learning, Dr Stephen Farry, to move the Bill.

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

Photo of Robin Newton Robin Newton DUP

A valid petition of concern was presented today in relation to amendment Nos 26 and 27. Under Standing Order 28, the votes on those two amendments cannot take place until at least one day has passed. If the amendments are moved, the votes will be taken at the beginning of business tomorrow, Tuesday 23 February. I also remind Members that the votes on amendment Nos 26 and 27 will be on a cross-community basis.

Members have a copy of the Marshalled List of amendments, detailing the order for consideration. The amendments have been grouped for debate in my provisional grouping of amendments selected list. There are three groups of amendments, and we will debate the amendments in each group in turn. The first debate will be on amendment Nos 1, 2, 4, 18 to 22, 25 and 28, which deal with review and reporting functions, including the creation of a living wage. The second debate will be on amendment Nos 3, 5 to 17, 24 and 29, which deal with zero-hours contracts. The third debate will be on amendment Nos 23, 26 and 27, which deal with offences for blacklisting and the repeal of article 71 of the Fair Employment and Treatment (Northern Ireland) Order 1998.

I remind Members who intend to speak that during the debates on the three groups of amendments they should address all the amendments in each group on which they wish to comment. Once the debate on each group has been completed, any further amendments in the group will be moved formally as we go through the Bill and the Question on each one will be put without further debate. If that is clear, we shall proceed.

Clause 9 (Review of early conciliation)

Photo of Robin Newton Robin Newton DUP

We come to the first group of amendments for debate. With amendment No 1, it will be convenient to debate amendment Nos 2, 4, 18 to 22, 25 and 28. The amendments address the review and reporting functions including the creation of a living wage. Members should note that amendment No 3 is mutually exclusive with amendment No 5. Amendment Nos 19 to 22 are consequential to amendment No 18. Amendment Nos 25 and 28 are consequential to amendment No 4. I call the Chairperson of the Committee for Employment and Learning, Mr Robin Swann, to move amendment No 1 and address the other amendments in the group.

Photo of Robin Swann Robin Swann UUP

I beg to move amendment No 1:

In page 9, line 9, leave out from "dealt" to end of line 10 and insert

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&quot;of cases dealt with by early conciliation, the average length of time taken to deal with cases and the outcome of cases;&quot;.

The following amendments stood on the Marshalled List:

No 2: After clause 9 insert



&quot;Review of section 8: Assessment of matters relating to tribunal proceedings


 


9A.—(1) The Department must review the operation of section 8 at the end of the period of one year beginning with the commencement of that section.


 


(2) The Department shall, having consulted with relevant stakeholders including employers, lay the findings of this review in a report to the Assembly.


 


(3) The report shall in particular include?—


 


(a) a synopsis of consultation responses;


 


(b) an assessment and evaluation of the effectiveness of section 8;


 


(c) the number of cases overall, the number dealt with in accordance with regulations under section 8, the average length of time taken to deal with cases and the outcomes of the cases;


 


(d) any savings directly attributable to the introduction of regulations under section 8.


 


(4) The Department shall also review and report as in subsections (2) and (3) at the end of the period of three years beginning with the coming into operation of section 8.&quot;. — [Mr Swann (The Chairperson of the Committee for Employment and Learning).]

No 4: After clause 16 insert



&quot;Gender pay and disclosure of information


 


Gender pay gap information


 


16A.—(1) Employers must, in accordance with regulations to be made by the Department under this section, publish?—


 


(a) information relating to the pay of employees for the purpose of showing whether, by reference to factors of such description as is prescribed, there are differences in the pay of male and female employees; and


 


(b) details of the methodology used to calculate any statistics contained in the information.


 


(2) Where there are differences in the pay of male and female employees, an employer must publish an action plan to eliminate those differences.


 


(3) A copy must be sent to all employees and any trade union recognised by the employer.


 


(4) The Department may prescribe by regulations a limit to the total number of employees and workers in an organisation below which this section does not apply.


 


(5) Regulations under subsection (4) may not be made unless a draft of the regulations has been laid before, and approved by a resolution of, the Assembly.


 


(6) The regulations must prescribe?—


 


(a) descriptions of employer;


 


(b) descriptions of employee;


 


(c) how to calculate the number of employees that an employer has;


 


(d) a standardised method for calculating any differences in the pay of male and female employees;


 


(e) descriptions of information;


 


(f) a requirement that information include statistics on workers within each pay band in relation to?—


 


(i) ethnicity, and


 


(ii) disability;


 


(g) the time at which information is to be published; and


 


(h) the form and manner in which it is to be published.


 


(7) The first regulations under this section must be made by 30 June 2017.


 


(8) Regulations under subsection (6)(g) may not require an employer, after the first publication of information, to publish information more frequently than at intervals of 12 months or less frequently than at intervals of 36 months.


 


(9) The regulations shall make provision for a failure to comply with the regulations?—


 


(a) to be an offence punishable on summary conviction by a fine not exceeding level 5 on the standard scale for every employee;


 


(b) to be enforced, otherwise than as an offence, by such means as are prescribed.


 


(10) The reference to a failure to comply with the regulations includes a reference to a failure by a person acting on behalf of an employer.


 


(11) Within 18 months of the day on which this Act receives Royal Assent, the Department must, in consultation with trade unions, publish a strategy including an action plan, on eliminating differences in the pay of male and female employees.


 


(12) For the purposes of this section, the ‘Department’ means the Office of the First Minister and deputy First Minister.&quot;. — [Ms McGahan.]

No 18: After clause 16 insert



&quot;Living Wage Agency


 


16A. The Department must, by 1 November 2017, establish an unincorporated body of persons known as “the Living Wage Agency” for the purpose of measuring, researching and advancing a living wage.&quot;. — [Mr Flanagan.]

No 19: After clause 16 insert



&quot;Reporting


 


16B.—(1) The Living Wage Agency shall, on an annual basis, publish a report, in which it shall?—


 


(a) determine what single hourly rate shall be deemed to be a living wage, which is to be calculated based on the minimum income standard;


 


(b) identify barriers that impede employers within sectors from paying the living wage;


 


(c) bring forward recommendations to address the barriers identified in subsection (b);


 


(d) bring forward recommendations to reduce the proportion of employees and workers paid less than the living wage;


 


(e) set targets to reduce the proportion of employees and workers paid less than the living wage;


 


(f) monitor progress in reducing the proportion of employees and workers paid less than the living wage; and


(g) undertake any other related matters as the Department shall determine.


 


(2) The minimum income standard is the income that people need in order to reach a minimum socially acceptable standard of living.


 


(3) The Living Wage Agency shall determine how the minimum income standard is to be calculated.


 


(4) Before arriving at the recommendations to be included in their report, the Living Wage Agency shall consult?—


 


(a) such organisations representative of employers as they think fit;


 


(b) such organisations representative of workers as they think fit; and


 


(c) if they think fit, any other body or person.&quot;. — [Mr Flanagan.]

No 20: After clause 16 insert



&quot;Membership


 


16C—(1) The Living Wage Agency shall consist of a chairperson and members appointed by the Minister.


