Pre-legislative Scrutiny of the General Scheme of the Employment Permits (Consolidation and Amendment) Bill 2019

I thank the Cathaoirleach, Senator Mark Daly, for giving the committee permission to use the Seanad Chamber following the difficulties which arose in the committee meeting rooms. I thank members and witnesses for participating in today's meeting in line with the requirements relating to the exceptional circumstances we are experiencing under Covid-19. I remind them that, apart from myself and the staff from the committee secretariat, all members and witnesses are participating remotely and all members are required to participate from within the Leinster House complex. Apologies have been received from Deputy Shanahan.

I am pleased that we are able to commence our pre-legislative scrutiny of the general scheme of the employment permits (consolidation and amendment) Bill 2019. It has been submitted by the Tánaiste and Minister for Enterprise, Trade and Employment, Deputy Varadkar, to the committee for pre-legislative scrutiny. From the Department of Enterprise, Trade and Employment, I welcome Ms Fiona Ward, who is accompanied by Mr. Rob Walsh and Ms. Miriam Tracey.

Before we start, I will explain some limitations to parliamentary privilege and the practice of the Houses as regards references witnesses may make to other persons in their evidence. The evidence of witnesses physically present or who give evidence from within the parliamentary precincts is protected pursuant to both the Constitution and statute by absolute privilege. However, today's witnesses are giving their evidence remotely from a place outside the parliamentary precincts. As such, they may not benefit from the same level of immunity from legal prosecution from proceedings as a witness physically present does. Witnesses are reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable, or otherwise engage in speech that may be regarded as damaging to the good name of that person or entity. Therefore, if their statements are potentially defamatory with regard to an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that they comply with any such direction.

I invite Ms Ward to make her opening statement.

Ms Fiona Ward

In July 2019, the Government, granted approval for the drafting of a Bill along the lines of the general scheme of an employment permits (consolidation and amendment) Bill, which has been forwarded to the committee. The Government approval included a request that this committee undertake pre-legislative scrutiny. Officials attended the joint committee on business, enterprise and innovation for detailed pre-legislative scrutiny of the general scheme on 13 November 2019. However, as the committee’s report was not finalised before the dissolution of the Oireachtas in January 2020, pre-legislative scrutiny needs to be revisited. We are grateful that the committee has agreed to give its time to do so.

In terms of the background to the proposed Bill, a review of economic migration policy conducted at the request of the then Minister for Business, Enterprise and Innovation in 2018 indicated that the employment permits system, while robust, lacked flexibility and was in need of some updating in order to make it more effective and responsive to changing labour market needs. The review's recommendations included the drafting of a new Bill to adjust the legislative underpinning of the system, as well as to allow for swift responses to verified changes in labour supply and demand or employment practices.

This Bill incorporates both specific and general recommendations made in the review, while retaining the core focus of a vacancy led employment permits system oriented to meeting of the skills and labour needs in the State. The conclusions of the review endorsed the robust fundamental structure of the existing system. The changes proposed are concerned with increasing its agility and effectiveness, while retaining the key policy focus of supporting the economy and the labour market through evidence-based decision-making. The proposed Bill, therefore, does not represent a change in the Government's overall policy.

The 2018 review involved widespread stakeholder consultation and the key issues raised during that consultation are addressed in the general scheme. There are two Acts and one amendment Act on the Statute Book, namely, the Employment Permit Acts 2003 and 2006, and the Employment Permits (Amendment) Act 2014. These Acts will be repealed following the enactment of the proposed Bill.

In addition to consolidating the existing legislation to make a more accessible statutory basis for our economic migration system, specific changes in this Bill include: the introduction of a seasonal employment permit; extensive revision of the labour market needs test to make it more relevant and efficient; the introduction of a scheme to deal with occasional exceptional circumstances where an employment permit may be granted despite not meeting all of the criteria for the general employment permit; a number of housekeeping changes such as clarifications of particular provisions, moving of operational criteria to regulations and the streamlining of a number of requirements to make the grant process more efficient; and providing for additional conditions for granting employment permits, such as training or accommodation support for migrant workers in some circumstances or making innovation or upskilling a condition of a grant where this may reduce future reliance on economic migration.

Ireland is an outlier, both in the EU and among many developed nations outside of the Union, in not having provision for granting seasonal employment permits. There is evidence that some employers are disadvantaged vis-à-vis competitors in other jurisdictions in not having this form of permission. Accordingly, it is proposed to design a short-term employment permit to cater for short-stay and recurrent employment situations in sectors, such as horticulture, where this type of employment is common.

Examination of systems of seasonal employment used by our international peers has been undertaken to ensure an accurate sense of both risks and benefits of this kind of scheme informs our structuring of the criteria for the permit type. We would welcome any views that the committee might have in this regard.

Apart from those occupations on the critical skills list, or for intra-company transfers, employers must demonstrate that they have made a genuine effort to recruit from within the State and across the European Economic Area, EEA, before they apply for an employment permit. This is called the labour market needs test, LMNT. The way in which employers are obliged to advertise vacancies is prescribed in primary legislation and includes an obligation to use some outdated methods, for example, the need to take out advertisements in national newspapers for a set number of days, etc. The proposed Bill, while continuing to require an employer to carry out an LMNT before seeking to recruit from outside the EEA, will remove the detail of how this must be done, allowing for the setting out in regulations of the requirements needed to demonstrate real engagement with the jobs market in Ireland and across the EEA.

The specific intention is to remove the operational requirements from primary legislation, instead allowing the media for advertising of vacancies to be prescribed in regulations and varied where necessary. For example, some types of vacancies may be best advertised through social media, others in sector specific journals, or by a radio campaign. Allowing leeway to employers to advertise as best fits their industry will improve the coherence and utility of the LMNT. In tandem with this, it is intended to deepen the involvement of the Department of Social Protection in the LMNT process to maximise opportunities for resident and EEA jobseekers.

On the special circumstances employment permit, from time to time an employer will seek a permit for a position that does not neatly fall within all the usual criteria for granting an employment permit but where the granting of the permit would clearly benefit the company and, by extension, the social or economic development of the State. Up to the present, when such a circumstance arises, we generally have no option but to refuse the permit. The circumstances in which such a permit might be granted will be clearly prescribed in regulations, and a limited number of such employment permits might be granted in any calendar year. Anchoring the prescription securely in primary legislation and setting the criteria precisely in regulations, so that this permit type cannot be used routinely to waive the requirements of the system, will be a priority.

The broad criteria we propose to prescribe are as follows: where one or more of the criteria for the granting of a permit cannot be satisfied but no training for the occupation is available in Ireland, and where it requires an unusual skill set; and for niche employments that do not occur with sufficient frequency to attract individuals into training or for which no formal training exists where the expertise is highly specialised and where training may not be replicated in Ireland, and where it is evident that the employment of the specific foreign national would benefit the competitiveness or development of the employing organisation and economy as a whole.

Overall, there has been a general welcome from interested parties for this consolidating and amending legislation. The development of this general scheme into a final draft Bill will evolve through further consultation and in line with advice given by the Attorney General's office. We readily acknowledge that a number of the suggested changes currently set out in a general indicative format will require considered further drafting to ensure that their parameters are in line with current jurisprudence, especially in the context of ensuring that the prescription of variables in secondary legislation, necessary to give the system the agility to respond quickly to changing conditions in the economy, should nonetheless remain securely anchored in primary legislation.

