Employment Permits (Amendment) Bill 2014: Committee Stage

Sections 1 and 2 agreed to.
SECTION 3

Amendments Nos. 1 to 3, inclusive, are related. Amendment No. 2 is a logical alternative to amendment No. 1. The amendments may be discussed together by agreement.

I move amendment No. 1:

In page 6, to delete lines 24 to 27 and substitute the following:

“ “(3A) It shall be a defence for a person charged with an offence under subsection (3) consisting of a contravention of subsection (1) to show—

(a) that he or she took all such steps as were reasonably open to him or her to ensure compliance with subsection (1), or

(b) that his or her contravention arose as a direct result of exploitative work practices engaged in by the employer against him or her.”.”.

I welcome the Minister back to the House. We are getting very fond of him, or perhaps he is getting very fond of us, whichever way it is.

As the Minister is aware, the purpose of amendment No. 1 is to amend section 3(d). This amendment will ensure that the defences available to an employee under the legislation explicitly take into consideration the circumstances in which a young man, Mohammed Younis, found himself. An employee who is being exploited should not be penalised in any way by the requirements of this legislation. I believe it is necessary. The purpose of the Bill I introduced 18 months ago was to achieve precisely this end and I believe it is still necessary. I believe the amendment is worthy of consideration and I hope the Minister will accept it.

I have tabled amendment No. 2. I welcome the Minister to the House. I thank the Minister and his officials most particularly for the detailed response to a series of questions I outlined in respect of the Bill. It is appreciated and it really helps our engagement in this process.

This is the main issue I have with the Bill. I tabled the amendment to better ensure that the lacuna in the law relating to section 2 of the Employment Permits Act 2003 identified by Mr. Justice Hogan in the Mohammed Younis case is closed off and that exploitative work practices are recognised as a cause of action for judicial redress. The Minister will remember that when the Younis case came before the High Court, Mr. Justice Hogan was forced to overturn the determination of the Labour Court to award over €90,000 to Pakistani restaurant worker Mohammed Younis for alleged breaches of his employment rights, including threats, payments well below the minimum wage, and the imposition of extremely long working hours - around 77 hours per week - with insufficient breaks and no day off, as well as the failure to renew Mr. Younis's work permit, thus rendering him undocumented in the State and altogether vulnerable to the exploitation and mistreatment meted out to him. It was the correct decision in law but it was not just or right. Mr. Justice Hogan clearly recognised this and, in overturning the Labour Court award, he stated that Mr. Younis had been "the victim of the most appalling exploitation in respect of which he has no effective remedy". Furthermore, Mr. Justice Hogan felt compelled to send a copy of his decision to the Minister, the Ceann Comhairle and the Cathaoirleach.

I commend the efforts the Minister has made in the Bill to deal with the legislative gap identified by the Younis case and I believe the Minister has done an excellent job in this regard. However, there is scope for strengthening the protection we afford to vulnerable migrant workers. In the Minister's written response to me on this issue he said that the inclusion of the explicit link between exploitative work practices and access to the compensation provision, as in my amendment, could actually raise the bar with regard to the evidence an applicant would have to submit to a court in order to satisfy the provision. I do not see that this is the case. My amendment offers a new and distinct defence on the basis of exploitative work practices. It is clear from the drafting that it is a separate cause of action and not an additional proof. It is designed to expand the rights of migrants to take a claim to the civil courts on the grounds of exploitation.

It is vital that exploitative work practices are articulated in this section to give courage to the scores of workers with work permits in precarious situations who are being subjected to exploitation as we speak at the hands of unscrupulous employers and to serve as a deterrent to employers in such cases.

I am speaking to amendment No. 3, which is similar to the amendment tabled by Senator van Turnhout. I support both amendments. My arguments are in the same vein as those made by Senator van Turnhout.