 


(2) In appointing members, the Minister shall have regard to the desirability of securing that there is such a balance as the Minister considers appropriate between?—


 


(a) members with knowledge or experience of, or interest in, trade unions or matters relating to workers generally;


 


(b) members with knowledge or experience of, or interest in, employers’ associations or matters relating to employers generally;


 


(c) members with expertise in labour market analysis; and


 


(d) members with other relevant knowledge or experience.


 


(3) Members shall hold and vacate office in accordance with their terms of appointment, subject to the following provisions.


 


(4) A member may resign his or her membership by giving notice to the Minister.


 


(5) A person who ceases to be a member shall be eligible for re-appointment.


 


(6) The Minister may by notice to the member concerned remove from office a member who is in the opinion of the Minister unable or unfit to perform his duties as member.&quot;. — [Mr Flanagan.]

No 21: After clause 16 insert



&quot;Operational considerations


 


16D. The Minister shall provide the Living Wage Agency with?—


 


(a) such staff from within the Department,


 


(b) such accommodation, equipment and other facilities, and


 


(c) such sums,


 


as the Minister may reasonably determine are required by the Living Wage Agency for carrying out their duties in preparing any report on matters referred to them under this Act.&quot;. — [Mr Flanagan.]

No 22: After clause 16 insert



&quot;Remuneration


 


16E. The Minister may pay the members of the Living Wage Agency such allowances in respect of travel or other expenses properly incurred by them, or in respect of loss of remuneration sustained by them, in the performance of their duties, as the Minister may determine.&quot;. — [Mr Flanagan.]

No 25: In clause 25, page 16, line 10, after &quot;Act&quot; insert



&quot;, except in section (Gender pay and disclosure of information),&quot;. — [Ms McGahan.]

No 28: In the long title, after &quot;disclosure;&quot; insert



&quot;to make provision for disclosure of gender pay information;&quot;. — [Mr Flanagan.]

Today, I will be speaking on the two amendments tabled by the Committee, namely amendment Nos 1 and 2. Amendment No 1 relates to clause 9, which concerns a review of the early conciliation service. The Committee tabled this amendment at Consideration Stage, but was made aware by the Department that there was a minor problem in the wording of the clause. The Minister gave an assurance to the Committee that he would be content to support the amendment, provided that it was redrafted accordingly. The Committee has thus re-tabled the amendment at Further Consideration Stage to specify the remit of the review of the early conciliation service, namely the number of cases dealt with by early conciliation, the average length of time taken to deal with cases and the outcome of cases.

Amendment No 2 relates to new clause 9A. Clause 9A concerns a review of section 8, which involves an assessment of matters relating to tribunal proceedings. The amendment was not called at Consideration Stage, because the Minister’s opposition to clause 4 and clause 8 regarding neutral assessment meant that the references within the Committee's amendment were no longer correct. The Committee has accommodated the changes brought by the Minister at Consideration Stage and has re-tabled an updated version of the amendment to ensure that the policy intention of the review procedure is placed in the Bill. The review of section 8 will begin operation one year after the service commences and, from then on, every three years. The Department has a duty to undertake a review of the assessment service relating to tribunal proceedings. The findings of that review will be laid in a report to the Assembly, and the report shall include a synopsis of consultation responses; an assessment and evaluation of the effectiveness of section 8; the number of cases overall; the number dealt with in accordance with regulations under section 8; the average length of time taken to deal with cases; the outcomes of the cases; and any savings directly attributable to the introduction of regulations under section 8.

The Committee supports the Bill and will watch closely how it is implemented.

I speak now as the Ulster Unionist spokesman on employment and learning. We will be supporting amendment Nos 1, 2 and 4, although we will seek clarity from the Minister with regard to disability. We will be opposing amendment Nos 18 to 22 on the proposal to create a living wage agency. It has not been discussed widely, either within the Committee or any of the consultation responses we received, nor has it been dealt with in any great detail. My personal concern is that we would be creating another quango, which, at this stage, does not have due process regarding what is out there and the concerns that are meant to be taken into consideration. There are also the recommendations. What teeth will it have within legislation, if we are creating an agency only to evaluate and review? So we will be opposing that. We think that the living wage agency should be a UK-wide agency. The issue would be better dealt with on a UK-wide sphere, rather than solely in a Northern Ireland context.

Photo of Thomas Buchanan Thomas Buchanan DUP

I rise to speak to group 1. Amendment Nos 1 and 2 are technical in nature, as the Chair of the Committee has outlined. I do not intend to say any more on that matter. I have some reservations about the bureaucratic burden that amendment No 4 has the potential to place on small businesses. Rather than increasing that burden, we should be striving towards the reduction of red tape for our business sector. The CBI has also expressed its concern around that issue, especially regarding the disability sector, and we have to acknowledge that as well. We need to be careful that we do not allow gender to overcome ability and that someone with ability is not excluded simply because of their gender. With those reservations, we acknowledge the amendment that is before the House, and we are of a mind to give our support to it.

Amendment Nos 18 to 22, which deal with the living wage, talk about the Department establishing a new body, how that body will report, the membership of that organisation, its operational considerations and its remunerations. I do not believe that that requires legislation at all. I believe that it is a policy matter and should be dealt with in that sphere. It should be dealt with as a policy issue rather than being legislated for. I think it is the wrong place for it. It is my understanding that it is a reserved matter, so we need to be careful about how we deal with the issue. We will be opposing amendment Nos 18 to 22.

Photo of Fra McCann Fra McCann Sinn Féin

Just on the living wage, do you not think that we should aspire to ensure that all low earners are paid a reasonable wage that allows them to feed and clothe their families and that, unless we have that in legislation, we will never move the argument on?

Photo of Thomas Buchanan Thomas Buchanan DUP

Absolutely. I have no difficulty with that, but I believe that, in doing something like that, we need to do it in the proper and correct context. This is not the context in which to deal with it. It is a policy issue, and taking it out of policy and putting it into legislation is not the correct context at all. Therefore, that is why we will oppose amendment Nos 18 to 22.

Photo of Bronwyn McGahan Bronwyn McGahan Sinn Féin

Go raibh maith agat. I support all the amendments in group 1. I want to specifically speak to amendment No 4. I welcome the opportunity to address the House on this important issue of gender pay and disclosure of information. I am going to be very short in my comments, as the argument for addressing the issue has been well rehearsed over many years. There is no doubt that gender pay reflects ongoing discrimination and inequalities in the workplace and that those largely impact on women. We must have information relating to the pay of employees for the purposes of showing whether there are differences in the pay of males and females. We must also have the details of the methodology used to calculate any statistics in the information. Campaign groups advocating action on the gender pay gap support the need for accurate information on the scale of the problem to allow it to be addressed. That information needs to be of sufficient depth to shine a light on the main causes of the pay gap, and it will need to be shared with employees and trade union representatives. It must very clearly show how the pay gap is calculated and include an action plan on how we can correct it.

It will be the responsibility of OFMDFM, as the lead on equality matters, to bring forward regulations within the time frame. There will also be a requirement on the Department to publish a strategy, including an action plan, on eliminating differences in the pay of male and female employees. The strategy and action plan will be important in addressing the gender pay gap, and only by getting accurate and detailed information from employers on the extent of the gender pay gap and the rationale behind it can the relevant action be taken to correct the situation.