While the ongoing Covid pandemic has severely impacted the labour market and economy as a whole, Ireland will continue to need skilled migrant labour in certain sectors of the economy, including the medical sector. This draft Bill is designed to enable us to ensure that it is capable of adapting to rapid changes in the needs of the labour market of the future and to fluctuations in demand contingent on the economic cycle.

Once again, we appreciate the committee's attention, and would welcome any guidance during the drafting process that would support the policy objectives underlying the general scheme. We are happy to answer any questions the committee might have on this general scheme. I thank the committee.

I thank Ms Ward for her contribution. I now invite members to discuss the issue with the witnesses. I call Deputy Louise O'Reilly.

I thank the officials for participating and providing us with the information. Has any consideration at all been given to the impact that improving workers' rights and the jobs would have on the capacity to recruit? Did they consider the introduction of a living wage in these areas and improving workers' rights, such as those pertaining to statutory sick pay, and legislating against low-hours contracts? Myriad things could have been done. Have the employers who made a contribution to the review reflected on this? Did they offer a view? Does the Department have a view on this? Perhaps the officials might share it with us now.

Ms Fiona Ward

Workers rights, the proposals on the living wage and statutory sick pay really fall outside the remit of this legislation and the general scheme. However, all workers in the State, including migrant workers, are protected and have the same rights and protections as Irish workers under the relevant measures on rights and entitlements.

Within the employment permit system, we have a number of inbuilt protections for migrant workers. They have to have a written contract of employment and they hold the employment permit themselves. They get the original copy of the permit. The employer cannot deduct recruitment costs from the workers' salaries. There are remuneration thresholds that have to be met. We print on all the employment permits the-----

What are the remuneration thresholds? Workers' rights and the living wage fall very firmly under the remit of the Department. Maybe Ms Ward could elaborate on those points.

Ms Fiona Ward

They do fall under the remit of the Department but not under that of the general scheme. I would have to revert to the Deputy with information on that, if she wishes.

Regarding the remuneration thresholds, for the critical skills employment permit, which is our premium employment permit, €32,000 is the minimum remuneration threshold for a person with a degree. That permit is linked to our critical skills occupation list. This includes occupations we know are in short supply in the State. Regarding the other avenue to a critical skills employment permit, there is a remuneration threshold of €64,000. That is a proxy for a degree. For the general employment permit, the remuneration threshold is generally €30,000, but there are some other remuneration thresholds for specific occupations. For example, regarding contact centre staff the remuneration threshold pertaining to those with a non-EEA language is €27,000. For meat deboners, the remuneration threshold is €27,500. Regarding the agri-food pilot for meat-processing workers, horticulture workers and dairy farm assistants, the remuneration threshold is €22,000.

The critical skills occupation list has been in existence since 2012. I am wondering about the oversight of that list. A decade after its creation, the same skills are on it. What is the level of engagement with the Department of Education? Surely there should be some focus on ensuring that occupations that do not need to be on the list, identified by analysing consistent need, come off it. Perhaps Ms Ward could give us her view on that.

Ms Fiona Ward

That would be no problem. The system is underpinned by two occupation lists. The critical skills occupation list, which I mentioned, is a list of occupations in respect of which we know there is a shortage in the State. There is also the ineligible occupations list. In respect of the latter, evidence suggests the resources are available in Ireland and across the rest of the EU to fill the vacancies.

We review the lists twice per year. There is a review ongoing. A review involves an evidence-based process. We examine research undertaken by the skills and labour market research unit in Solas and the expert group on future skills needs, which falls under the remit of my Department, and we refer to the National Skills Bulletin and the Vacancy Overview report. There is a public consultation process. We seek public submissions to the review. We also engage with the relevant Departments that look after the various sectors-----

I am conscious that the time is tight. I just wanted to know if occupations are coming off the list.

Ms Fiona Ward

I apologise. There is an economic migration group. All the relevant Departments are represented on it, including the Department of Education and the new Department of Further and Higher Education, Research, Innovation and Science. We review the evidence that the National Skills Bulletin provides to us, and we examine the evidence as to where the skills are. The evidence is that the occupations on the critical skills list are still in shortage in the State, but because we review the list twice per year there is an opportunity to move occupations onto and off it. We take account of-----

In ten years, how much movement happens?

Ms Fiona Ward

The list is reviewed twice per year. We have not taken any occupations off the critical skills list. We had emerging skills shortages before the Covid pandemic. Obviously, the labour market is in a state of flux. Critical skills shortages at the higher end have continued to feature in recent years.

Even during 2008 and last downturn we still needed to recruit those highly skilled ICT technical professionals into the State.

I get there are many groups and many people meeting but it strikes me that occupations are not coming off this list. There seems to be satisfaction at Department level that this list is what it is but no effort is being made to ensure the Department of Education is intervening to upskill people where those skills will be required. Certain skills needs will not be met. If a skills requirement has been on the list for ten years, surely at some point an alarm bell would have been raised in the then Department of Education and Skills or in the new Department of Further and Higher Education, Research, Innovation and Science to indicate there is an issue. Clearly, the groups are meeting and reviews are happening but I do not see anything emerging from that. However, I will leave it at that.

Some people in my constituency from the Middle East and Africa have raised the issue of jobs on the critical skills occupation list, particularly for sales roles, requiring a fluency in a particular language that is obviously not English. They have fluency in the language but do not have the required sales experience. It is easy to train a person to work in the area of sales but it is difficult to train somebody to speak a language such as Farsi or Zulu. Is there scope or is any effort being made to take account of people who have language skills who would require training in sales? People with language skills are coming here to work and they would need a small amount of training in sales, which is relatively easy to do compared to learning a language. Has consideration been given to taking such an approach and if not, could consideration be given to doing that?

Ms Fiona Ward

The economic migration interdepartmental group is a cross-Government group. The Departments of Education, Justice and Social Protection are represented on it, as well as the various policy Departments, including the Department of Agriculture, Food and the Marine and the Department with responsibility for tourism. In reviewing the occupation list, we apply a whole-of-government approach to ensuring the employment permit regime is focused on meeting the skills and labour challenges in the economy. Government policy, in the first instance, is that we would seek to fill vacancies from within the Irish labour market and across the European Union. The Department of Education is a very active member of the economic migration group. In our consideration, we examine what skills and training are required and the college outputs for the various occupations. It is an evidenced-based process. Ireland is a leader across the European Union in linking labour market intelligence to our economic migration policy.

It strikes me there is work to be done if the skills exist and the shortfall to be met is small.

I wish to ask about the suggestion that the labour market needs test be amended to take account of modern advertising methods and to deepen the involvement of the Department of Social Protection in that process to maximise the opportunities for residents and EEA jobseekers. It is important we take account of the skills that already exist in the domestic market. I do not think that is happening. That is my assessment from talking to people who have some of those skills and live in my community. From my reading of this, it will move from legislation into regulation. It would only require a short miscellaneous Bill every so often to come before the House, which would provide an opportunity for us to have a discussion and scrutinise it. This is an area that has not been scrutinised heavily enough. I have a concern about moving it into the area of regulation and while I do not suggest it would deny or prohibit us, it would mean we would not the opportunity to debate it. It is not an overly onerous task. It is what we are paid to do. We have a role to play in having that level of oversight. If it is moved into regulation it would be moved further away from scrutiny. Ms Ward might indicate the thinking behind moving it into regulation.

