Consultation Launch: The ‘Good Jobs’ Employment Rights Bill

1. Terms of employment

Zero Hours Contracts is a key area of focus. The abolition of such contracts appears unlikely, but their use may be limited (to specific circumstances, as in ROI, where the work must be of a casual nature, done in emergency circumstances or short-term relief work) or the rights of such workers enhanced, such as by introducing a “banding system” for workers who regularly work hours, and by way of the prohibition of exclusivity clauses.

Employment status is also being considered, particularly what is described the “bogus” self-employed. However, this is a very complicated area, which also cuts across tax legislation (an area that is not devolved to the NI Assembly). Developments are therefore not expected, at least in the short term.

Fire and rehire has been in spotlight of late and the Department is consulting in relation to options. While legislative intervention is possible, it is more likely that we may implement a Code of Practice, similar to recent developments in GB.

The right to a written statement of particulars (often set out in a contract of employment) is expected to be extended to workers (not just employees) and made a day one right (rather than to be issued within the first two months). The information to be provided will probably be expanded, to include details in respect of working hours, remuneration and benefits, etc.

Agency workers will likely see the abolition of the "Swedish derogation", a potential loophole that can be used to avoid pay parity (previously abolished in Great Britain), and the concept of a “key information document” may also be introduced.

2. Pay and Benefits

The fair distribution of tips, gratuities and service charges is an expected development, requiring the full amount of tips paid by cashless means to be passed on,. This would be a welcome development for workers but come at a cost to employers.

Holiday pay may see some much needed clarification, with the reference period being extended by legislation from 12 weeks to 52 weeks. This would assist local employers who are currently faced with the dilemma of reconciling the legislation (which has a 12-week reference period) and recent decisions, which have firmly pointed towards 52-weekd.

Other Working Time areas in focus include record-keeping requirements and the "right to disconnect", though no specific proposals have been made and immediate developments are unlikely.

3. Voice and representation

While the consultation in the other themes reflect developments elsewhere, this is a more locally inspired section. Views are sought in relation to lowering the threshold required to seek formal recognition by a trade union from the current level (21 workers). A threshold of 11 (reflecting the requirement to register with the Equality Commission) is given as an example. This could bring many more of our local businesses into scope for recognition.

Views are also sought in relation to the possibility of reducing the notice and balloting requirements, from 7 days to 5 days, and in respect of the introduction of electronic balloting, reflecting modern society.

TUPE may also see some developments, though the Department has not made any specific proposals. However, the consultation does note the developments in GB in 2014 (to assist smaller employers and to make some changes after a transfer easier to implement). Businesses would welcome a simplification of the legislation in this area.

4. Work-life balance

Much of this theme reflects recent developments elsewhere (particularly GB):

• Flexible working is expected to become a day one right, extended to two statutory requests in any 12 months and the application made more straightforward for employees.
  
  
• Carer’s leave will be introduced, permitting some unpaid leave for those with long term caring responsibilities. Views are sought in relation to making this leave paid, but given the anticipated cost it appears unlikely to go that far.
  
  
• Neonatal care leave and pay would provide working parents with newborn babies in neonatal care (for at least seven days) with the right to additional leave (as a day one right) and for this to be paid (if the parents have 26 weeks continuous service).
  
  
• The protection for pregnant employees and those who recently returned to work after a period of maternity, adoption and shared parental leave is likely to be extended in a similar manner to the recent developments in GB.
  
  
• Paternity leave is expected to be amended and made more flexible, with the timeframe for taking such leave extended to the first year and reducing the notice required.

Conclusion

This is a welcome development given the feeling that Northern Ireland had been left behind by developments elsewhere. It will be interesting to see the responses to the extensive consultation and whether local views lead to any changes to the proposals, reflecting the purpose of devolution and the need for our employment laws to reflect our own social and economic circumstances.