Today's meeting has been convened for the purpose of considering the Employment Permits Bill 2005. I welcome the Minister for Enterprise, Trade and Employment, Deputy Martin, and his officials. It is proposed that we consider the Bill from now until 4.30 p.m. Is that agreed? Agreed.
SECTION 1.
I move amendment No. 1:
In page 3, subsection (1), line 23, to delete ", unless the context otherwise requires".
Given that the Minister appended his name to my amendment, I had assumed that he intended to accept it.
For some reason, my name has been appended to the amendment on the list. That is an error and there is some confusion about the matter
My legal adviser on these matters is seldom wrong. This is a simple drafting amendment. I am informed that this particular phrase is superfluous, having been superseded by the enactment of the Interpretation Act 2005. I am sure the Minister has a comprehensive brief on that which will allow him to reply.
I will return to that matter on Report Stage.
I suggest that it would be wise to do so.
I have respect for Deputy Howlin's legal advisers.
Amendment No. 2 is in the name of Deputy Hogan. Amendments Nos. 3 to 5, inclusive, 7, 9 to 11, inclusive, 15 to 17, inclusive, 20, 22 to 24, inclusive, 26 to 32, inclusive, 34, 35, 42 to 45, inclusive, 49 to 51, inclusive, 54, 56, 57, 59, 60, 65, 66, 72, 73, 75 to 78, inclusive, 88, 90, 93, 94, 101 to 106, inclusive, 110, 113, 115 to 117, inclusive, 121 to 128, inclusive, 130, 133 and 135 to 137, inclusive, are cognate. These amendments will be discussed together.
I move amendment No. 2:
In page 3, subsection (1), line 26, to delete "non-national" and substitute "foreign national".
I apologise for putting the Chairman to the trouble of reading out the list of amendments that are grouped together. I am sure the Minister will agree that the substance of the matter is not a major issue. The term "non-national" has become outdated. It is classified as being somewhat derogatory. I am aware that, from time to time, the Minister has some difficulties with the Department of Justice, Equality and Law Reform where it might have used similar phraseology in existing law, namely, the term "non-national" instead of "foreign national". We should not be concerned, however, about the phraseology the Department of Justice, Equality and Law Reform has included in its legislation. We should instead consider what is appropriate in the 21st century and classify persons as foreign nationals, not non-nationals. Everybody is a national. An Irish person living in France would not like to be regarded as a non-national. He or she might be regarded as a foreign national, not a non-national. People like to classify themselves as some nationality. I ask the Minister to reflect on that.
I had tabled an amendment to the Long Title that is not being taken in this grouping. I refer to amendment No. 148 in which I propose a different form of words. Rather than "foreign national" I suggest the term "non-Irish national" for the same reason. It has been strongly conveyed to us that to characterise somebody as a non-national is to imply that he or she has no nationality. Most people have a nationality, unless they are stateless. That is a legal definition internationally. The more appropriate phrase is either "foreign national", as Deputy Hogan suggests, or, as I suggest, "non-Irish national". I do not understand why that would not be acceptable to the Minister. He might want to reflect on the proper phraseology but it does give offence to describe people as non-nationals. It is an old-fashioned, outdated and offensive term and a progressive Minister such as Deputy Martin will want to address that matter.
I call Deputy Morgan.
I would like to hear the Minister's reply first.
I was interested to hear the rationale because I have not received any representations on this point from outside bodies. We have received other representations in respect of green cards, the length of time for permits, etc., but to my knowledge I have not received representations on whether we should use the term "non-national" or "foreign national".
The term "foreign national" could be perceived to be derogatory if someone was of that mindset. I would never have regarded the term "non-national" as derogatory; it appears to be more of a definitional technical term to describe people who do not hold Irish nationality. The Employment Permits Act 2003 contains the term "non-national" and we want the Bill to be consistent in that regard. To be fair, we have not received any robust representations from the Department of Justice, Equality and Law Reform, which uses the term "non-national" in all its legislation, on this matter.
If we accept the amendment, would we not be creating new inconsistencies within the legislative template overall in that one set of Acts would contain the term "non-national" while another would contain that of "foreign national". In reality, it makes no difference in terms of the practical de facto impact of the Bill. What could ultimately happen, in terms of interpretation or whatever, is that we will come to the realisation that we want to change terminology in a global sense and apply it to all legislation.
Will the Minister reflect on amendment No. 2?
I will. I do not want to be seen to be awkward.
We are not being awkward about it either. If legal interpretations come to the Minister's notice when he receives some advice on it, we will be happy to withdraw the amendment.
What strikes me immediately is that we will be putting a definition into this Bill that would not be consistent with the term used in a range of other legislation——
That can be found in the definition section.
——relating to my Department and the Department of Justice, Equality and Law Reform. We need consistency.
The Minister will report back on Report Stage.
I move amendment No. 6:
In page 4, subsection (1), between lines 5 and 6, to insert the following:
""employment regulation order" means an order under section 48 of the Industrial Relations Act 1990;".
I propose this amendment to clarify the meaning of the phrase "employment regulation order", which is referred to in section 11(5), as amended. Joint labour committees or bodies established under the Industrial Relations Act 1946 to provide machinery for fixing statutory minimum rates of pay and conditions of employment may be set up by the Labour Court on the application of the Minister for Enterprise, Trade and Employment, a trade union or any organisation claiming to be representative of the workers or the employers involved.
The function of a joint labour committee, JLC, is to draw up proposals for fixing minimum rates of pay and conditions of employment for the workers involved. When proposals submitted by a JLC are confirmed by the Labour Court through the making of an employment regulation order, they become statutory minimum pay and conditions of employment for the workers concerned. Employers are then bound under penalty to pay wages and rates and provide conditions of employment not less favourable than those prescribed. It is an employment protection measure, ring-fencing and so on.
It is only a definition.
It all helps.
Amendments Nos. 8 and 134 are related and may be discussed together by agreement.
I move amendment No. 8:
In page 4, subsection (1), between lines 7 and 8, to insert the following:
""Member State of the EEA" means a state that is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2 May 1992, as amended for the time being;".
I propose in amendment No. 8, which is technical in nature, to move the text contained therein from section 25(7) to section 2. This is being done on the advice of the Parliamentary Counsel. I propose in amendment No. 134 to allow the transfer of the definition of member states of the EEA to section 1 in accordance with amendment No. 8.
I move amendment No. 12:
In page 4, subsection (1), between lines 14 and 15, to insert the following:
""offer of employment" has the meaning assigned to it in section 3 of the Terms of Employment (Information) Act 1994;".
I am advised that sections 3 to 6 cover the application by either a prospective employer or a non-national for an employment permit. Under section 5(a), an employer applying for a permit must show the offer of employment with all the details and terms of conditions of that employment. If a non-national is applying he has merely to show the offer of employment under section 6(f). However, it is not specifically stated what should be contained in the offer of employment and this could be remedied simply by importing the requirement that the offer of employment should comply with the provisions of section 3 of the Terms of Employment (Information) Act 1994, which provides the requirements for a written statement of the terms and conditions of employment. This would prevent unfair advantage being taken of foreign nationals and would also ensure consistency, about which the Minister has spoken.
Section 3(3) of the Employment Permits Bill uses the term "offer of employment".
My legal advice is, therefore, out of date.
Such an offer, in writing, is necessary before issuing a permit.
Is it consistent with the terms of the Terms of Employment (Information) Act 1994?
Section 3 of the Terms of Employment (Information) Act 1994 does not include a definition of an offer of employment. The section relates to the content of the written statement of the terms of employment an employer must give to an employee within two months of the commencement of employment. These include details of the place of work, title and nature of the work, pay and other conditions. This is a universal requirement and does not differentiate according to nationality, etc. It does not define, in itself, an offer of employment. The issue of the offer of employment will probably arise regarding subsequent amendments but is a key part of the Bill from our perspective.
We will return to that on Report Stage.
I move amendment No. 13:
In page 4, subsection (1), between lines 20 and 21, to insert the following:
""registered employment agreement" has the meaning assigned to it by section 25 of the Industrial Relations Act 1946;".
I propose this amendment to clarify the meaning of the phrase "registered employment agreement". A registered employment agreement, REA, is a collective agreement made either among a trade union or unions and an individual employer or employers' organisation or by a registered joint industrial council, which relates to the pay or conditions of employment of any class, type or group of workers and which has been registered with the Labour Court under the Industrial Relations Act 1946. The effect of registration is to make the provisions of an REA binding not only on the trade unions and employers involved in its negotiation but also on others who were not parties to its negotiation but who are in the categories covered by the agreement. An REA can deal with any matter that comes under the general heading of pay or conditions of employment. An agreement may provide for the variation of any of its provisions and each REA must contain a disputes procedure that is binding. There are 45 REAs currently on the register maintained by the Labour Court, including two covering the construction sector.
The amendment is significant in the context of the overall Bill because it enables us to ensure the enforcement of REAs, along with other measures, for migrant workers in Ireland such that they will not receive less that the REA rates. This has happened to non-nationals while Irish nationals received REA rates.
I move amendment No. 14:
In page 4, lines 39 to 42 and in page 5, lines 1 to 9, to delete subsection (4).
This is a technical measure as the Parliamentary Counsel advised that the subsection is unnecessary.
Amendments Nos. 18 and 19 are related and may be discussed together by agreement.
I move amendment No. 18:
In page 5, line 30, to delete "that is in force."." and substitute the following:
"that is in force.