Ms Fiona Ward

The labour market needs test is one of the main reasons people fail in their employment permit applications. It is underpinned by the primary legislation and the methods it requires are quite outdated in terms of requiring an employer to advertise a vacancy in a national newspaper for three days. They have to advertise it in a local newspaper or on a local website and on the Department of Social Protection's website across the European Union. These days, most employers do not advertise in that way to fill job vacancies. There are many different ways to advertise, for example, through social media, LinkedIn and sector specific journals. Also, not to have one size fits all in terms of recruitment, the proposal to move it to legislation was to give that flexibility and maintain the absolute requirement to test the domestic labour market and the EEA labour market, while giving flexibility to employers to advertise in a method that is more suited to their particular occupation and sector.

I understand that but moving to regulation - I apologise for cutting across Ms Ward, I know it is awkward on Teams - effectively would move it out of the realm of the Oireachtas where it would benefit greatly from that level of scrutiny. It is not a massive item of legislation and would not take a great deal of time to draft. It is important we would have regular engagement on this because it is an area that is open to abuse and where abuse was uncovered previously. It is also an area where there could be a serious issue with regard to workers' rights and so on. It would not be a deeply onerous task to debate this legislation as and when required. That flexibility could be there by maintaining it as part of the legislation and not necessarily moving it into regulation, which would take it out of our hands and would mean we would not get the opportunity to regularly debate it.

The Deputy is running out of time. Ms Ward might comment briefly.

Ms Fiona Ward

Our experience is that it has been extremely inflexible. It has been difficult for employers to navigate the system because of the prescription in primary legislation. The intention is not to in any way reduce the requirement to undertake a labour market needs test or to ensure the labour market is not fully tested within the domestic and EEA labour market before recruitment of a non-EEA national. That is not the intention at all. We want to make sure it is anchored in primary legislation but that flexibilities are given to allow for a differentiated approach depending on the occupation regulation. That is the thinking behind it.

Fine Gael has the next time slot. A few members have indicated. I call Deputy Bruton, to be followed by Deputies Stanton and Paul Murphy. If anybody else wants to contribute they might indicate.

I propose to share my time with Deputy Stanton if that is in order.

Yes, that is perfect.

I have a few questions. Will the move to regularise the position of undocumented people in Ireland require additional changes in work permit legislation? Primary responsibility falls probably to the Department of Justice. Will we need to do that?

I would like to follow up on areas of scarcity where initiatives to develop apprenticeships have been tried. How extensive has the developing of apprenticeships in areas of shortage been? One for butchery was developed but recruitment for it was not that successful. How much is the Department doing in that area of developing apprenticeships in areas of skills shortage?

What rights do seasonal workers obtain? In the current climate where undoubtedly there is big pressure on care needs, is the Department applying seasonality, or will people who come here meeting care needs have permanency? How does that work?

I note the restrictions on special circumstances permits. There is a proposal to cap this and have the prescription published. Will there be transparency ex post to see how this is applied in practice? While competitiveness is used, will the Department apply tests like compassionate needs to applications for special circumstances permits?

Ms Fiona Ward

As the Deputy said, the issue of undocumented workers falls within the remit of colleagues in the Department of Justice. We are guided by them when addressing the issues of undocumented workers. The matter is not provided for in the employment permit in this general scheme. However, we have what we call the reactivation employment permit, which was developed under the previous legislation, as the Deputy would know, to resolve issues regarding people who came in originally on an employment permit but, through no fault of their own, have fallen out of permission. The reactivation permit allows them to regularise their situation and we work with our colleagues in the Department of Justice on that.

On developing skills and apprenticeships, as I said to Deputy O'Reilly earlier, we work closely with the Department of Education and Department of Further and Higher Education, Research, Innovation and Science on that. With regard to any changes that we would make to the list, we are cognisant of ongoing apprenticeship issues.

In respect of the agricultural permits, the pilot scheme was the first time that we opened up the regime to lower wage workers. One of the conditions for extending the permit was that they would engage and work to develop the career structures and skills of people who work in those occupations.

On seasonal workers and seasonable permits, we have looked at what happens in other jurisdictions that have seasonal workers. We are looking at putting in place a structure around that to protect their employment rights but also to facilitate the employment needs of those sectors that use seasonal occupations. We are examining, for example, whether to designate sectors that have seasonal workers, what duration the permit type should be, what the remuneration should be and what conditions should be attached to those permit types in respect of the obligations on employers regarding the provision of or access to suitable accommodation. We are also looking at fines for overstaying or for problems that attach to that. and also to ensure a labour market needs test is undertaken beforehand so that our labour market and the European Labour Authority market are tested in the first place.

On carers and care needs, healthcare assistants and home carers are currently ineligible for an employment permit. We engage with our colleagues in the Department of Health on this matter, as it is the policy Department. Until now, the Department has made submissions to the twice-yearly review. The evidence and information on the churn in care needs has to do with retention and recruitment issues rather than, necessarily, labour challenges. There is a review ongoing on this issue and we are meeting our colleagues in the Department of Health on that.

On the special circumstances permit, we have had instances where a special niche type of occupation has turned up that would have no disruptive effective effect to the economy and for which there is no training in Ireland and unlikely to be any training because the occupation is so specialised, but we have had to refuse that permit. The example we often use and cite is the heart strings butcher. Butchers are ineligible for an employment permit generally but a heart strings butcher is a specialist who makes musical instrument using heart strings. There is no training available for that type of work as it is a very specialised role. The permit is to cover those types of niche occupations. I hope I have covered all of the Deputy's questions.

I welcome our guests and this legislation. This is one of the areas that has proven to be very frustrating, chunky and difficult to administer. For both employers and prospective employees coming from abroad, it has often been a source of huge frustration so I welcome the proposal to make the system more nimble, flexible and user-friendly.

I will focus on intra-corporate transfers. EU Directive 2014/66/EU was signed up to by all countries except Ireland, Denmark and former EU member state, the UK. The directive refers to the conditions of entry on residents of third-country nationals in the framework of an intra-corporate transfer. Article 18 of the directive refers to the right to equal treatment, Article 20 deals with intra-EU mobility, Article 21 deals with short-term mobility and Article 22 deals with long-term mobility. We have not signed up to that directive. Now that the UK has left the European Union, is there a proposal to examine this directive or take on board some of its provisions and the thinking behind them?

I am particularly interested in the fact that in some European countries when somebody transfers into the country using an inter-company transfer, his or her partner or spouse is allowed to work. I have come across a case involving a highly-skilled person who came here and whose partner, who is also highly skilled, is not allowed to work. It is very difficult and awkward under the current regime for that person to get employment. I know it is possible but it is very difficult and challenging. Maybe the officials can revert to me on this matter. Will consideration be given to including in this legislation a right to work for partners, spouses and perhaps dependants of those who move here to work under inter-company transfers? I ask this on the basis that many European countries are very generous in this regard and providing for such a right could make Ireland a more attractive place for highly-skilled people to move to and use their skills in various companies.

Ms Fiona Ward

As the Deputy said, Ireland, Denmark and the UK, when it was a member of the European Union, did not sign up to the EU directive on inter-company transfers. I assume that was to do with issues concerning the common travel area. We are not giving the issue of whether to sign up to the directive any consideration at the moment. We would have to work with our colleagues in the Department of Justice on that.

