Employment Permits (Amendment) Bill 2014: Committee Stage (Resumed) and Remaining Stages

SECTION 7
Debate resumed on amendment No. 7:
In page 16, line 12, to delete "or civil partner" and substitute the following:
", civil partner, or the former spouse or civil partner where a separation has occurred during the period of employment in the State".
-(Senator David Cullinane)

I welcome the Minister, Deputy Bruton, back to the House. Senator Bacik was in possession on amendment No. 7, which we discussed with amendments Nos. 8 and 9. I call the Minister to reply to amendments Nos. 7 to 9, inclusive.

Yes. Basically the position is that we have provided a reactivation permit for cases we believe is adequate to the cause. What is being proposed in these amendments would go beyond what we believe would be appropriate for the policy in this area. That is why we are not willing to accept the proposal.

Senator Cullinane, is amendment No. 7 being pressed?

It is withdrawn, to be resubmitted on Report Stage.

Amendment, by leave, withdrawn.

Amendment No. 8 in the names of Senators Cullinane, Ó Clochartaigh and Reilly was discussed with amendment No. 7. Is the amendment being pressed?

I will withdraw it and will resubmit it on Report Stage.

Amendment No. 8 not moved.

Amendment No. 9 in the name of Senator Cullinane was discussed with amendment No. 7. Is the amendment being pressed?

I withdraw it and will resubmit it on Report Stage.

Amendment No. 9 not moved.

I move amendment No. 10:

In page 17, between lines 16 and 17, to insert the following:

"(v) who has entered into civil proceedings as referred in section 2B of the Act of 2003;".

This is another provision to enable a worker who has embarked on civil proceedings against an exploitative employer to be awarded a permit in that specific scenario relating to that section of the Bill. It is similar to the previous one.

With regard to amendment No. 10, the Senators will be aware that it is my intention that all the conditions pertaining to the issue of a permit under the new reactivation scheme be mandatory. The four mandatory conditions are designed to deter abuses of the proposed scheme, and I believe they are proportional and reasonable, given the advantages conferred by this permit type on the holder. If the Senator's amendments were added to the list of four existing mandatory requirements, it would result in an additional mandatory provision that few foreign nationals would be able to meet, that is, only foreign nationals who have entered into civil proceedings provided for in the new section 2B inserted into the Act of 2003, which would significantly narrow the field of potential applicants under this permit type.

If the Senator's intention in tabling the amendment is to allow a further permit type, that is, those who have initiated legal proceedings under the new section 2B, I would emphasise that my intention in the creation of this type of employment permit is to facilitate those foreign nationals who have fallen out of the employment permit system to re-enter employment in line with employment permits legislation. It is not a back door for illegal economic migrants who have not been or would not be granted employment permits under current legislation.

Invariably, some future litigants under section 2B will be entitled to apply for the reactivation scheme without any such amending provision as suggested by the Senators, while others would never and could never avail themselves of any permit, having always been illegal in the State.

There is another possible unintended consequence in the Senator's amendment, which is a flood of civil proceedings being brought by litigants solely or primarily to take advantage of the chance to convert their illegal status into legal status. Incentivising such litigation by the promise of a permit is certainly not what I intended by bringing forward a compensation provision. For all those reasons, I cannot accept the Senator's amendment.

I withdraw the amendment.

I remind the Senator that we are taking Committee and Remaining Stages today.

Yes.

Section 7 agreed to.

Amendment, by leave, withdrawn.
SECTION 8

I move amendment No. 11:

In page 25, to delete lines 5 to 7 and substitute the following:

"(a) where the application is made in respect of the employment sector specified in the application,".