(2A) Where a person (the "first person") enters into an agreement with another person (the "second person") whereby the second person agrees to cause, or arrange for, services (whether of a specific or general kind) to be rendered on behalf of the first person and either—
(a) it is customary in the trade or business in which the agreement is entered into, or
(b) the circumstances in which the agreement is entered into are such that it must reasonably have been in the contemplation of the parties to the agreement,
that the means to be used by the second person for complying with the agreement would consist of or involve, in whole or part, the services being rendered by persons employed by a person other than the second person (and whether or not that person is in a contractual relationship with the second person) then, if those means are used, it shall be the duty of the first person to take the following steps.
(2B) Those steps are all such steps as are reasonable to ensure, in so far as one or more of the persons so employed is or are a non-national or non-nationals employed in the State for the purpose of rendering those services, that that non-national or each of those non-nationals is employed in accordance with an employment permit granted by the Minister under section 7 of the Employment Permits Act 2006 that is in force.”.”.
This amendment deals with subcontracting.
Will the Minister translate the amendment into English?
If a person subcontracts to another person, the first person must monitor matters. It is not good enough for him or her to state that seeking a work permit has nothing to do with him or her.
Will the Minister explain the proposal?
The first person cannot defend himself or herself against the second person's failure to obtain works permit by saying it has noting to do with him or her and that it is a matter for the second person to dutifully seek them.
I am sure it is an additional safeguard——
The first person must see the process through to the end to ensure that work permits are properly sought where any project is subcontracted to somebody else.
What of the obligation of the second person?
He or she is obliged to obtain a work permit and the first person must also ensure that this happens.
Is the Minister referring to an agency worker who might enter the State?
Not necessarily, it could be someone who comes to a construction site to do work.
Where an employment agency contracted to find employment for a worker brings a worker to the State, on whom does responsibility fall? Is it on the agency or on the employer?
It falls on the employer. The agency does not obtain a work permit.
Can the agency apply for the work permit?
No.
Are there any circumstances in which it could do so?
It could only do so if it were employing somebody.
In the case of foreign national workers who come to the State to work in the health sector — I refer here, for example, to agency nurses — will the individual health authorities apply for their work permits?
The hospitals will do so.
Is it the individual hospitals?
That is my understanding.
Is that the case?
That would be my understanding. I would be obliged to clarify whether the applicants would be the hospitals, nursing homes or other bodies under the HSE.
I believe I would support what the Minister is proposing to do if I understood it. However, I want to know exactly where the burden falls.
We might look at the employment agency issue. The Deputy raised a fair point in this regard. This provision was designed for an employer who subcontracts everything and states that he or she has no more obligations.
That is clear enough.
However, the Deputy made a fair point on employment agencies.
The Minister might communicate further with me on it.
If an amendment is required, we will table it on Report Stage.
I move amendment No. 19:
In page 5, before section 3, to insert the following new section:
"3.—Section 2 of the Act of 2003 is further amended, in subsection (3)—
(a) by inserting, after “subsection (1) or (2)”, “or fails to take the steps specified in subsection (2B)”, and
(b) by inserting, in paragraph (b), after “subsection (2)”, “or a failure to take the steps specified in subsection (2B)”.”.
Amendment No. 19 was discussed with amendment No. 18.
Amendment No. 19 is related to amendment No. 18. It is brand new and we have just seen it this morning. What exactly is its import?
I should have dealt with the two amendments together because both concern subcontractors. People who use subcontractors have a duty to ensure that those contracted have applied for work permits, where necessary. Amendment No. 18 is designed to address circumstances relating to the use of subcontractors. Where a person enters into an agreement with another person for the supply of a service by that second person and where it is envisaged that the means used by the second person to perform that service entail, wholly or partly, the employment of a third party, the first person has certain duties and obligations. The first person must take all reasonable steps to ensure that if one or more of the employees rendering the service requires an employment permit, such a permit has been procured. If the first person fails to take such steps, that party is guilty of the offence of employing a non-national illegally, which is prohibited under the Employment Permits Act 2003.
Before we conclude our consideration of section 3, which relates to applications for work permits, I wish to speak about such applications as a means of giving notice of my intention to table an amendment in that regard on Report Stage. I have continually stated on Question Time and in Second Stage debates that——
Do the Deputy's comments relate to amendment No. 19?
They relate to section 3 of the Bill.
An amendment relating to this matter will be proposed later.
That is helpful. I do not want my Report Stage amendment to be ruled out of order because I did not give notice of it on Committee Stage.
We will permit the Deputy to address the matter when we consider section 3.
I think I have addressed it in a sufficiently adequate manner to be allowed to raise it again on Report Stage.
I will allow the Deputy to speak later in the debate.
I move amendment No. 21:
In page 5, subsection (1), line 34, to delete paragraph (a).
This may be the amendment to which Deputy Morgan referred earlier. I propose to amend section 3(1) of the Bill as it stands, in which the Minister proposes that:
An application for the grant of an employment permit in respect of the employment in the State of a particular non-national may be made, other than in a case referred to in subsection (2), by—
(a) the person proposing to employ the non-national, or
(b) subject to subsection (3), the non-national.
The Bill continues to contain the term "non-national". I propose the deletion of section 3(1)(a), which allows a person proposing to employ a non-national to apply for a employment permit in respect of the non-national. When the Tánaiste originally indicated that she intended to propose this legislation, I understood she was planning to provide that ownership of work permits would be in the hands of individual non-Irish nationals who wished to come here to work. However, the Minister, Deputy Martin, has preserved the legal reality that employers can apply for work permits. I agree with the Irish Congress of Trade Unions that the Minister’s approach in this Bill substantially undermines the principle that was outlined by the Tánaiste. I will explain that in a moment.
If amendment No. 21 in my name is accepted, it will be open to individual workers and not to employers to apply for work permits in line with section 3(3), which provides:
A non-national may not make an application under this section in respect of his or her employment in the State unless an offer of employment in the State has been made in writing to him or her within such period preceding the application as may be prescribed.
If my amendment is accepted, people who see job advertisements, apply for jobs and are offered them in writing from an Irish employer will be able to apply for work permits. If they are successful, they will be the owners and holders of their work permits. If the amendment is not successful, individual companies and employers will continue to be able to apply for work permits.
The Irish Congress of Trade Unions has made a very clear submission available to members. According to ICTU, if employers are allowed to apply for work permits, the benefits it had hoped would accrue from workers being able to hold their own employment permits will be undermined. Allowing workers merely to hold employer permits, which employers decide whether to apply for, is not the same as allowing workers to apply for and be granted permission to work independently of the say or favour of employers. ICTU wants workers to have something more akin to ownership, rather than possession, of employment permit documents. It does not think it is right that the permission of workers to work should rely on the favour of employers. ICTU believes the Bill should set out in clear language that each worker will be allowed to apply for, hold and own his or her employment permit. I am trying to capture the essence of that requirement in this amendment. I understood from the Tánaiste's original utterances in respect of this legislation — I know they were made a long time ago — that she wanted to put a regime of this nature in place.
We can all recount anecdotal and real evidence of exploitation. I refer to cases in which the concept and reality of the ownership of work permits has led to bullying, intimidation and threats of eviction or even deportation. We need to clarify the independent rights of individual workers who come legitimately and lawfully to this State on foot of job applications and written offers of employment. I am pursuing this amendment to make it clear that such people have gained, in their own right, the right to come here to work.
I referred earlier to my intention to address on Report Stage the issue of employers being allowed to apply for and retain work permits. I did not think an amendment relating to it would be considered by the committee so soon. I accept that each employee is given a copy of the work permit relating to him or her but I am concerned that the current regime allows for the prospect of bonded labour to some extent.
It is open to abuse.
It is open to abuse. It is worth noting that the Immigrant Council of Ireland, like ICTU, expressed its strong opinions on this issue in a submission. I have said enough about this matter, to which I will return on Report Stage, when I hope further amendments will be proposed.
The Deputy is supporting Deputy Howlin's amendment.
For now. I will table an amendment of my own on Report Stage.
This legislation will be implemented by regulation, generally speaking. I presume that the question of how applications will be made will be dealt with in the regulations which will be published subsequent to the enactment of this legislation. It would have been helpful to members if they had been given some idea of how the regulations will be framed before being obliged to reach conclusions about how the Minister intends to implement this legislation.
The net point in Deputy Howlin's amendment is that if the Bill is intended to improve the integration of foreign nationals in Irish society by making changes to their workplace circumstances and to facilitate labour mobility throughout the State, employees rather than employers should be given the labour autonomy they need. By and large, employers will not move unless they move out of the jurisdiction as a result of outsourcing. Employees should benefit from the best possible attitude in the event of developments that could not have been foreseen when the original work permit was granted. We should take account of the red tape that is encountered by such people if their employment with a particular employer ceases and they have to move on to seek new employment. One of the fundamental issues that needs to be addressed in the Bill is whether work permits should be vested entirely in employees. The Minister has proposed that they be vested in employees and employers. I consider, on balance, that employees should have autonomy in respect of these matters. This country's unemployment rate is quite low. The autonomy of workers will be crucial if we are to fill the various skills shortages which exist.
The Bill must be looked at in its totality.
It sounds like we have won the argument
No, it does not. I do not think the Deputy should jump to any premature conclusions.
The banter can be left until later.
We have as many hours as are needed to scrutinise the Bill properly.
Absolutely. There will be no curtailment of time whatsoever.
That is exactly it.
However, progress must be made.