On access by the spouses and partners of inter-company transfer permit holders to the State, the way the system is configured at the moment is that our premium permit is the critical skills employment permit. As I said, that is linked to the critical skills occupation list and they are occupations that we know are in shortage in the State. We want those highly-skilled workers when they come to the State to settle here. As a result, there are additional benefits attached to that permit type, including immediate family reunification and the facts that the spouse or partner has broad and wide access to the labour market immediately and also has a fast track to long-term residency. After two years, spouses and partners can work without the need for an employment permit. Those options have not been extended to other permit types, including inter-company transfer. Obviously inter-company transfer permit holders are still on the payroll of the parent company when they are transferred in. They do not have a long-term ambition to stay in the State. While our colleagues in the Department of Justice, who look after family reunification, provide for immediate family reunification in such cases, they do not provide access to the labour market for spouses and partners.

Many of those spouses and partners, as the Deputy said, are highly skilled and may qualify for an employment permit. That sometimes happens. In addition, sometimes when the inter-company transfer permit holder comes over, he or she transfers to a critical skills permit which means his or her spouse or partner can then access the labour market.

That said, one of the recommendations of the review we carried out in 2018 was that we should look at that issue. We have not viewed it yet, but doing so is on my to-do list. We prioritised the drafting of the general scheme but it is certainly something to which we will be giving consideration.

I am happy to hear that. I note that in the last three years, there were 1,000 people, on average, involved in the inter-company transfer. Obviously, in most cases they would have had partners or spouses as well. Rather than splitting families up or having people here and not allowing them to work or having to go through a very difficult process involving critical skills, as Ms Ward outlined, it would be beneficial if they could work as well, as happens in many other European countries. There may be constraints in that regard, but I look forward to Ms Ward referring back to us with some further thoughts on it.

Also, there are the other articles I mentioned in the directive. I am interested, for example, in Article 18 and the right to equal treatment. We have not transposed the directive for the reasons Ms Ward outlined, but have we mirrored any of the rights and thoughts in the directive? Should we be looking at that? Perhaps she will refer back to us on that as well.

Ms Fiona Ward

As I said, all migrant workers in Ireland have the same rights and entitlements as all citizens and workers in Ireland. I will have to examine the directive to see what the provisions are, as I have not looked at it for some time, but I am certain that all migrant workers currently have the rights and entitlements contained therein.

I thank Ms Ward.

Deputy Paul Murphy has seven minutes.

I thank Ms Ward for the presentation. I wish to make some general comments and then to put a question. First, the legislation as envisaged is problematic, fundamentally for two reasons. One is the point that Deputy O'Reilly made about shifting from a legislation-based system to a regulation-based system, which diminishes the democratic oversight of the Dáil. It makes it easier to make changes. That has a real impact in providing less certainty and security for migrant workers because their circumstances can be changed by virtue of employer lobbying or an economic downturn, without a need for legislation. Effectively, it copper-fastens the concept of a type of guest-worker system with lesser rights. One can say they are entitled to all the same rights, and that, strictly speaking, is true, but their employment conditions can be changed overnight by regulation and then they can be forced to leave the country.

The second and substantive issue is that the general scheme does not propose to do what was recommended by this committee previously, which is that work permits should not be tied to a particular employer. This is the central issue. The reason it is inaccurate to say that they have the same rights as everybody else is that their continued life in this country is tied to the continued agreement of their employer. It creates a massive and bigger power imbalance than normal between workers and employers. It definitely leaves them ripe for exploitation. Why was it decided to keep that crucial point of the permit being tied to a particular employer?

Ms Fiona Ward

The employment permit system is a vacancy-led system. Before there is an employment permit there is a job and a written contract of employment. It is expected that an employee will remain with an employer for approximately one year before the employee can move to another occupation. The reason for that is to strike a balance between, on the one hand, the employer's expectations that the foreign national will stay for a reasonable period of time, given that the employer has a job vacancy, has incurred costs in recruiting that person and, generally, has paid for the employment permit, which costs about €1,000 per permit, and, on the other hand, not unduly tying the employee to that employer. At the end of the 12-month period, in the normal course of events the employee can move to another employer and apply for another employment permit. During the 12-month period an employee can move to another employment permit if the job's terms and conditions are not what the employee expected when he or she came here, for example, if the employee was made redundant. In addition, if the terms and conditions are not as outlined in the written contract of employment, the employee can move within that 12-month period. We were trying to balance the needs of the employer without unduly tying the employee to the employment permit and to the employment.

We looked at other jurisdictions to see if any of them had a sectoral type of arrangement. We have not identified a jurisdiction that has a regime on that basis. In all the jurisdictions we looked at within and outside Europe the employer-employee link is part of the employment permit systems across the globe. Germany allows somebody to come to the country and look for a job but it is confined to the very higher end of the labour market. It is somewhat similar to the occupations on our critical skills list. Again, Australia has it for very tightly limited exceptions and it is linked to areas and locations in Australia which are not densely populated. It is not something that would be replicated in Ireland. We have not been able to identify any jurisdiction that operates on that basis.

I will follow up with a detailed question. With regard to the seasonal employment permit, there is reference to providing for a non-EEA national to work in the State temporarily, while retaining a legal domicile in a third country, for the purpose of employment in a sector of seasonal activity. What is the implication of having a legal domicile elsewhere? Does that have any consequences in terms of employment rights? Is it equivalent to a posted worker? What is the impact of that?

Ms Fiona Ward

It is just that they are generally resident in another country and they come here temporarily for a period of six to nine months to undertake a particular job. At the end of that period they will return to their domicile country. They do not have any-----

Are they subject to minimum wage rates, employment law and everything that is here?

Ms Fiona Ward

Yes. In fact, we are going to draw up a consultation paper. We have done some research and we propose then to consult with the sector, policy Departments and the trade union representative bodies. The Irish Congress of Trade Unions has asked for that in its submission on the legislation and we will be happy to talk to its representatives about it.

Finally, I do not know if this is something that was considered in doing the general scheme, but one of the previous recommendations of this committee was to resource the Workplace Relations Commission, WRC, properly to ensure there is compliance with work permit obligations. That was related to the atypical working scheme and the huge exploitation of migrant workers in the fishing industry in Ireland. UN rapporteurs wrote about it. I have spoken to a former employee of the National Employment Rights Authority, NERA, the forerunner of the WRC, Mr. George McLoughlin, who spoke about seeking permission to investigate these issues and to go on the vessel and not being given permission, and then the employers effectively being tipped off by them being contacted. There is a wider issue there in respect of a lack of resourcing of inspections and so forth. We see it with regard to Covid. Is this something that had to be taken into account in drafting the general scheme?

Ms Fiona Ward

The WRC is resourced. I have some statistics on the work of the WRC in 2020. I am trying to dig them out so I apologise for the delay.

It has 45 inspectors at the moment, divided into five teams. In 2019, they undertook 4,800 inspections and secured the recovery of some €3.9 million in unpaid wages. In 2020, many of the inspectors were involved with the return-to-work health and safety protocol and they carried out some compliance checks, but they also undertook approximately 7,680 workplace inspections, resulting in the repayment of some €1.7 million in unpaid wages.

In respect of migrant fishers, that scheme does not have anything to do with the employment permit regime and is managed by our colleagues under the atypical work scheme in the Department of Justice. The WRC works very closely with the other inspection bodies in regard to that area, including the Marine Survey Office, the Department of Justice and the Garda Síochána. They have inspected almost all vessels within the scope of the scheme – 169 out of 171 at this stage - and they say they maintain a risk-based inspection compliance regime which is informed by intelligence. That is what I can say on that issue. The resourcing of the WRC is always kept under review to make sure it is sufficiently resourced to undertake its role.

I thank Ms Ward and I thank Deputy Paul Murphy, whose time is up. I call Senator Paul Gavan.

