The State has a significant body of employment rights legislation designed to protect workers. This legislation provides for certain statutory minimum rates of pay and conditions.
The State provides a number of mechanisms through which these statutory employment rights can be vindicated and enforced. These are provided through the National Employment Rights Authority (NERA), The Rights Commissioner Service, The Employment Appeals Tribunal (EAT), The Equality Tribunal and the Labour Court.
NERA seeks to secure compliance with employment rights legislation through the provision of education and awareness as well as through routine and complaint driven inspection of employers’ employment records. NERA also undertakes enforcement activity. Where an employer has been identified as being in breach of the legislation NERA will request that the employer rectify the breach. Where such a breach involves underpayment of wages due to an employee NERA will seek rectification for the employee by seeking payment of the monies due. Where an employer fails or refuses to rectify the breach or repay monies due NERA may initiate a prosecution.
Where people have concerns that workers may be exploited or are receiving less than their statutory entitlements the matter should be reported to NERA for investigation.
In other cases complaints may be made to Rights Commissioner Service, the EAT, the Equality Tribunal or the Labour Court depending on the nature of the complaint and the relevant legislation. The relevant body will convene a hearing where both parties will be afforded the opportunity to present their case and the relevant body will issue a determination or recommendation.
It has to be acknowledged that the system that has developed over the years has become complex and in some cases involves long delays. However, I have commenced a root-and-branch reform with the objective of establishing a world-class Workplace Relations Service. I am happy to report that significant progress has been made to date in that regard.
In addition to reforming the structures and processes, I also intend to provide for enhanced compliance measures and a new mechanism for enforcing awards of the Adjudicators and of Labour Court Determinations.
The mechanisms I have outlined above relate to people who are legally entitled to work in the state. A situation where an individual, whose immigration status prohibits him or her from working legally in the State, takes up employment and is thus working illegally is different. In such cases both the employer and the employee may be committing an offence. As the Deputy will be aware, from a recent High Court case, this may prevent a worker in such circumstances from seeking to benefit from the rights laid down in statute.
While NERA, and other authorities, could pursue convictions regarding an employer in breach of certain employment legislation and employment permits legislation, in cases where the employment is illegal, and may succeed in securing penalties on the employer, they are not in a position to seek redress for the employee in such circumstances. This is because a contract may be unenforceable if it is drawn up for an illegal purpose or in an illegal manner, or if the contract is prohibited by statute whether expressly or implicitly.
On Friday 31st August 2012, Mr Justice Gerard Hogan of the High Court reversed a Labour Court award on the basis that person concerned had no standing to invoke the protection afforded by employment legislation since any contract of employment was an illegal one in the absence of an employment permit which he did not have. Justice Hogan therefore held that the Labour Court could not lawfully have made the awards as the employment contract was substantively illegal.
The issue raised by the High Court judgment is one which has important policy and legal implications in the area of Employment Permits and also in terms of Employment Rights.
As Justice Hogan noted in his judgement, “the Oireachtas must, of course, regulate the labour market by specifically deterring illegal immigrants from taking up employment, as failure to do so could have serious medium term implications for both employment and immigration policy”. The relevant provisions of the Employment Permits Acts of 2003 and 2006 hold that where an employee, who was required to hold an Employment Permit, has failed to do so then he or she is guilty of an offence. Furthermore, while an employer may also be guilty of an offence in this matter, Justice Hogan points out that the legislation provides for a defence with regard to an employer but fails to do so with regard to an employee.
As I understand it, this lack of defence affects the Courts’ scope to interpret the statutory provisions and compels the Court to hold that the legislation has created an absolute offence so far as an employee is concerned. Importantly, Justice Hogan found that it must therefore be taken that the Oireachtas intended that a such a non-national employee automatically commits an offence if he or she does not have a work permit irrespective of the reasons for that failure and that this has implications so far as the civil law is concerned, in that such a contract of employment must also be taken to be void.
The question which now arises is to what extent illegal immigrants should be dissuaded from working illegally in Ireland by virtue of there being a statutory offence to do so, versus, to what extent certain employment rights shall protect vulnerable migrants who find themselves unwittingly in such employment positions.
The Deputy will recognise that this question requires careful consideration as the applicability of rights in one context can have far reaching consequences beyond that originally intended.
I wish to assure the Deputy that I am very concerned by the facts of this case and I will be meeting the individual concerned this week. My Department is treating the matter with the utmost importance and various policy options are currently being considered with a view to an early response.
