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BRIEFING SESSION ON THE ‘GOOD JOBS’ EMPLOYMENT RIGHTS BILL CONSULTATION

09/08/2024

BACKGROUND

Employment law is devolved in Northern Ireland, and it is widely recognised that we are long overdue a review of our legislation, not least to keep pace with developments in GB and ROI.

In recognition of the need for reform, on 1 July 2024 the Department for the Economy launched its very ambitious  ‘Good Jobs’ Employment Rights Bill Consultation – aiming not only to ‘catch up’ with our counterparts but also to pave the way for more significant changes further down the line.

On Wednesday 31st July 2024, we held a Briefing Session with members and non-members providing a high-level overview of its content and insights on what we thought would be taken forward. We also discussed the importance for the business voice being heard and how best they could respond.

We have summarised below the key content of the Consultation:

SUMMARY

In the Ministerial Foreword, the Minster for Economy Conor Murphy states that the first objective of his Economic Vision is the creation of good jobs and that everyone benefits from ‘Good Jobs.’ The aim of this Consultation is to fulfil that objective to increase the number of good jobs. In setting out its proposals and calls for evidence the Consultation adopts a range of approaches:

  1. Where proposals are more fully formed, views are sought on how to implement policy.
  2. Policies that entail a range of options, views are sought on which best addresses issues.
  3. Some areas are, a Calls for Information to inform policy options further downstream.

The consultation seeks views on four aspects of a ‘Good Job’ as defined by Carnegie Trust:

Theme A: Terms of Employment

Theme B: Pay & Benefits

Theme C: Voice and Representation

Theme D: Work Life Balance

 We have explored each Theme below highlighting some of the proposals:

Theme A: Terms of Employment

The key purpose of Theme A is to increase protection for those considered to be in precarious working arrangements and address the one-sided flexibility that may be exploitative. From the outset of his appointment the Minister has committed to tackling the use of Zero-Hour Contracts.

The proposals include:

  1. Replacing Zero Hours Contracts (ZHC) with new contracts which protect worker’s rights and seeks views on introducing a right to request to a banded hour and/or more predictable work pattern.
  2. Understanding Employment Status and Bogus Self Employment and asks questions of the necessity of retaining the 3 categories of employee, worker and self-employed.
  3. Discouraging the use of unscrupulous behaviour and unfair practice including addressing Fire & Re-Hire.
  4. Removal of the Swedish Derogation / Pay between Assignment Contacts for Agency workers.
  5. Making the Right to a Written Statement a Day1 right, expanding its provision to workers (not just employees), and increasing the particulars that must be provided.
  6. Providing a right for agency workers to receive a Key Information Document giving transparency on pertinent details of pay for an assignment in one document.

With the exception of 1 above, all these proposals are already in place in Great Britain. The Labour Government is also proposing to review the use of ZHC and consider options similar to banded hours provisions.

THEME B: PAY & BENEFITS

Theme B examines ways to improve an individual’s overall pay and benefits so that they have all the information they need to ensure they understand how their pay and annual leave are calculated.

Some of the proposals include:

  1. The fair allocation of tips, gratuities, and service charges.
  2. Extending the right to a payslip to workers and increasing details that must be itemised including the number of hours worked (were pay varies according to the hours).
  3. Extending the holiday pay calculation reference period for workers on variable hours from 12 weeks to 52 weeks.
  4. Reviewing the Record Keeping Requirements to measure the daily working time of all workers required under Working Time Regulations and considering if the GB approach would work in NI.
  5. Considering if there is a need for a Right to Disconnect.

Points 7 – 9 are already in place in GB and indeed the increase to the holiday pay calculation reference period will, in our view, be very welcome by the vast majority of employers. Businesses need to consider if increasing the Record Keeping obligation set out in Point 11 would place an onerous burden on businesses. At this stage it is unlikely that this will be taken forward in this mandate.

The Right to Disconnect is part of the Labour Government’s Manifesto. We suspect that such a right will not be embodied into law at this stage, but Guidance could be issued from the Labour Relations Agency. In terms of that Guidance, any feedback from business operating in ROI (where a Code of Practice is in place) may help inform it and make it more effective for businesses.

THEME C: VOICE AND REPRESENTATION

The Minister has been clear that increasing the role of trade unions, particularly in low paying sectors, is a priority area and the cornerstone of the Consultation. To do that, the Consultation explores ways that the operation of trade unions can continue to develop and modernise. The key under this Theme is to promote effective and productive workplace relationships.

All areas considered under this Theme are Calls for Information. The evidence gathered could pave the way for future development later and/or we may see a soft approach to some of the issues.