I thank Ms Ward for her presentation. I want to begin by checking one point she made when she spoke to my colleague, Deputy O'Reilly. If I am misquoting her, she can correct me. I think Ms Ward said that issues like workers’ rights and a living wage do not come under the scope of this scheme. Is that correct?

Ms Fiona Ward

The issue of workers’ rights certainly comes under the scope of the scheme in that workers’ rights are protected. All migrant workers are protected by the employment rights protections that Irish employment rights law confer. As I said, we have additional protections built into the employment permits scheme to protect the employment rights of migrant workers. This includes the fact they must have written contracts of employment, there are remuneration thresholds that have to be met, they get the employment permits themselves and they hold on to those and only copies go to their employers. They can move after 12 months and they can also move within 12 months if the employment does not comply with the terms and conditions of that written contract of employment. The employment permit itself has information on how to contact the WRC, with the contact information on the permit. When they contact the WRC, information is provided in a number of different languages.

What I was referring to was the development of the sick pay scheme that is currently under development in the Department. That is managed by a completely separate area than the area in which I work and it is not part of my current workload.

I see. Can Ms Ward explain who sets the wages? Let us take the example she gave earlier of the agrifood workers on €23,000 a year, which is the princely sum of €423 a week to do some of the hardest, most back-breaking work that anyone ever does. Who sets that rate of pay?

Ms Fiona Ward

When we were undertaking the 2018 review of the economic migration policies, one of the things that was done as part of that review was a review of the labour challenges that were then in the agrifood sector, in particular among certain occupations in the agrifood sector such as horticulture workers, meat processing operatives and dairy farm assistants. In the context of the broader review, the review agreed seven guiding principles that would underpin the employment permits regime going forward, one of which is that the employment permit holders be net contributors to the economy and the State, and that they would not have recourse to social welfare and social security benefits. In terms of addressing and identifying that particular wage threshold, we had regard to what was the minimum wage at that time and where that wage would leave the permit holder.

I apologise for interrupting but we are under pressure as regards time. Let us talk about meat factory workers. Some 90% of workers in meat plants have no sick pay. Irish meat plant operatives work an average of 4.7 weeks per year more than their EU counterparts and they rank bottom of the list on actual hourly wages received. Those are statistics from the SIPTU trade union. My point is that the Department set this wage without any recourse to the outside world. One of the recommendations from this committee previously was that the Department would involve bodies like the Labour Court so we could have a public airing of these terms and conditions. The reason that is so important, and I can speak personally in this regard, is that meat factory workers in many cases have no say whatsoever at work, they have no recourse to union representation in two thirds of the factories and they are very open to exploitation. Can Ms Ward please address the issue of the lack of transparency in terms of that wage-setting process and the extraordinarily low levels of pay on offer for those workers?

Ms Fiona Ward

What I can say is that the remuneration threshold for those operatives was set and agreed in consultation with the economic migration interdepartmental group, which, as I said, is a cross-government, whole-of-government approach to management and oversight of the employment permit occupations. It was done through the auspices of the review and we consulted with the Low Pay Commission at the time. I know the committee previously recommended that the Labour Court would have a role in that but it is not actually a role for the Labour Court, in that setting wages is not a role for the Labour Court. There are what we call sectoral employment orders and that might be a mechanism that could be used. However, we consulted our colleagues on the Labour Court and that is a matter for them.

I am told that is not a practical suggestion because the vast majority of the meat factories refuse to engage with trade unions, which, again, is a concern. Surely, that should be a threshold in regard to work permits.

On another point, the Migrant Rights Centre Ireland, MRCI, compiled a really devastating report, Working to the Bone, on the meat industry just last year. Has Ms Ward read the report? Has she taken note of what is in that report in terms of the manner of exploitation in this industry and the manner of fear in this industry? It concerns me. Ms Ward mentioned that most interested parties welcome this legislation. I do not believe the Irish Congress of Trade Unions welcomes this legislation and I do not believe my union, SIPTU, would recommend this legislation. These people are in dreadful conditions at work. I can tell Ms Ward that from first-hand experience, having tried to organise them and having seen them fired any time they try to join a trade union. I wonder why the Department does not appear to have taken any of these factors into account, particularly when they were raised by Peter Rigney, among others, at the committee just two years ago.

Ms Fiona Ward

I have read the report but I have no comment on it. What I can say is that the employment permits regime does have protections for migrant workers, but as I have outlined them before, I do not propose to outline them again to the Senator. In addition to those normal rights and protections that are there for general employment permit holders, in respect of the pilot scheme for the agrifood sector, employers are obliged to ensure that employees have access to suitable accommodation and access to training, especially language training. The WRC is the authorised body to ensure compliance by employers with the employment rights of migrant workers and, indeed, all workers, and it has authorised officers under the Employment Permits Act to protect the rights of migrant workers.

I again apologise for interrupting and I appreciate Ms Ward's patience. As she has acknowledged, there are just 45 inspectors in the WRC. Again, another recommendation from this committee a couple of years ago was to ensure that the WRC was properly resourced but, to be frank, it is absolutely not properly resourced. We will probably find there are more dog wardens in the country than WRC inspectors. Why has that issue not been addressed as part of this review?

Ms Fiona Ward

This is not a review. We are here to discuss the general scheme for new employment permits legislation. The resourcing of the WRC is not a matter that falls within my remit but I will take the Senator’s comments back to the Department and I will relay them to the relevant people.

I thank Ms Ward because it is within the Department's-----

Senator Gavan's time is up, I am afraid. I thank Ms Ward. The next speaker who has indicated is Deputy Louise O'Reilly.

On the agrifood pilot, and I have some experience in this regard from the same place as Senator Gavan, it was stated that employers have an obligation concerning the protection of workers' rights and their minimum entitlements. In the context of enforcement, how many employers have been found to be in breach of the requirements in this area and what are the levels of associated penalties? I ask that because it strikes me as being somewhat academic for us to have a conversation about updating legislation if the existing legislation is not being used. I ask Ms Ward to outline the number of breaches and the penalties in that regard.

Ms Fiona Ward

I do not have data on WRC inspections in the meat processing sector if that is what the Deputy is asking about. I can get that information, however, and will send it to her. I can provide some figures regarding inspections by the Health and Safety Authority of meat processing plants if that might be of any use.

No, I am talking about some of the most vulnerable workers in the State. This group of workers come here for very short periods in some cases and anyone who has worked as an organiser in the union movement will confirm that it is very difficult to organise them. They are very often frightened and conditions in which some of them work are horrendous, as we know from reports by the MRCI. Regarding this group of workers specifically, who looks after their employment rights and entitlements and how many employers have been found to be in breach of those rights and entitlements? It seems that there is not a major obligation on employers in this regard. How many employers have been found to be in breach of terms of work permits?

A good point was made by a previous speaker concerning these workers being tied to one employer, which makes them different to all other workers in the State. It makes these people more vulnerable. Who is looking after these people under the existing legislation? I do not think we can in good conscience ask employers to look after these people, because I think the State has an obligation to them. To address how that is being done, let us assume for a moment that not all employers are angels, no more than are all workers. How many employers have been tackled for breaches of this legislation, even in the past year or two?

Ms Fiona Ward

I do not have the data relating to those workers. Officials from the WRC inspectorate are the authorised officers under the Employment Permits Act 2006. They have the role of ensuring that employers are compliant with their obligations under the employment permit legislation and to confirm that workers' rights are being protected and not being impinged upon. I do not have data on the inspections they have carried out in the meat processing sector. I will have to get that for Deputy O'Reilly. However, the impact of Covid-19 and associated issues has meant that fewer inspections have taken place this year as a result of people having to stay at home, etc.

