COMMITTEE FOR EMPLOYMENT AND LEARNING

Report on the Employment Bill

NIA Bill 11/01 (Continued)

Report: 1/02R

736.

The Minister also stressed the danger of the time factor if the process were to be stretched unduly. I advised the Minister that we were asking for an extension to the Committee Stage, and she warned that if the process ran on too long there was a danger of losing the whole Bill; then there would be no Employment Act. The Minister also pointed out that the Bill contains powers that open up the possibility of the Department's extending the scope of maternity, paternity and adoption rights in future.

737.

The employment status in relation to statutory employment rights consultation ends in mid-December. There is also likely to be a European Directive on temporary or agency workers that all member states would have to apply. Whether that comes into force next year or the following year is not clear at this stage, but it will apply in future. We therefore face two problems: the relationship with other legislatures; and National Insurance contributions. Those were the basis of my meeting with the Minister.

738.

As the Social Security Bill was granted accelerated passage on Monday, amendments to it must be tabled by 4.30 pm today. Therefore we are almost out of time. If the Committee decided to table an amendment, it might stray into the business of another Department. We must decide what we should do. There is a case for the use of "worker" rather than "employee", but given the problems with other consequential amendments and National Insurance contributions, that may be impractical. That is true of the proposed amendment to change the eligibility of maternity, paternity and adoption benefits, which allow for paid leave.

739.

If the Committee does not recommend amendments, there is no reason why its report could not say that, in principle, the use of "worker" as opposed to "employee" must be seriously considered, especially given trends in the labour market and the fact that some workers have employment experience that means that they might as well be employees, even though legally they are not.

740.

There is no reason why the Committee should not contribute to the consultation on employment rights, which finishes in December, by investigating the status of temporary and agency workers. I recommend that the Committee not propose an amendment to the clause on paternity, maternity and adoption leave. There is an argument about the definitions, but it could be difficult to implement the correct changes.

741.

The Bill also provides for the right to request flexible working hours, which is different from maternity, paternity and adoption leave because there is no public expenditure benefit. Therefore the National Insurance contribution system need not come into play. As it is a new right, there is no previous primary legislation, and, therefore, nothing else needs to be amended to support the Bill.

742.

The Committee could agree to run with the definition "employee" for maternity, paternity and adoption leave. However, it could argue that the right to request flexible working should apply to "workers", and, in that case, the term "workers" should be defined. The Committee must decide whether it is worth making that amendment. In a negative sense, it would create a contrast in the Bill. Some provisions would relate to "employees"; others would relate more broadly.

743.

As there is a consultation on employee status and rights, it could be argued that the Committee should reserve judgement until it makes its contribution in December. However, it could also be said that a marker is being put down. There are arguments both ways.

744.

I welcome the departmental officials who will give evidence. Roy Gamble is the assistant secretary of employment rights in the New Deal division and William Caldwell is the Employment Bill team leader.

745.

To sum up yesterday's meeting: although there may be an argument in principle that makes the definition "worker" attractive, it is not practical in the immediate future for most of the Bill. It may be practical for one part of it, but I am not convinced that it is worth changing one part when the consultation process is going on. The Committee should collect evidence on some of those issues to make an informed judgement. During further discussion with the Minister, I countered her points, but it is more useful for me to give a summary of the Minister's arguments. Do members have any comments?

746.

Dr Adamson: I agree with your assessment. Mrs Carson has also communicated her concerns.

747.

The Chairperson: I am aware of that. The Minister gave me a letter and a copy of annexe A that deals with many of those points at length, including the Committee's points on the Minister's proposed amendment on exemption from the right to request flexible working for those serving in the armed forces. There is also a proposed amendment on the Labour Relations Agency, but I did not ask a question on that.

748.

Mr McElduff: A press release, which may have been embargoed until 6 am today, appears to be inconsistent. It appears to suggest that there has been a sudden change of heart on the Chairperson's part in that an amendment of the definition is desirable. Is it in the public domain that the Committee feels that "worker" should be the term used as opposed to "employee"?

749.

The Chairperson: That press release was written earlier in the week when I was unaware of the National Insurance contribution point and the parallel legislation. It reflected my feelings at the time but not now, except insofar as the press release states that there is an argument for the definition "worker" being used, with which I still agree. The problem is a practical one about what can be done in the near future, given that the Social Security Bill received accelerated passage and that the National Insurance contribution system applies to some, but not all, workers.

750.

Mr Carrick: Although the Committee believes that, in principle, the term "worker" should replace "employee", now is not the time to make such a change. The employment legislation should be consolidated and should contain clear definitions of the terms "employee" and "worker".

751.

Mr Chairman, you referred to how this legislation would affect the Department for Social Development. This is a parity measure, and it is important that the definitions are consistent with those in Westminster legislation; otherwise the grey areas will make regulation a nightmare and will create additional problems for employers, particularly small employers. We do not want that to happen.

752.

The social security and National Insurance systems were set up in accordance with the Westminster definitions. We are part of the United Kingdom and any change to the definitions would create administrative difficulties. Therefore there are practical reasons that now is not the time to tinker with the definitions in the Bill.

753.

Ms Gildernew: Last week's discussion was productive, and I agree with the position that the Committee took on the matter. I have listened to the arguments outlining the potential administrative difficulties and the need to retain parity. However, I do not believe that those arguments stand up. As a scrutiny Committee, it is our responsibility to get the best package for the people that we represent. Although I take Mr Carrick's point about small businesses, we must consider the needs of those who stand to benefit from a change in definition. Many of those who fall into the category of "worker" are already disadvantaged - ethnic minorities and casual workers, for example. I believe that we should accept the amendment to the term "worker" and let the Minister and the Committee make their cases to the Assembly.