There was some discussion on Second Stage on this issue, which is an important one. One of the concerns we have about the Bill is the tie between an employer and a migrant worker, an employee. We have consistently called on the Government to break what has been characterised as the bondage emphasis of the permit where a worker is tied to a specific employer. As the Minister will be aware, the 2006 Act enabled a successful applicant to be issued to the employee with a description of the economic sector in which he or she was permitted to work and that allowed some flexibility, but that section of the legislation was never given full effect. The Government has now withdrawn it and copperfastened the current practice by tying a worker to a company for a minimum period of 12 months.

As we know, foreign nationals are brought in to fill a gap in an identified sector, not in a particular company. Why should a worker be tied to a particular company and not be able to move from it? That prevents labour market mobility.

It actually goes against a lot of what the Minister believes in, which is competition, mobility and flexibility. I find it a little bizarre that he is not prepared to accept the amendment. The NASC noted, based on its experience, that current practice increased the risk of workplace exploitation and limited labour mobility. The amendment is worth pushing and it is worth encouraging the Minister to look at it again. If a migrant worker is working for a particular company and the permit ties him or her to that company but he or she wants to move on as he or she may get better terms and conditions somewhere else, why should he or she not be able to do so? It is a fair proposal and we will be pushing the amendment.

As I explained in the Dáil on Committee and Report Stages, providing for sector-specific employment permits would only be possible if the Department was to waive all checks on the employer, which I cannot accept. All employers of permit holders are on the Department's database which is regularly checked by the National Employment Rights Authority, NERA, as part of its employment permit compliance inspections. Last year, in many instances, informed by and with access to the employment permits database, the NERA made unannounced visits in areas of risk both during and outside office hours. These visits were aimed at establishing the level of compliance and identifying potential employment law breaches in the workplaces visited. Where issues are encountered, a full inspection is carried out. In 2013 the NERA detected 453 possible breaches of the Employment Permits Acts and there were 472 suspected breaches. A total of 48 employers were successfully prosecuted under the Employment Permits Acts in 2013. Almost 100 additional cases are at various stages of the prosecution process for hearing in 2014.

A sectoral permit regime where I, as Minister, would potentially have no line of sight to current employers of permit holders would run the risk of undermining this compliance work by the NERA and significantly weakening the ability of the State to control and monitor employers of permit holders. Part of the evaluation of the employment permit application is to check the bona fides of the employer, as well as establishing that there are actual labour shortages for the job to be filled. Refusals occur where the employer is not deemed to be operating legitimately and where no such labour shortage is demonstrated. I consider that the Senator's amendment would make a targeted approach to meeting labour market skills shortages through permits impossible. For these reasons, I cannot accept the proposed amendments.

The Senator has also argued that the system binds an employee too closely to an employer. The requirement is to stay with an employer for 12 months initially. I do not think that is an unreasonable requirement in the vast majority of circumstances where an employer has gone to the expense and time of recruiting someone. However, in those limited cases in which, for example, abuse has occurred, my Department has always shown flexibility and will continue to do so on a case by case basis with the new reactivation scheme to facilitate such cases. The truth is that over one half of the permits issued are in cases in which employees are changing employer; therefore, the regime does not represent a lock-in, with no opportunity to move on. We try to deal with issues flexibly, but we still want employers to demonstrate that they meet the conditions for the granting of a permit in the first place.

Question, "That the words proposed to be deleted stand," put and declared carried.
Amendment declared lost.
Section 8 agreed to.
SECTION 9

Amendments Nos. 12 and 14 are related and may be discussed together.

I move amendment No. 12:

In page 27, to delete lines 29 to 34 and substitute the following:

"(g) provide such other information or documents as may reasonably be required,".

I will discuss both amendments. The purpose of amendment No. 12 is to amend the proposed new section 6 in the Employment Permits Act 2006 which will be inserted by section 8 of the Bill. My amendment proposes to insert the words "as may reasonably be required" in place of "other requirements". I am concerned that the evidential requirements being introduced by the Bill are both unnecessary and too onerous, particularly in the case of migrants who may find it difficult to comply with them. The purpose of amendment No. 14 is to amend section 15 to revise the bald obligation to produce documents in order that it would be more refined and take into account the fact that in certain circumstances, a person might be unable to produce a particular document. People should not be penalised for a failure to produce documents which are not in their possession or which they have no power to procure. This is particularly important in dealing with non-nationals who may be unable to get hold of certain documents in their home countries, particularly from a distance. Both amendments are worthy of consideration.