Amendment Nos 25 and 28 are consequential to that amendment and make minor changes to the Bill, including changing the long title to reflect the additionality of gender pay to the Bill. As we approach the celebration of International Women's Day in a few weeks' time, dealing with these matters would be a welcome step in addressing the gender pay gap, which has yet to be abolished 46 years after the introduction of the Equal Pay Act.

Photo of Gerard Diver Gerard Diver Social Democratic and Labour Party

I welcome the opportunity to speak at Further Consideration Stage and to support the amendments. In addressing them, I very much welcome amendment Nos 1 and 2. I know they are the product of discussion in Committee and at Consideration Stage.

Amendment No 4 relates to gender pay information. As Bronwyn said, the arguments for that were well rehearsed at Consideration Stage. I know that, at that stage, the proposer decided not to move the amendment, but the SDLP is on record as being in support of the principles behind the amendment at that stage. Last year, the ONS said that there had actually 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. As we know, the difference here in Northern Ireland has thankfully not been so stark of late, but the case remains that we do not require companies to publish pay statistics to the level that we would like to see possible. A notable difference to the amendment, rather than the version in England within the Equality Act, is a duty to publish gender pay statistics to trade unions and within the workplace.

The Minister made the point at Consideration Stage:

"At no point does the proposed clause 16A define "Department" which, in accordance with clause25, must, therefore, be read as a reference to the Department for Employment and Learning and in future, therefore, the Department for the Economy." — [Official Report, Vol 112, No 4, p26, col 1].

That is being ratified in today's amendment.

An Equality Commission code of practice, published in 2013, provides practical guidance to employers on how to promote equality of opportunity and to avoid sex discrimination in pay structures. This is, in the opinion of the SDLP, simply not enough. That is why we are happy to see, in amendment No 4, provision for a strategy on securing equal pay in the workforce to be brought within 18 months. That is, at its very core, a request for information on the gender pay gap. Many important factors, including a legacy of discrimination, have played an important role in gender discrimination in the workplace over the decades. Roles predominately carried out by women are undervalued by many, and men have dominated the best-paid positions.

A point made at Consideration Stage, which is true, is that there is a general inequality in the level of caring responsibilities between the two genders. The gap appears to be wider for older women, women from ethnic minorities and women in certain occupations. The information that the amendment seeks could help us to put in place action to eradicate gender inequality in the workplace, and the SDLP certainly supports that.

Amendment Nos 18 to 22 are concerned with the proposal to create a living wage agency. First, I would like to put on record that the SDLP fully supports the idea of a living wage. That said, we have heard outlined, over the past months, some concerns about the potential effect of the living wage on microbusinesses and employers who have expressed an inability to pay without incurring job losses. Obviously, that needs to be watched on an ongoing basis.

Evidence on the living wage shows that the better you treat an employee, the more valuable that employee becomes in an organisation. The living wage may not be the barrier to growth that smaller businesses feel it to be. We are dealing with human beings, and, around the world, it is the same notion: in general, the better you treat people, the more you will get out of them in any employment situation.

The Oxford Economics report shows that, if we were to pay a true living wage — not the Chancellor's proposed increased minimum wage — net employment in Northern Ireland would actually go up. When those at the lower end of the labour market are paid more, they will contribute more readily to the local economy, and that in turn will stimulate growth and have a multiplier effect on the economy in general, not to mention that employees who are better paid show greater commitment to the organisation and high productivity levels. Following the adoption of the living wage, PricewaterhouseCoopers (PWC) found that turnover of contractors actually fell from 4% to 1%.

As to the particulars of the agency, I look forward to hearing the debate, but the SDLP certainly supports the creation of an agency to oversee this very important matter.

Photo of Anna Lo Anna Lo Alliance 1:15 pm, 22nd February 2016

I will speak briefly on the amendments in this group. Alliance supports amendment Nos 1 and 2, which come from the Committee. They reflect discussions at Consideration Stage on the need for some minor redrafting to avoid the potential identification of individuals and breaches of confidentiality.

We will also support the Sinn Féin amendments on the gender pay audit. That reflects legislation passed in Great Britain through the Equality Act 2010 that, coincidently, came into effect through regulations in the past few weeks. Alliance believes that there should be similar measures in Northern Ireland and that they should reflect our particular circumstances. In that regard, we do not need to replicate the same terms or thresholds that apply elsewhere.

Despite considerable progress in recent years, there is still a significant gap in the rates of pay between men and women. That reflects, in the main, structural differences in the labour market and does not necessarily represent wide-ranging cases of direct discrimination. However, while women, on the whole, have higher participation rates in further and higher education and, in turn, better qualifications, there are issues of retention and progression in the workforce; variances in levels of part-time work or irregular contracts; and differences in the employment rate. That may arise from choice but may also represent shortcomings in workforce policy and practice or government legislation. I congratulate the Minister on the passage of the Work and Families Act (Northern Ireland) 2015 with its new shared parental leave and improved access to flexible working.

On the amendments relating to the living wage, Alliance urges great caution. These amendments have been tabled very late in the day. There may be merit in much of what is proposed, but there has been no formal consideration of the issues, no public consultation, no costings and no assessment of regulatory impact. Given that this is a non-devolved matter and the provisions here are skirting around that, there are legitimate questions as to how effective or otherwise these mechanisms would be and whether they would represent value for money. Alliance is open to action in this area, but there needs to be wider consideration first. If we were to pass these amendments today, coming as they do at Further Consideration Stage, there would be no opportunity to rectify any issues until or unless fresh primary legislation were passed. It is in those respects that we urge great caution.

Photo of Phil Flanagan Phil Flanagan Sinn Féin

Go raibh maith agat, a Phríomh-LeasCheann Comhairle. Cuirim fáilte roimh an deis labhairt i bhfabhar na leasuithe go dtí seo. I welcome the opportunity to speak on this group of amendments, and I will focus my remarks on amendment No 4, which deals with gender pay, and amendment Nos 18 to 22, which would establish the living wage agency.

Amendment No 4 places a requirement on OFMDFM to bring forward regulations setting out the manner in which employers must publish information on the extent of the pay differential between male and female employees. This is largely the same as our proposal at Consideration Stage. That received support, in words at least, from Members across the Chamber, except for a few small points that were raised during the debate, which have been reflected in today's revised version.

The original proposal placed a duty on employers with more than 50 employees to report on the extent of the gender pay gap in an organisation. Following consultation with the CBI and others, however, we have decided that it would be more appropriate to allow the Department to set the minimum number, following public consultation, and to set a number that meets the needs of our circumstances, rather than merely to follow the position in Britain, where a figure of 250 has been adopted. We do not think that that is sufficient here, because the vast majority of employers here do not have anywhere near that number of personnel. We propose to allow the Department to bring forward its own proposal on the minimum number of employees that an employer must have to be required to engage in this reporting.

The proposal that we brought forward at Consideration Stage also required that the first regulations on this matter needed to be made by 10 November. Following discussion with the Minister and his departmental officials, however, we accept that that time frame may be too tight, and we have amended it to be the end of June next year. That gives the relevant Department a full year for the regulations to be made.