754.

The Chairperson: I agree with much of what you say. Time permitting, we will deal with the clauses today, and it is open to Members to propose amendments to them. We will see how the Committee feels.

755.

The Minister makes a genuine argument; there are practical barriers to extending the definition, at least in the short to medium term - it is not just a political smokescreen. Regardless of how one feels about the greater equity or apparent greater justice that extending the definition would bring, it is not possible to make such a change because of the National Insurance contribution system. Certain workers do not pay National Insurance contributions. Therefore a system of payments and compensations for employers would have to be put in place, and that would have consequences for other legislation. The Committee must consider the effect that such changes would have on other legislation.

756.

We should have to create another vehicle, and I doubt that we could do that in time. In fact, I am not sure how we could create the necessary vehicle. The consultation affords us the opportunity to make our mark. If the Committee feels strongly, it can collect evidence and make recommendations in the report on the Bill that will be sent to the Assembly. Even if the Committee decides not to agree the amendment, we can make recommendations that point in the direction in which we would like to move. I accept Ms Gildernew's point about the apparent attractiveness of the definition "worker". I was convinced by the argument last week, but I must consider what can be done at present.

757.

Mr McElduff: Is it possible to postpone making a decision on "worker" versus "employee" so that the Committee can take further advice, given that new evidence has emerged?

758.

The Chairperson: Unfortunately, time is short. Members or parties who object strongly to the Committee's report can table an amendment to the Bill. That can be done at any point before the 18 September, and the Committee is seeking an extension of that period until the 18 October.

759.

The Committee Clerk: There is some leeway. However, it depends on the outcome of today's meeting, because the motion has been scheduled for debate next Tuesday, although it does not have to be moved.

760.

The Chairperson: The Committee must deal with a great deal of other business, and members have heard the arguments about the danger of losing the entire Bill through needless delay. I take the point that these are difficult technical issues, and people want time to reflect on them. Does the Committee feel that we should postpone the decision or press on?

761.

Mr McElduff: I ask for a postponement because it could exclude 10% of the workforce.

762.

The Chairperson: I am not sure whether I stressed that annexe A of the Minister's letter estimates that the figure is 5% at most. That estimate may be open to question, but the real figure is probably less than 10%.

763.

Mr Carrick: Given that Members or parties can table an amendment to the Bill if they feel strongly about it, this issue should not be allowed to delay the Committee's consideration of the Bill.

764.

The Committee made a decision about a possible change last week. What is the procedure for changing that decision? Does it require the consent of the majority of Committee members?

765.

The Chairperson: I will take advice on that. However, it is my understanding that if the Committee proceeds to a clause-by-clause consideration, members vote on each clause. At each clause I will invite members to propose amendments by suggesting either new wording for the clause or a change in principle. The precise wording of the clause can be agreed later. Perhaps the Clerk can confirm that?

766.

The Committee Clerk: There is nothing in Standing Orders that prevents a Committee making a change when other evidence becomes available. Last week, the Committee discussed the principles of the Bill; a clause-by-clause consideration is a different matter, but it is ongoing debate.

767.

Mr Carrick: Therefore the Committee is not committed to abide by the decision that was made last week?

768.

The Chairperson: That is correct.

769.

Mr McElduff: If this were a district council, it would take six months to rescind a previous decision.

770.

The Chairperson: I cannot comment on that.

771.

The Committee Clerk: The name-change Bill that became The Department for Employment and Learning Act (Northern Ireland) 2002 was a step backwards.

772.

The Chairperson: I propose that we move to clause-by-clause consideration.

773.

Ms Gildernew: If the Committee will not propose the amendment, will it still recommend that the provision be reconsidered? Even if members do not propose the amendment, can the Committee say that it feels strongly about this and wants it included in future legislation?

774.

The Chairperson: It is up to the Committee, but I agree that we should. We can say what direction we think things should move without proposing an amendment.

775.

Mr Carrick: Not all Committee members are present to give their views.

776.

The Chairperson: The Committee must agree the written report; it is like any other Committee response. The Committee will see the entire document, including minutes, votes and results. Like any other Committee document, members can agree and/or change the wording.

777.

Ms Gildernew: When the Committee brings this to the Assembly for debate, will the Chairperson say that the Committee discussed whether to take the point as a recommendation or as an amendment and that the Committee sought counsel and strongly recommends that, although it may not be practicable now, it be reconsidered in the next Assembly session?

778.

The Chairperson: I have no problem in saying that the Committee recommends that it be considered as part of the consultation on the definition of eligibility for employment rights. The Committee will need a form of words, agreed in the report on the Bill, saying something similar. The Committee will in turn make its own contribution to the consultation before mid-December. It is up to the Committee, if time allows, to collect evidence. We can listen to arguments from the agency/temporary worker sector about whether temporary workers should be given enhanced employment rights.

779.

We will now move to a clause-by-clause consideration of the Bill. The Bill contains 18 clauses and two schedules. Each clause and its subsections must be considered in turn. The Committee has three options: first, to agree that the Committee is content with the clause as drafted; secondly, to agree that the Committee recommends to the Assembly that a clause be amended, with a further option to suggest an amendment; thirdly, to agree that the Committee recommends to the Assembly that a clause be amended and simply state the proposed objective of an amendment rather than suggest its wording. Departmental officials are here to guide us.

780.

Mr McElduff: I hate to go over old ground, but I am uncomfortable that the Committee does not know the definitions of "worker" and "employee". There seems to be consensus, but I am unsure about it. I planned to propose that the Committee use the term "worker", but in an attempt to gain consensus on such a fundamental issue, I suggested that it be postponed. I do not know whether the Committee reached a decision on that.

781.