The purpose of the requirement to produce documentation is to ensure employment permits are only granted where the criteria for granting them are met. It is a requirement of the legislation that I, as Minister, must be satisfied that such criteria are met and if the documentation furnished is insufficient for the making of a decision, the employment permit may not be granted. The provision in section 6(g) allows me, as Minister, to request information to clarify that the criteria for granting the permit have been met. It is reasonable that the Minister be empowered to request clarifying documentation to materially assist in the decision. Furthermore, the information I, as Minister, require to be provided will be set out clearly in the regulations that will accompany the legislation. This clarity provides for a welcome level of transparency and establishes a level playing field whereby all applicants will know what is required of them.

I am also concerned that information or documents as "may reasonably be required", the phrase used in amendment No. 12, lacks the precision and clarity I am providing for in the Bill and the accompanying regulations. I will be setting before the Houses on commencement of the legislation a suite of regulations that will provide for clarity and transparency regarding the documents required to accompany applications. In accordance with section 30 of the 2006 Act, as amended, the Oireachtas will have 21 days in which to consider the regulations. Should either House see fit, they may be annulled on the passing by either House of a resolution to that effect. On the basis that the documentary requirements provided for in the Bill are justifiable and transparent, I will not be accepting the Senator's amendment. However, I point out to him that changes to the employment permits application process made in 2013 reduced the amount of documentation required to complete an application and that this legislation will retain that streamlining in relying at a number of points on declarations made by the applicant parties rather than documentation, although this is subject to a right to seek verification.

On amendment No. 14, while I understand the Senator is seeking to limit the grounds on which I, as Minister, can refuse a permit where an applicant has failed to provide documentation within his or her possession, the requirement that I be satisfied that the criteria for the granting of an employer permit have been met before it can be granted is a cornerstone of the legislation. Allowing a situation where an applicant could be granted an employment permit without providing certain documentation that I, as Minister, consider essential just because he or she says he or she cannot procure it or does not have it in his or her possession would run entirely counter to the purpose of regulating the economic migration of foreign nationals to the State. The regulations will make clear the information and documentation considered necessary to support a permit application and that any declaration made by an applicant may be need to be verified. It is reasonable to expect an applicant to be in a position to confirm any statement or declaration he or she might make in applying. To do otherwise would open the system up to abuse by individuals willing to make false declarations, including saying they do not have documents in their possession or cannot procure them in order to obtain a permit. On this basis, I am not accepting the Senator's amendment.

Amendment, by leave, withdrawn.
Section 9 agreed to.
SECTION 10

I move amendment No. 13:

In page 28, to delete lines 6 to 23 and substitute the following:

"(2) The employment permit so granted shall operate to permit the employment in the State of the foreign national in the employment specified in the application.".

This is a very simple amendment, the purpose of which is to simplify the wording of subsection (2). It is worthy of consideration.

The Bill has been carefully drafted to provide for intra-company transfers and contracts for service. In the case of intra-company transfers the foreign national is employed outside the State by a foreign employer to carry out duties for or participate in a training programme provided by the connected person - the Irish branch.

The permit holder is not employed by the connected person. In a contract for services situation, the foreign national is likewise employed outside the State by a contractor and performing duties in the State pursuant to a contract for services agreement. I have provided very precisely for these two situations. While I appreciate that this may make the provision a little unwieldy, it is my intention that the provisions of the Bill will respect employer-employee contractual relationships between permit holders and their employers outside the State. For this reason, I cannot accept the amendment.

