Saincheisteanna Tráthúla - Topical Issue Debate – Dáil Éireann (33rd Dáil) – Tuesday, 7 Nov 2023

Saincheisteanna Tráthúla - Topical Issue Debate

Employment Rights

Deputy Louise O'Reilly

I thank the Minister of State, Deputy Joe O'Brien, for being here this evening.

A fortnight ago, the Supreme Court published its long-awaited decision on defining employment status. The court ruled that delivery drivers for Domino's Pizza should be treated as employees and not as contractors. The Supreme Court ruling has massive implications in the battle against bogus self-employment. The Government needs to set out in primary legislation how a worker's employment status will now be determined following that landmark decision. In particular, we want to see the Government bring forward legislation that includes a comprehensive statutory definition of what constitutes a contract of employment. This is definitely needed.

The Supreme Court stated that a question of whether a contract is one of service or for services should be resolved by reference to five questions. These are: whether the contract involves the exchange of wage or other remuneration for work; if so, is the agreement one pursuant to which the worker is agreeing to provide his or her own services and not those of a third party to the employer; and if so, does the employer exercise sufficient control over the putative employee to render the agreement one that is capable of being an employment agreement. If these three requirements are met, the decision-maker must then determine whether the terms of the contract between the employer and worker, interpreted in light of the admissible factual matrix and having regard to the working arrangements between the parties as disclosed by the evidence, are consistent with a contract of employment or with some other form of contract, having regard, in particular, to whether the arrangements point to the employee working for himself or herself or for the putative employer. The final aspect is that it should be determined whether there is anything in the particular legislative regime under consideration that requires the court to adjust or supplement any of the questions outlined.

Basically, the courts have kicked the ball into the Government's court. It is for the Government to act. While there is no definitive or composite test that can be applied in all cases to distinguish a worker from an independent contractor and each case is looked at on its own facts, there are, however, four basic factors that tend to recur in these decided cases which must always be regarded as important. The first is the need for personal service, which is the hallmark of a contract. The second is the degree of economic risk involved, and the opportunity to make a profit will always be an important factor. The third is a requirement to provide premises, tools or equipment is a key factor indicating a contract for services. The fourth is that the label that the parties attach to the contract is not decisive. Therefore, my request to the Minister of State is that, in amending the law to reflect the Supreme Court decision, he should bring forward an updated comprehensive statutory definition of what constitutes a contract of employment.

We are talking about thousands of workers who will be impacted by this. These are some very vulnerable workers. They are basically told, "There is your phone. There is an app. Now you are an independent contractor. Go off and make a fortune." Many of these people are working for below the minimum wage. They have no rights or entitlements at work until their status is clarified. They exist in that half-in-half-out status. It is difficult for trade unions to reach them to organise. It is difficult for them to get to know what are their rights and entitlements at work.

We have heard suggestions that definitions used in the Employment Equality Acts or the National Minimum Wage Acts or the definition of a worker provided for in the Industrial Relations Acts could be used. All of these should be looked at. The use of these definitions would allow for the determination of whether an employee is engaged in a contract of service by two basic questions as to whether the parties are bound by a contract and whether the putative worker is personally providing services under that contract. Updating the statutory definition of what constitutes a contract of employment would do away with the need for a technical legal analysis of what determines a contract of service over a contract for service. Will the Minister of State or a member of the Government be bringing forward legislation to give effect to the Supreme Court judgment?

Minister of State at the Department of Social Protection (Deputy Joe O'Brien)

I thank the Deputy for raising this matter. The Supreme Court judgment in this case, the Revenue Commissioners v. Karshan Midlands Limited, regarding Domino's Pizza delivery drivers is an important decision and one which the Government welcomes. This is a complex area of employment law where the classification of some employment relationships is not easily deduced. Indeed, this judgment further highlights the reality that each case must be determined on its merits.