The Chairperson: I got the impression that most members wanted to proceed. If we delay there is a danger of losing the whole Bill.

782.

Mr McElduff: Perhaps if we had a few days to allow the Committee to get legal advice on "worker" versus "employee". Many of us came to the meeting believing that that was the case. It was proposed and seconded last week.

783.

The Chairperson: The Committee received legal and research advice, some of which was there last week. I am not certain how much information would be uncovered in an additional week. In any case, given that the time in which to table amendments to the Social Security Bill is up in an hour and a half, the problem is less about definition and principle and more about practicality. Some "workers" do not pay National Insurance; therefore it would be difficult to accommodate them. If the feeling of the Committee is that we should delay for a week, I will not rule it out.

784.

Mr Carrick: Further advice might prove contrary to the advice that the Committee has received. There are practical difficulties in implementing the term "worker", and although I do not want to pre-empt it, additional advice is unlikely to alter the situation. Given the question of timing between different pieces of legislation and the practicality of working the scheme throughout the United Kingdom, the problem will remain.

785.

The Chairperson: Are there any comments on clause 1?

786.

Mr Carrick: Clause 1(3)(c) says that the employee

"is entitled to return from leave to a job of a prescribed kind."

787.

That does not necessarily mean the job that he or she left.

788.

The Chairperson: Do you want an answer to that technical question?

789.

Mr Carrick: Yes. It implies that the employee returns to a similar job and that he or she has the option not to return at all. Therefore the employer must keep the position open, even though at the end of the adoption leave the employee may decide not to return to work.

790.

Mr Gamble: The Regulations will deal with most of the detail. However, as in the case of maternity leave, an employee can return from ordinary adoption leave to the job that he or she left. If an employee takes additional adoption leave he or she can come back to the job that he or she left, if that is reasonably practical for the employer. If it is not practical, the employee is entitled to come back to a job that has similar status. The employee is entitled to benefit from any rights that have accrued in the meantime, for example, changes in terms and conditions. If, at some point, the employee decides not to return to work, that changes everything.

791.

Mr Carrick: Is an employee required to give notice if he or she decides not to return to work? Can the employee wait until the end of the leave before informing the employer of that decision?

792.

Mr Gamble: I do not think that there is a period of notice for not returning.

793.

Mr Caldwell: I am not sure whether there is a period of notice. The employee could give notice while on adoption leave, but I do not know whether such a period of notice would be part of the adoption leave or some time after that.

794.

Mr Carrick: It is important that the employee give such notice so that the employer has time to organise a permanent replacement.

795.

Mr Gamble: It is assumed that when someone takes adoption leave of six months or 12 months the employer will make arrangements from the start. The employee must give notice of when the leave will start, so one assumes that the employer would make arrangements then.

796.

Mr Carrick: At that point, the employer would assume that it would be a temporary arrangement.

797.

Mr Gamble: Yes. However, that is not as bad as having no one in place. The temporary employee's employment could be extended, for example. We are still working on the Regulations, and I cannot recall having seen anything that says that the employee must give notice that he or she does not intend to return to work. We will check on that.

798.

Mr Carrick: It is not an unreasonable request.

799.

Mr Gamble: It is a matter for the Regulations.

800.

Mr Carrrick: Nevertheless, they could be amended to take such a contingency into account?

801.

Mr Gamble: We are still working on the Regulations, which will come before the Committee.

802.

Mr Carrick: Clause 1(3)(c) refers to "a job of a prescribed kind". You seem to have divided the adoption leave up, at the end of which one returns to one's job. Then there is the further adoption leave, after which one gives up the right to return to one's own job but is entitled to a similar one.

803.

Mr Gamble: That is the same as maternity leave. Part of the Bill's principle is to keep everything as much of a piece as possible so that employers are not dealing with a variety of terms and conditions, which can be difficult.

804.

Mr Caldwell: If a person takes ordinary adoption leave, not the additional leave, it would be reasonable for the employer to return him or her to the same job once the leave is finished. However, if the employee takes additional adoption leave more time will have elapsed and the employer may have to take alternative measures.

805.

Mr Carrick: Is clause 1 subject to the Regulations?

806.

Mr Caldwell: The Regulations will be put before the Assembly in the usual way. They will be considered in future. However, there are enabling powers to make the Regulations.

807.

808.

The Chairperson: Much of the detail will be in the Regulations, which will come before us in due course.

809.

Mr Carrick: In clause 2 the new article 112A(7) states

"In this Article -

'newborn child' includes a child stillborn after twenty-four weeks of pregnancy;"

810.

Is that consistent with other legislation?

811.

Mr Caldwell: Twenty-four weeks is now accepted.

812.

Clause 2 agreed to.

813.

Mr Carrick: I presume that it refers to the biological father in all cases.

814.

The Chairperson: There is a question about the definition.

815.

Mr Gamble: Under the Regulations, a woman can choose to take paternity pay if a couple adopt a child and the male partner takes adoption leave. There is paternity pay for biological paternity and there is also paternity pay for adoption. It is a difficult concept.

816.

Mr Carrick: Is adoption the only exception to the rule?

817.

Mr Caldwell: No, but it will be set out in the Regulations, which will come before the Assembly in due course. In the case of same sex partners, the care of the child could come from the partner of the biological mother of the child. Therefore a woman could, ironically, avail of paternity leave. However, the relationship with the child will be set out in the Regulations.

818.

Mr Gamble: The important thing is that there is a parenting relationship with the child. It is not simply any family member who could be entitled to paternity leave and pay after the birth of a child. The parenting relationship will be stressed in the Regulations.

819.

Mr Carrick: There could be a mother and a partner, but the partner may not be the father of the child.

820.