The other substantive change is that the requirement will no longer be placed on DEL or, indeed, its successor Department; rather, it will be the responsibility of OFMDFM, as the Department that takes the lead on equality matters, to bring forward these regulations within that time frame. One reason for our intention to keep it within DEL is to do with the admissibility of the amendment. Following further advice, we were guided that we could, in fact, transfer this responsibility to OFMDFM and have it remain within the broad parameters of the Bill, so we were more than content to make that change. That also applies to the requirement for the Executive to bring forward a strategy on tackling the gender pay gap.

Some Members highlighted a red herring through the issue of disability reporting. A mechanism already exists, however, for employees to self-report a disability, whether physical or mental. We envisage that it will be a matter for the Department to set out in regulations how best that should work. The CBI has tried to raise this as an issue, but I sincerely do not think that it is a matter of great import.

I think that the Department can find a way through the regulations that it will bring forward to deal with any concerns that employers' groups might have about the requirements of people who have a disability, but I do not think that it is enough to warrant anybody opposing the amendment.

As I have said, there will also be a requirement on OFMDFM to publish a strategy that includes an action plan to eliminate the differential in pay between male and female employees. I will reiterate a point that I made at Consideration Stage: the statistics at a macroeconomic level reveal that females here, on the whole, are paid more than males, but that can be explained by the prevalence of females who are employed in the public sector, where salaries tend to be higher, and by the decline in the construction sector, which was dominated by well-paid male workers in the round.

The strategy and action plan has to be a key weapon in tackling the gender pay gap. Only by getting accurate and detailed information from employers on the extent of the gender pay gap and the rationale behind it can the Executive put appropriate steps in place to rectify the situation. It is up to employers to comply with the law on equal pay, but there are many other barriers such as accessing childcare that prevent females receiving true equal pay in the workplace. The Executive need to ensure that appropriate steps are taken to remove those inequalities and barriers at the earliest possible stage.

Amendment Nos 18 to 22 make provision for the establishment of an organisation to be known as the living wage agency for the purpose of measuring, researching and advancing a living wage. We need to build an economy that is based on well-paid jobs to help to take our people out of poverty. Too many workers here do not earn enough to have a decent standard of living. The proposal from the British Government to increase the minimum wage does not go far enough to address the problems of low pay that exist in many sectors of our economy. We do not yet have the power to set a minimum rate of pay, but that is not what we are arguing about today, even though some Members have once again used the red herring that this is not a devolved matter as a reason for not supporting the amendment. The power to set a minimum rate of pay still rests with the British Government. In my opinion, that power should be transferred, and we, as locally elected representatives, should be able to tailor public policy to the needs of our citizens. The living wage agency would not replace the body that sets the minimum wage; it would be charged with determining what a living wage here is and promote that as the basic hourly rate that people should be paid and that it should be based on the minimum income standard.

The living wage agency would be empowered to identify barriers that impede employers in certain sectors, whether in retail, hospitality, services or others, from paying the living wage. The agency should then bring recommendations to the Executive to address those barriers using existing or potential policy levers. The living wage agency would also have the power to set targets to reduce the proportion of workers and employers who earn less than the living wage and to monitor progress in reducing that number.

There is also a section that states that, before determining what constitutes a living wage, the agency would have to consult the employer and employee representative groups to ensure that all sides have an input into the determination of a figure. At the minute, a voluntary organisation based in England determines what a living wage is, but there is insufficient research here to determine what constitutes a living wage here. It is better to establish a non-statutory agency on a legislative footing not only to guide and assist the Executive in determining a living wage but to play a role in promoting to employers that employees should be paid the living wage.

The amendment states that it would be up to the Minister to appoint a chairperson and members of the living wage agency and to ensure an effective balance between trade unionists, employers' groups and economists so that it can take decisions and make recommendations in the round. Of course, any decisions that it takes will not be binding on employers. It is merely a mechanism to help to promote a highly paid economy, to help to encourage employers to move away from low pay, to pay workers a decent hourly rate so that they can get a good standard of living and to identify for the Executive what barriers exist in some sectors to paying the living wage.

It is not envisaged that the body would be overly expensive to operate because we propose that the staff who service it should be existing staff in the Department and that the nominees should be representatives of groups with a vested interest in this policy area. None of the staff complement would need to be paid any more than they get at the minute, and no members of the agency would need to be paid because they would be representatives of trade unions or employers' groups or from a professional economist background. The only cost that should be applicable in that regard would be to cover basic expenses and potential lost earnings.

I heard one Member say that we were establishing another quango: well, we are not establishing a significant quango. It will be a very small organisation with as few members as the Minister shall determine. That small group of people will be charged with establishing what the living wage here is. At the end of the day, there is broad acceptance that we need more evidence-based policy here. If we are taking decisions, we need to have all the information that exists on the economic climate that we operate in, and one key factor is what the cost of living for our people is.

As I have said, we do not yet have the power to set a minimum wage. That power should be transferred and, if we did that, I would argue strongly that the minimum wage should be increased. Some Members have tried to use the fact that the powers to set a minimum wage have not been devolved as a reason for opposing the amendment: I do not buy it. The agency would not impact on the minimum wage at all. It would make recommendations on what the living wage should be and bring recommendations to the Executive on what barriers exist for employers who might want to pay the living wage and how we can make it more affordable for them to do so through changing existing policy levers or introducing new policy mechanisms. The living wage agency would be empowered to look at all those issues in the round and bring forward a figure that everyone could live with, as well as solutions to help the sectors that might struggle.

The recent proposed increase in the minimum wage has caused some concern amongst employers. The Minister of Health made announcements about putting additional money into domiciliary care and into nursing and care home facilities because of the proposed increase in the minimum wage. That is a welcome step through which workers will be paid more, but it will have a knock-on impact for organisations that have fixed incomes and may not be fully able to cope with the increase. It will be up to the living wage agency to identify what barriers exist in some sectors to stop people being paid more. That is a fairly rational proposal.

There is also a strong argument to be made that, once we establish what a living wage for people here is, more and more employers will want to become accredited living wage employers. That could be one of the strong points of the living wage agency: it could have an accreditation scheme whereby employers are publicly known to be living wage employers. The chances of getting better staff and getting more applicants for vacancies would improve a business's reputation, and I think that it would be a badge that employers would want, along the lines of Investors in People and other forms of accreditation that are currently offered. The public sector should take the lead in that regard. If we get a living wage agency up and running here, the first step that we should take is to ensure that all employees working directly or indirectly through the public sector are paid the living wage, whether that is direct employees, people working in the supply chain or subcontractors. The establishment of a living wage agency would allow us to be much better informed about the potential financial implications of that.

Photo of Stephen Farry Stephen Farry Alliance 1:30 pm, 22nd February 2016

At the outset, I want to put on record my concerns at the considerable number of amendments that have been tabled at this late stage in the legislative process, many of which do not relate to the main provisions of the Bill as originally drafted, and some of which do not even fall under the responsibility of my Department. There has been some public consultation and Committee scrutiny of some of the issues covered by the amendments; however, with respect to several, there has been no public consultation or Committee scrutiny whatsoever. With the period of notice for amendments to primary legislation being, in practice, less than for a no-day-named motion in the Assembly, there is a real danger of bad law being passed. That is not to deny that there may be merit in many of the amendments, but there should be proper consideration of the issues involved. There may be a case for some of the amendments to proceed today, but I urge great caution with respect to the majority of them.

