The effect of the Senator's amendment would be to put the position of an employer who employs someone unlawfully without a work permit on exactly the same basis in terms of potential punishment as an employee who works illegally without such a permit. It would prevent any of these offences from being tried on indictment, in the case of an employer, and it would limit the maximum fine that could be imposed on, for example, a company to €3,000.
There is a radical distinction between the position of an employer who knowingly employs someone in breach of the law, potentially speaking, and that of an employee. I will give the Senator an example. First, there is a possibility that a sizeable corporation would deliberately decide to employ someone on a substantial salary, perhaps €200,000 per annum, knowing that it cannot be sent to jail and the most it can suffer, if discovered, is to pay a €3,000 penalty. To fix that as the maximum penalty in those circumstances would be to make a mockery of the law.
On Committee Stage the Senator expressed the view that the possibility of trial on indictment for employers is over the top. I could imagine a set of circumstances where it would come to light that an employer in, for example, the horticultural area or in mushroom production – I am not pointing the finger at particular areas of business – would decide to employ illegal immigrants at knock-down wages and threaten that they would be exposed to the Garda national immigration bureau if they did not behave and continue to work. When negotiations about conditions of work took place, the employers would be able to use the constant threat that the type of employees to whom I refer could face deportation if they did not behave and continue to work in exploitative circumstances. This may not be something that happens every day – I hope it does not happen at all in future – but, in light of human nature, the situation of an employee who is working illegally is essentially vulnerable.
The situation of an employer who consciously takes on employees in these circumstances is essentially one of temptation to exploit the illegal status of those employees. I am saying, by way of two examples, that a conscious and deliberate violation by a corporation, which might not even be physically located in this country, to employ someone here in breach of the work permit law should be capable of being visited with more than a €3,000 penalty. In the final analysis, we could be referring to people whose salaries amount to ten or 20 times that amount in a given year and for whom there would be no deterrent.
Second, I do not doubt that the fact that people are smuggled into Ireland in the backs of containers, to be exploited for many months or years, will come to light in the fullness of time. Such people may almost become slaves as a result of being exploited by ruthless employers. Therefore, a fine of €3,000 for a body corporate found to have been involved in such exploitation would be a laughable deterrent. It would not be a suitable punishment for those who have perpetuated such iniquity. A receiver of stolen property is often more guilty than a thief, as a thief would not steal if he or she was not confident of a ready market for his or her stolen goods. Similarly, those proffering themselves as illegal employees appeal, in effect, to the worst instincts in employers. I refer to employers who know that persons are here illegally and not entitled to work but employ such persons nonetheless.
Senators may point to illegal employees who persuade employers to take them on in casual employment, against employers' better judgment, for example, in circumstances which would not lead to much moral guilt on the part of employers. I can imagine such circumstances but the House should bear in mind that this will be a triable offence when the Bill is enacted. It is fanciful to think that anybody would be put through the ordeal of a trial by jury or exposed to harsher penalties in such circumstances as the Director of Public Prosecutions would, in his wisdom, opt for summary trial and the lesser penalties provided.
The Senator will, on reflection, take a certain view of the potential culpability of an employer who employed many employees in circumstances of grave exploitation. Employers may be tempted to deliberately breach the law if they knew that the only summary penalty capable of being imposed by a District Court was a fine of €3,000. I am sticking by the severe penalties, where the offence is prosecuted on indictment, provided for in the Bill. I want Irish companies to understand they should never knowingly employ somebody who is not authorised to work in the State as to do so would be to commit an offence. Employers should be aware that in certain circumstances, if the subtending facts of the case are serious enough, they will be subjected to a serious prosecution and expose themselves to very serious penalties.