Mr Gamble: As I understand it, that partner would be entitled to take paternity leave and pay as long as the parenting relationship and the intention to act as a parent to the child was established.

821.

Mr Carrick: Could the biological father circumvent that?

822.

Mr Caldwell: No, because the relationship with the child would be set out in the Regulations. The person who is assisting the mother with the care of the child will be entitled to paternity leave.

823.

Dr Adamson: Biology is a very difficult concept.

824.

Mr Carrick: I am finding that out.

825.

Mr McElduff: Is there room for a challenge to the word "paternity" in that it presumes male? Dr Adamson could help us out with the Latin.

826.

The Chairperson: Should another term be used as, theoretically, a woman could take paternity leave? Did you consider whether there was any possible form of words that could cover such cases?

827.

Mr Caldwell: The vast majority of cases would be men, and they would probably be the biological fathers. In exceptional circumstances, someone other than a man may avail of paternity pay. However, it would be unnecessary to change the term "paternity" for that minority. Its present application will be defined in the Regulations.

828.

Mr Carrick: In some cases, the biological father pays under the Child Support Agency (CSA). He may support the child financially, but the mother's partner would be doing the parenting, with emphasis on the parenting and not the support.

829.

Mr Gamble: That is my understanding of how we would interpret that.

830.

Mr Caldwell: Care and parenting are important.

831.

Mr Gamble: That applies to a two-week period around the birth of a child; therefore the circumstances that you posit would be unusual but by no means impossible. Leave would be applicable somewhere within eight weeks after the birth of the child. However, it is likely that in most cases the biological father will care for the child.

832.

Mr Carrick: We must not underestimate the ingenuity of people when it comes to social security benefits.

833.

The Chairperson: In the case of fraud, how would you establish who parents the child? It is in the Regulations, and the Department for Employment and Learning or the Department for Social Development will have to work it out and endorse it.

834.

Mr Caldwell: Clause 11 deals with fraud and penalties, and account has been taken in drafting the Bill to cope with abuse of the system.

835.

Dr Adamson: It is more difficult in Papua New Guinea where fathers breastfeed their children.

836.

The Chairperson: I really do not know what to make of that observation. Fortunately, we do not need Statutory Rules to cover such possibilities.

837.

Clause 3 agreed to.

838.

Mr Gamble: Clause 3, article 167ZJ(3)(b) states that

"cases where a person who would not otherwise be an employee for the purposes of this Part of the Act is to be treated as an employee for those purposes."

839.

Regulations may be made to bring that about. It concerns widening the definition, which you mentioned earlier. That will be inserted into the Social Security Contributions and Benefits Act 1992.

840.

I am afraid that there is a slight slip in the Minister's letter that says that the Bill contains a power for us to count other people as employees. That is actually contained in article 24, the "Power to confer rights on individuals", of the Employment Relations (Northern Ireland) Order 1999. That power in the Employment Relations (Northern Ireland) Order 1999 and also that which will be inserted into the Social Security Contributions and Benefits Act 1992 will leave open the option to extend the definition after better understanding of the matter.

841.

The Chairperson: That point was made during the discussion with the Minister yesterday - the enabling power exists for the Department or the Minister to extend those rights in future.

842.

The Chairperson: Does the Committee have comments or observations on clause 4?

843.

Mr Elduff: I am struck by the reference in clause 4 article 167ZL(2)(a) stating

"the conditions are that he is a person with whom a child is, or is expected to be, placed for adoption under the law of any part of the United Kingdom."

844.

Is that a barrier to cross-border mobility?

845.

The Chairperson: How would that affect the adoption of children from overseas?

846.

Mr McElduff: I am thinking about this island. People in Newry or Strabane/Lifford have different social interaction and use different routes to travel to and from work from those in Belfast.

847.

The Chairperson: How does the clause deal with that?

848.

Mr Gamble: The clause merely states that the adoption must be done under the adoption law of the United Kingdom. The adopted person can come from anywhere.

849.

Mr Carrick: I would like guidance on the qualifying period, which must be

"for a continuous period of at least 26 weeks ending with the relevant week".

850.

Is that consistent with other parts of employment legislation?

851.

Mr Gamble: Yes. At present, the legislation covers only maternity leave and pay. The length of periods of service for adoption leave and pay and paternity leave and pay mirror the maternity arrangements.

852.

Mr Carrick: Is it the case that the 26 weeks of continuous service are not necessarily 26 weeks of paying National Insurance contributions? Would those who have been employed for 26 weeks for pay below the National Insurance threshold qualify?

853.

Mr Gamble: Yes. People will qualify for adoption leave, but they will not qualify for adoption or paternity pay unless they are above the lower earnings limit. These should be regarded as contributory benefits. If you do not contribute you do not get the benefit. You will be entitled to other social benefits for a period but not these benefits.

854.

Mr Carrick: Let us be clear. To qualify for statutory adoption pay you must have been paying over the minimum National Insurance threshold for 26 weeks continuously before you adopt?

855.

Mr Gamble: Yes.

856.

Clause 4 agreed to.

857.

Mr Carrick: This has been organised through the taxation and PAYE scheme. An employer may be compensated by his National Insurance contributions being reduced. If a small employer's compensation exceeds the National Insurance payable there is scope for the employer to withhold income tax.

858.

Mr Gamble: That is what the clause will do. Under the present arrangements if you owe money to the Inland Revenue it can only be withheld in strict order. If you owe National Insurance contributions and you want to offset some of your contributions you can only take those two sums away. In future, you will be allowed to aggregate what you owe on tax as well as for National Insurance contributions. If the money that you are due to get back for National Insurance is more than your National Insurance contribution you do not have to have a credit with the Inland Revenue. You take off the aggregated sum.

859.