I accept the Minister's wording and will withdraw the amendment.

Amendment, by leave, withdrawn.
Question proposed: "That section 10 stand part of the Bill".

I raise a question I raised in written correspondence with the Minister outlining my concerns about the requirement to renew a work permit before an employee can take up new employment within the same economic sector. I refer to the one-year rule which we also discussed in relation to an earlier amendment. Work permits are initially granted for two years and cost €1,000 to renew. In his reply to my written correspondence, the Minister noted that it is employers who pay the fee but workers availing of the Migrant Rights Centre Ireland drop-in service indicate that in some cases the reality is that employees pay. I ask the Minister to investigate the veracity of the claim. If employees are paying, I ask him to take measures to mitigate the costs involved for migrant workers. It is a matter of concern to me. I do not have any substantive proof, in which case I ask the Minister to investigate the veracity of the complaint. We must look at the issue.

I note that Sweden is considering a model of sector-based employment permits. We had the work authorisation scheme which effectively provided for sector based permits that could be updated and reinstated. Perhaps, that is something the Department and the Joint Committee on Jobs, Enterprise and Innovation could revisit with a view to strengthening the system in this area.

I will certainly check out who is paying for the permits. According to the information we have, however, it is normally employers. Under the previous legislation, where an application was made by an employee, he or she did not go through the labour market test. That may have provided something of an incentive for some of the provisions not to be fully applied because of the way in which the application was made. The current situation is more robust in that regard.

In terms of sectoral permits, we are providing the special skills category. People with special skills will have a special permit and terms that apply in the particular circumstances. In the case of other permits where there is a specific labour market rule test and one wants to ensure that employers are compliant with the various requirements set out in law, there is good reason to disallow sector permits in a broad range of sectors. We have deliberately set out different types of permit with different conditions applying. The old green card had more relaxed terms attached to it.

My Department intends to conduct a review of fees across all schemes later in the year. The MRCI will be consulted in that regard.

SECTION 23

Question put and agreed to.
Sections 11 to 14, inclusive, agreed to.
Amendment No. 14 not moved.
Sections 15 to 22, inclusive, agreed to.

I move amendment No. 15:

In page 54, between lines 32 and 33, to insert the following:

"(6) Section 20 of the Act of 2006 is amended by inserting the following subsection after subsection (5)—

"(6) The Minister may, on application made to him or her, waive the prescribed fee.".".

We want the Minister to waive the fees in certain circumstances. We want to include this provision to enable the Minister to waive fees in hardship cases where applicants are seeking to renew a permit but cannot afford the fee. The Migrant Rights Centre Ireland has lobbied all of us on this issue. I am sure it has also lobbied the Minister also. The centre has highlighted the cost of work permits in the State as has the European Committee of Social Rights, which considers the fees charged for permits to be excessive and not in conformity with Article 18 of the Council of Europe's European Social Charter. The Migrant Rights Centre Ireland has recommended that the fees for work permits be reviewed and amended to bring the State back into compliance with Article 18 as well as for a provision to waive fees in exceptional circumstances. Our amendment deals with the latter recommendation but we also call on the Minister to deal with the broader point of the cost of fees in the first place. We ask the Minister to support the amendment, give a commitment to review employment permit fees within the next 12 months and bring the State into line with the cost of permits in other European countries with reference to whatever the European average is.

I can accept the idea of a review but not the terms of the amendment. I point out to Senators that a quarter of all permits issued so far this year had no fee at all attached to them be they new or renewals. This is because a range of applicants do not currently have to pay any fee, including spouses and employers which are registered charities. That said, it is my intention to carry out a review of the fee structure for all employment permits later this year. I assure the House that an open consultation process will be part and parcel of the review process.