The areas under consideration include:

  1. Views on increasing Trade unions rights to access the workplace over and beyond the current law which only gives unions a limited access in prescribed circumstances. Reference is made to New Zealand were an automatic right to access the workplace exists in any company where the union has members. In New Zealand, a union can also request (that cannot be unreasonably withheld), a right to access were there are no unions member, that includes for the purpose of increasing union membership.
  2. In relation to Trade Union Recognition views are sought on decreasing the threshold that the Organisation must employ at least 21 employees to 11 employees.
  3. Views are sought on the introduction of Collective Sectoral Bargaining to introduce minimum standards for pay, working hours in an affected sector.
  4. Reducing the ballot notice period required to be given to an employer of industrial action be reduced from 7 to 5 days.
  5. Allowing the introduction of electronic balloting and asking if the requirement for the independent scrutineer should be removed.
  6. Opinions are asked about increasing current level of protection for representatives and employees who take part in industrial action (protecting employees from dismissal beyond 12 weeks).
  7. Facilitating Productive Workplace Relationships through a code of practice setting out a guide or common set of principles / behaviours expected.
  8. Extending the ability to apply for Information and Consultation of Employees Agreement so that threshold that needs to be meet relates to the individual establishment rather than the entire legal undertaking.
  9. Reducing the threshold to get an Information and Consultation of Employees Agreement from 10% to 2% of employees in the undertaking (or establishment if above proposal in place).
  10. Whilst no proposals TUPE are set out, views are sought on aligning the NI to that in GB in some areas.

THEME D: WORK LIFE BALANCE

Another component to ‘Good Jobs’ is that an individual should be able to balance their work with family and private life. The proposals in this Theme are seeking to align NI with GB in respect of the new rights introduced by way of Private Member Bills under the previous government:

  1. Making it a Day 1 Right to Request Flexible Working, extending the number of requests to 2 in a 12-month period and removing the requirement for the employee to explain the effect of request.
  2. Introducing a new Right to Carer’s Leave and views sought on how to implement it.
  3. Introducing a new right to Neonatal Care Leave and Pay and views sought on how to implement it.
  4. Furthering the legal protection for pregnant employees against redundancy for 18 months from when the child is born.
  5. Amending rules governing Paternity Leave to allow it to be taken in separate blocks of 1 or 2 weeks, up until child is 1 and making it a Day 1 right.

ISSUES NOT COVERED IN THE CONSULTATION 

Despite this Consultation being perhaps one of the most expansive and ambitious perhaps ever seen in Northern Ireland, there are several areas that are missing. These include:

  • Gender Pay Gap Reporting as responsibility for this lies with the Department for Communities and not the Department of Economy. DfC has stated these Regulations will be implemented in due course
  • Review of Discrimination Laws: the responsibility for equality matters rest with The Executive Office. There is a current inquiry into differences in equality legislation between Northern Ireland and other regions of the UK as well as between Northern Ireland and the Republic of Ireland and the EU with responses being sought until 6 September 2024
  • Collection of the Apprenticeship Levy is a reserved matter although the distribution of funding is administered locally. Labour Government has committed to reviewing the Levy and it is unknown how far that will impact on NI
  • Domestic Abuse Leave & Pay is already enacted into law and the Department of Economy has a separate Public Consultation Public Consultation Domestic Abuse – Safe Leave seeking views on how to operationalise the law. That Consultation also runs until 30 September 2024
  • There is no mention of any reducing the consultation period for proposals for collective redundancy of 100 or more employees from 90 days to 45
  • We believe it is unlikely a 2-year back stop for unlawful deduction from wages claims will be introduced
  • Guidance around calculating holiday pay for typical workers and in particular permanent part year workers
  • Some of Labour’s Manifesto Commitments such as:
  • Making it a Day 1 Right to claim unfair dismissal
  • Extending the for bringing Tribunal claims from 3 – 6 months
  • Establishing new Enforcement Agency for workers rights

TIMELINE

The Department recognises that it is not ideal launching a Consultation over the summer months. However, they have said that is necessary in order to ensure they have sufficient time remaining in the current mandate (which expires in 2027) to get legislation through Stormont and into law.

We anticipate that the earliest we will see any changes will be in 2026 or early 2027.

RESPONSES

The Consultation will close on 30th September.

Responses can be completed online on the Department of Economy website. It is necessary to state whether you are responding as an individual or representing the views of an organisation.

Employers Federation encourages members and non-members to respond using practical insights to ensure that the practicalities of any changes are well-thought-out.

For any queries or feedback in relation on how to respond please contact Michelle McGinley on michelle@eefni.org