It is supposed to be simpler for employers; they do not have to keep everything in separate columns and boxes. They aggregate what they owe and subtract what they are due to get back from the Inland Revenue and pay the balance instead of doing separate calculations.

860.

Mr Carrick: Does that flexibility extend to student loans?

861.

Mr Gamble: Student loans are included.

862.

Mr Caldwell: It is aimed at reducing the employers' burden.

863.

The Chairperson: Assembly library and research services produced an estimate that the compensation to small firms was 104·5%. That shows that smaller companies - and they are defined by the total National Insurance contributions paid - get more money paid back when they pay into the scheme. That is to cover their administrative costs.

864.

Mr Carrick: At present, there is a convoluted system of compensation for small employers who are paying out statutory sick pay. It is not easy for some of the smaller employers. It is hoped that that will eventually disappear in this flexibility.

865.

Clause 5 agreed to.

866.

Mr Carrick: With regard to clause 6(2)(1), I understand that employers' relief is achieved by withholding the appropriate percentage from the payment, as opposed to any direct payment coming from the Government. Must the small employer make that calculation?

867.

Mr Gamble: Yes. I understand that a percentage would be withheld. It could be an offset.

868.

The Chairperson: What is the offset for larger businesses whose employers are above the threshold?

869.

Mr Caldwell: Ninety-two percent. They make a contribution to the cost.

870.

Mr Carrick: How many small employers are there in Northern Ireland?

871.

How many larger firms will the 92% affect?

872.

Mr Gamble: I do not have those figures. This definition of small employers is different from the one normally used by the Department, which is determined by the number of people employed by a company, not by the national insurance contributions that that company pays. That would have to be checked with the Inland Revenue.

873.

The Chairperson: The Committee would like to examine that data, if possible. I refer the Committee to the research paper produced by Assembly researchers and tabled at last week's meeting. The small employers' relief applies to companies that pay up to £40,000 of national insurance contributions a year. That cannot be translated precisely into a number of employees. However, it is based on an average industrial wage of around £20,000 a year, with payment of 8% national insurance. The yearly contribution is therefore £1,600. When £40,000 is divided by £1,600, it works out at 25 employees.

874.

Mr Carrick: Where did you get the figure of 8%?

875.

The Chairperson: That is the rate of national insurance.

876.

Mr Carrick: I believe that the rate of national insurance is 10%.

877.

The Chairperson: It is 10% at a higher rate which would apply to employers. That is a good point.

878.

Is that the total National Insurance that the company pays, regardless of whether that £40,000 is its worker or employer contribution? Or is it simply the workers' contribution?

879.

Mr Gamble: That is the total that the company pays - its own National Insurance contribution and those of its employees.

880.

The Chairperson: In which case, one should probably reckon on contributions for each person of approximately £3,000 or more, then divide that into the £40,000. That rough calculation applies to companies that employ up to 12 people.

881.

Mr Caldwell: I am not sure whether we estimated the number of employees who would be deemed as small employers under this legislation, because that involves a different way of calculating to the one we normally use.

882.

Mr Gamble: The figure was raised from £20,000 to £40,000 last year for statutory maternity pay purposes, which, if your estimate of £3,000 is correct, would mean it would have excluded only companies of six employees. I am not sure whether that is correct, but the best that we can do is to check it out.

883.

The Chairperson: Although last week's research papers do not directly relate to that point, small businesses are defined as those employing fewer than 50 people. Those small businesses account for over 200,000 employees in Northern Ireland, and the total number of people who work in Northern Ireland is about 700,000.

884.

Question, That the Committee is content with the clause, put and agreed to.

885.

Mr Carrick: That clause merely broadens the documentation that employers who operate the PAYE scheme already maintain.

886.

Mr Caldwell: This is an enabling clause that empowers the Department to make Regulations specifying what records an employer is required to keep, so that in the event of any dispute about employees information the Inland Revenue may ask for that documentation.

887.

Question, That the Committee is content with the clause, put and agreed to.

888.

Mr Caldwell: Clause 8 adds to the existing mechanism. The clause allows the tax commissioners to resolve disputes over employer contributions or a dispute between employer and employee. However, it is hoped that any disputes can be resolved without formally going to those lengths.

889.

The Chairperson: Paragraph 5(b)(4) amends the Order, stating that,

"Regulations under this Article must be made with the concurrence of the Department for Employment and Learning in so far as they relate to statutory paternity pay or statutory adoption pay."

890.

Can you clarify the purpose of the clause?

891.

Mr Caldwell: The Inland Revenue would probably make those Regulations. Regulations on maternity pay would be made with the concurrence of the Department for Social Development. As those new issues are coming from the Department for Employment and Learning, Regulations must be made with the concurrence of that Department.

892.

Mr Gamble: The amendment will be inserted in a social security contributions Order, which is the preserve of the Department for Social Development, but this Department will be consulted because it is introducing the Bill.

893.

The Chairperson: Can you describe the mechanics of that? Will an amendment to the Order go before the Committee for Social Development in the near future, or is it part of the Social Security Bill, which is currently going through the Assembly?

894.

Mr Gamble: I am not sure that I understand. The amendment will be inserted in the Social Security Contributions (Transfer of Functions, etc) (Northern Ireland) Order 1999. Therefore, the Department for Social Development will be required to consult the Department for Employment and Learning in making the Order insofar as it relates to statutory paternity and adoption pay. Have I answered your point?

895.

The Chairperson: I am trying to work out how that was done. Does the Department for Social Development issue or change the Order to reflect what is in the Employment Bill?

896.

Mr Caldwell: No. Once the Bill is passed it becomes part of that Department's legislation. The clause requires the Department for Employment and Learning to be consulted on any regulations that need to be made by the Department for Social Development, the Inland Revenue or other authority.