The purpose of the Bill is to place the granting of employment permits on a clear statutory footing and to provide for a significant level of detail in the accompanying regulations. This will preclude consideration on a case-by-case basis of the widely varied circumstances of individual applicants. That is what would be required were the Senator's amendment to be accepted to waive fees on a case-by-case basis for the renewal of an employment permit. Further, the grounds on which such a waiver might be applied would necessarily be based on third party, possibly unsubstantiated, reports on the circumstances of an applicant or on an investigation into those circumstances which would likely cause considerable delay in the issue of the renewal permit, thereby jeopardising the continuation in employment.

It is important to remember that an employer can also apply and pay for a new or renewal permit. Therefore, a waiver provision is not necessary. Indeed, anecdotal evidence from discussions my staff have had regularly with employers of migrant workers suggests that Irish employers highly value their migrant worker staff and are willing to pay the fees to enable them to renew their employment. It is also the case that after five years working in the State on foot of an employment permit, a foreign national may seek immigration permission from my colleague, the Minister for Justice and Equality, to reside and work in the State without the requirement to hold a work permit. Given my fee review plans for later this year and the unworkable nature of a case-by-case approach to fee waivers, I cannot accept the amendment.

Amendment put and declared lost.
Section 23 agreed to.
SECTION 24

I move amendment No. 16:

In page 60, between lines 9 and 10, to insert the following:

"(10) Where an employer has failed to provide a P45 or other relevant document to a foreign national to whom an employment permit in respect of the purpose referred to in section 3A(2)(a) has been granted further to a dismissal by reason of redundancy within the meaning of section 7(2) of the Act of 1967 the Minister shall be responsible for acquiring such documentation from the employer.".

Amendment No. 16 deals with instances of informal insolvency where an employer may simply cease trading or, for a variety of reasons, fail to provide a migrant worker with the documentation he or she needs to access money under the insolvency fund or social welfare provision. We have seen this happen in many sectors outside the migrant rights sector where employers have failed to formally wind up their companies. A company may be technically insolvent but a liquidator has not been appointed leaving workers in limbo. This can happen to migrant workers resulting in a failure to provide them with the relevant material and documents by an employer.

The point we are making here is that, as the Department and the Minister already have a relationship with the employer, he and the Department should pursue the employer for the necessary documentation to allow the worker to get whatever he or she is entitled to, either under the insolvency fund or through the social welfare system.

The documentation required to be submitted within four weeks of the date of dismissal by reason of redundancy will be set out in regulations. Such documentation is likely to include: a copy of the P45, which must be dated within the last 4 weeks, and/or a letter from the previous employer stating that permit holder has been made redundant within the last four weeks, and an explanation of the reason; and the previous employer's certified copy of the permit issued in respect of that permit holder. As indicated, we will be requesting a copy of a P45 and/or a letter from the employer. In the event that a P45 is not available, then the letter from the previous employer confirming same will suffice. Provision of documentary evidence establishes the bona fides of the circumstances applying.

My Department very rarely comes across instances where such documentation has not been forthcoming from previous employers. Where such circumstances do arise, the Department requests that the documentation be forwarded directly and the matter is invariably resolved. Therefore, the amendment is not necessary and I will not be accepting it.

The Senator also raises the wider issue of companies that do not wind up. That goes well beyond employment permit legislation. It would not be possible to consider a situation where the Minister would become responsible for the affairs of a company in that way, as that would be a very significant change in law.

Amendment put and declared lost.
Section 24 agreed to.
Sections 25 to 31, inclusive, agreed to.
SECTION 32
Question proposed: "That section 32 stand part of the Bill."

I thank the Minister for the information he has provided to me on my concerns in this area. I am satisfied with the rationale provided and I will not be proceeding with the amendment. However, on the section, I would like to take the opportunity to highlight another issue that has already been raised with the Minister by the Migrant Rights Centre of Ireland, MRCI, regarding joint inspections of workplaces that have been carried out in recent years between the National Employment Rights Authority, NERA, and the Garda National Immigration Bureau, GNIB. In these circumstances, it is perceived that GNIB leads the inspection by first asking workers for proof of immigration status. In such cases, migrants have reported to the MRCI that the situation becomes an investigation of immigration infringements rather than of exploitative practices in the workplace. If migrant workers are undocumented, they can be assisted in regularising their situation through mechanisms provided for under the Immigration Act and with the assistance of organisations such as the MRCI.