I turn first to amendment Nos 1 and 2, which, respectively, amend clause 9 and introduce new clause 9A. The amendments have been tabled by the Chair of the Committee for Employment and Learning. At Consideration Stage, I expressed concern that the amendments, as they were then drafted, could have negative consequences for confidentiality in respect of the important new services of early conciliation and neutral assessment. I am grateful to the Committee for taking that concern on board and coming back to the House with these two considered amendments, which address the issue by removing the requirement to report on individual cases and, instead, placing the focus on cases in aggregate. The Bill, amended in that way, will require separate reviews of early conciliation and neutral assessment at the end of one year and again at the end of three years following the commencement of provisions relating to each respective service.

I am content with that approach. I stress again my appreciation for the positive approach that the Committee has taken, which has enabled the Bill to move to where it is today despite the challenging time constraints.

I move now to new clause 16A — amendment No 4 — and the related amendment to clause 25 — amendment No 25 — tabled by Ms McGahan, Mr Flanagan, Mr McCann and Ms Fearon, as well as amendment No 28. The amendments take a revised approach to the gender pay amendment that was tabled but not moved at Consideration Stage. The intention behind them is the same: to set in place regulations requiring employers to publish information on gender pay differences. Where differences are established, employers would be required to publish an action plan to eliminate them. The responsible Department, having consulted the trade unions, would also be required to publish a strategy, including an action plan, on eliminating gender pay differences. I am pleased to note that the amendments take on board observations that I made at Consideration Stage.

As the proposed new clause 16A stands, the responsible Department is OFMDFM. That is much more in keeping with the broad remit of that Department around gender pay and sex discrimination and, indeed, all equality issues. It is important that we do not preside over a fragmentation of policy responsibility relating to those critical matters. Crucially, the amendment is much less prescriptive in matters such as the threshold for the size of companies or organisations. It is right that that be left to public consultation and, in due course, regulations. That takes on board the comments and fears expressed by Mr Buchanan that we are not locked into this being a company with 50 employees and that consideration will be given to what is the appropriate level for Northern Ireland. That regulation will have to come back to the Assembly for consideration. I also recognise what Mr Flanagan said, in that we do not necessarily have to reflect the case in Great Britain, where there is a threshold of 250. That may well be too large for our circumstances in Northern Ireland. Again, that issue can be bottomed out through the public consultation and, in due course, the consideration of the relevant regulation.

There is a small complication with how realistic it may be to collect meaningful data from employees around disability, as there can often be an under-reporting of that issue. That was reflected in comments by Members. However, that in itself does not negate the Assembly proceeding with the amendment today, although it may limit its effectiveness. Again, those issues could be explored further through regulations.

I said at Consideration Stage and reiterate today that, as Minister for Employment and Learning, I cannot take a formal view on the amendments. However, I am personally sympathetic to their intent, and I expect that Members will be in agreement that we want to see the elimination of gender pay differentials. However, it is for Members to decide on whether they believe that the amendments would achieve the objective in the right way. Anna Lo spoke for our party, and, speaking personally, I can say that we recognise that it is appropriate to put in place those measures to address the differentials. It is also important to recognise the wider context and the policy levers that exist in government, where we look to a range of policies and practices that support participation, retention and progression in the workforce. There is also a powerful economic argument for ensuring that that is the case. If we want to make sure that we fully compete in the global marketplace, we have to make full use of local talents and ensure that everyone's abilities are developed to the full.

Amendment Nos 18 to 22 — five new clauses — tabled by Mr Flanagan, Ms McGahan and Mr McCann would establish a living wage agency:

"for the purpose of measuring, researching and advancing a living wage."

I want to make it clear that this is a debate not on the concept or the rights and wrongs of the creation of a living wage but on the creation of a living wage agency in Northern Ireland and its potential roles and functions. It is envisaged that the body would report annually on an hourly rate that is to be deemed a living wage; identify barriers to paying it; make recommendations to address those; set targets to reduce the proportion of people who are paid less than the living wage; and monitor progress in achieving those. Provision is also made for the composition, staffing and funding of the proposed agency. It is notable that the agency's financing is to be determined without reference to the Finance Minister or that Department.

The spirit of the clauses appears to be to deliver improved living standards by advocating a wage that, in the words of clause 16B(2), relates to,

"a minimum socially acceptable standard of living."

I am not sure that there would be widespread agreement on what that standard might look like. To be clear, the clauses may well have a laudable goal, but there was no notice of the amendments until three working days before this stage of the Bill. That being the case, there has been no opportunity for any scrutiny, let alone any public consultation or engagement with stakeholders, in relation to the amendments. Similarly, there has been no regulatory impact assessment. The formal responsibilities in this area lie with the UK Parliament under the National Minimum Wage Act 1998. The Assembly should take into consideration the value or otherwise of putting measures in place in Northern Ireland that would only be advisory. The limitation on what it could do needs to be set against the costs involved. At this point in time, we have no assessment of the potential benefits, anticipated costs or the relative views from stakeholders on these matters. There is also the issue of how we will reconcile what any agency in Northern Ireland does with what is happening in the UK as a whole and the tensions that may arise between the perspectives that come from the bodies in different jurisdictions.

I do not think that it is reasonable to commit my Department or its successor to establishing and paying for a body that, materially, may make absolutely no difference, however persuasive its recommendations may be, to the living standards of people in Northern Ireland. However, it is important that we do not let go of this issue entirely.

Photo of Fra McCann Fra McCann Sinn Féin

I understand the list of issues you have raised, but I think that the point my colleague made was that, whilst we may not have any power over this at the moment, that does not stop us sending out a clear message to people on low pay that the Assembly stands shoulder to shoulder with them, recognising that the wage they earn is not enough for them to meet their weekly needs. He said that we had some power and influence over Departments, statutory authorities and councils to ask them to initiate the step of having a living wage, in preparation, hopefully, for us getting some power to deal with that.

Photo of Stephen Farry Stephen Farry Alliance

I was going to say that I note and compliment the enthusiasm of the Members in tabling the amendments, but, in doing that, we need to be clear what the amendments would do. If the intent behind them is to make a statement of the value that the Assembly places on the living wage being paid in Northern Ireland, there is a range of ways in which we can do that. We do not need to pass specific amendments into law to achieve that outcome. It is entirely conceivable that a body could be established by a future Minister. Whether that needs legislation remains to be seen, but it is an initiative that may well be taken in the future.

It is important that we have proper engagement with stakeholders when we move ahead with these issues. I have no doubt that tonight, when we discuss the fair employment exemption for teacher training, we will hear an argument from the Member's Benches about the fact that we need more time for proper consideration of those issues, that there has been no public consultation around the matters and that the Assembly should not jump ahead on the basis of an amendment tabled at Further Consideration Stage. I have not seen the speeches, but I imagine that that is what they will say. I have to say that you cannot have it both ways. On the one hand, you cannot rule things out because you want more time to think about it and then come to the Assembly with three days' notice, saying, "Here is a raft of amendments around a living wage agency, and let us pass them because we want to take a stand on the living wage".