897.

Question, That the Committee is content with the clause, put and agreed to.

898.

Mr Carrick: I have a concern about non-compliance. There is a reference to the spouse at 9(2)(b). Is it consistent with other law to provide that the spouse can be forced to testify against a person?

899.

Mr Caldwell: That reference to a spouse or partner is simply a mechanism whereby, in unusual circumstances, there is a requirement for the Inland Revenue to make routine enquiries about whether or not people are receiving what they are entitled to. If you are referring to a spouse giving information against a partner, I assume that it is compatible with general law. I have never considered that point before.

900.

Mr Gamble: Is the scenario of a spouse testifying against a partner not confined to criminal law?

901.

Mr Carrick: It may well be. I am open to guidance.

902.

The Chairperson: Perhaps we should seek legal advice on that.

903.

Question, That the Committee is content with the clause, put and agreed to.

904.

Mr McElduff: Would it be appropriate to add the word "knowingly" at 10(1)(a), and subsequently?

905.

The Chairperson: May I ask if that was considered, or why it was not included?

906.

Mr Caldwell: It would not have been considered. We have to have faith in the Parliamentary draftsman as to whether it complies with the legal requirements. I am not sure that the word "knowingly" would add anything.

907.

Mr Gamble: The situation envisaged here is where a request has been made for someone to produce a document. If you fail to produce a document, you do so knowingly. If you have not got the document, you cannot produce it. If you do have it, and fail to produce it, you have failed to comply with a direct request.

908.

Mr McElduff: Twenty-six per cent of adults have literacy problems, and that is only one slant on this point. Apart from that, "knowingly" or "wilfully" comes into play. It is a question of whether someone is being deliberately obstructive or not. Consignia might pose a problem.

909.

The Chairperson: All those points are valid, but it is a question of whether the word should be inserted in a legal sense, and whether it is implied.

910.

Mr McElduff: I think that legally it has material value.

911.

Mr Caldwell: The sanctions that are mentioned in the Bill would not be applied in a draconian fashion. Each case would be considered on its merits. If it became apparent that someone was not wilfully trying to abuse the system or to confuse or mislead the Inland Revenue, draconian sanctions would not be taken against them. However, if someone did not comply, a system would have to be put in place to deal with it.

912.

Mr Carrick: In my experience, the Inland Revenue inspecting officer has discretion, which is exercised in the light of the degree of co-operation, the gravity of the offence and other criteria against which the judgement is made.

913.

The Chairperson: If there are no other questions, I will put the question. If Members feel strongly about a point, they will have an opportunity to express their disagreement. If that is the case, there must be a formal division.

914.

Mr McElduff: I beg to move

915.

That the Committee recommend to the Assembly that the clause be amended as follows: insert

"knowingly"

before the word "fails" in 10(a), (b), 10(3) and 10(6).

Mr McElduff

Dr Birnie, Mr Carrick, Dr Adamson, Mr Hilditch

916.

Question accordingly negatived.

917.

Question, That the Committee is content with the clause, put and agreed to.

918.

The Chairperson: Are there any questions on clause 11?

919.

Mr McElduff: I repeat that I prefer that "knowingly" be included in clause 11(1), to read "Where a person fraudulently, negligently or knowingly". That should be repeated in 11(2), 11(3), 11(4) and 11(5).

920.

Mr Carrick: Those are maximum figures. I should be concerned if they were more proscriptive; however, it is to be hoped that proper discretion will be exercised.

921.

The Chairperson: That point should perhaps be put to officials. It says "a penalty not exceeding" £300 or £3,000 in whichever case. Presumably, that means that there is discretion and the amount could be any sum up to the relevant figure.

922.

Mr Caldwell: Exactly. The penalty is set at a maximum of £3,000, but where someone has made only a slight error, the fine or penalty - if any at all be imposed - reflects the seriousness of the offence.

923.

The Chairperson: The Committee would be interested in the previous record on the size of annual fines imposed for fraudulent claims with respect to maternity pay. Any available data will be of interest; however, it does not affect our view of this Bill.

924.

Is the Committee content to recommend that clause 11 stand part of the Bill?

925.

Mr McElduff: I disagree, in the absence of the word "knowingly".

926.

I beg to move

927.

That the Committee recommend to the Assembly that the clause be amended as follows: insert

928.

a comma and "knowingly"

929.

after the word "fraudulently" in clause 11(1), 11(2), 11(3), 11(4) and 11(5).

Mr McElduff

Dr Birnie, Mr Carrick, Dr Adamson, Mr Hilditch.

930.

Question accordingly negatived.

931.

Question, That the Committee is content with the clause, put and agreed to.

932.

Mr Carrick: Please explain clause 12(3), which substitutes the words

"(7) the Department may make regulations making provision, in relation to the right to retain paragraph (4) (c)".

933.

Mr Caldwell: That clause enables provision to be made for situations in which maternity leave is extended and there are potential combinations of ordinary maternity leave and new types of leave, such as adoption leave. It is quite technical because such situations do not normally arise. There is, however, potential for them in limited circumstances; for example, if maternity leave is extended to one year and the new rights to adoption and paternity leave are introduced. These Regulations outline the contractual benefits and rights to return which apply in specific circumstances.

934.

Mr Carrick: Am I to understand that it will not be explained in the Regulations that initially come before the Committee, but is rather a provision for a future date? The clause refers to seniority, pension rights and similar rights, which last is a fairly broad term; and to terms and conditions of employment on return, which suggests that those could change.

935.

Mr Caldwell: It means that there is a permissive right for the Department to make Regulations if they are deemed necessary. Whether regulations are found to be necessary will depend on future experience.

936.

