The Minister’s Cynical Sunday Move

The proposal by the Minister for Enterprise, Richard Bruton – as mooted in the Irish Times report – is cynical in the extreme. Apparently, he wants to remove the ability of employers and employees to negotiate Sunday premium payments under Joint Labour Committees. Ostensibly this is to aid ‘flexibility’ and cost-reduction for employers’.

However, if the report is true, this agenda will invite some employers to exploit their workers’ weak bargaining position in order to break the law with impunity. The Minister is fully aware of this. This must be his idea of a modern ‘competitive’ economy.

First, let’s put the record straight. The Irish Times reports:

‘At present staff in sectors such as retail grocery, security and hairdressing receive double time for Sunday working. In other sectors the rate is time and a third or time and a half.’

This is not the case. In the retail and security sectors, the Sunday premium is time-and-a-third while there is no reference to rostered Sunday premium in the Cork and Dublin hairdressing JLC agreements. It’s always important to get the facts right.

The Sunday premium is part of general labour law that affects every worker – it is not something made up by JLC agreements. This is how the Duffy/Whelan report put it when noting some employers’ complaints:

'But the obligation to provide additional compensation for Sunday working is derived primarily from Section 14 of the Organisation of Working Time Act 1997. That Section provides, in effect, that unless the obligation to work on Sunday is otherwise taken into account in determining the worker’s pay, they are entitled to either an additional amount in their rate of pay, a premium payment on the Sunday or appropriate time off for having worked on a Sunday, as is reasonable in the circumstances.'

So, theoretically, even if Sunday premiums were abolished under JLC agreements, workers would be entitled to a Sunday premium. So what is the Minister up to? Here is where gets ugly.

The Duffy/Whelan report further points out:

'In the absence of a stipulation on how Sunday working is to be compensated for in an ERO [an agreement made under the JLC), individual employees could apply to a Rights Commissioner to fix the appropriate rate for Sunday working. This would likely lead to a massive increase in the volume of cases being referred to Rights Commissioners, and the Labour Court under the Act, which those bodies may not be in a position to handle.'

Ah, a worker ‘could’ use the state’s industrial machinery to vindicate their rights, but the machinery might not be able to facilitate that because it would be deluged with such applications. Given that there are 200,000 workers plus covered under these agreements the ‘may not be in a position to handle’ line could be an under-statement.

The Minister’s proposal succeed on the basis that the state’s industrial machinery may not be able to vindicate the rights of workers.

But let’s step into the real world of Irish enterprise. The simple fact is that many (most, almost all) workers in the JLCs are not in a position to vindicate their rights under law – and the Minister knows this. Workers in these low-paid sectors are some of the most vulnerable in the workforce – non-nationals, young, women, part-time, transitory. The idea that they would order a copy of the Organisation of Working Time Act, 1997 from the Government Publications office and read up, never mind act upon, their rights is not dealing with any reality. This would mean low-paid workers becoming their own lawyers.

But at the end of the day the issue isn’t so much legal as it is plain economics. In times of high unemployment, workers are less likely to press their rights with their employers for fear of victimisation and even loss of job. When faced with a cut in pay – whether legal or not – or being dumped on the dole, it is rational for workers to swallow the pay cut. Again, the Minister’s proposal succeeds on the basis of fear.

And in many of these low-paid sectors, those fears are well-founded: the National Employment Rights Authority found, that of the 4,000 firms inspected, less than half were compliant with the law – almost all relating to sectors covered under JLCs. In the Retail sector, the compliance rate was a mere 17 percent while in the Hotel sector, it was 23 percent. And what was the biggest breach? Yes, that Organisation of Working Time act.

So in most low-paid workplaces, it will be the employer who will decide what is ‘reasonable’ compensation for Sunday working. And if they decide nothing or a pittance is ‘reasonable’ the workers will not be in a position to counter this because:

• They will be unaware of their legal rights
• Even if they are aware, may not know how to proceed
• Even if they proceed, the Labour Court will not have the resources to deal with the applications because of increased case-load
• Or, quite simply, fear – that pursuing their rights under law could mean loss of their job

But it’s more than just workers who will suffer. A number of companies will be adversely affected. Don’t forget – the rational for JLCs lies in the establishment of the old British Trade Boards in the early part of the 20th century was to assist employers. Winston Churchill put it his way.

‘ . . .where you have no organisation, no parity of bargaining, the good employer is undercut by the bad, and the bad employer is undercut by the worst.’

A ‘good’ employer – even without a JLC agreement – may want to adhere to the law and be fair to their employees. However, if that company’s competitors are under-cutting them by twisting and breaking the law, it will be forced to follow suit if it is to stay in business. In other words, the good undermined by the bad undermined by the worst – the race to the bottom.

The Minister’s agenda is very simple: for employers to make substantial gains under his proposals, they would have to twist the law to the point of breaking in sectors that are notoriously non-compliant with the law already.

And the workers, denied the right to collective bargaining and not having a law degree, will by and large accept pay cuts because to do otherwise might mean ending up in the reserve army of the unemployed - pay cuts to those already on the lowest pay in the economy.

Does the Minister really think you can build a modern, growing, vibrant economy on the back of fear, non-compliance, and a race-to-the-bottom?

We should all be very afraid.

Comments

[Robert]

Will this apply to Gardai Co Co, Nurses and people in the public service. How can there be different sets of rules applied to houirly paid workers

[Michael Taft]

Robert - apologies for getting back late n this. The fact is that the Sunday premium is part of general labour law. All workers, by statute, are entitled to some recompense for working on Sundays. Were the JLC machinery crashed or prevented from collectively bargaining the Sunday premium, JLC workers would still be entitled to compensation. The problem lies in the reality that JLC workers have weak bargaining powers and will either not get the compensation, will find it difficult to vindicate that right in what could be an overwhelmed state industrial-relations machinery, or will be afraid to pursue that right due to the threat of victimisation.

As in all things, there are formal rights and real-life rights. They don't always coincide.