I pay tribute to Migrant Rights Centre Ireland, which has done extensive work in the preparation of the Bill, in lobbying all of us and in highlighting issues that have affected migrant workers for many years. I pay tribute to the work done by those involved. They have argued robustly that the law containing the lacuna identified by Mr. Justice Hogan in the Younis case and provided for in this legislation needs to be strengthened to ensure that exploitation is addressed by the inclusion of a provision stating that any contravention by the employer is the result of or a feature of exploitative work practices. The problem is that nowhere in the Younis provision does the legislation refer to exploitative work practices, and that must be rectified. This was the problem identified by the judge. It is a serious omission from the Bill and it should be included. We will be pressing our amendment to a vote and I will be supporting amendment No. 2 tabled by Senator van Turnhout.

I welcome the Minister to the House. I also welcome Gráinne O'Toole, Mohammed Younis and their colleagues from the Migrant Rights Centre, who are in the Visitors' Gallery as my guests to watch the debate. I echo the words of Senator Cullinane in commending the Migrant Rights Centre on its work on this legislation, which aims to ensure an ending of exploitative work practices.

The Migrant Rights Centre has welcomed the provisions in the Bill, which are progressive in terms of seeking to assist migrant workers in re-entering the labour market. However, I know there remains a concern about ensuring that the provisions that seek to prevent exploitative practices are strengthened. In particular, the Migrant Rights Centre has noted that risks for migrant workers will remain prevalent if the Bill continues to tie workers to their employers. This is an important point and I call on the Minister to take it on board in the context of these amendments.

Like others, I acknowledge the work of the Migrant Rights Centre in this important area. I hope this Bill brings some fairness to the process. We have tried to ensure that we make changes in the legislation in order that if a person had a permit previously he is able to get back into the system. We have created a specific category of permit for such a situation. I realise this was an area that gave cause for concern.

In this section we have provided a defence for people who were working without a permit - that is what we are discussing in this case - and for people who have not been paid, as well as the possibility of getting compensation and of that compensation being retroactive. We have gone a long way in trying to strike a fair balance. That is the context.

While I fully understand the rationale for seeking amendments Nos. 1, 2 and 3, I am firmly of the view, having considered the "Younis" provisions very carefully, that the inclusion of "exploitative work practices" would in fact raise the bar with regard to the evidence an applicant would have to submit to a court in order to satisfy that court of the applicant’s entitlement to compensation under the provision. Under the legislation, as drafted, in the new section 2B(3), all the applicant has to do to enable a court to make an order for recompense for work done is to satisfy the court that he or she took all reasonable steps as were reasonably open to him or her to comply with the requirement to have a permit. If I were to add recognition of the existence of "exploitative work practices" it would, I believe, run the risk of giving rise to an unintended consequence in the form of additional evidence which would have to be adduced and established before the test was met by an applicant.

How might a foreign national, who may well be hesitant about reliving the abuse or exploitation he or she had suffered at the hands of an unscrupulous employer, set about showing that his contravention arose as a direct result of exploitative work practices engaged in by his or her employer against him or her? The benefit of the provision, as drafted, is that it does not require the applicant to establish such facts in order to apply for the compensation. Apart from the considerable obstacle of defining what is meant by "exploitative work practices", the amendment additionally would require a nexus to be established between the particular work practices and the failure to obtain a work permit. It would have to be established in court to the requisite standard of proof that the exploitation was engaged in. The employer would have a right to defend himself in such a scenario therefore potentially giving rise to a trial within a trial. The existing provision will permit evidence of exploitation to be given in the course of an application to the court under the section without a minimum threshold of "exploitation" being a condition precedent to relief or compensation.

The defence was carefully drafted on the considered advice of the Attorney General's office and deliberately includes a test of “reasonableness”. The test of “reasonableness” is well established within our legal system and gives a court hearing the application discretion to consider the application within the context of the particular facts of the case before it, which is crucial to the success of a provision such as this working in practice. The term “exploitative work practices” is not defined and would be difficult to objectively define without exposing the section to challenge and ultimately weakening the provision and creating an additional hurdle for the applicant to overcome. A provision, when invoked, which requires the court to make a determination of exploitation against an employer will necessarily be contested by impugned employers and will inevitably render the application more difficult and contribute a further unnecessary hurdle for the applicant and, as I said, it could give rise to a prolonged trial within a trial. It is for those reasons, I am not able to accept the Senator's amendments.