Mr Carrick: In that case, during maternity leave, could the Department suggest amendments to the terms and conditions of employment agreed by employee and employer?

937.

Mr Caldwell: That is contained in the clause - the Department may make Regulations, which affect maternity leave, for seniority, pension rights and other rights. There is no impetus for that now, but it is a permissive power.

938.

Mr Carrick: Could the Department make an arbitrary decision to do that without consultation?

939.

Mr Caldwell: No.

940.

Mr Gamble: The clause ensures that the rights of women who return from maternity leave have not been eroded in their absence. It amends the Employment Rights (Northern Ireland) Order 1996 to give us the power to make Regulations, which will be Statutory Rules that come before the Assembly. The Assembly would have to agree those either by confirmatory or affirmative resolution.

941.

Mr Carrick: Is it a tool to make the employer conform?

942.

Mr Gamble: No. It will be the same as any other employment rights Regulation. It will provide longer periods of leave and new forms of leave, which may include a combination of adoption leave and maternity leave or additional maternity leave. It is an attempt to ensure that when people return to work after lengthier periods of leave, they find neither their rights eroded nor a perverse situation in which they get better rights because they were on leave for longer. It is a power to make Regulations which will not have effect unless the Assembly agrees. It would be a law like any other - a Statutory Rule, passed by the Assembly.

943.

I am not sure that I understand what you are saying about employers complying with the legislation. Employers are expected to comply with any legislation that the Assembly makes.

944.

Mr Carrick: I understand that the thrust of employment legislation is to protect the rights of the employee. Clause 12(3) replaces paragraph 7 of article 103 of the Employment Rights (Northern Ireland) Order 1996. Has that been inserted to allow the Department to go beyond that at some point and impose something on employers that has not been agreed with employees?

945.

Mr Caldwell: It is a permissive power to cope with peculiar circumstances. Such circumstances cannot arise at the moment, but may do so when the new rights, such as adoption leave, are introduced and a combination of different types of leave may be used. Further consideration may be required to ensure that neither the employee nor the employer is disadvantaged.

946.

Mr Carrick: I see. It is a sweeping-up clause.

947.

Question, That the Committee is content with the clause, put and agreed to.

948.

Mr McElduff: What was the outcome of last week's debate on extending flexible working hours? Is that a done deal?

949.

The Chairperson: I said before we began the clause-by-clause scrutiny of the Bill, that because this provision contains no benefit or payment elements, the issue of National Insurance contributions does not arise. It is a new right, and therefore does not require the amendment of previous or parallel primary legislation. That means that if Members feel strongly that the category of people eligible for flexible working hours should be widened, the option is open to them. However, that would create two types of provision in the Bill: payments to employees; and flexible working hours, which may affect a wider category of people. It would create an inconsistency, although Members may be prepared to live with that as more people would benefit from flexible working hours. In a sense that would anticipate the outcome of the consultation on the status of different categories of workers and the way in which those affect people's employment rights.

950.

Mr Carrick: Employers' duties are detailed on page 29 of the Bill. Employers are permitted to give many reasons for refusing an application. Employees have the right of appeal under the new article 112G(2)(d) that is proposed in clause 13. I could be misunderstood, so I must preface my remarks by saying that most employers in Northern Ireland would wish to co-operate with, and accommodate the needs of, their workforces. However, if a small-scale employer did their homework, they would find that the Bill details many reasons that they may give for refusing an application for flexible working hours.

951.

It may be difficult to disprove, but it is up to the employee.

952.

The Chairperson: Article 112H describes situations in which an employee can dispute a decision by going to an industrial tribunal and specifies the grounds for that: namely, that the employer has not followed the correct process. The tribunal's job is not to adjudicate whether the decision meets those criteria under article 112G(1)(b).

953.

The Committee looked previously at the modernisation of the industrial tribunals. That was driven by concern that the caseload had grown dramatically in recent years. However, I suppose that in this case the Department has made an assessment that the likely impact on industrial tribunals will be manageable and the number of cases of disputes regarding decisions on flexible working will not be huge.

954.

Mr Gamble: I am not sure that it would be easy to make a guess about that, but the Department is trying to improve the workings of the tribunals and increase the numbers of full-time tribunal chairmen so that the caseload can be dealt with. However, the number of kinds of dispute that can be taken to tribunal is growing fast. Over 70 kinds of dispute can now be taken to tribunal and those include the discrimination legislation as well as the standard employment costs such as unfair dismissal or deduction from wages.

955.

The tribunal system may have to be extended in the future, but it is hoped that a lot of disputes could be settled between the employer and the employee or with some conciliation through the Labour Relations Agency. As the Committee knows, one of the Minister's proposed amendments concerns applying the arbitration system to disputes on flexible working. The more rights that are created, the greater the likelihood of dispute. Tribunals and other means of dispute resolution must try and keep up with them.

956.

The Chairperson: Is the Committee content to recommend clause 13?

957.

Mr McElduff: I am not, Chairman.

958.

I propose that flexible working be extended to all working parents of disabled children so long as they are dependent. I shall not detail the arrangements; there are special problems post-18. Moreover, the right to request flexible working should be extended to all parents of children under the compulsory school leaving age.

959.

Mr Carrick: Does "working parents" come under the definition of workers as opposed to employees?

960.

The Chairperson: The definition is certainly different to that of "employee". I am not sure of its precise meaning. If the Committee were to make such an amendment, a form of words to define "working parents" should more precisely be determined.

961.

Mr Caldwell: It is my understanding that disabled children, and all parents of disabled children, are covered by this Bill. In other words, a child is a person who has not reached the age of 18; beyond the age of 18 a person, legally, is not a child. Therefore all children would be covered by the Bill.

962.