Absolutely, but I know Ms Ward will be well aware that the exploitation of workers was going on long before we ever heard of Covid-19. I would be very interested to have a look at that information. It strikes me as very unfortunate that the Department is not a little more curious about this issue. Given that we were going to have this discussion today about the necessity of updating the legislation, I would have thought we would get some indication from the Department officials concerning the state of play regarding rogue employers.

The figure which Ms Ward quoted in an earlier answer to Senator Gavan - he might nod if this is correct - works out for the lowest-paid workers at approximately €423 per week. That is the minimum wage rate, effectively, and it is not really giving those workers anything to which they do not have a legal entitlement in any event. It strikes me that the closeness of that rate to the minimum wage is disturbing. I would like Ms Ward to get that information regarding inspections, if that is possible, because of the insights which we may derive from it. With the greatest of respect to employers, most of whom I am sure do their best and observe all the regulations, we all know from talking to the MRCI and other organisations that abuses and breaches of the legislation do happen and it is unfortunate that the Department is not more curious about that situation.

Turning to the list of ineligible occupations, speech and language therapists, occupational therapists and physiotherapists are included on it. Has consideration been given to relaxing that stricture, given we have a shortage of skills in this area?

Ms Fiona Ward

I refer to the way that we make changes. On the WRC, I would not want the Deputy to think for one minute that we are not interested in ensuring that the employment rights of those who have employment permits are not protected and scrutinised. We certainly do that and, as part of our processing of employment permit applications, we forward information and complaints we receive and we also do pre-employment checks on employers. We send applications to the WRC for pre-employment checks as well to ensure that everything is okay with the employer in respect of ensuring that the rights of employees are protected. There were 7,000-----

I apologise for cutting across Ms Ward. When she states that employers undergo pre-employment checks, is it then the case that employers remain in the system once they pass those checks? Are those employers routinely checked afterwards in an unannounced fashion? We know that is the best way to find out if anything untoward is happening and that the rights of the workers are being protected in the way we hope they are, but we know they are not.

Ms Fiona Ward

The WRC uses many methods in undertaking its role and it carries out notified and unnotified inspections of employers. If we get information, or if the processors get some information or look at an employment permit and are not entirely happy with what they see, we would send that information to the inspectorate for it to undertake an inspection. An operation was undertaken in the meat processing plants in 2019, I think. It was a multi-agency operation, involving gardaí, WRC inspectors, social welfare inspectors and, as far as I know but I am not entirely sure, Revenue officials. Therefore, an operation was carried out in the meat processing sector at that time and I will get some information on that aspect for the Deputy.

Turning to the ineligible list, as has been said, that is part of our twice-yearly review. We are guided by the evidence presented regarding where labour shortages are by the national skills bulletin, which identifies where there are skills shortages in the State. In addition, we also get submissions from various sectors. We then work with the relevant policy Department, which in the case of speech therapists would be the Department of Health, and with economic migration interdepartmental group to identify where the shortages are. If there is evidence of a skills shortage in an area, we would then remove that category from the ineligible list and applicants would then be eligible for employment permits.

I thank Ms Ward and Deputy O'Reilly. The Deputy's time is up. The next speaker who indicated is Deputy Bruton.

I would be interested in seeing the figures relating to employment permits across the different categories during the Covid-19 to see what is happening with patterns of employment. It was stated that there is still great demand in some high skills areas. It seems likely that is in the IT sector, but it would be interesting, however, to see what is happening in other areas.

It was also mentioned that if an employer is found to be in breach of the conditions of an employment permit that it is then possible for the person coming in on that employment permit to make a change. Will Ms Ward clarify how easy it is to do that? I have heard anecdotal evidence that it is quite difficult to get that acknowledgement. I wonder if that process can be streamlined to ensure that people cannot be trapped in conditions where the proper rules relating to workers' rights are not being applied.

My final question relates to family reunification rights. I am interested in how it is decided who gets family reunification rights. Is there unequal treatment between people who might have high skills and those who do not have such high skills but nonetheless come in on a permit? Should we be moving to some level of equal treatment of different people in respect of family reunification rights?

Ms Fiona Ward

We issued about 16,400 employment permits last year, which was 1% higher than the number issued in 2019, which in turn was about 13% higher than the number we issued in 2018. Despite the Covid crisis, the numbers did not reduce. We were able to reduce our backlog because we introduced an e-type of temporary permit arrangement with our colleagues in the Department of Justice. We had a backlog of about 2,800 applications and that is down to less than 900 at the moment.

In terms of the sectors, 31% of the permits were in the health sector. We have been prioritising those permits for processing since the Covid crisis commenced. The next highest sector is the ICT sector. About 28% of permits issued to it. The next highest sector is the agricultural sector, which got 11% of the permits. They are the three sectors with the highest number of permits issued in 2020. The agricultural quota scheme is exhausted at this stage and there are no permits available for that pilot scheme at the moment.

Reunification is not really a matter for this permit. It is a matter for our colleagues in the Department of Justice. The only area we are involved in is the critical skills employment permit. The additional benefits were added to that permit to seek to ensure that workers in occupations where there was a shortage in the State would settle here. As I said to Deputy Stanton, as a result of a recommendation of the 2018 review, we intend to look at that area and it is definitely one we will examine. If we make any changes to it, legislative change will not be required.

I will hand over to my colleague, Mr. Walsh, assistant principal with responsibility for the employment permit operations, who should be able to deal with the question on whether there is an issue with changing employment permits within the 12-month period.

Mr. Rob Walsh

The 12-month rule can be set aside in certain circumstances, for example, in the case of redundancy or where circumstances fundamentally change, such as location or hours or if there is a change to the nature of the work. In those circumstances, a person can move on within the 12 months. As Ms Ward said, normally, there is no restriction on changing employment after 12 months, but the protection is there to try to strike a balance for both the employer and the employee.

It sounds like it can be quite bureaucratic to meet these requirements. If someone is in a somewhat vulnerable position, are the witnesses happy that it is relatively easy to do this? Would the Department consider issuing sectoral permits rather than tight permits so that a person would have a little bit more freedom within the sector?

Ms Fiona Ward

It is not that onerous to change. The processor gets the information from the permit holder and he or she might contact the old employer. It does happen that people move within the 12 months. I do not think it is a huge issue to be able to change, but if Deputy Bruton has any instances he wishes to raise, we would be happy to have a look at them.

Regarding sectoral permits, what is covered in the general scheme is that we have a vacancy-led scheme. The primary policy of the Government is to recruit from within Ireland and across the EEA and it is only in circumstances where an employer cannot find the available resources within the State or the EEA that he or she can recruit from outside the EEA. For every employment permit, there is a written contract of employment. Moving to a sectoral-type arrangement would completely change the way the permit system is operated, but it could also serve to undermine the need to ensure that the domestic labour market or the market within the EEA is first tested before we move to other areas. It could also lead to increased challenges in terms of protecting the rights of the migrant worker. At the moment, a worker has a written contract of employment which details salary, the maximum hours worked, etc. We looked to other jurisdictions to see whether they had a similar sectoral type of arrangement and we could not identify any jurisdiction that had such an arrangement. In all jurisdictions across Europe and outside Europe the employer-employee link is in place. The only exception is Germany where it is linked to the type of occupation covered by the higher and critical skills employment permit and when a job is found the link between the employer and employee is put in place. In Australia, very specific qualifications are required for it and, again, it is linked to occupations in very remote areas of Australia. We could not find a jurisdiction where it was operating and working.