I have listened carefully to the Minister's reply and it was certainly not my intention in putting down that amendment that we would make it more difficult for somebody to take action on this basis. The Minister referred to the test of "reasonableness" and I am not sure that I follow entirely the direction he is going, but my intention was to make sure that this measure would be beneficial. The migrant rights organisation is of the opinion that a provision such as this is necessary. I am disappointed the Minister is not accepting it. I will withdraw the amendment and will consider submitting it for Report Stage if the Minister is not able to change his mind between now and then.

I also listened very carefully to the Minister's reply.

The difficulty I have is that I do not consider this to be an additional aspect, rather I consider it to be a very new and distinct defence. The amendments that have been put down are designed to expand the rights of migrants to take a claim on the grounds of exploitation to the civil courts. If the Minister checks the drafting, he will note it is a separate cause of action and not an additional proof. It is not that they are combined or conflating into one piece of proof. What is proposed provides another avenue for us to send a very clear signal to unscrupulous employers that exploitative work practices will not be accepted.

Is Senator Quinn withdrawing his amendment?

I will withdraw my amendment.

Amendment, by leave, withdrawn.

I move amendment No. 2:

In page 6, between lines 27 and 28, to insert the following:

"(3B) It shall be a defence for a person charged with an offence under subsection (3) consisting of a contravention of subsection (1) to show that his or her contravention was a result of and/or a feature of exploitative work practices by the employer against him or her.",".

My difficulty is that all Stages of the Bill are being taken today. I would like to have heard the Minister's response to this proposal.

I am quite happy to respond. The truth is that I do not see this provision as adding the signal to the employers that the Senator has put forward. The legal advice we have is that it offers the alternative. It allows employers have a new avenue of defence. Whereas if we have a very simple test of why the person did not apply for a permit, namely, whether they take reasonable steps to have a permit, the court could say yay or nay to that. If we introduce this new subject matter as to whether there was exploitative conditions, the clear advice we have got from our legal people is that it opens up a whole new front of engagement where an employer will defend that. It is not a clear-cut test anymore. We would be offering a new front to fight the case. That is essentially the reasoning behind the judgment that the Attorney General's office offers us on the way we frame this.

I thank the Minister for that. Perhaps it is something we can examine in the context of regulations and guidance for employers. I will withdraw it on the basis of the Minister's response, given the time issue, but it may be an issue Senator Quinn and myself may raise again if we see that exploitative work practices are continuing.

Amendment, by leave, withdrawn.
Section 3 agreed to.

I ask the Acting Leader, Senator Conway to move the adjournment of consideration of this Bill.

The time allocation for the Bill has been extended to 12.30 p.m. Senator Cummins had indicated he would extend the time to 12.30 p.m.

I am not sure if Senator Cummins formally indicated that but I formally propose that the time allocated be extended to 12.30 p.m. and the debate will then be adjourned as we will not have concluded it by then.

SECTION 4

Amendment No. 3 has already been discussed with amendment No. 1. How stands the amendment?

I move amendment No. 3:

In page 7, between lines 35 and 36, to insert the following:

"(a) that his or her contravention was as a result or a feature of exploitative work practices by the employer, or".

I will resubmit the amendment in advance of Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 4.

In page 8, between lines 6 and 7, to insert the following:

"(3) Where an employer referred to in section 2(1)(a) or, in the case of employment referred to in section 2(1)(b), a person referred to in section 2(1A)(a) or a contractor referred to in section 2(1A)(b) has not paid a foreign national to whom this section applies and where the foreign national institutes civil proceedings he or she may seek and be immediately awarded an employment permit for the duration of the civil action or longer if the Ministers so deems.".

We accept that compensation will not be treated as reckonable payment within the meaning of social welfare legislation and entitlements but this section highlights a particular concern which we want the Minister to take on board. If an individual is not allowed to work and on the basis that a civil action can take some time, we can conclude that he or she would not have access to the necessary supports to feed his or her family, to pay rent or to pay bills generally. If this Bill is to act as a real deterrent, it must facilitate those who are brave enough to expose wrongdoing. While the Minister can award a permit, the legislation, as it stands, does not specifically provide for those who take a civil action against an employer, who has engaged in exploitative work practices, to enable them to work at a minimum for the duration of the court case, which is what we are seeking in this amendment. I await the Minister's response.