The Chairman is about progress, if nothing else, in all aspects of his political career.
I thank the Minister.
Those of us who have taken the trouble to table amendments would like the Minister to take the time to reflect on them.
There is no problem.
The Deputy should allow me to respond.
My barbs are not aimed at the Minister.
The Deputy has made his case and should listen to the Minister.
I will explain what I meant when I said the Bill should be considered in its totality. This legislation is about putting our economic migration policy on a statutory basis. That policy, as it relates to non-EEA citizens, focuses, in essence and unapologetically, on skill and labour shortages. It has been pursued on an ad hoc basis since 1999, when work permits started to be issued in any great volume. Some 5,000 permits were issued in that year, whereas up to 50,000 permits were issued in 2003. The approach being taken by most people to this argument is slightly contradictory. The case for certain controls on the extent of migrant labour coming to this country has been advanced politically.
We want to avoid the abuse of workers but we also want to adopt a job-offer approach or to at least allow employers to apply for work permits. The effect of Deputy Howlin's amendment would be to debar employers from applying for work permits. Allowing employers to apply for work permits encourages greater traceability than if we had a free-for-all situation, whereby someone could come from anywhere and apply for a permit. Neither the Department nor the labour inspectorate would know anything about that. Many people in the health services were employed by agencies and we knew where they were working. If a report was made that employers in these services were not implementing the law, a ready-made facility for redress was available. In the Gama case, an engagement was made with the company and, subsequent to that, a significant allocation of funding was made to workers of up to €22 million. There was a ready-made facility for redress because the job offer was made though this system and the State could get very quick access to the documents involved.
We are also significantly increasing mobility for employees in the Bill. Within 12 months, employees can leave the job they have been offered and seek employment elsewhere yet still retain valid work permits. We will be flexible with some of the amendments tabled by the Deputy that extend one-year permits to two years. The Bill allows the work permit to be given to the employee. The Bill facilitates the employee to apply for the work permit in the first instance and it provides that the work permit be given to the employee. If we were not to use the job-offer approach, the only approach that could be adopted would be a points or quota-based system. We decided not to use that system because we felt it would be very unwieldy. Having resolved this internally and studied the work of Forfás on the expert skills group, we felt that economic migration policy should be skills-based, focused and targeted, particularly as the vast majority of low skills jobs will be sourced from the European Union where work permits are not required. This policy should aim to plug the skills gap where we cannot do so ourselves.
Complaints have been made that there are even too many people coming from Europe. The Deputy's party leader made such complaints and asked whether these individuals should be obliged to apply for work permits. If that is the case, there would be no focus on the non-EEA countries in the areas where we lack skills. Any company could bring in someone to work and there would be no facility for the State to require that the job be filled via the EEA. This is an actively managed migration policy and is not a free for all.
The Minister misunderstands my amendment or else he is muddying the waters. He says that the consequences of accepting my amendment would be to have some sort of unregulated inflow of workers. It only closes one channel of application and it is not proposing any new channel. The unknown open door to which the Minister refers already exists because individuals can apply for jobs. The Minister knows that there is a variety of safeguards in place to address the issues to which he refers.
My amendment is very narrow in focus but is nonetheless important. It tries to meet the wishes of workers in this country, the wishes of the trade union movement and the wishes of the migrant representative organisations who have come to me. They want possession of their own working documents by applying for them. The amendment does not allow for citizens of non-EEA countries to arrive in Ireland and apply for jobs. One will only be able to apply for a work permit after the enactment of this legislation if one has a written job offer. This is outlined in section 3(3), which states:
A non-national may not make an application under this section in respect of his or her employment in the State unless an offer of employment in the State has been made in writing to him or her.
The safeguard will, therefore, be in place.
Section 13(1)(d) provides that the Minister may restrict application to those workers who possess specific, regulated skills and qualifications. The Minister has the power, therefore, to set that out. He already stated that the expert group on future skills needs will determine the system. It is a managed migration system and I have no difficulty with that. I have no difficulty with it being tailored to suit the needs of the economy at any given point. However, all of that is already there. Granting workers the right to apply for permits will not alter the position.
Section 6 sets out the additional information that non-Irish nationals are required to submit in their applications, including proof of qualifications, a full and accurate description of the employment offered, the place of work, conditions and remunerations and so on. It is not, therefore, the open-door policy that the Minister indicated in his initial reply. The Minister has all sorts of powers to restrict the skills and the categories of work that may be advertised to non-EEA nationals. The only issue is whether——
Is it the Deputy's intention to debar employers from making applications for work permits?
Yes.
In many instances, that would be very impractical.
Why?
An employee in India may or may not know of a vacancy in an IT company in Ireland but it may suit the person to arrive at a company in Ireland that has good HR practices, such as Dell, and that can organise the work permit for the employee. I do not understand why we should take something out of the system that works in 95% of cases. There have been abuses and the rest of the Bill will deal with those but it is excessive to remove the employer out of the equation.
There is strong evidence that abuse has occurred on a number of occasions. However, safeguards exist in the Bill to ensure that the skills base and the specific requirements, such as qualifications, conditions of work and so on, can all be defined by the Minister. The only issue remaining is who should actually make the application. If Dell wishes to recruit in India, it will process applications and make a job offer to an Indian national. However, it should be the responsibility of the person offered the job to apply for the documentation that will allow him or her to come to Ireland. This will give the applicant knowledge that the permit is in his or her possession and not that of the company.
The difficulties that have arisen in the past have not related to large companies, such as Dell, but to small-scale employers, such as shopkeepers, farmers and so on, with only one or two employees. In some cases, such employers regard the individual on whose behalf they hold a work permit as a bonded serf. I have dealt with cases where people were obliged to sleep in cars because they were thrown out of their provided accommodation and threatened with deportation. If what I suggest in this amendment is not correct, there must be some other way of addressing this matter.
There is a way to do so. Section 6——
May I finish? It is simply not good enough to say there have been no such problems in 95% of cases.
I said earlier that we must look at the Bill in its totality.
That is why I referred to section 6.
This Bill provides a far greater degree of protection for employees than existed heretofore.
I accept that.
It also provides them with far greater mobility in terms of the ability to transfer to another employer. There are also improvements in respect of the extension of time for which a work permit can apply and the provisions in regard to green card applications. Each job must be advertised in FÁS for four weeks and the process of worker testing is retained with that organisation.
If one takes the employer out of the equation completely, one runs the risk of snarling up the system with undue delays. There could be anything up to 30,000 work permits applications per year. A significant number of these will be renewals but they must still be monitored. Where difficulties arise, the objective must be to ensure quick resolution for the worker whose pay and conditions have been undermined or trampled upon. We must avoid undue delays that threaten the availability of quick redress for workers and the imposition of sanctions against employers. A later amendment I have tabled provides that the Minister can decide never again to allow an errant employer to obtain a work permit.
The balance provided by the Bill is such as to most definitively swing in favour of protection of the employee. By writing the employer out we may damage the efficiency of the system. Such an approach is also undesirable from the perspective of employees for whom the system of employer-held work permits is an entirely positive experience.
What will happen when an employee has a dispute with his or her employer before the two years is up and the latter is entirely uncooperative in regard to the employee's right to transfer to another place of employment to fulfil the terms of reference of his or her work permit?
The Bill provides that a person can leave his or her employment within 12 months.
What if the employer fires the employee?
If there are difficulties within the 12 months, the employee may apply for another permit to go elsewhere.
How long will that process take? This could also clog up the system.
It will only take approximately four weeks.
We all accept that the Bill is an improvement on the current situation and is at least a move in the right direction. Deputy Howlin dealt comprehensively with the issue in regard to there being no additional complications if the employee rather than the employer applies for the permit. The Minister referred to the large number of work permit applications on an annual basis. The introduction of two-year permits, however, will significantly reduce the burden on the Department.
In cases where difficulties arise, the Minister said that it is convenient for the employer to have the relevant documentation to hand. However, there is an equal level of traceability in the case of an employee issuing notification of a transfer of employment and so on. We have heard about numerous cases of abuse and I am sure there are many more of which we are unaware. However, if employees hold the permit, good and constructive employers — such as the Chairman — who are concerned about the welfare of their employees will work harder to keep them on board and build better relationships with them. It is a win-win situation.
This amendment would serve to remove the employer from the system. We must be careful in that regard.
It removes the employer only in his or her capacity as work permit applicant.
Exactly. The signal this sends to employers is something about which the committee, which is concerned with enterprise, should be careful.
What signal does it send?
It sends a signal that employers are not to be trusted in any shape or form.
It does no such thing.
Of course it does. It says that employers cannot apply for work permits because we believe them to be part of a system that facilitates the undermining of workers' rights.
That is similar to saying——
What is it saying other than that?
It is similar to saying that CIE should apply for driving licences for all the drivers it employs.
The Minister should be allowed to conclude.
We are aware of many places of employment where workers with particular skills are needed. The employers in question might need ten or 15 workers and would be unable to secure them through the FÁS worker tests facility. Many of these companies have the wherewithal to process work permits for potential employees and ensure that the necessary documentation is in order. In such cases, there may be difficulties for an individual employee applying for a work permit, with missing documents and telephone calls and e-mails back and forth. We need some flexibility in the system.