The fact that the Revenue Commissioners have pursued this case over a period of 13 years speaks to the complexity of this area of law and to the Government’s commitment to ensuring that workers are correctly classified in a way that matches the reality of the relationship between the worker and the business.

Mechanisms exist for the determination of the employment status of individuals or groups and the State's comprehensive suite of robust employment rights protections are kept under ongoing review. This decision and the need for any possible legislative changes will be carefully considered in this context. Where an issue arises in relation to the employment status of an individual, cases are forwarded, for investigation, to the Revenue Commissioners regarding tax treatment and-or the scope section of the Department of Social Protection regarding the appropriate class of PRSI. This may be undertaken either solely by the recipient, or jointly with the labour inspectorate of the Workplace Relations Commission, WRC. The WRC may also determine employment status as a preliminary issue at an adjudication hearing.

In determining the appropriate employment status of an individual, the relevant Departments and agencies have regard to the Code of Practice on Determining Employment Status, which was revised by a working group comprising the Department of Social Protection, the Revenue Commissioners and the WRC, in consultation with the social partners and published in July 2021. The code is the key guidance document for employers and workers and others in the context of deciding the employment status of a worker. It as revised to take account of newer labour market developments, including platform work.

Deputy Louise O'Reilly

With the greatest of respect, if the Code of Practice on Determining Employment Status was doing all that the Minister of State thinks it might be doing, I genuinely would not be here now. I would have a fighting chance of catching my train, which, I think, I will miss, and I would be gone home. That is not sufficient. Clearly, pursuing the matter for 13 years in the courts shows that it is not sufficient. The Department would not have pursued this matter though the courts if there was already a code of practice in existence that would sort it out. The code of practice does not encompass all eventualities, which is why we have workers who, this evening, tomorrow, the next day and in the following days, will find themselves in a situation where they are trapped in what some people like to refer to as the gig economy.

I have other names but I will not say them here. Bogus self-employment is in every sector. It is found in certain parts of the public service and semi-State bodies. It is found in universities and is particularly prevalent in construction. The winners are those employers who seek to get around the rights and entitlements of workers while the losers are the workers.

It is incumbent on the Government to legislate in light of this judgment. It is a landmark judgment that is seismic in that it has the capacity to deliver great change, but this requires action on the part of the Government. I am perfectly happy to bring forward that legislation. I would like the Government to work with me. In his reply, the Minister of State said the Government is committed to stamping out the practice of bogus self-employment. I am not trying to put words in his mouth as I do not have his reply in front of me. The practice of bogus self-employment is obviously not supported by the Government but the Minister of State is in a unique position as a Minister to be able to do something about it and bring forward that legislation and enact it. I do not think anyone would say the code of practice will be sufficient with the workplace changing and the labour market moving in the way it does.

Deputy Joe O'Brien

The misclassification of a worker as being self-employed when his or her terms and conditions mean he or she is in reality an employee is a matter of real concern. There is no single clear legal definition of the terms "employed" or "self-employed" in Irish or EU law. To determine a person's employment status, both the written or oral contract and the reality behind the contract must be taken into consideration.

At EU level, a directive has been proposed on improving working conditions in platform work. A key element of this proposal is that it will help to determine the correct employment status of people working for digital platforms.

Ireland has robust mechanisms for the determination of employment status and the Government is committed to tackling false self-employment wherever it occurs. I reiterate that this court decision and the need for any possible legislative changes will be very carefully considered in this context and I will bring the issues raised by the Deputy to the Minister and the Minister of State, Deputy Richmond.

Environmental Investigations

An Ceann Comhairle

The second Topical Issue has been submitted by Deputies Cahill, Fitzmaurice, McGuinness and Carthy. They wish to discuss the case of a farmer in County Kilkenny whose farm was hit by environmental contamination. I must apologise to the Deputies who have tabled this. I had indicated we would give two slots to this. That did not transpire but I will, with the agreement of the House, give an additional minute to each Deputy wishing to contribute on this matter if they are happy with that. Is that agreed? Agreed.