The effect of amendment No. 4 would be to create a new employment permit scheme specifically for this cohort of foreign nationals. The normal criteria generally applying to employment permits - which are there to protect the Irish labour market from distortion - would not apply to such cases, for example, a specific job with a specific employer for a specific duration. In general, Government policy is to issue employment permits for the employment of non-EEA nationals for specific vacancies and in response to employer demand where there are demonstrated shortages. Such a permit type would run counter to this policy objective.

It is the case that many foreign nationals who opt to enter the civil proceedings provided for under this section will already meet the criteria for the new type of permit I am introducing, called the reactivation permit - that is, he or she has a job offer, is not currently working, has a letter of permission from the Minister for Justice and Equality and previously held a permit - they will be eligible to apply for that category of permit.

The case of a foreign national who has never had an employment permit is a different matter. That person is still entitled, regardless of their never having been legally working in the State, to be compensated for work done for, or services rendered to, a person.

We must be realistic. It is one thing to ensure that vulnerable people are not exploited, but that does not mean encouraging irregular migration. We must bear in mind the interests of Irish workers, lawfully present migrants and legitimate businesses that hire only those legally entitled to work. For those legitimate businesses, there is an important deterrent effect for any employer contemplating hiring illegal workers within these provisions - that is, compensation can now be claimed against the irregularly hiring employer. Where a person has never had any entitlement to work in the State and has taken it upon him- or herself to ignore Ireland's immigration and employment laws, it is not the duty of the State to regularise his or her status. Having said that, I understand that the immigration authorities will look at individual cases on their merits and take account of all the circumstances of the person's situation.

In summary, it was never my intention, in providing this compensation provision, that it would act as a back door for illegal economic migrants who have not been or would not be granted employment permits under current legislation. That is why I cannot accept the amendment.

I withdraw my amendment but will resubmit it on Report Stage.

Amendment, by leave, withdrawn.

Amendment No. 5 is in the names of Senators Cullinane, Ó Clochartaigh and Reilly.

I move amendment No. 5:

In page 8, between lines 26 and 27, to insert the following:

“(iii) an amount equal to that paid to regularised employees engaged in the same work in the same employment,”.

I would like to hear the Minister's response.

My intention in creating this new civil proceedings option for illegal workers is to give them a chance to claim compensation in a situation where there is no legal contract of employment on which to base any other type of claim. The compensation provided for is the national minimum wage or other mandatory statutory rate of pay for the job, with the latter element to cover the reintroduction in the future of successors to EROs and REAs. These are rates provided for in law. There is no ambiguity or complex standard of proof for a court in determining compensation and it is how the Labour Court determined compensation for Mr. Younis.

The amendment would only add complexity and ambiguity to a court's determination of what the foreign national should get paid. What is the rate for a regularised employee engaging in the same employment? A worker with a legal contract of employment is simply not an appropriate comparator to use in respect of an illegal worker. How would a court go about making the necessary comparisons? Would it seek testimony from legal workers in the illegal worker's place of employment? Do the Senators think such legal workers would come forward and volunteer in open court to say what their salaries were? How would such matters as overtime, long service increments and productivity bonuses, which are individual-specific, be factored into such a comparator exercise? The amendment is inoperable in practical terms and would result in the applicant's claim failing if such a rate - that is, the rate paid to regularised employees - could not be established to a court's satisfaction. On the other hand, the national minimum wage, or other statutorily provided wage, is clear and unambiguous and makes both the job of the applicant in making his or her case, and the court's job in determining the compensation, clear and straightforward. On that basis, I am not going to accept the amendment.

The problem is that the legislation only allows for the compensation awarded to be calculated based on the national minimum wage or on other minimum rates pursuant to the statute, which in this case means a registered employment agreement.

The Minister has argued before that no worker in the State has a statutory guarantee to payment above these rates, and he is right. However, the rate provided in a lawful contract will be recoverable. What happens in a company if somebody is paid higher than the minimum wage for comparable work? What happens if people earn higher rates of pay in a company that has exploited a migrant worker? Will people be encouraged to come forward if they are only entitled to the minimum rate of compensation? Our amendment is reasonable and should be accepted, and we will press it.