The cry before the Bill was published was that we must ensure individuals can apply for a work permit on their own behalf. We have provided for that. There was previously no call, however, for the employer to be completely removed from the system. A balance must be struck and we may have to agree to disagree on this. The trade unions have a strong view on one level but they have other views in respect of other matters. They sometimes emit conflicting messages on the migration issue. I will leave this on the record and count to ten yet again. We are endeavouring to achieve a balance between the protection of workers' rights and the need to ensure an effective and efficient economic migration policy, particularly in terms of meeting our skills shortages as they emerge.
I understand the Minister's point and concede that there is some merit in it. He is guilty, however, as I may also be, of over-egging the pudding in making his case. There is no reflection on employers in taking them out of this process. That is similar to saying that it is a reflection on CIE that individual drivers must apply for their own licences. No transport company would dream of arguing that while individuals should take their driving tests, the company will apply for and hold their licences.
The kernel of this issue is personal dignity. The point has been reasonably made by the Minister that there are circumstances in which it makes sense for the employer to hold the permit. Some of the larger companies, for example, because of the turnover of expert staff and so on, may have an efficient system for processing applications that would relieve workers from that effort. That point is well made. I am concerned, however, that while the Bill provides for non-Irish nationals to apply for work permits on their own behalf, the status quo may prove to be unchanged in practice, with employers routinely making the applications. This is the concern of ICTU in making its representations to us.
We have dealt with this issue quite well. I do not know whether the Minister can in any way address the principle to which I referred. There is not much that can be done on Report Stage and we may be obliged to review the practical working of the legislation after several years.
I assure the Deputy that the provisions relating to employees applying for work permits will be facilitated in a proactive way on the administrative side. We had discussions with several interested bodies, including Migrant Rights Centre Ireland and the Consultative Committee on Racism and Interculturalism. In our consultations with the latter, which comes under the aegis of the Department of Justice, Equality and Law Reform, we discussed the possibility of working together on an information campaign. Information on this Bill will be included in the latest instalment of FÁS's Know Before You Go campaign, which will distribute videos and other information media to non-EU workers.
I had discussions last night with the representative of a non-Irish national who has been working for a company in Ireland for a long period. The person is long enough in the State, with his family, to be in the process of applying for citizenship through naturalisation. He was terrified of speaking to me because of the possibility of being fired from his job. This person has not had a wage increase in the entire time he has been employed here. There are instances of such behaviour on the part of employers.
I accept that.
This is not anecdotal. I accept that the new regime will be far more worker-friendly and I have pressed for this legislation for a long time. I remain concerned, however, that this regime of fear may still hold sway after the legislation is enacted. We must ensure that there is no scope for exploitative employers to use the work permit system as a vehicle for exploitation, of vulnerable non-nationals from outside the EEA in particular.
Amendments Nos. 25, 36 to 40, inclusive, and 55 are related and will be taken together.
I move amendment No. 25:
In page 5, lines 41 to 43 and in page 6, lines 1 and 2, to delete subsection (3).
Subsection (3) provides that an offer of employment is necessary before an application for a work permit can be made. My amendment seeks to provide some flexibility in this regard. Has the Minister considered how this provision will relate to the operation of recruitment agencies? The role and contractual obligations of such agencies in terms of the rights and benefits of workers on part-time, full-time and fixed contracts was discussed at some length during the debate on other employment legislation in 2003. Where an employment agency seeks to recruit persons with particular skills on behalf of a company, for example, should it be possible to apply for a work permit on the basis of one's dealings with that agency but without an offer of employment from a particular company? We may have discussed this issue previously but perhaps the Minister has some comments to make on it.
There has been some discussion on this issue in the context of social partnership. This has not, as yet, matured into a legislative response but it may do so.
Is such a legislative response likely to emerge only after the Bill is passed?
It would dovetail with this Bill. In other words, its measures would be applicable to it. I will reflect further on how employment agencies fit into this and return to the issue on Report Stage. It is not our intention that such agencies should be deemed to be employers. Their function is to work on behalf of employers to match vacancies with persons seeking work.
Amendments Nos. 33 and 41 are related and may be discussed together.
I move amendment No. 33:
In page 7, between lines 4 and 5, to insert the following subsection:
"(2) In respect of answers, by a foreign national in an application for an employment permit, given in paragraph (f)(i) of this section, nothing shall automatically disqualify an applicant from gaining an employment in and of itself, but may be taken into account when his or her application is being considered.”.
This amendment seeks to clarify whether a person's having been in the State at some previous time, in whatever capacity, is a disqualifying factor in respect of an application for a work permit. It is not clear whether this is the case.
Generally speaking, a person without the correct status will not be eligible for a work permit. This is the preferred and consistent position, although exceptions have been made in certain circumstances. The Department of Justice, Equality and Law Reform might have a role in such matters.
I include the phrase "automatically disqualify" in my amendment to cover those exceptional circumstances.
Notwithstanding such exceptions, we do not want a free for all — a situation where people can say they are in the State now and should be accorded certain rights.
I do not want that either.
The provisions in this regard will depend on the regulations we draw up.
I agree. That is why it wold be helpful to see these regulations.
A Deputy recently raised a case with me where a person was subjected to abuse by an employer. This person did not have possession of the work permit and when it expired, he was in limbo and did not hold any official status. Most people would agree that a person in this situation deserves to be facilitated and the regulations must try to cover such circumstances. In the generality of cases, however, a person without proper status cannot obtain a work permit.
Is it possible to get some indication of what will be contained in the regulations before Report Stage?
I do not believe that we will have come far enough with the regulations by that time. The Department of Justice, Equality and Law Reform is also bringing forward legislative proposals on this issue which, in many respects, dovetail with the Bill.
That concerns me somewhat.
No, it is quite positive. The ultimate objective is a one-stop shop that will marry visa requirements with work permit applications.
Amendment No. 46 is in the name of Deputy Hogan and the Minister. Amendment No. 47 is an alternative and amendment No. 89 is related. These amendments may be discussed together.
I move amendment No. 46:
In page 8, lines 9 to 17, to delete subsection (5) and substitute the following:
"(5) The period that shall be specified in the employment permit for that purpose shall not exceed 2 years beginning on the date of the grant of the permit or such longer period as may be specified by regulations under section 13.”.
Deputy Hogan and I are in agreement in principle on the two-year period. I propose that this amendment be accepted and that amendment No. 47 be withdrawn as the substance of the matter is covered by amendment No. 46. I am proposing amendment No. 89 for consistency with amendment No. 46.
This is an important issue not to be glossed over.
As nobody was offering I assumed——
The Minister was speaking.
I thank the Minister for accepting this amendment as it is one of the critical issues in the Bill whether one has a work permit for up to two years rather than one year. It will provide more certainty to people, whether on the employee side or the employer side, in regard to their employment possibilities. The regulations govern the grant of a permit for two years and set out how a worker is to be treated if an employer decides to get rid of an employee. The circumstances in which that would be dealt with are important. The regulations need to be generous in regard to how a worker would be treated if he or she makes a fresh application for a new employer to ensure that the four weeks would not become eight weeks. That employment permits will be for two years removes much of the unnecessary administrative burden on the Department and will free up the system.
That is an important advance and it is something ICTU wanted. It is better from an administrative point of view and offers a more reasonable period for people. The difference between the amendment proposed by Deputy Hogan and me is that I propose to keep paragraph (b) while he proposes to amend paragraph (b) and amalgamate it with paragraph (a). I am trying to read the two in parallel to see whether there is a difference.
It simplifies the issue.
Section 7(5)(b) reads:
[I]n the case of an employment permit granted on foot of an application by a non-national, 2 years beginning on the date of the grant of the permit or such longer period as may be specified by regulations under section 13.
That is still captured in the Minister's amendment.
Yes.
"[O]r such longer period as may be specified by regulations under section 13.” It simply subsumes paragraph (a) into paragraph (b).
Yes.
That is a good way of proceeding.
Is Deputy Morgan happy?
Certainly it will lend itself to better stability for the employer and the employee. It is a win-win situation on both sides. I wonder about the wording of the Minister's and Deputy Hogan's amendment which provides that the employment permit shall not exceed two years. I assume most work permits would be for a period of two years. Is it implied that there would be an option for one year or a lesser period than two years? Is that the intention?
No. The amendment states the period "shall not exceed 2 years". Two years is the minimum period. I may, by regulation——
The amendment states it shall not exceed two years.
Or such longer period as may be specified.
So it can go longer than two years. Is that correct?
Up to two years.
But it can be renewed.
Certainly one can renew it.
I move amendment No. 48:
In page 8, between lines 17 and 18, to insert the following subsection:
"(6) Where—
(a) the provisions of the Protection of Employees (Fixed-Term Work) Act 2003 become applicable in respect of a foreign national employment permit holder, or
(b) where a foreign national employment permit holder becomes entitled to a contract of indefinite duration,
nothing in this Act shall be used to—
(i) deny that employee his or her rights in law,
(ii) deny that employee the renewal of his or her employment permit, if such a denial would interfere with his or her rights in law.
(iii) deny him or her permanency of employment as provided for in section 5 of the Protection of Employees (Fixed-Term Work) Act 2003, or
(iv) afford him or her any lesser protection under employment protection legislation that is afforded to an EU or EEA national.".
I am advised that one of the interesting features of the Protection of Employees (Fixed-Term Work) Act 2003 is that it may become applicable in a way in which permit-holder employees may well be employed on fixed-term contracts and after four years, the employment permit holder may become entitled to a contract of indefinite duration. As they are mere permit holders, employers will probably not apply for renewal of the permit at that stage. Therefore, it can be open to manipulation under the terms of the 2003 Act. Has the Minister got legal advice on that issue?