I thank Ms Ward for her patience. I wish to ask her about the various sectors where the work permits operate. Let us go back to the meat industry again. Does the Department take into account the profitability of the sector before granting work permits?

Ms Fiona Ward

I am sorry, but I did not hear the question.

That is no problem. I will repeat the question. Does the Department take into account the profitability of a particular sector before it agrees to introduce work permits? I mention the meat industry because we know, for example, that the biggest company in the industry had a turnover of €2.3 billion in 2019 and the second biggest company had a turnover of €2.2 billion. This is a massively wealthy industry. Why not encourage the industry to pay better wages rather than just allow it to recruit people, as my colleague, Deputy O'Reilly, said, at just above minimum wage?

Ms Fiona Ward

The system is evidence-based. We are guided by the research undertaken by the skills and labour market research unit, the National Skills Bulletin, the Vacancy Overview report, reviews, submissions, public consultation and the input of relevant policy Departments and the economic migration interdepartmental group. We look at where the labour challenges are. We seek to ensure that where occupations are eligible for an employment permit, that is based on evidence that there are genuine labour challenges in terms of recruitment and that it is not linked to terms and conditions or retention issues. Sectors make submissions to the twice-yearly review on an ongoing basis and unless the evidence is there and we are satisfied by the whole-of-government approach that the shortages are genuine and there are not any structural issues, we will not remove an occupation from the eligible list. It is an evidence-based system. The ESRI did some research through the European Migration Network in 2015, which found that Ireland is one of the leaders in Europe in linking labour market intelligence to our economic migration policy.

I appreciate that answer but I seek clarity on one aspect. What I asked was whether the Department examines the profitability of firms. It is well known that these factories are hugely profitable. In fact, their profits are often hidden offshore. Does the Department gather data on the profitability of these firms before sanctioning work permits because my concern is pretty simple; it is that rather than go down the work permit route, these firms should be paying a decent wage, which frankly they are not doing at the moment? They are certainly not paying a living wage.

Ms Fiona Ward

What we look at is where there are labour and skills challenges in the sector and what the evidence is telling us in that regard. We want to make sure that those labour and skills challenges are genuine and relate not to terms and conditions of employment but to genuine skills shortages in the labour market or the particular sector. That is where we focus our attention.

We came back to the issue of the €22,000. It is an extraordinarily low sum of money.

I certainly could not live on that amount of money per week, yet the Department seems happy to sanction work permits at that rate for one of the most profitable industries in the country. There is something distinctly unfair about that.

I will move on because I am conscious of time. The nice word used in this Bill is "agility". It is a very popular word in business sectors at the minute. Can Ms Ward tell me how this proposed Bill will increase agility for the workers concerned?

Ms Fiona Ward

In what way?

Clearly, Ms Ward is talking about agility in terms of employers having more options in hiring people, abusing the work permit process.

In a point raised by Peter Rigney a couple of years ago, is there a danger that, despite having some fine people in the Department, it is really speaking for the sectors as opposed to the workers concerned? Is there a danger of regulatory capture? I do not see any evidence of agility for workers in the proposed legislation. I see that a whole host of recommendations was made two years and Ms Ward has confirmed today that each one of them has been rejected. There has been no increase in the number of workplace inspectors, which is far too low. No role has been given to the Labour Court in setting wages. There has been no openness and transparency on how those wages are set. Does Ms Ward understand my concerns?

Ms Fiona Ward

I will give the Senator an indication of some of the flexibilities we hope to include in the legislation.

One is on renewals. This will benefit both the employer and employees. A general employer permit is initially given for a two-year period and then can be renewed for up to three years. At the moment, the employee has to go through the same application process as if he or she was applying for a permit in the first place. We hope to streamline that process so it will be quicker for both the employee and employer. We will simply ensure the conditions on which the permit was received continue to be in place.

We also are considering the duration of employment permits. For example, in respect of the critical skills employment permit, we hope to move that to regulations. One has to have a two-year employment permit before applying for a critical skills employment permit. As I stated earlier, it is our premium permit. However, if an occupation is on the critical skills list but the contract on offer is for less than two years, the permit holder generally has to apply for a general employment permit. Such people then do not get the attendant benefits attached to the critical skills permit of immediate family reunification and immediate and broad access of their spouses and partners to the labour market. We are hoping to have a duration of one year, which would allow those permit holders to come in and to bring in their families immediately.

These are examples of some of the flexibilities we hope to bring into the system.

We have not discussed the seasonal work permits yet. I am concerned because we will come into a period of mass unemployment at the end of the Covid-19 pandemic. I am concerned the Department still seems determined to have recourse to these work permits in that situation.

The following point was made in a committee two years ago. If there is a case for seasonal workers, surely someone in the sector should have to go to a forum of the State where he or she can explain why that is needed. Why is there a lack of transparency in that process? I will give a final example. There are masses of students looking for summer work at the minute. Why are we not first giving those people the opportunities to take up these seasonal jobs, as opposed to reaching for the work permits?

Ms Fiona Ward

Ireland is an outlier in Europe and the developed world in not having a seasonal work permit. Most-----

It is also an outlier in not having the right to collective bargaining. Maybe we could balance that up.

Senator Gavan's time is up.

I am aware the system in placed is breached on occasion. I know, from talking to the Migrant Rights Centre Ireland, MRCI, and others that the system is open to a level of abuse. As I have said, many employers are fine employers who do a good job and look after their workforce and there are some who are not. This scheme is probably like manna from heaven for those employers who are not, for all the reasons we have discussed. I refer in particular to the issue of the introduction of seasonal work permits because that simply means the workers will be here for a much shorter time. It makes it virtually impossible to organise them and so on. Ms Ward is aware of all of this.

Employers may breach the rules by, for example, holding a worker's passport, paying below the minimum rate or making reductions for accommodation. I have seen some of that accommodation and it is disgusting that anyone would take any money from meagre wages for it. What happens to an employer who breaches the rules? Do they go onto a list whereby they will not be issued with work permits again? Is it a wrist slap? Are they referred to the Garda? What happens to them? How many of them are there? Can we be sure the flexibilities Ms Ward referred to will not be extended to them again if they have proven themselves to be poor employers or if they have breached the rules?

Ms Fiona Ward

Breaches of the rules are subject to fines and court appearances. The WRC obviously tries to get employers to comply but it can and does take employers to court for breaches of the employment permit legislation. If an employer is found in breach of the employment permit legislation or other employment rights legislation, that employer, upon conviction, can be precluded from applying for an employment permit for five years. They would not be able to apply for a permit for up to five years.

How many employers are currently precluded for that five-year period?

Ms Fiona Ward

We do not have those data. They are flagged on our system. If they came in we would know who they are.

Could Ms Ward give us an indication of the industries they are in? Ms Ward will be familiar with some of them.

Ms Fiona Ward

There is a broad range of industries. I will try to find out but I could not comment at the moment. I could send the Deputy that information, if she wishes..

The committee would benefit from hearing that information.

In Ms Ward's experience, do breaches happen at the higher or lower end of the wage market? In my opinion and experience, breaches of this nature happen to low-paid workers. They happen to the most vulnerable workers whose first language is not English. It is fine if Ms Ward does not have information on the specific industry. I will welcome that information when we get it. However, does this happen, for the most part, to workers who have degrees? I know the term "low skilled" is used in a pejorative way. I am not suggesting Ms Ward uses it in a pejorative way but it can be used as such. Clearly, these workers are essential. We would not be revising the system to ensure we had them if we did not need them. It is my opinion that breaches are happening to low-paid workers. I am interested to know if that is the view.