Deputy Jackie Cahill

The case did not happen on the watch of the current Minister for Agriculture, Food and the Marine but is an historical case. Dan Brennan appeared before the Oireachtas Committee on Agriculture, Food and the Marine around this time last year. He has been in Brussels twice with this case and has got no answers. He looked for his file that was submitted to Brussels at the time but they refused to give him back his file.

Dan Brennan deserves answers. We do not know what happened on his farm but many questions must be answered. I will pose some of them here this evening. Why did the trees die on Dan Brennan's farm? Why did bones grow in his cattle's tissue and kidneys? Why did the milk yield of his cows double when the factory closed? Why did his cattle's weight at two years go up from 320 kg to 520 kg when the factory closed? Why did the foliage on his farm recover after the factory's closure? After cattle trials were performed on his farm involving cattle being taken from his farm and put on a neighbour's farm and vice versa and cattle being brought from a Teagasc farm and put on his farm, the lack of thrive was clearly demonstrated again on his farm. Why was this ignored? A total of 45 acres of trees and ditches were wiped out and this was confirmed by an Environmental Protection Agency, EPA, report. Again, why was all this evidence not clearly examined? When UCD asked the EPA about the amount of cadmium being emitted from the factory, all the EPA records showed 1 kg per hour. However, the EPA wrote back to UCD and documented that it was only 1 g per hour, which is 1,000 times less. Why?

I have posed a lot of questions. Thankfully, Dan Brennan is now farming very successfully and efficiently on his farm, but he and his family suffered torment while this factory was in operation and those questions need to be answered.

Deputy John McGuinness

I concur with and add to what Deputy Cahill has said. This has gone on for a significant number of years. In fact, former Members of this House such as Mary White were part of the initial group of Deputies who were making themselves available to support Dan Brennan. In 2006, the Minister of the day sent a representative to Dan Brennan's farm and found he was an excellent farmer. Everyone locally knows that Dan Brennan and the Brennan family are excellent farmers. When he legitimately brought forward the concerns he had about his cattle and what was happening on his farm, he was not listened to. He was talked down to.

The Minister is the Minister of today. He must acknowledge what happened on Dan Brennan's farm. All of the evidence that has been submitted to the Committee on Agriculture, Food and the Marine and directly to the Department indicates that there was a clear problem with the factory. The evidence is now clear because the factory closed down and, soon after that, Dan Brennan's farm came back to full production.

I want to underline the serious problems it has caused Dan Brennan. It is not a simple thing to carry the fight against the State on your own when you are told every day you are wrong. When Dan Brennan looked at the various results and saw the information that was being withheld from him and information that was not given to those investigating, he had nowhere to turn to other than this House. He is turning to us as four Members of this Parliament this evening to ask the Minister to take a decision to investigate the matter fully and to give him the answers he deserves. I suggest the Minister puts together a team of three professionals to look at every aspect of this and to come back to him with the answers. Giving the standard reply we have been used to from the Department is not good enough because it is obvious what caused the problem in the first place.

Deputy Matt Carthy

I am sure the Ceann Comhairle will agree that it is not every day a Topical Issue is submitted by people from three different political parties. Three out of the four of us do not come from the constituency of Dan Brennan but I know we have the support of all Members of the Oireachtas from Carlow-Kilkenny, including my colleague Deputy Funchion.

Anybody who has heard Dan Brennan give testimony cannot but believe his story because he not only articulates in a very cohesive and strong manner, he also has evidence to back it up. According to this evidence, he raised issues regarding health, the condition of cattle and issues pertaining to the local environment from as far back as the 1990s, and all those issues were exacerbated from 1997 onwards in direct correlation with increased construction. At that stage, he raised numerous concerns pertaining to the location of his farm adjacent to a brick factory. He raised those issues over many years at every level. At one point, by raising those issues, he was accused of being a bad farmer, something that was disputed not only by him and his family but by his neighbours and every farmer worth his or her salt. Then, lo and behold, the factory ceased production in December 2008 and, almost overnight with a click of the fingers, conditions on the farm started to improve. I am not saying there was a direct link but I am saying that all the evidence points to the fact there was some correlation between those two things because the evidence suggests Dan Brennan was and is an excellent farmer. I am asking the Minister to use his good offices to ensure this man gets the truth and justice he so dearly deserves.