The employment permit holders are, by definition, given permission to work for——
It is inherent.
——two years and it would be inappropriate to grant them permanency of employment from day one. In terms of pay and conditions the employment rights protections are available to non-national workers as nationals. Those who get a work permit are a different category of workers. They are permit holders for a fixed period. In many instances some come for a year or two years and go away again because the project may be finished. Section 6 of the Protection of Employees (Fixed-Term Work) Act 2003 provides that a fixed-term employee shall not be treated any less favourably than a permanent employee, irrespective of nationality. By their nature, workers here on permits cannot be guaranteed permanency of employment as the basis for the permit is that they should work for a definite period. If one is given a permit to work for two years, which will probably arise in this case, it is a different legal entity.
Amendments Nos. 52 and 53 are related and may be discussed together.
I suggest they be taken separately as they deal with two different issues.
Is that agreed? Agreed.
I move amendment No. 52:
In page 8, between lines 24 and 25, to insert the following subsection:
"(2) an employment permit shall be issued in, or accompanied by a translation in, the language of the employee.".
It is important that the conditions and terms of employment are clearly understood by a non-national who may not have proficiency in English. Much difficulty would be avoided subsequently if this were provided for in statute. I hope the Minister will accept my amendment.
I had thought about this and I have some sympathy for what the Deputy is trying to achieve. Would the Deputy accept a compromise——
Yes.
——to delete "shall" and substitute "may" so that the wording would be, "An employment permit may be issued in"? There are 100 nationalities in the workforce. We do not want to delay work permits.
What about the words "so far as is practicable"?
There are 100 nationalities in the workforce in Ireland at present.
When I was Minister for the Environment, Heritage and Local Government the phrase used to be BATNEEC, best available technology not entailing excessive cost. I moved for an employment version of that.
I have advanced beyond that and have got to "may".
The word "may" is meaningless.
It is not. It allows us to do it and I think we should do it, where practical. I will come back to the matter on Report Stage. The Deputy has suggested the wording "where practicable".
Yes.
The reason I said "may" was not to tie everybody's hands.
I understand that.
If somebody wanted——
It is very obscure language and I do not want a technical difficulty——
And we are all running around the place trying to find——
——because somebody could not translate it into a very peculiar language.
Yes. The practical course of action initially for the EEA countries is the FÁS "Know before you go" campaign. The top three are Poland, Lithuania and Latvia, as those are the countries from which the largest volumes come. Those countries could be ticked off first in terms of languages. If the nationalities of 30,000 work permits were checked, it should be relatively easy for 5,000 or 10,000 of those.
Poland, Latvia and what other country?
Poland, Lithuania and Latvia.
They are the three top countries.
They are the main EU countries. The others have very low numbers. Equally, in the non-EEA countries, some are higher than most, for example, the Philippines on the health side. The volumes are low across the board.
I do not genuinely——
I am in sympathy with the Deputy and I support what he is trying to do.
Yes.
We should not be against this, because if the language is there, it short-cuts the route to basic rights and so on.
I am happy to withdraw the amendment if the Minister includes a reference such as "as far as practicable". Even if one chooses a country such as the Philippines where Spanish might be lingua franca of the Philippines, there might be a minority language involved in the region.
That is fair enough. I will do that.
I do not want to create a difficulty that would cause problems. I think the Minister accepts the principle.
In some of the minority states in eastern Europe where Russian is the common language, the indigenous language would, perhaps, be obscure. We could accept something like that but I mention it in case I disagree with what the Minister comes back with and I have to amend it.
I move amendment No. 53:
In page 8, subsection (2), between lines 26 and 27, to insert the following:
"(a) a statement as to the employment rights of the employee including a statement that the employee has the right to join a trade union,”.
This is an amendment to subsection (2) of section 8 which states: "The employment permit shall include the following information ...". It then sets out everything the Minister wants to include on the employment permit. I am suggesting a new subsection, that is, a statement as to the employment rights of the employee, including a statement that the employee has the right to join a trade union.
I have some difficulty with this amendment. There is a right to join a trade union in this country.
People should be told about it.
They can be told about it but there are a number of routes by which we do that. We do not want to give the impression to the work permit holder that the right to join a trade union automatically means the trade union can negotiate on his or her behalf. As the Deputy is aware, an employer is not obliged to recognise a trade union.
The Minister should explain that.
It is not mandatory in this country and has never been mandatory. There is a balance to be struck in terms of providing for that in primary legislation. I am not disposed to including that aspect for that reason. It could be misleading, although I accept not intentionally, to the work permit holder.
I cannot accept it would be difficult to convey that information because it would fit on half of an A5 sheet of paper.
We are already putting all the other points on the work permit, including pay, conditions and so on.
The Minister would be informing people that they are entitled, as of right, to join a trade union. That should be actively encouraged, notwithstanding that not all trade unions are licensed to negotiate. The majority are, and they would help the employee establish his or her rights, ensure everything is going well and therefore lessen the opportunity for difficulties to arise in the future. The addition of one small paragraph to the permit would be hugely beneficial in terms of making the employee aware of his or her rights in respect of this issue.
There are different routes by which we can convey to people that they are entitled to join a trade union. The difficulty in putting it on the work permit document is that it will convey the clear impression to the work permit holder that there is a consequential right of representation. I am not in a position to do that because some employers do not recognise trade unions.
One sentence to that effect——
Small companies do not have to have a trade union. I am not in a position to presuppose on behalf of employers in that situation.
One short sentence would address that.
We are working with the Migrant Rights Centre Ireland and we will work with other organisations and trade unions but there are other routes to communication. We might have to agree to disagree on this matter but that is my position.
I do not understand the difficulty to which the Minister has alluded. The statute sets out what is to be included on the permit. It does not set out the form in which it is to be included. In other words, section 8 will not be replicated on the work permit. It sets out what is to be included. I am saying a statement as to the employment rights of the employee should be included. The Minister can form the statement that the employee has a right to join a trade union. The statement could be to the effect that, in Ireland, the person has the statutory right to belong to a trade union but trade unions do not have negotiating rights in every employment and the person should check that. Is that a difficulty?
What was the original purpose? We came up with the idea that we should put on the work permit issues like pay and conditions. To give the classic example, if an employer is paying an employee €3 a week but the work permit states he or she should be getting €8, €10 or €12 a week, there is an immediate recognition for the worker that something is wrong. That was the purpose of putting that on the work permit. We do not want to clothe it with a lot of detail. We want to have clear bullet points for the workers about the fundamentals so that they will know immediately that something is wrong and they are being exploited. That was the purpose of this section. It is not the sort of document that will be a certain size with many qualifiers and so on included on it. If the work permit application comes in and the applicant states the salary for this job is such and such a figure, that salary goes on the work permit. That is the purpose of this section. I am not trying to be awkward but a balance must be struck——
The trade union would do much of that work for the Minister.
I know that. In fairness to the trade union movement, it has signed up thousands of non-national employees.
I agree with the Minister on this issue. Such a statement on the permit could cause confusion and lead the permit holder to believe that if he or she joins a trade union, it can negotiate everything on his or her behalf. There is another side to it also, namely, the employer. I do not see any major benefit in including such a statement on the permit and it might lead to confusion.
For once I cannot agree with my colleague from the west. The Minister has made a heart-rending appeal not to clog up the work permit with all this information but in the best Civil Service tradition, subsection (3) of the same section — and I can put anything I want on the work permit — states that subsection (2), which specifies what must be included in the work permit and that I want to amend, "... is in addition to any other provision of this Act, or any other provision of regulations under section 27(2), specifying matters or information to be included in an employment permit”. Under section 27(2), therefore, the Minister gives himself the right to include extraneous matters if he so wishes. I am not taking issue with that. It is useful to have such a saver clause but it runs counter to the notion that we must be specific and careful about it. I will not labour the point.
The Department website states that people have the right to join a trade union.
I do not know if the Minister was in the Department at the time — it may have been the Tánaiste — but on the last occasion we debated trade union legislation I sought not only to have the right to join a trade union enshrined in law but also the right of negotiation to be provided. That was not provided but it is welcome that people know there is a representative to whom they can reach out. I have dealt with too many such cases, and not everybody would be aware they can make representations to their TD. It is not the norm in many cultures that the local Member of Parliament is as accessible as most of us in this jurisdiction must be to survive or that people see the local Member of Parliament as an ombudsman-type person, which is often the case here. In a developed society that role is normally performed for workers by trade unions. There is nothing wrong with indicating that is the right forum to which people should go. My amendment is not prescriptive but a simple sentence to the effect that they have a right to join a trade union — the Minster stated that is already on the website — but not all trade unions have the right to negotiate on every employment. A sub-clause in the same sentence would not be a major burden on it.
I am not disposed to putting it on the work permit because it could be misleading. However, there are other ways of communicating the same message.
Very well.
I move amendment No. 58:
In page 8, subsection (2), lines 37 to 41, to delete paragraph (c) and substitute the following:
"(c) a statement—
(i) of the requirement under the National Minimum Wage Act 2000 that the foreign national concerned be paid at least the national minimum hourly rate of pay by his or her employer and the effect of subsections (1), (3) and (4) of section 22, or
(ii) where better terms and conditions of employment in an employment regulation order or registered employment agreement are in effect, of what the applicable terms and conditions of employment for the foreign national are:
and".
