On 16 January 2014 the Government approved the text of the Employment Permits (Amendment) Bill, subject to such drafting and technical changes as may be agreed with the Office of the Parliamentary Counsel. I am informed that work is progressing on these necessary technical changes and that the Bill will be published at the earliest opportunity.
The overriding objective of this Bill is to provide for more flexibility and targeted instruments in support of the economy’s skills needs. The Bill will:
- update provisions for the employment permits schemes in line with policy and economic developments since 2007;
- provide the flexibility to deal with changing labour market, work patterns and economic development needs which often require rapid response;
- provide for a robust employment permits regime with greater clarity; and
- address deficiencies identified in the legislation with the potential for employers to benefit from (at the cost of the employee) from the un-enforceability of employment contracts in situations where an employee does not hold an employment permit but is required to do so.
The law is clear on the matter of employment of third country nationals - it is illegal for such a third country national to be employed without the State’s permission and it is an offence for both the third country national and the employer concerned. It is not my intention to change this legal principle in any way. Illegal employment of third country nationals creates two problems. Firstly, it creates a serious problem for the employees concerned in that they do not have a legally binding contract of employment and cannot therefore rely on such a contract in asserting their rights under the contract and under the wide spectrum of employment rights legislation. We saw the result of this in the High Court judgment concerning Mr. Younis which overturned a decision of the Labour Court to award Mr. Younis back-pay on the basis that by virtue of Mr. Younis not having an employment permit, the contract of employment was illegal. The Employment Permits Acts do not currently provide for any defence for an employee, which suggested to the High Court that it could not take into account any mitigating circumstances and had little discretion but to consider the contract of employment as illegal. The Bill will amend the legislation in order to provide a defence for the employee which will then give the courts some discretion on the matter.
I am also very mindful of the second problem created by the illegal employment of 3rd country nationals namely, that it enables unscrupulous employers to undercut legitimate competitors and places the third country national in a position which can be exploited to the employer’s benefit. Therefore, the Bill will introduce new safeguards that will ensure that the situation which arose in the Younis case will be prevented in future in a manner which does not undermine legal principles and ensures that an employer cannot benefit from the fact that such contracts of employment are illegal and therefore not legally binding.
Another key feature of the new Bill will be the establishment on a statutory footing of an Employment Permit for dealing with third country nationals who have, to use a parlance, “fallen out of” the Employment Permits regime. I recognise that there can be situations where such a third country national can find themselves falling out of the Employment Permit’s regime through circumstances beyond their control or even as a result of their omission to keep their Employment Permit up to date. I recognise that such people may have established roots in Ireland and that it can be in the public interest to facilitate a reactivation of their inclusion within a legal employment framework through the granting of an Employment Permit.
I should also point out that it continues to be the case that an employer can be prosecuted for breaches of employment law including the Employment Permits Acts and it is the National Employment Rights Authority’s policy to pursue such breaches. NERA has secured convictions of a number of employers in respect of violations of employment law in cases involving the employment of workers without permits or immigration permissions.