We can take a stand on the living wage if people want to do that, but we have to think carefully through the implications of putting an agency into law at this stage without any engagement with stakeholders and without ensuring that what will be put forward will make a difference and will not be counterproductive. No one has assured me on any of those points whatsoever. There will be other opportunities to legislate, if legislation is required, to take that forward, but I do not believe that it would be right for the Assembly to move ahead today on the basis of what is before us. We will need to separate the proposals from the issue. The two are not the same. Anyone who votes against the amendments today is not voting against a living wage. I am certainly not voting against a living wage, and I am sure that I speak for everyone else who expresses caution on the issue. We are discussing five amendments around an agency, and it is important that we take proper time to reflect on that and take the views of stakeholders and think through how this will work and whether it will make a difference.

For that reason, I am opposing the amendments. I look forward to discussing and responding to the debates on the other groupings.

Photo of Robin Swann Robin Swann UUP 1:45 pm, 22nd February 2016

I rise to wind up on group 1. I thank the House for its, I think, unanimous support for amendment Nos 1 and 2, tabled in the name of the Committee.

On amendment No 4, which deals with the gender pay gap, it has been noted here through Members' contributions that not moving the amendment at Consideration Stage has allowed the proposals to be tweaked and amended so that they meet the needs of the House and of Northern Ireland society in general. From what I have gauged, that is why amendment No 4 is receiving the full support of the House. Concerns were raised about the reference to disability, but I think that the Minister has allayed our fears, in that disability remains a self-declaring aspect in the amendment, so we are keen to support it, and I think that it has received the full support of the House.

With regard to the living wage agency, this is a response to what some Members have contributed. Tom Buchanan said that it was still a reserved matter and that the House needed to be careful in how it proceeded. Gerard Diver raised concerns about how it would affect microbusiness and made a very valid point that the better we treat the employee, the better the employee becomes. That is an opinion that nobody in the House could argue with. Anna Lo made the point that the matter had come late in the day without public consultation, and the Minister raised that to some extent.

In response to my comments as an Ulster Unionist Committee member, Phil referred to my concerns that we were creating another quango. In his contribution, he referred to the fact that the decisions of the body would be non-binding, and the Minister reinforced that by saying that it would only be advisory. That is why we want to proceed with caution in regard to the amendment —

Photo of Fra McCann Fra McCann Sinn Féin

Again, I understand what you say, but we are not only trying to create the thing. I know what the Minister said, but the likes of Belfast City Council took a decision on the living wage. Having had the discussion here today, we should be able to move that forward and encourage and advise other councils and statutory authorities to move to a position of paying a fair wage for a fair day's work.

Photo of Robin Swann Robin Swann UUP

I think that the Member knows my position on the issues well enough to know that I agree with him on that point, but I do not think that the amendments do what you want to do, Mr McCann, and that is the concern. We have a responsibility through our councils and public agencies across Northern Ireland, and this is something we should move to, but my concern and that of my party is that we will not achieve that through the creation of this body.

When I raised my concerns about creating another quango, Mr Flanagan's response was that it would have only a small number of members supported by departmental officials, but he went on to refer to it actually delivering an accreditation scheme for organisations and said that employers could be recognised as living wage employers. His comparator for that was Investors in People. I am sure the Member remembers as well as I do that one of the cost-saving measures that the Minister for Employment and Learning made was to give Investors in People and that accreditation back to BIS in Westminster, so he is arguing against himself on that.

I appreciate what the Member and his party are trying to do, as I did on the gender pay issue, and I appreciate the fact that he did not move the amendments at Consideration Stage but instead tabled them at Further Consideration Stage with the further tweaking that was necessary. However, we in the Ulster Unionist Party echo the concerns raised by Anna Lo in this case: there has not been the proper work and dedication put into this as a legislative motion in these five amendments. That is why I support amendment Nos 1 and 2.

Amendment No 1 agreed to.

New Clause

Amendment No 2 made:

After clause 9 insert

<BR/>

&quot;Review of section 8: Assessment of matters relating to tribunal proceedings


 


9A.—(1) The Department must review the operation of section 8 at the end of the period of one year beginning with the commencement of that section.


 


(2) The Department shall, having consulted with relevant stakeholders including employers, lay the findings of this review in a report to the Assembly.


 


(3) The report shall in particular include?—


 


(a) a synopsis of consultation responses;


 


(b) an assessment and evaluation of the effectiveness of section 8;


 


(c) the number of cases overall, the number dealt with in accordance with regulations under section 8, the average length of time taken to deal with cases and the outcomes of the cases;


 


(d) any savings directly attributable to the introduction of regulations under section 8.


 


(4) The Department shall also review and report as in subsections (2) and (3) at the end of the period of three years beginning with the coming into operation of section 8.&quot;. — [Mr Swann (The Chairperson of the Committee for Employment and Learning).]

New clause ordered to stand part of the Bill.

New Clause

Photo of Robin Newton Robin Newton DUP

We now come to the second group of amendments for debate. With amendment No 3, it will be convenient to debate amendment Nos 5 to 17 and 24 and 29, which deal with zero-hours contracts. Amendment No 24 is consequential to amendment No 3, and amendment No 29 is consequential to a number of earlier amendments. I call Ms Anna Lo to move amendment No 3 and to address the other amendments in the group, but, before she speaks, I remind her that Question Time is at 2.00 pm and I may need to interrupt her.

Photo of Anna Lo Anna Lo Alliance

I beg to move amendment No 3:

After clause 16 insert

<BR/>

&quot;Zero hours workers


 


16A. After Article 59 of the Employment Rights (Northern Ireland) Order 1996 (meaning of “wages” etc.) insert?—


 


“PART IVA


 


ZERO HOURS WORKERS


 


Zero hours workers


 


59A.—(1) The Department may by regulations make such provision as the Department considers appropriate for the purpose of preventing abuses arising out of or in connection with the use of?—


 


(a) zero hours contracts;


 


(b) non-contractual zero hours arrangements; or


 


(c) worker’s contracts of a kind specified by the regulations.


 


(2) In this Article?—


 


&#x0027;non-contractual zero hours arrangement” means an arrangement other than a worker’s contract under which?—


 


(a) an employer and an individual agree terms on which the individual will do any work where the employer makes it available to the individual and the individual agrees to do it, but


 


(b) the employer is not required to make any work available to the individual, nor the individual required to accept it;


 


and in this Article “employer”, in relation to a non-contractual zero hours arrangement, is to be read accordingly;


 


“zero hours contract” means a contract of employment or other worker&#x0027;s contract under which?—


 


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


 


(b) there is no certainty that any such work will be made available to the worker.


 


(3) For the purposes of this Article?—


 


(a) an employer makes work available to a worker if the employer requests or requires the worker to do the work; and


 


(b) references to work and doing work include references to services and performing them.