Section 8(2)(c) states there is a requirement under the National Minimum Wage Act 2000 to ensure the employers of non-national employees are aware of the national minimum hourly rate of pay. We should state that the Act provides for the minimum that should be paid to these people rather than providing for a prescriptive amount that should be paid. This might lead to some confusion for the foreign national. It could be understood that the national minimum wage is the amount that should be paid by an employer rather than the minimum amount to be paid.
Amendment No. 80 clarifies that. The statement on the permit already includes the requirement that the employee is entitled to the national minimum wage. This is already in the Bill. Under amendment No. 80, the standard working week remuneration provides for the arrangement proposed by the Deputy, that is, an amount higher than the national minimum wage, under employment regulation orders or registered employment Acts.
I am glad it is covered in amendment No. 80.
Yes. The Deputy will recall that we dealt with some definitional points earlier on PLCs and REAs.
Between sections 8 and 9 might be the most appropriate place to deal with the right of permit holders' families to come to this country and, perhaps, work——
There is an amendment later on that, in Deputy Hogan's name.
It does not deal with this specific issue.
It might have been ruled out of order. It is really a matter for the Department of Justice, Equality and Law Reform. I cannot deal with it in this Bill.
The Minister is moving closer to us generally, along with the other political parties, but he has not quite caught up with us.
I cannot deal with migration issues. That is a matter for the Deputy's colleague and friend, Deputy McDowell.
I thank the Minister for the friend bit.
I am sure he will be very accommodating to any amendment the Deputy puts forward.
Amendments Nos. 62 and 63 are alternatives to amendment No. 61 and amendment No. 64 is related. Amendments Nos. 61 to 64, inclusive, may be discussed together.
I move amendment No. 61:
In page 9, lines 3 to 8, to delete subsection (2) and substitute the following:
"(2) An employment permit to which this section applies shall not be granted unless the applicant satisfies the Minister that—
(a) he or she has taken all such steps as were reasonably open to him or her to offer the employment in respect of which the application is made to a citizen or a non-national referred to in section 2(10) of the Act of 2003 or to whom section 3 of that Act applies, and
(b) at the time of the application, more than 50 per cent of the employees of the applicant are nationals of any of the following, namely—
(i) one or more Member States of the EEA, or
(ii) the Swiss Confederation, or
(iii) a combination of any of the states referred to in subparagraphs (i) and (ii).”.
This amendment reinforces the exercise of the principle of Community preference, which we have been operating on an ad hoc basis until now. Employers making an application for a permit are additionally required to employ more than 50% EEA or Swiss nationals, which includes Irish people, or any combination thereof. Amendments Nos. 62 and 63 have been dealt with in another part of the Bill. Amendment No. 64 proposes an insertion in subsection (2)(a), on the advice of Parliamentary Counsel, to achieve greater clarity and be more specific.
Amendment No. 61 entails the deletion of subsection (2) and its replacement by the proposed wording. Its purpose is to give effect to the principle of Community preference. This is enshrined in paragraph 1.6 of Council Regulation No. 1612/68 of 15 October 1968 which provides that EU citizens and members of their families do not require a permit to work in another member state. The economic needs test obliges employers to seek to recruit a national from within the European Economic Area or Switzerland by advertising with FÁS in the first instance for four weeks through the EURES system.
Established in 1992, the EURES is a co-operation network between the European Commission and local employment services of the EEA member states and Switzerland. The purpose of the EURES network is to provide services for the benefit of workers and employers as well as any citizen wishing to benefit from the principle of the free movement of persons. This entails three types of service: provision of information, advice and recruitment placement. Subsection (2) provides for an economic needs test whereby employers must prove to the Minister that they have taken all steps necessary to employ a national of Ireland or of the EEA in the first instance before offering a position to a non-EEA national.
The categories of non-nationals to whom preference must be given are specified in sections 2(10) and section 3 of the Employment Permits Act 2003 and are persons who do not require an employment permit to work in the State. These comprise EEA nationals, certain refugees and their families, certain categories of students and other specified persons, such as parents of Irish-born children.
The Minister's amendment covers some of the concerns I had. This has become a major issue recently in the context of the debate about the displacement of Irish workers. A restriction is required to prevent abuse by employers in terms of dumping Irish workers to employ people from another jurisdiction on the basis of cost alone. I am glad the Minister has proposed this tighter measure. Has he discussed this issue in the partnership talks and has he secured a reasonable level of agreement from the social partners that this is the appropriate way to proceed?
I do not want to be unfair to the social partners given that they are working on other pressing issues related to labour law compliance.
This would be one of them.
I believe this will meet with their satisfaction. It is important that the economic needs test is applied.
How will the Minister define the economic needs test?
The robustness of this legislation has been questioned from time to time and we have received representations from all parts of the House on this issue, that is, whether people are sincerely saying they cannot recruit the employee locally. We are telling applicants that with a labour force of 450 million, they should be able to recruit the person in Ireland or mainland Europe.
What is the test? The Minister must have worked out the regulations.
First, the person must advertise through FÁS for the position. FÁS, in turn, checks with EURES, the European network. There must also be advertisements in national newspapers, not just in local newspapers.
Who will decide?
The Minister.
That is fine.
I move amendment No. 64:
In page 9, subsection (3)(a), line 10, before “supplementary” to insert “in respect of subsection (2)(a),”.
Amendment No. 79 is related to amendment No. 67. Amendments Nos. 67 and 79 may be discussed together.
I move amendment No. 67:
In page 10, subsection (1), line 5, to delete "Without prejudice to subsection (2), the Minister may” and substitute “The Minister may”.
This amendment is proposed on the advice of Parliamentary Counsel. Whereas the provisions of subsection (1) are discretionary, those of subsection (2) are mandatory and this amendment reflects this. With regard to amendment No. 79, I wish to revisit subsection (2) on Report Stage and I am withdrawing subsection (3) as it is already in the Bill in section 11(2). I propose amendment No. 79 to allow the Minister to make it mandatory that permits be refused if that would contravene regulations made under section 13.
I am always a little concerned about buying a pig in a poke. Amendment No. 79 provides that the Minister shall refuse to grant an employment permit if the granting of it would contravene regulations under section 13 in force at the time. We have not seen these regulations. This provides for a mandatory refusal if it contravenes regulations we have not yet seen. How can we square that? Has the Minister a draft of the regulations?
I do not have the draft of the regulations here. I propose that we revisit both on Report Stage.
To provide for a mandatory refusal on the basis of something that is not before the committee is difficult to accept.
I accept that.
Amendments Nos. 68 and 146 are related and will be discussed together.
I move amendment No. 68:
In page 10, subsection (1), lines 13 to 15, to delete paragraph (c) and substitute the following:
"(c) the applicant has been convicted of an offence under this Act or the Act of 2003, or an enactment specified in Schedule 1, during the period of 5 years ending on the date of the application,”.
Amendment No. 68 is a consequential amendment for consistency. I am proposing to provide that a permit may be refused if an employment has contravened the enactments listed in Schedule 1. The amendment empowers the Minister to refuse an employment permit if the applicant, the employer, has been convicted of an offence under a list of Acts — the Employment Agency Act 1971, the Carers Leave Act 2001, the Minimum Notice and Terms of Employment Acts 1973 to 2005, the National Minimum Wage Act 2000, the Organisation of Working Time Act 1997, the Payment of Wages Act 1991, the Protection of Employees (Fixed-Term Work) Act 2003, the Protection of Employees (Part-Time Work) Act 2001, the Protection of Young Persons (Employment) Act 1996, the Safety, Health and Welfare at Work Act 2005 and the Unfair Dismissals Acts 1977 to 2005 — during the period of five years ending on the date of the application. These enactments provide valuable protection and rights to employees.
In amendment No. 146, I propose the insertion of this schedule in order to list the enactments, breaches of which by an employer may be grounds for refusing a permit.
Would this subsection refer to both the employee and the employer, if they were applicants?
Yes.
In circumstances where an employee is found guilty of an offence under one of the Acts listed in the Schedule, which could be a technical health and safety issue, would he or she be debarred from having a work permit?
The term "the Minister may" is used in the section.
Let us tease this matter out briefly.
Section 11(1) states "Without prejudice to subsection (2),——
That is gone.
——the Minister may refuse to grant an employment permit ..."
The phrase "the applicant has been convicted of an offence" is used. Does the word "convicted" imply that a court case would have to be taken?
Yes.
What does conviction mean in that context?
Conviction in court.
This refers to a court conviction.
There must be some deterrents.
I am not opposing the Minister on this, I am merely stating that this is written boldly into the Schedules of many Acts — we discussed it in connection with the health and safety legislation — and there are onerous matters that also apply to employees. There could be minor breaches of the health and safety regulations such as, for example, failure to wear proper health and safety gear, in respect of which an employee might be held responsible.
That is not the intention.
I know——
We sought to ensure that this would not be the case
——but we must be careful in teasing these matters out that somebody who might be exploited and encouraged to put himself or herself in danger would not consequently be debarred from work in the State as well. The Minister will be obliged to revisit those Acts.
There is a great deal of material involved.
A considerable amount.
The term "the Minister may refuse" is used in the section, so it is discretionary.
While it is discretionary, not all Ministers might be as open-minded as Deputy Martin.
I think they would be as open-minded. I understand what Deputy Howlin is saying. If the word "shall" had been used, we would be in trouble. However, that is not the case. In fact, there was an original amendment with the word "shall" but, for the reason outlined, I removed it and replaced it with the word "may". Problems would arise on foot of an inadvertent breach of the law.
I take it that there would not be a conviction.