Deputy Michael Fitzmaurice

It is not every day that someone from Monaghan and someone from Galway, which, in fairness to the Deputies here, are not near Dan Brennan's farm, come together. When Dan Brennan came in, I did not know him from Adam. The words of the song "Willie McBride", "torn, battered and stained", came to my head. He has gone through hell and back with his family. When you listen to his story, it is clear that the least we need to do is what Deputy McGuinness said, which is to put together a group of three independent people. We also need a debate here in the Dáil. Why were the results of three feeding studies, two during the factory's operation and one when it was closed for a time, not published? Why were the 2005 findings of a botanist from UCD who had been commissioned by the EPA not taken seriously? Teagasc, UCD and several other vets concluded that the problem was outside the farm but the Department refused to even entertain that idea. Dan Brennan was basically blamed and accused of being a bad farmer while UCD and others conclusively proved that the issue had nothing to do with the man. When this farmer was told that the problem was poisoning, why was this not included in the terms of what UCD was to look into? It could not look at it. What went on was a total farce. As Deputy Cahill said earlier on, the figures given to UCD and the EPA's figures were totally different.

The Minister was not there and I am not blaming him but there is something going here that is rotten to the core and this innocent person, a small man, is up against the State. I spoke to Dan Brennan in the last few days and I told him that I could not promise him anything but that my heart went out to him. I said we would do everything we could but that, in my opinion, the State was covering something up here. Justice must be done for that man. The EU has failed to do anything. He has gone through the petitions and all of the usual palaver. I told him I could not promise him anything but that we would do our best. He has been given many promises down through the years but left flat on his face. He deserves justice. That is the minimum he deserves. He deserves an independent inquiry such as Deputy McGuinness has proposed, something Deputies Cahill and Carthy have also highlighted. We also need to have a debate in here because what has gone on is wrong, wrong, wrong.

An Ceann Comhairle

It is an extraordinary case. I thank the Minister for being here to deal with it.

Minister for Agriculture, Food and the Marine (Deputy Charlie McConalogue)

I recognise the significance of four Deputies coming together. It is not something you see very often in this House and I certainly recognise that in the context of this Topical Issue debate and the time the Deputies have given to this issue as part of the committee.

The matter being raised relate to events that took place many years ago, as the four Deputies said. At that time, my Department, along with other public sector bodies, invested significant resources in an investigation of animal health and environmental concerns on the farm in County Kilkenny. This exercise concluded 13 years ago and commenced a number of years before that. In June 2004, an interagency group was convened to examine the matter. It brought together a broad range of scientific expertise from my Department's laboratories, the Environmental Protection Agency, Teagasc, the Health Service Executive and Kilkenny County Council. This multi-agency approach was clear evidence of a significant effort by the State to get to the bottom of very distressing events, which were of significant concern to the individuals involved.

The investigation, led by my Department's veterinary laboratory service, reported its findings in June 2006. That report produced details of very comprehensive field and laboratory investigations undertaken on the farm to determine the cause of the animal health issues on the farm. It was provided to the herdowner and his advisers. In addition to this report, laboratory test results had also been provided to the herdowner on an ongoing basis.

Further to that, during the latter part of 2005, my Department funded a comprehensive animal health programme on the affected farm. This included a programme of mastitis control, calf vaccinations, the provision of calf hutches for the 2006 calving season and the provision of advice on enhanced biosecurity. I am advised that animal health and production on the farm had shown a definite improvement in the first five months of 2006. Calf health had been good and this was reflected in improved growth rates. Milk production and quality were also reported to have improved. Direct involvement of my Department’s veterinary laboratory service in the on-farm investigation then concluded in August 2006.