We will get into all kinds of complexities if I accept the amendment. As we know, new recruits are often taken on at different rates of pay from existing recruits. The issue of setting out the comparator is a very complex procedure. In addition, we are providing retrospective action so that employers who engaged in such practices in the past will have to pay. We have to use a statutory payment because it clearly does not add some penalty element but recovers compensation that ought to have been paid based on a statutory minimum. The approach we are taking is robust and is the fairest in the circumstances.

Amendment put and declared lost.

I move amendment No. 6:

In page 10, between lines 26 and 27, to insert the following:

“(14) A foreign national who has engaged in civil proceedings as referred to in section 2B may apply to the court for interim relief.”.

I withdraw the amendment but will resubmit it on Report Stage.

Amendment, by leave, withdrawn.
Section 4 agreed to.
Sections 5 and 6 agreed to.
SECTION 7

Amendments Nos. 7 to 9, inclusive, are related and may be discussed together.

I move 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”.

The legislation extends a work permit to spouses, in very limited circumstances, to encourage highly specialised workers to come to Ireland. We argue that where a spouse has worked in Ireland and been awarded an employment permit on that basis, he or she should not be treated differently but as if the marriage had continued. It would be a barmy situation if a partner who had lived here for a number of years, had children and worked all of that time found him- or herself having to leave his or her job and children and the country because a marriage had broken down. Such cases have occurred, as highlighted by the Migrant Rights Centre and Nasc. We are trying to fix this anomaly with our amendment and we hope the Minister will accept it.

The purpose of providing access to the Irish labour market to the spouses, civil partners and dependants of critical skill employment permit holders and third country researchers, under Council Directive 2005/71/EC, is to differentiate Ireland by enhancing its attractiveness as a destination for this cohort of highly skilled migrants when compared with our competitors. As such, this is a deliberate policy decision.

First, let me emphasise that it is not my remit to define or determine matters relating to divorce or separation. That falls within the remit of my colleague, the Minister for Justice and Equality.

I understand the motivation for tabling the amendment. The Senators do not want such individuals to be made victims of circumstances by virtue of a separation. That is precisely why I have introduced in this Bill the proposed reactivation employment permit to facilitate individuals whose circumstances have changed, such as through a separation occurring during the lifetime of a spousal permit. The legislation refers to a person "to whom an employment permit had been granted and the permit is no longer in force". As the Senators will be aware, the dependant, spouse or partner scheme is one of the most flexible schemes because it allows an individual to work in almost every economic sector, with the only salary threshold being the minimum wage. It will not be subject to the labour market needs test either.

Opening up the permits system to the spouses and civil partners of all permit holders under this scheme would go against the Government's stated economic policy. It would lead to greatly increased numbers of permit holders being entitled to work with no labour market needs test, and would potentially fill job vacancies that would otherwise go to Irish and EEA nationals currently on the live register. In formulating employment permits policy, I must have regard to the potential for incentivising illegal foreign nationals to come to the State if measures are too liberal or rules too lenient. In my view, this could be one such measure. The Government's priority is to get Irish and EEA nationals filling job vacancies in all sectors of the economy as it recovers, not to open the Irish labour market to third country nationals who may not even be currently in the State.

On that basis, and given the fact that the majority of cases of separated spouses will be catered for in the new permits system where they meet the criteria applying, I will not accept the Senator's amendment. However, there is nothing to stop spouses and partners of permit holders from applying for any permit type in their own right, provided they meet the criteria that apply.

I commend Senator Cullinane on tabling this amendment, as the situation is interesting. The Minister is right in that we need to make Ireland as attractive as possible for people with skill sets of which there is a shortage here, given the fact that neighbouring countries will also have that shortage. Many people make lifestyle choices when considering work options. I accept the Minister's contention in this regard, but the issue was well spotted by Senator Cullinane.

As it is now 12.30 p.m., I ask Senator Bacik to report progress.

Our consideration of the Bill is to resume this evening on the conclusion of Second Stage of the Court of Appeal Bill 2014.

Progress reported; Committee to sit again.