Paul Murphy warns bill leaves cash tip theft exposed

Yeah, I'll have to read carefully in terms of 4F and consider while you're next speaking, in terms of the points you're raising there. What you're saying though, you're saying that the regulations will apply in circumstances where the payment of tips typically applies in a section of the economy. But that isn't the case. It's not necessarily the case as it's currently written. That is one of the things to be taken into account by the Minister in deciding whether they will use regulations to make it apply here. But it isn't definitely the case. That is one of the things to be taken into account. I think that is a problem. They can have regard to the fact that tips are normally paid here, but then look at all the other factors that are referenced and say, well, on balance, we don't think that these should apply. So I think that is a weakness in the bill as proposed. I've seen the amendment. I might say, just if I can give a reassurance to the Deputy, because, you know, I hope and anticipate that I will be the Minister in a few weeks' time or a few months' time who's signing these regulations. I just want to be very clear that the regulations will apply to the hospitality sector, to restaurants, hotels, cafes, pubs, etc. I also intend that they should apply to personal services where people would often leave a tip, for example, a barber or hairdresser or a beautician, and also to platform workers. So that's the intention here. And, of course, future ministers in the future could extend it to other sectors. The concern that my officials have is that this amendment, with the unintended effect of applying the protections only to people who are formal employees and could take the protection away from people who are not employees and are contract workers or are self-employed. And that's why I'm advised not to accept it. Amendment 4, in your name, Deputy Murphy, I take it as your name, Deputy Murphy, is it? Now, 4, 5 and 7 to 9, inclusive are related and will be taken together. The purpose of this, and there's a number of amendments that are very similar, is to say that this should not just apply to tips that are paid by electronic mode of payment, in other words, credit cards or debit cards or whatever, but should apply to all tips. Tip theft does happen in terms of cash tips. You can have a situation whereby there's a, you know, a glass or whatever beside the cashier, people put money in and the employer can take half of it out and leave that, only half of it is to be doled out between the workers. So it is significant enough weakness. I mean, in general, this legislation obviously is very, very welcome, but it is a problem that it doesn't cover this potentially substantial area of tip theft. And by not including it. So I just, I think it's pretty basic. I think it really would be good if, if the government, if the minister would agree to take on boards, you know, any one of these amendments, there's a few different ways that we can, we can word it. I'm not precious about it, but to say that tip theft isn't just a problem in terms of electronic payment, but it also need, it applies in terms of cash payment and those workers need protection as well. This seems to me to be quite an important issue. I just want to acknowledge at the outset that tip theft is a problem, and it's real, and we wouldn't be having this legislation if it wasn't. We don't have reliable data really as to how common it is or to whether it's more common when it comes to electronic tips or cash tips. But we do think it is more likely to be common when it comes to electronic tips, because that goes through the books, if you like, of the employer or proprietor, and they control the money. When it's in cash very often, and indeed most of the time, it's controlled by the staff, never goes through the company books, is divided among the staff, and, of course, it is then left to them to decide whether or not they declare it as additional income or not. The amendments being proposed would extend the provisions of the bill relating to tips and gratuities to payments made in cash as well as by electronic means. I know the deputies are keen to extend the bill in full to all cash tips and gratuities, and I do have sympathy with the proposal. There is a general prohibition on making deductions from an employee's tips, but the full regime governing electronic tips cannot be extended to cover cash. The reason for this is simple, and it is that cash left voluntarily is untraceable. It may never even come under the control of the employer, as I said earlier. So, there isn't evidence on which to base enforcement actions. Electronic payments, however, create an evidential trail that can be examined if there is a complaint. I think we should recognise that most payments are now being made electronically, and fewer and fewer people are using cash on a regular basis. We make a huge proportion of our purchases, including in-person purchases, through electronic transactions, by debit or credit cards, e-wallets, and so on. Enacting this bill can also give consumers the confidence to tip electronically, knowing that if they do so, it will definitely go to the staff. When they add an electronic tip, they will know what is required, that is required that it be distributed to staff, and that those staff have the access to the WRC if they have a complaint. But I do want to assure the House that in a case where a customer pays a bill, which includes a mandatory service charge, the bill and receipt leave an evidential trail, whether the payment is made electronically or in cash. This means that if there is a complaint in relation to the distribution of a mandatory service charge, the WRC can consider that complaint and adjudicate on it. Are you pressing this amendment, Deputy? Yes. I hear what the Toanishta is saying, and I don't dispute, I mean, it's overwhelmingly likely that the majority of tip theft, which occurs, is of, in terms of electronic, I agree, it's much easier for it to happen and so on, but also the fact that the vast majority of bills and so on these days are probably paid by cards rather than paid by cash. But it definitely still happens, the Toanishta acknowledges that it happens. The idea that we can't legislate for it here because it would be very difficult to prove, I don't fully understand the logic of that. So you can definitely think of circumstances where it's impossible to prove, in that case, okay, we have it on paper, but it can't actually be proved. But it's also feasible to think of circumstances where it can be proved, whereby, you know, a whole series of employees are willing to testify that every single night, the employer comes in, goes through the tip jar and takes out whatever, half of the tip jar for themselves. That's very conceivable. And surely you have to, like, provide a right of redress for those workers who are affected by this, understanding that it may be difficult in some circumstances to prove it, but let's give them the opportunity to go to the WRC and to prove it, as opposed to just kind of admitting defeat before we even started by saying we can't possibly legislate for those who are tipped and have their tips robbed in cash form. I want to thank deputies for their contributions. And I do have some sympathy with the arguments being made, and I have given this some consideration and discussed it with my officials and advisors. But the advice that I have is that it would not be practical to enforce this particular provision. And I'd refer to the report of the Low Pay Commission in that regard as well. It's also possible that this is covered already under larceny provisions in the circumstances that deputies describe, where people will be willing to swear an affidavit and say that money was stolen from them. But even with those sworn testimonies, it would still be hard to prove without other evidence. But again, as I say, a one-year review is built into these provisions. I'd be happy to give the consideration at that point again.