 


(4) The worker’s contracts which may be specified under paragraph (1)(c) are those in relation to which the Department considers it appropriate for provision made by the regulations to apply, having regard, in particular, to provision made by the worker’s contracts as to income, rate of pay or working hours.


 


(5) Regulations under this Article may amend or repeal any statutory provision (including paragraphs (2) to (4)).&#x0027;.&quot;.

The following amendments stood on the Marshalled List:

No 5: After clause 16 insert



&quot;Zero hours contract


 


16A.—(1) Zero hours contracts means a contract of employment or other worker’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.


 


(2) For the purposes of subsection (1) the Department may by regulations vary the definition.


 


(3) Regulations under subsection (2) may not be made unless a draft of the regulations has been laid before, and approved by a resolution of, the Assembly.&quot;. — [Mr Flanagan.]

No 6: After clause 16 insert



&quot;Contract information


 


16B.—(1) Employers shall be required to give notice in writing of the minimum hours of their workers’ employment.


 


(2) The notice shall be given before the commencement of the contract. If it is given orally, it must be given in writing within seven days from the commencement of the contract.


 


(3) The requirement under this section is without prejudice to the obligations of employers in respect of employees under section 33 of the Employment Rights (Northern Ireland) Order 1996.


 


(4) A worker who does not receive a notice under subsection (1) shall be regarded for the purposes of this Act as if he or she were a zero hours contract worker.


 


(5) In complying with the duty under section 33 of the Employment Rights (Northern Ireland) Order 1996, an employer may refer to any document issued under subsection (1).&quot;. — [Mr Flanagan.]

No 7: After clause 16 insert



&quot;Equal treatment


 


16C.—(1) Employers shall be required to treat zero hours contract workers on the same basis as comparable workers engaged by their employer on fixed and regular working hours contracts.


 


(2) The requirement of equal treatment shall be an implied term of any contract between a zero hours contract worker and his or her employer, and the implied term shall apply to all matters relating to terms and conditions of employment.


 


(3) A comparable worker is a worker selected by the zero hours contract worker on the grounds that the worker in question is engaged on the same or broadly similar work having regard, where relevant, to whether the worker selected has a similar level of qualification and skills.


 


(4) For the avoidance of doubt, subsection (2) applies to the overtime rates payable when the worker exceeds the minimum hours of work under the terms of his or her contract.


 


(5) Subsection (2) shall not apply to the allocation of working time.&quot;. — [Mr Flanagan.]

No 8: After clause 16 insert



&quot;Reasonable notice


 


16D.—(1) The Department must by regulations require employers to give zero hours contract workers reasonable notice of?—


 


(a) any request or requirement to undertake a period of employment; and


 


(b) any cancellation of a period of employment already agreed.


 


(2) A period of notice shall not be reasonable if given less than 72 hours before the period of employment referred to in subsection (1).&quot;. — [Mr Flanagan.]

No 9: As an amendment to amendment No 8, at end insert



&quot;(3) If a zero hours contract worker accepts employment offered contrary to the requirements of subsections (1) and (2), the employer shall be required to pay the zero hours contract worker at a rate of 150% of the rate they would normally be paid for the period in question.


 


(4) An employer who has cancelled a period of employment of a zero hours contract worker contrary to the requirements of subsections (1) and (2) shall be required to pay the zero hours contract worker for the period of employment in question, even though no work has been done.


 


(5) For the purposes of subsection (4), the amount of payment shall be made up of?—


 


(a) the payment the zero hours contract worker would normally be paid by his or her employer for the period in question; and


 


(b) a sum equivalent to any other monetary loss incurred as a result of the cancellation.’’. — [Mr Flanagan.]

No 10: After clause 16 insert



&quot;Requests for fixed and regular employment


 


16E.—(1) There shall be a duty on employers to consider at any time a request by a zero hours contract worker for fixed and regular working hours unless a request has been made in the previous 12 weeks.


 


(2) An employer to whom a request under subsection (1) is made shall deal with the application within ten working days.


 


(3) In considering a request, the employer shall give overriding consideration to the interest of the worker in having fixed and regular working hours.


 


(4) An application by a worker under this section shall be refused only where there are compelling business reasons to do so.


 


(5) The employer’s desire to use zero hours contracts is not a compelling business reason for using such contracts.


 


(6) An application shall be treated as having been refused if the provisions of subsection (2) have not been complied with.


 


(7) A zero hours contract worker whose request under subsection (1) has been refused may make an application to an employment tribunal.


 


(8) An employment tribunal shall not consider a complaint under this section unless it is presented?—


 


(a) before the end of the period of three months commencing ten working days after the application for fixed and regular employment was made, or


 


(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.


 


(9) Where an employment tribunal finds a complaint under subsection (7) well founded it shall make a declaration to that effect and may?—


 


(a) make an order for reconsideration of the application, or


 


(b) make an order that the application has been successful and make an award of compensation to be paid by the employer to the worker.


 


(10) The amount of compensation under subsection (9) shall be such amount, not exceeding the permitted maximum, as the tribunal considers just and equitable in all the circumstances.


 


(11) For the purposes of subsection (10), the permitted maximum is such number of weeks’ pay as the Department may specify by regulations.&quot;. — [Mr Flanagan.]

No 11: After clause 16 insert



&quot;Fixed and regular employment


 


16F.—(1) There shall be a duty on employers who have continuously employed a zero hours contract worker for a period of 12 weeks to offer the zero hours contract worker fixed and regular working hours contract from the date commencing 12 weeks from his or her first engagement with his or her employer.


 


(2) Where a zero hours contract worker has not been continuously employed for a period of 12 weeks, there shall be a duty on employers to offer a fixed and regular working hours contract to any such zero hours contract worker who has been employed in at least 12 of the preceding 26 weeks (the reference period).


 


(3) For the purposes of subsection (1) and (2) the Department must by regulations make provision to establish?—


 


(a) a rate of pay;


 


(b) a minimum period of hours; and


 


(c) any other relevant terms and conditions of employment.


 


(4) The Department must by regulations provide for a zero hours contract worker to make an application to an employment tribunal where a fixed and regular contract under this section is not offered.&quot;. — [Mr Flanagan.]

No 12: After clause 16 insert



&quot;Prohibition of exclusivity clauses


 


16G.—(1) Any term or understanding, written or oral, of a contract or engagement (whether express or implied, and whether formal or informal) that requires a zero hours contract worker to work exclusively for one employer shall be void.


 


(2) The provisions of subsection (1) shall not apply where the employer can demonstrate a compelling business reason, such as confidentiality or the protection of trade secrets, to justify a contractual requirement that the zero hours contract worker shall work exclusively for the employer in question.&quot;. — [Mr Flanagan.]

No 13: After clause 16 insert



&quot;Detriment


 


16H.—(1) It shall be unlawful for an employer to subject a zero hours contract worker to a detriment by any act or any deliberate failure to act on the ground that the zero hours contract worker?—


 


(a) is or has been a zero hours contract worker; or


 


(b) any other condition prescribed by the Department.


 


(2) A zero hours contract worker may present a complaint to an employment tribunal that he or she has been subjected to a detriment in contravention of subsection (1).&quot;. — [Mr Flanagan.]