There should not be a conviction. One would not be pursuing such people.
The Minister is stating that if there were a serious conviction——
Those we are trying to deal with here are rogue employers who, on a grand scale or on a consistent basis, are really merely intent on undermining and exploiting people.
If the amendment is accepted, I will put down a marker that, in light of the issues that have been raised on a constructive basis, we will reconsider the position to ensure that such discretion exists in respect of inadvertent breaches. We could make a statement on Report Stage to satisfy Deputy Howlin.
I ask that somebody trawl the enactments in the Schedule to ensure that there are no loopholes.
Yes, we will make a statement on Report Stage.
Amendment Nos. 69 and 70 are related and will be discussed together.
I move amendment No. 69:
In page 10, subsection (1), lines 19 to 22, to delete paragraph (e).
The paragraph involves an all-embracing power in the public interest to refuse an application for work permit.
It is already covered by section 9(2). There is no point in having it twice in the Bill.
I wondered why it was there.
I move amendment No. 71:
In page 10, subsection (1), lines 23 to 30, to delete paragraph (f).
We are still dealing with section 11, involving the refusal to grant employment permits, which states:
... the Minister may refuse to grant an employment permit if— ...
(f) the following 2 conditions are satisfied, namely—
(i) a period (being a period ending on the date of the application) of less than 12 months has elapsed since the non-national concerned first commenced employment in the State, and
(ii) there is already in force, on the date of the application, an employment permit granted to the non-national,
The consequence of that not being amended is that a non-national could not apply for a new work permit if he or she had an existing work permit, which ties people to an employment. That is the bonded relationship that I understood we were trying to break. If the paragraph stood unamended, it would be a refusal to allow an individual non-national to change jobs in the State during the currency of a permit.
We return to the issue of balance that we discussed earlier on the more substantive amendment Deputy Howlin tabled in respect of employers not being allowed to apply. I am trying to achieve a balance in the employer's right to expect that if he or she goes to the effort and expense — spending €500 or whatever — of recruiting a non-EEA worker, at the very least the person would be with the company for a year. It would be a little untenable to suggest that an employer should pay €500, go through all the paperwork, etc., source the employee and obtain the permit only to be told a month later by a second employer, who made no such efforts, that he or she is taking the employee into his or her employ. There must be some balance here. Employers would argue that perhaps 12 months is too short a period.
Even if the scenario I set out happens or even if the person wants to reapply for a work permit somewhere else, we are saying not that he or she cannot do so but that it may be done at the discretion of the Minister. The Minister may accede to it. We are not saying that the Minister will refuse, under any circumstances, to give a second permit to a person. It is a case of striking a balance between the right of an employer who adheres correctly to the process and who is at least entitled to fixity of tenure for at least 12 months, and the right of the worker to change jobs.
If one pays for the person, one gets to keep him or her for 12 months.
No. Basically, one keeps a worker by good human resource practice and management. I am not saying what the Deputy suggests. Equally, I would not want some smart alec who made no effort to recruit people being able to take advantage.
We have come across different areas where companies are short of specific skill sets. The employer works to source such skills, provides good remuneration and secures the employees. One does not want somebody in the State who does not bother doing any of this to piggy-back on the efforts of such employers. That would create an unfair scenario. It is a matter of achieving the correct balance between the right of the worker to change jobs and worker mobility. We have reduced that provision to 12 months but, even within that, there is discretion for the Minister to facilitate people.
Surely the employer would have gained the value, of €500 or whatever, over a period much shorter than 12 months. A period of 12 months is an exceptionally long time to bond a person.
They are not bonded.
They are only just short of being bonded.
They are not bonded.
Should the period be shorter?
In the United Kingdom, the period is five years.
I am concerned. I would not take the UK law as the best model.
The Labour Party has been in power for ten years in that jurisdiction. We have very good relations with that party.
I am aware of that. Fianna Fáil gurus travelled over to examine the party's election campaign. Fianna Fáil is the only outfit in Ireland that could afford to do so.
I am concerned by the Minister's reply, which demonstrates a mindset that is occasionally evident in his Department. He was doing well to this point but, in this section, he is seeking to establish a fundamental difference. If he applied what he just stated to an Irish worker, people would be aghast. Once non-national workers are legitimately working in the State, they should not be considered to be vastly different from Irish workers and they should enjoy normal working rights. One of the basic mechanisms we possess is control over our labour. This concept is not new. It was broadly accepted in the 19th century that one of the fundamental rights one had was ownership of one's labour, with the right to sell it in a free market. I thought a free marketeer such as the Minister would accept and understand that. It is one of the four pillars of the European Union.
The Minister suggested that he would statutorily require a worker to remain in his job for a fixed period where an employer had expended money on training or equipment. People would regard that as unusual. I accept that this is not mandatory and that the Minister may, for example, have regard to clear evidence of exploitation. Somebody who possesses extraordinary IT skills, who moves to Ireland and who takes up employment in an area where those skills are not required might discover that he could much better serve the country, himself and his family if he could utilise those skills in an IT job of which he only became aware on arriving here. He would then be obliged to overcome a significant hurdle. No matter what way the Minister puts it, once a hurdle such as this is enshrined in law — although the word "may" is used — it will be looked on as a high hurdle that should apply in general. In other words, the generality will be that people cannot apply for a new work permit if they already possess one. There will not be many exceptions to that because an earnest and good public servant rather than the Minister will make the decision and he or she will view this provision as being what the Oireachtas intended. Individual workers will overcome that hurdle. It is not good for the economy or the individuals involved and there is no coherent reason for it. The notion that an employer would be impoverished by having to pay €500 does not impact on me.
Civil servants have been consistent on this and their track record demonstrates considerable flexibility. We have never refused somebody whose circumstances were meritorious. Such individuals have been facilitated to move. That will continue and the section makes provision in this regard.
The Deputy is consistent in wanting to take the employer out of the equation on all fronts but that would not be fair. The section attempts to achieve a balance and we have advanced a great deal in this regard. There is significant merit — in the context of traceability, security, protection of employees and so on — in employers applying for work permits.
Many employers expend considerable amounts upskilling their employees and facilitating workers to engage in lifelong learning and so on. Nobody is suggesting that workers should be bonded to the employer. The employer usually remunerates the employee for acquiring additional skills if these can be applied to his or her work. If that happens, I fail to see why it would not happen in the case of an employee from outside Ireland.
I accept the Minister's view about the word "may" being used flexibly and sympathetically but that could change on a whim and, therefore, it is not appropriate to bed it down in legislation. This is a fundamental issue.
I move amendment No. 74:
In page 10, subsection (1)(j), line 37, to delete “where”.
I propose the deletion of the word "where" in section 11(1)(j) on the advice of the Parliamentary Counsel that it is not necessary. This is a technical amendment.
I move amendment No. 79:
In page 11, lines 5 to 8, to delete subsection (2) and substitute the following:
"(2) Subsection (1) is without prejudice to section 9(2) and subsection (3).
(3) The Minister shall refuse to grant an employment permit if the granting of it would contravene regulations under section 13 in force at the time the decision on the application for the permit is made.”.
Amendment No. 81 is an alternative to amendment No. 80 and both will be discussed together.
I move amendment No. 80:
In page 11, lines 16 to 19, to delete subsection (5) and substitute the following:
"(5) In this section "standard working week remuneration" means the weekly remuneration that the non-national concerned would receive if he or she were to work 39 hours each week at—
(a) the national minimum hourly rate of pay, or
(b) if the hourly rate of pay provided for in an employment regulation order or a registered employment agreement that applies to the employment concerned is greater than the national minimum hourly rate of pay, the hourly rate of pay provided for in that order or agreement.”.
The amendment will insert the correct number of hours, 39 instead of 38. It comes about on foot of a typographical error. The standard working week, for the purposes of the national minimum wage legislation, comprises 39 hours.
Amendments Nos. 82, 97 and 142 will be discussed together.
I move amendment No. 82:
In page 11, before section 12, to insert the following new section:
"12.—(1) Where the grant of an employment permit is refused under section 11 of this Act, applicants for employment permits may appeal such a decision by way of either—
(a) the mechanism set out in the Redundancy Payments Acts 1967-2003 for such appeals, or
(b) the process set out in the Protection of Employees (Fixed-Term Work) Act 2003 for such matters.
(2) Where an appeal is refused under subsection (1)(a) of this section, the applicant shall have a right of appeal to the Employment Appeals Tribunal, and subsequently, on a point of law only, to the High Court.
(3) Where an appeal is refused under subsection (1)(b) of this section, the applicant shall have a right of appeal to the Labour Court, and subsequently, on a point of law only, to the High Court.”.
Generally, the Bill will establish a special system of adjudication on employment permits. Systems are in place to deal with these issues under the redundancy payments Acts. People may appeal to deciding officers, the Employment Appeals Tribunal and, on points of law, to the High Court. I do not want the system to be clogged up, a point to which the Minister alluded earlier. I also want to avoid expense to the State. Provision is made in this section for a review by the Minister. However, this could be subject to judicial review and this is where the system becomes cumbersome and expensive, given the time it takes to undertake such a review. If the Minister wants to use the existing structures, he should make provision to use them in the adjudicating process under the existing law, particularly under the Protection of Employees (Fixed-Term Work) Act 2003. There is an initial reference to the rights commissioner appealed to the Labour Court and then appealed to the High Court on a point of law only. Perhaps the Minister should use the existing process if he wants to take himself out of the equation and ensure there is no judicial review process.