If the point of inspections is to uncover potential exploitative practices, I wonder why NERA is not doing the inspections first and foremost and then referring any undocumented workers to organisations such as the GNIB, if appropriate. I have a real concern that joint inspections by these agencies undermine NERA's efforts to investigate exploitation and build relationships with migrant workers in ensuring compliance.

I can check out the situation in regard to joint inspections. The section provides clarity to applicants on the role of the Garda National Immigration Bureau in the employment permit application process but also speeds up the decision-making process. This is because, under section 6(f) of the current Act, all applications for employment permits must include information and documents in regard to the foreign national's permission. Therefore, there is good reason for having this exchange of information with the GNIB. I will certainly come back to the Senator in regard to the practice of the joint inspections and seek to give her assurances as to their motivation, namely, that the investigation of abuses is at the heart of what is being done by NERA inspectors.

Question put and agreed to.
Sections 33 to 39, inclusive, agreed to.
Title agreed to.
Bill reported without amendment and received for final consideration.
Question proposed: "That the Bill do now pass."

I welcome the Bill, which, as we noted on Second Stage, addresses many issues. I welcome the work that the Minister and his officials have done, and his engagement not only here in the House but between the Stages. As a final question, I was asked by some of the migrant workers to ask whether the Minister has any idea of the commencement date of the legislation, as I realise part of the commencement must be done by the Minister for Justice and Equality. This would allow us to know when the really great day is. Obviously, today is an important day in that we are passing the Bill, but its greater importance is when it actually affects workers.

I congratulate the Minister on having the Bill passed. When I introduced the other Bill to cover only part of this area in regard to the Mohammah Younis case of December 2012, some 18 months ago, the Minister said he would introduce a more comprehensive Bill. He has stuck to his word and done that. I congratulate him and his officials on this Bill and thank them for listening to us. I thank the Minister for coming in himself to give us a full hearing.

I want to join in the congratulations to the Minister and his officials on steering another very significant Bill through the House. It is legislation that will be welcomed very much by migrant workers. I believe we have shown our willingness to protect the most vulnerable and to ensure that people who come to our shores to find employment are treated with respect and dignity. I compliment the Minister on this fine legislation.

I thank the Senators. I should single out Senator Quinn, who, to be fair, put a lot of work into devising a piece of legislation. While there were some unintended consequences of the way it was formulated which we felt unable to accept at the time, we have, I believe, caught the spirit of what he intended and done it in a way that our own legal advisers are happy with.

I join with the Senators in thanking our staff who are here with us. This is a difficult area and one which I believe suffered from the lack of a proper, codified piece of legislation. To codify it took a lot of work. Obviously, in the current environment, following a number of court rulings, one has to be more careful to have proper primary legislation where the policies and principles are approved by the House. That is as it should be, but it obviously means a lot more work for officials in putting together legislation that cannot be rethought at regulation stage.

What it does is provide us with a modern piece of legislation, which, as Senator Mullins said, provides for a good environment and proper respect for people who come here to work, but also provides the economy with a way of meeting its needs in a way that is flexible and responds to opportunities. The world is changing and we are becoming a much more global society.

Many sectors require people from different backgrounds, with different languages and experiences in order to be vibrant and successful. We must respond to these changing conditions with modern legislation.

I thank Senators for their support for and co-operation in dealing with the Bill.

Does the Minister have a commencement date for the legislation?

We will be working on the operational requirements in August with a view to commencement on 1 September.

Question put and agreed to.

When is it proposed to sit again?

Ar 10.30 maidin amárach.