Subsequently and on foot of a request by the herdowner and his advisers, University College Dublin's centre for veterinary epidemiology and risk analysis, CVERA, was commissioned by my Department to conduct further epidemiological studies of problems on the farm. The CVERA report was completed in August 2009. This report was provided to the herdowner and his advisers.

The inter-agency group, comprising a range of expert agencies, reviewed the findings of both studies and published its conclusions in August 2010. It considered all of the comprehensive studies undertaken on this farm in detail and the interpretation of those findings by experts from the agencies involved. It concluded that the problems in this herd were multifactorial in nature and that common infectious diseases were likely to have accounted for much of the illthrift and poor growth rates recorded. It also concluded that there was no evidence of fluoride or cadmium intoxication of animals in this herd or of environmental pollution on the farm. The inter-agency review report was also provided to the herdowner and his advisers at that time. The other comprehensive reports I have referred to have been in the public domain for many years, since the conclusion of those investigative processes.

I certainly appreciate that the events around this time were exceptionally difficult for the farmer concerned and his family. However, these events took place many years ago and were investigated comprehensively over a number of years by a range of agencies with relevant scientific expertise.

I am aware that, as the four Deputies have outlined, this matter was recently discussed at the Joint Committee for Agriculture, Food and the Marine, chaired by Deputy Cahill and in which the other Members participate. In that context, I have not been made aware of any evidence of material new information that has been made available in respect of these matters. While I am aware that the witnesses who appeared before the committee dispute the conclusions reached by the inter-agency group in 2010, no evidence has been presented to question the specific scientific findings of the investigations undertaken by my Department's laboratories at the time. Given the very substantial resources invested in investigating these matters many years ago, the scientific approach taken to the inquiry, the multiple agencies involved and the passage of time since these events, I am afraid that no credible case has been advanced for reopening the matter at this stage.

Deputy Jackie Cahill

First of all, I thank the Ceann Comhairle for giving us extra time. I really appreciate it. When I spoke a few minutes ago, I outlined many unanswered questions. The least we owe to Mr. Brennan is to carry out a review of this case. His veterinary surgeon, Tom Slevin, did 35 post-mortems and 11 showed results he had never seen before. The bones of the animals were soft and could be cut with a knife and new bones were forming in the arteries and kidneys of the animals. He wrote to the Department to request that a pathologist from the UK be invited to review the case. Three pathologists in the UK were sourced but the Department refused to allow it. That alone shows that we need an independent review of what happened here.

Cadmium is a poisonous heavy metal and was found in eave chutes on the farm in 2004 by representatives from Teagasc's Moorepark centre. Dan Brennan was told that his cattle had symptoms of cadmium poisoning. Why was this ignored? When UCD took over the investigation, the Department instructed the university what to test for and omitted cadmium. It was the veterinary surgeon, Jim Crilly, who noted this and who, in 2007, asked for it to be added back onto the testing list. High levels of cadmium were found in the blood. Cattle lost weight and 95% of the symptoms of cadmium poisoning were found. Cows had dental lesions, something caused by fluoride.

New environmental damage was noted. In 2004, the cadmium emissions were 88 times above the German guidelines and it was never tested for after this.

The cost of an independent review would not be huge. Three independent investigators should be brought in and let them answer the questions that have been posed.

An Ceann Comhairle

Do the other Deputies want to make brief contributions?

Deputy John McGuinness

The Minister has ignored everything and he has gone with the line from his Department, a line that has caused nothing but trouble for Dan Brennan. The Irish Farmers' Association and the people of Kilkenny are looking on at this and they believe there was something wrong. If the Minister wants new evidence, he should look at the date the factory closed and at what happened on Dan Brennan's farm then. The Minister is wrong to take that line from the Department, because it is the Department itself that is wrong and it is ignoring what happened. I ask the Minister to go back and read the transcripts of the meeting chaired by Deputy Cahill. The Minister will see clearly the passion of the late Padraig Walshe, for example, who insisted there was something wrong. There is not enough time to deal with this a Cheann Comhairle. I am sorry for that and I appreciate the latitude the Ceann Comhairle has given us.