Does the amendment refer to a situation where an employment permit is refused?
Yes.
It refers to a review of a decision to refuse.
Is the Deputy saying the review should be in regard to the Redundancy Payments Act? I do not think they are the appropriate methods to use, because they have specific purposes in terms of the employees to whom they apply. It might take longer to use these mechanisms. It could take a long time to use the employment appeals tribunal.
That is the fault of the system.
We are trying to marry some of the benefits of the existing system, whereby if it is appealed to the Minister, a separate official in the Department will deal with it. This method is much more expeditious. It allows people to make representations and we can deal with the refusal of a work permit more quickly.
That is not people's experience.
In terms of work permits, the system is not too bad.
I am trying to ensure it does get clogged up.
I accept the basic principle about not clogging up matters. While the process is not perfect, I am concerned that the amendment would result in matters getting clogged up.
I move amendment No. 83:
In page 11, subsection (4), line 33, after "appointed" to insert the following:
"shall direct the person who made the decision to furnish reasons therefor and following the provision of such reasons".
The procedure the Minister is putting in place is that he will appoint someone in a more senior grade than the person who made the original decision to review the case in the event of an appeal. My amendment proposes that the reasons for refusal should be given, which is a reasonable proposal. It is difficult to make a case, or even review a case, if one does not set out the reasons for doing so.
I accept that principle. However, section 11(3) requires the Minister to notify the applicant in writing of the reasons the permit was refused.
Section 11(3) reads as follows:
Where the Minister refuses to grant an employment permit, the Minister shall notify, in writing, the applicant of the decision and the reasons for it.
I will check for Report Stage that it covers the review process. Is that the Deputy's concern?
That is my concern.
It definitely covers the original decision to refuse a work permit. If the Deputy is concerned that it might not cover the review process, I will make doubly sure of it.
I propose that the reviewer direct the person who made the decision to furnish reasons therefor, having afforded the person who submitted the decision for review an opportunity to make representations in writing in relation to the matter. I am not sure if that is captured in subsection (3).
Ultimately, the senior person should give the reasons for the decision. The Minister must write to the person on the basis of the senior officer's report. This is all allowed for under freedom of information legislation.
Obviously the process would be subject to a freedom of information request.
The intention is that the Minister will write to the persons informing them that they have been refused a work permit for the following reasons.
We will examine the amendment again.
It is well covered——
The initial decision is fine but I have a problem with the review process.
I move amendment No. 84:
In page 11, subsection (4), line 34, to delete "("the person aggrieved")".
I propose to delete the words "the person aggrieved" on the advice of the Parliamentary Counsel on the grounds that they are not necessary.
A person could be aggrieved by a decision of the Minister.
I move amendment No. 85:
In page 11, between lines 40 and 41, to insert the following subsection:
"(5) A decision on appeal under this section may be the subject of an application to the Ombudsman.".
As Deputy Hogan already said, one of the problems with administrative decisions within the Department is that if the only port of call is subsequently a judicial review, that will be the port of call. People have confidence in the Ombudsman system. I am not sure whether it is embraced, but it should be explicitly embraced.
Immigration decisions are not within the power of the Ombudsman.
This is not immigration.
The Ombudsman has already examined how one or two cases were processed. An executive decision is not a matter for the Ombudsman. The policy decision resides with the Minister in terms of economic migration and migration matters generally.
This process is set out in statute law.
I am saying that the appeals system is the responsibility of the Minister. The Deputy is saying that a decision on appeal under the section may be the subject of an application to the Ombudsman.
Yes.
That would create two appeals systems.
The Minister did not call it an appeals system. He said he may review the decision.
A review is an appeals system.
The problem is that it is all in-house.
I must be flexible as well as speedy. I am not sure the Ombudsman would want to deal with every applicant who is refused a work permit.
This is a new system which will be somewhat different from the previous system.
Ultimately, it is a policy decision by the Government. To date, migration has been the policy preserve of the Government and the Minister because it is a sensitive issue. One must take a political and policy decision on the matter. Like many issues, over time certain functions become the responsibility of the Ombudsman. To date, that has not been the case. Therefore, it would not be appropriate to include it in the legislation at this time. That may change in future.
I do not accept it is not appropriate now. As internal reviews are fraught, there should be transparency. If two officers in the same Department are the decision-maker and the appeals mechanism, it is not the best or most transparent mechanism to use. Second, there is no trespass on the policy side because the Ombudsman has no policy role. It is simply an administrative review of fair procedure set down in law.
That exists.
There is no appeals mechanism outside of the Department that would examine the process. Unless we end up with a judicial review as suggested by Deputy Hogan, the Ombudsman is the obvious port of call in the judgment.
My understanding is that the Ombudsman has a role in administrative processes.
In that case, the Minister should have no difficulty with the amendment.
The amendment is not necessary, because the process already exists. However, the Ombudsman does not have a function in terms of the executive decision.
Can decisions and appeals under the section be referred to the Ombudsman?
I will clarify the matter and come back to the Deputy on Report Stage. I am talking about the process, not the decision. A policy can be made on how to decide a case.
If the Ombudsman can examine the process but not alter the decision, there is no appeal.
If the process were wrong, the decision would have to be altered.
Yes. If administrative procedures——
If the process is right, the policy cannot be changed.
That is what I want to achieve.
It is already there.
Then the Minister should have no difficulty accepting my amendment.
I will come back to the Deputy on Report Stage.
Amendments Nos. 87 and 91 are related and will be discussed together.
I move amendment No. 87:
In page 12, subsection (1), between lines 9 and 10, to insert the following:
"(d) the minimum amount of remuneration (being an amount greater than that referred to in section 11(1)(j)) that shall be payable in respect of an employment as a condition for the grant of an employment permit in respect of it;”.
The purpose of the amendment is to allow regulations to be made to provide that where an application for a permit has been made, the remuneration is equal to or greater than the national minimum wage or, where applicable, the rates are payable under an employment regulation order or registered employment agreement.
That is the point I made earlier.
I move amendment No. 89:
In page 12, subsection (1)(e), line 14, to delete “section 7(5)(b)” and substitute “section 7(5)”.
I move amendment No. 91:
In page 12, subsection (2)(a), line 24, to delete “(b), (c) or (d)” and substitute “(b), (c), (d) or (e)”.
Amendments Nos. 92 and 107 to 109, inclusive, are related and may be discussed together. Amendment No. 108 is an alternative to amendment No. 107.
I move amendment No. 92:
In page 12, subsection (2), lines 30 to 33, to delete paragraph (b) and substitute the following:
"(b) a provision specifying, for the purposes of section 19(3)*, in relation to an employment permit which is renewed in the period concerned, a period longer than 3 years.”.
The amendment proposes changing the period of time from two years to three years.
Amendments Nos. 95 and 96 are related and may be discussed together.
I move amendment No. 95:
In page 13, before section 15, to insert the following new section:
"15.—The Minister may make regulations to allow any one of the following to join a foreign national employment permit holder:
(a) his or her spouse or partner;
(b) his or her children;
(c) any other members of his or her family.”.
There seems to be no apparent provision for non-national employees to have their spouses, partners or children resident with them in the State during the period of the employment permit. This amendment is to ensure the family is kept together in the context of the employment permit.
These are matters in the first instance for the Minister for Justice, Equality and Law Reform. The Government has approved the introduction of an immigration and residence Bill which will deal with the objectives the Deputy wishes to achieve. I have been working with the Minister for Justice, Equality and Law Reform on this matter. The green card facility will allow for reunification of immediate family. In the case of work permit holders it is proposed that following a period of 12 months and where the income is not less than the family income supplement, they can apply to work or to bring in their spouses. I will supply the Deputy with the full details.
I ask the Minister to circulate the details.
I will.
I move amendment No. 96:
In page 13, before section 15, to insert the following new section:
"15.—The Minister may make regulations to provide for the naturalisation of employment permit holders under section 4 of the Irish Nationality and Citizenship Act 1986 and the procedures laid out therein.".
An issue which will inevitably arise in due course once the legislation is enacted is that of naturalisation. The current rules stipulate a person must spend four years out of nine in the country and have been in the country in the year previous to application. This amendment proposes to make regulations to provide for naturalisation of employment permit holders in due course under the terms of the Act and not to use the Aliens Act 1935 as the reference Act.
These matters will be addressed in the immigration and residence Bill. The earlier amendment which was agreed moved from two to three years. This will facilitate those looking for naturalisation.
Applications can be made after that.
Yes.
Amendments Nos. 98 and 100 are related and may be discussed together.
I move amendment No. 98:
In page 14, lines 7 to 13, to delete subsection (5).
My point is that it is a very abrupt and unnecessary decision. If one were to revoke a permit, it would be for matters more appropriate to the Garda Síochána than to the Minister or the Department. The revocation of a permit is a very serious matter and there should be a good reason for doing so. I doubt if the reason would relate to the Department of Enterprise, Trade and Employment as it would more likely be a reason related to the Department of Justice, Equality and Law Reform.
The Department of Justice, Equality and Law Reform may very well contact my Department. We envisage very exceptional use of this provision. There may be circumstances where for the reason of the public interest a decision to revoke a permit should take immediate effect.
I am due in the Chamber in less than five minutes.
Section 15 deals with the issue of revocation of the employment permit. There is provision for the Minister to withdraw the work permit from the employee as a consequence of the wrongdoing of the employer. This is grossly unfair. This section requires a little refinement.
We would not do that.