The Chairperson: This was discussed last week, and I suspect that what Mr McElduff means is that those persons above the age of 18 who are disabled and dependent on their parents are children. Although they are no longer legally classified as children, they are children in an everyday sense. We have had problems in finding a way to express that.

963.

Mr McElduff: The reason I make the proposal - and I accept that it will probably be lost - is to give it some status.

964.

965.

That the Committee recommend to the Assembly that the right to request flexible working be extended to all working parents of disabled children so long as they are dependent.

Barry McElduff

Dr Birnie, Mr Carrick, Dr Adamson, Mr Hilditch.

966.

Question accordingly negatived.

967.

Mr McElduff: I will leave it at that for now.

Question, That the Committee is content with the clause, put and agreed to.

968.

The Chairperson: It seems permissive to allow the Department to make subsequent Regulations when it considers that they are necessary. Is that interpretation correct?

969.

Mr Caldwell: This clause determines the nature of the regulatory powers - in other words, it determines whether they are subject to affirmative, negative or confirmatory resolution.

970.

The Chairperson: Does the clause suggest that they should be subject to negative resolution?

971.

Mr Caldwell: The Regulations would be subject to negative resolution.

972.

The Chairperson: Why are they subject to negative rather than affirmative resolution?

973.

Mr Caldwell: I am not quite sure why. Some clauses in the Bill propose the insertion of new provisions into existing legislation. Thus, Regulations arising from such legislation may be subject to confirmatory, rather than negative, procedure. A judgement must be made on which type of regulation it is reasonable to lay, and any member who wishes to challenge that has the opportunity to do so.

974.

Question, That the Committee is content with the clause, put and agreed to.

975.

Question, That the Committee is content with the clause, put and agreed to.

976.

The Chairperson: The 5 April was mentioned. Is that the correct date? Will the Minister decide on a date at a later stage? This clause allows the operation of the Act on such days as the Department may by order appoint.

977.

Mr Caldwell: All the provisions in the Bill would apply to parents whose children are due to be born on the week beginning the 6 April. The commencement Order or Orders that are required to give effect to the provisions would be made on a specific date before the 6 April.

978.

Question put, That the Committee is content with the clause, put and agreed to.

979.

The Chairperson: I shall return to the definitions of worker, employer and employee. If it were decided that wider definitions were appropriate, the Social Security Contributions and Benefits Act 1992 would have to be amended. Would that require a new piece of primary legislation or a new Act?

980.

Mr Gamble: Yes, it would. I do not pretend to know all about social security legislation. However, if the Bill were to introduce a system of paying benefits that was linked to the social security system, the two systems could not operate independently. The definitions would have to be compatible or identical. That is my understanding of the matter.

981.

Mr Caldwell: Let me explain how the mechanics of it might work. If, following the consideration of the outcome of the employment status review, a definite decision were taken to extend employment rights to groups or classes of individuals who currently do not enjoy them, another section would have to be added to employment legislation to change the definition of employee. The term employee might be extended specifically to include additional classes of person who are normally regarded as workers. I am not sure what effect that would have on social security legislation. Obviously, that would have to be considered carefully.

982.

Question, That the Committee is content with the clause, put and agreed to.

983.

The Chairperson: This very short clause states that

"This Act may be cited as the Employment Act (Northern Ireland) 2002."

984.

Some Members said last week that that they would prefer the name of the Bill to be more explanatory. If members come up with what they feel would be a better title for the Bill, this clause will have to be amended. I recall that two options were discussed last week. Two possible titles were discussed; the "Work/Life Balance Act" and the "Parent and Doctors' Rights Act". Do member have any questions or comments?

985.

Mr McElduff: The term "work/life balance" does not accurately reflect the nature of the Bill. The Minister made a statement about Work/Life Balance Week, which is coming up soon, but that is a different issue. Ideally, I prefer the "Work and Parenting Act". I accept that the term "work" has been substituted by the word "employment". The title "Employment and Parenting Act" would give, to use the Chairperson's word, clarity.

986.

The Chairperson: That is another possibility. Do members have any other proposals or does "a rose by any other name smell as sweet"? The title of the Bill is not that important.

987.

Mr Carrick: The title of the Bill should accurately reflect every aspect of it. The suggestion the "Parental Employment Rights Bill" more accurately reflects the four elements of the Bill.

988.

The Chairperson: The four elements are maternity, paternity, adoption and the right to request flexible working. It can be argued that adoption is covered by the term "parental" or "parenting". The two titles that were originally proposed are broadly similar, although one contains the word "rights" and the other does not.

989.

Mr McElduff: I am happy to support the title, "Parental and Employment Rights Bill", and withdraw my suggestion, if that is appropriate.

990.

The Chairperson: The Bill would become the Parental and Employment Rights Act.

991.

Dr Adamson: That title sounds fine and contains all the elements of the Bill.

992.

The Chairperson: Do the departmental officials want to comment on the title of the Bill? It has been discussed in previous evidence sessions, and there is an argument to retain the existing title. Is there any insuperable difficulty in having a slightly longer title, such as "Parental Employment Rights Act", which is a four-word title instead of a two-word title?

993.

Mr Gamble: I would prefer to be silent on that. The Department would naturally defer to the draftsmen of the Office of the Legislative Counsel on such matters. Much of this Bill will be incorporated into other legislation and is simply a vehicle for inserting things into other Orders and Acts. Therefore, the title does not have to be that specific. A draftsman would normally use the same title as the counterpart Bill in GB. The expertise and mysteries surrounding Bill titles rest with the Office of the Legislative Counsel, which will no doubt, have a view on it. However, I do not know who makes the final decision on titles.

994.

The Chairperson: Are there any other comments or questions? Do members agree or disagree with the clause as drafted?

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