Ms Fiona Ward

We will have a look at our system. We will see if we can identify where those breaches are. It will give an indication of the sectors and the type of employees involved. I completely agree with the Deputy that all migrant workers who come in are required for the State.

The workers and their skills are absolutely essential. It is something that gets lost in the debate.

I am sure Ms Ward will appreciate that it is extremely difficult for any workplace organiser to organise a union in these circumstances. I will not go through all of the reasons but Senator Gavan and I have personal experience of trying to do that. It is extremely tough. Clearly, if I am coming from another country, I will not be familiar with my rights and entitlements as a worker in this State. Who has the responsibility to advise them of their entitlements to the minimum wage or their other legal entitlements?

Is there a check on whether workers have been informed of their rights and entitlements in a language that they understand? One of the issues raised at the Special Committee on Covid-19 Response was the practice of distributing health and safety announcements and information in English but not in a language that is easily understood by the workforce. It is one thing to hand employees a piece of paper that lists their rights and entitlements but another thing entirely to hand them a piece of paper that contains information they can actually read.

If Deputy O'Reilly wants an answer, she will have to finish up.

Ms Fiona Ward

At the back of every employment permit is a summary of the principal employment rights for every employee in the country. We are currently issuing e-type permits and in addition to the decision letter, we issue a summary of employment rights for the employment permit. As I said, the employment permit goes to the permit holder. It does not go to the employer who just gets a copy of it. The contact details of the WRC are on the permit and when permit holders visit the WRC website the information is available in 11 different languages. We make sure they have the right-----

Is the information attached to the permit in English or in those 11 languages?

Ms Fiona Ward

It is in English. It would be hugely cumbersome, and I do not know how we would manage, if we were to try to send out information to people in many different languages.

I can understand that but-----

Ms Fiona Ward

We send it out in English and then direct permit holders to the WRC website where they can get the information in all the different languages.

We also have what we call the 50:50 rule. In every workplace where there are employment permits, 50% of the workers must be from Ireland or the EEA. That means that all migrant workers and non-EEA workers have comparators within the system with which they can compare their terms and conditions. That is another check and assistance.

Ms Ward stated workers are directed to the WRC. Are they directed in English to the WRC?

Ms Fiona Ward


Would they not find it tough to get to the WRC? I know the WRC has information in 11 languages but many workers do not have English as their first language and they are reading information in English. I will not get into how workers are kept separate in these places. However, they are not really being directed to the WRC if that information is not in a language that is easily understood. Can consideration be given to ensuring people have access to information on their minimum terms in a language they can understand? While it is welcome that they get this information, if it is not in a language they can understand, it is the same as not getting it.

Ms Fiona Ward

I do not agree with the Deputy. At the end of the day, I do not know how we would even arrange that operationally. We issued 16,500 permits last year. It would be extremely onerous to print permits in different languages. We have never had any complaints from people saying they had not received the information. The website is clearly available and people can log on to get that information. I respectfully disagree with the Deputy. Permit holders do get information relating to their rights.

This is my final point.

The Deputy is well over time.

With the greatest of respect to Ms Ward, if it was not necessary, the WRC would not have that information available in 11 languages. It strikes me that it is necessary.

I again thank Ms Ward for her patience this afternoon. I want to follow up on the point raised by Deputy O'Reilly. As a union organiser, my personal experience with meat factories is that these people cannot translate their contracts. They have no one available to do it for them. They do not understand English in many cases so even finding the website is not practical for them. The factories actively discourage workers, to the point of firing them, from joining a union or seeking union support. Can Ms Ward understand the reasons for my concern about the likelihood that these people would be exploited?

I will give an example. At the end of a 39-hour week, the boss man might say to an employee, "You have to do overtime, regardless of whether you want to, because we are your employer and you are not allowed work anywhere else." That happens. By the way, it is not overtime paid at time and a half or double time; it is flat rate overtime. Does Ms Ward understand my concerns?

Ms Fiona Ward

As the operators of the employment permit system, we want to ensure that employees are aware of their rights and entitlements. It is our view that because we provide them with the information on the permit, they have access to the WRC which has all the information in the various languages. They can access the information they need to ensure their rights and entitlements are protected. We are always open to suggestions on how we might improve our system. If the Deputy has any suggestions on how we might improve or that might assist to better disseminate information, we would be delighted to take them on board.

I would love to give Ms Ward a suggestion and I welcome the opportunity to do so. Why not ensure, before the Department issues work permits, that there is a collective bargaining agreement in place between the employer and the trade union of the workers' choice? That is a simple way to ensure there is a third party to protect the workers. To be frank, and we have gone through the numbers, the WRC does not have the inspectors or the time and resources to do this. I can tell Ms Ward from first-hand experience that it is not happening. Why not ensure, as a bottom line, that there is a collective bargaining agreement in place? That is something an employer can easily put in place to ensure protection for workers.

One of the big features of this system is employment agencies using work permits. Ms Ward said she had read the Migrant Rights Centre Ireland report published last year, and I am delighted she has. The report stated that an emerging feature of employment in Ireland was EU workers being employed through agencies rather than directly by meat processing companies. The companies, it continued, were able to deflect responsibility on to agencies and vice versa. While this is not directly related to work permits, it describes a work space that is highly different from the traditional way that Ms Ward and I have experienced work, for the most part.

Ms Ward will be relieved to hear this is my final question. She will acknowledge that these are essential workers. Why is it okay for her Department to sanction, for these essential workers who are keeping our country going, a rate of pay as low as €22,000 a year? I find that offensive. Surely to God, after all we have come through on Covid, everyone, regardless of party politics, and everyone in Ms Ward's Department would acknowledge that the figure of €22,000 is disgracefully low. At the very least, do these workers not deserve a living wage? Is it not within the scope of the broader Department to ensure that this happens as a recommendation?

Ms Fiona Ward

In relation to employment agencies, EU workers do not come within the scope of the general scheme. EU workers come here under freedom of movement in the EU treaties. Under the employee permit system, employment agencies are not allowed to apply, and are precluded from applying, for employment permits for non-EEA migrant workers. For the employment permit system, there has to be a direct employer-employee relationship in place.

In relation to remuneration for employment permits, it is a matter of striking a balance between ensuring the employee is attracted to work in the State, while also ensuring it does not have a disruptive impact on the domestic labour market. That is the balance we strike in relation to remuneration.

I appreciate Ms Ward's patience but surely that balance should include a worker having a right to a living wage? Why is that not thought to be part of that balance in the Department?

Ms Fiona Ward

That is a policy matter and not something I can comment on.

I thank Ms Ward.

That concludes our consideration of the matter. I thank Ms Ward and her colleagues from the Department for assisting the committee. Ms Ward made some commitments to come back with specific information for members and I hope she does that. I have to express my surprise that she did not have answers to one or two of the questions on inspections and prosecutions. I thought she would have expected those questions to come up. I look forward to getting her responses to the issues raised by members. I again thank Ms Ward and the other officials.

I will write to committee members to see how we can progress from here.

If everyone is okay with that, we will write to members in the next day or so.

Is there any other business? It was listed on the agenda.

There is not but the Deputy can go ahead.

Ms Fiona Ward

Will we step out?

Yes. I thank Ms Ward and her Department officials.

Ms Fiona Ward

I thank the committee.