No 14: After clause 16 insert



&quot;Unfair dismissal


 


16I. The dismissal of an employee shall be unfair for the purposes of The Employment Rights (Northern Ireland) Order 1996 if the reason or principal reason for the dismissal is that the employee?—


 


(a) is or has been a zero hours contract worker; or


 


(b) any other condition prescribed by the Department.&quot;. — [Mr Flanagan.]

No 15: After clause 16 insert



&quot;Continuously employed


 


16J.—(1) References in this Act to a period of continuous employment are to a period computed in accordance with Chapter III of The Employment Rights (Northern Ireland) Order 1996.


 


(2) This is subject to the proviso that the words “employee” and “employer” as they appear in Chapter II of The Employment Rights (Northern Ireland) Order 1996 are substituted by the words “worker” and “employer”, as these terms are defined in this Order.


 


(3) In section 8 of The Employment Rights (Northern Ireland) Order 1996 (weeks counted in computing period), after subsection (4) insert?—


 


&#x0027;(5) In the case of an employee who is engaged by an employer on a zero hours contract or contracts, any week in which work is performed shall count in computing the worker’s period of employment.


 


(6) In the case of an employee who is engaged by an employer on a zero hours contract or contracts, any week in which work is not provided by the employer shall be treated as a week falling within subsection (3)(c).


 


(7) For the purposes of subsections (5) and (6), the terms worker and zero hours contract have the same meaning as in the Employment Act 2016.&#x0027;.&quot;. — [Mr Flanagan.]

No 16: After clause 16 insert



&quot;Proportion of zero hour contracts


 


16K.—(1) The Department must by regulations set a limit on the number of zero hours contract workers as a proportion of the total number of those employed by an employer.


 


(2) Regulations under subsection (1) may not be made unless a draft of the regulations has been laid before, and approved by a resolution of, the Assembly.&quot;. — [Mr Flanagan.]

No 17: After clause 16 insert



&quot;Interpretation for zero hours provisions


 


16L.—(1) A person is employed for the purposes of this Act if he or she is engaged by another to provide labour and is not genuinely operating a business on his or her own account.


 


(2) For the avoidance of doubt, a zero hours contract worker shall be regarded as being employed by an employer on days on which?—


 


(a) he or she works for that employer, and


 


(b) he or she does not work for that employer


 


(3) It shall be for the respondent to show in any legal proceedings that the applicant is not employed.


 


(4) A person is an employer for the purposes of this Act if he or she engages another to provide labour, and the person engaged is not genuinely operating a business on his or her own account.


 


(5) A fixed and regular working hours contract is a contract that specifies working hours, and does not require the worker to be available for work for a period that exceeds by 20% the minimum hours specified in the contract.


 


(6) A worker is a person who is employed.&quot;. — [Mr Flanagan.]

No 24: In clause 21, page 14, line 37, after &quot;Article&quot; insert &quot;59A or&quot;. — [Ms Lo.]

No 29: In the long title, after &quot;disclosure;&quot; insert



&quot;to make provision for zero hours contracts; &quot;. — [Mr Flanagan.]

Photo of Anna Lo Anna Lo Alliance

Thank you, Mr Principal Deputy Speaker. I hope to finish within 10 minutes.

My colleague Stewart Dickson and I are moving amendment No 3 in the hope that it can be an amendment that the whole Assembly can unite on, as it creates the opportunity on a realistic platform from this point onwards for the proportionate regulation of zero-hours contracts. There are many legitimate concerns about those contracts, and it is important that the Assembly takes the opportunity to put in place proportionate regulation that permits them to remain in areas where flexibility for employers is important and where they may work from the perspective of employees while addressing abuse and exploitation.

Opportunities to take forward more detailed proposals over the past year have not been taken. There is an irony that some of the amendments tabled for today reflect the proposals tabled by my colleague the Minister for Employment and Learning. However, they have come far too late in the process for any proper consideration by the Committee and the full Assembly or for further engagement with stakeholders on the proposed way forward. It is important that the Assembly is satisfied that what is proposed will be effective, that the arrangements are not capable of being circumvented by some employers and that there are no unintended consequences.

With respect to those who tabled the amendments, there is no basis on which they can provide that assurance. Also, given that the regulation of zero-hours contracts is a relatively new area of law, there is a strong argument that the bulk of legislation should be provided through regulations, rather than by primary legislation, as, in the event that we need to modify what we are doing, it would be far easier to amend regulations than it would be with the longer time frame and the process involved in primary legislation.

The amendment in my name and that of my colleague Stewart Dickson offers the Assembly the only plausible option to provide a platform on which the proportionate regulation of zero-hours contracts can be taken forward. It will provide the basis on which the next Minister with responsibility for employment law, who, I understand, will be the new Minister for the Economy, can make regulations. Our amendment is not prescriptive about content and gives scope for an open and transparent process in which detailed proposals can come forward and be tested with stakeholders and provide space for engagement with the Committee. Nothing would be taken forward without the agreement of the Executive and then the approval of the Assembly.

The main amendment in our names defines zero-hours and non-contractual zero-hours arrangements and provides a broad enabling power to make regulations for those provisions.

Apart from providing definitions, the clauses are not prescriptive on how zero-hours contracts are to be dealt with in legislation. Instead, they provide for regulations to amend or repeal any statutory provision, including the revision of the definitions if events or circumstances warrant that.

Our second amendment provides that this would be done by affirmative procedure. The contents of the Sinn Féin amendments would be progressed through regulations. Given that an affirmative route would be required both today and in relation to any regulations, nothing would be lost through waiting and taking the opportunity to ensure that we are confident that we are providing the most appropriate and proportionate regulation.

Passing our amendments today would recognise that this is a significant area of public concern and is a focal point for the public discourse. It would also avoid any further delay that would result from the Assembly having to wait for the next opportunity of a relevant employment Bill coming before it.

Photo of Phil Flanagan Phil Flanagan Sinn Féin

The Member's argument is quite contradictory. On the one hand, she says that this power will allow any future Minister, at any time of his or her choosing, to bring regulations forward. Yet the Member has not stipulated when any future Minister will have to bring regulations forward or when they will be made. So we could be sitting here for another one to three years waiting for this issue to be dealt with. Meanwhile there are proposals on the table that could be enacted much more quickly. So whilst the Member says that nothing is being lost by this amendment alone being voted through, on every day that goes by without this issue being addressed, the rights of working people are being eroded, and a small number of employers are allowed to abuse people who are on zero-hours contracts at the minute.

Photo of Anna Lo Anna Lo Alliance

I thank the Member for his intervention. I understand what you are saying, but what we are doing now is setting the path for the Committee and the future Minister to look at this again through regulation. There is no doubt that it is an important issue and that there are concerns about abuse and exploitation. However, this is not the right time to put amendments forward, as we need Committee scrutiny and further consideration. I think that the future Minister will take this on board and bring it forward as soon as possible.

Photo of Robin Newton Robin Newton DUP

As Question Time begins at 2.00 pm, I suggest that the House take its ease until then. The debate will continue after Question Time when the next Member to speak will be the Chair of the Employment and Learning Committee, Mr Robin Swann.

(Mr Speaker in the Chair)