An Ceann Comhairle

I am more than happy that the Deputies bring back the matter again.

Deputy John McGuinness

I ask the Minister not to be guided by what he is reading from the Department. I ask him to listen to Dan Brennan for God's sake and take a compassionate view on it.

Deputy Matt Carthy

I join in that appeal. We are and have been members of the Committee on Agriculture, Food and the Marine and we get dozens of items of correspondence every week and month from people telling us there have been all sorts of injustices and that they were treated badly or whatever. Virtually none of those cases makes it to the floor of the Dáil; the reason this case has is that people across every political party that is represented in this House have heard Dan Brennan's story and have believed what he has said. In every major scandal that has ever affected this State in which it took decades in order to get justice, at some point down the line a Minister read basically the same statement that the Minister has read and had handed to him. I am appealing to the Minister's personal nature because we all know, for all our political differences, he is a good man. The Minister can make a difference to another good man's life that has been put into turmoil as a result of the way he has been treated.

Deputy Michael Fitzmaurice

An Ceann Comhairle

We are not getting into a rigmarole about it. I say to the Deputies to bring the issue back after the Minister has had a chance to review it. We will provide an additional opportunity. We will not be doing this sort of thing again. It is a departure from the norm.

School Accommodation

An Ceann Comhairle

Deputy Harkin raised the third Topical Issue. The Deputy wants to discuss the application for additional schools accommodation by Sooey National School in County Sligo.

Deputy Marian Harkin

Just before that I ask the Ceann Comhairle to give me ten seconds.

An Ceann Comhairle

Well I will have to when I gave everyone else plenty of seconds.

Deputy Marian Harkin

I am well aware of the case of Dan Brennan because I was in the European Parliament's Petitions Committee when Dan Brennan made his case there on several occasions. I am from Sligo so I had no political interest in him or what was happening. The Minister talks about no new evidence but he should review the old evidence. As many of the Deputies said, it is the same old line coming from the Department again. There are lots of discrepancies, gaps and unanswered questions. If the Minister reviews that evidence then he will make progress. I add my voice to that.

I have taken enough time from Sooey National School so I had better get back to that. I want to raise the issue of the provision of one or perhaps two autism spectrum disorder, ASD, classes in Sooey National School, which is located in County Sligo. It is one of those schools that is a major success because as a rural national school it has grown from 12 pupils in 1998 to 117 in 2023. That is pretty astonishing and it speaks for itself in terms of the excellence of the quality of the teaching and education, and the huge community support. It is in the context of that community support that we see that over two years ago, when a field behind the school became available and was put up for sale, the local community came together and decided to purchase it so that it could be used for community purposes and the school. With the patience of the person who was selling it, that will be paid off over a period of eight years. The point I am making is that this a whole-community effort.

In the meantime, the National Council for Special Education contacted all of the schools in County Sligo and asked them if they could provide ASD classes in their schools by September 2024.

Even though there are no pupils right now in Sooey National School who require this service, nonetheless the school responded to the request and it said it would be very happy to support children with autism from the locality. It immediately drew up an application and sent it to the Department of Education under the additional school accommodation, ASA, scheme for a general purpose, GP, room and two autism spectrum disorder, ASD, suites. That application was sent in last February. The principal contacted the Department several times post February but heard nothing back. Last September the special educational needs organiser, SENO, contacted the principal to ask how the new build was progressing because they assumed everything was going ahead but of course nothing was happening. Subsequent to that, several meetings took place and it was made very clear by the SENO that there was a real need for two ASD classes in Sooey. Subsequently, the Department's building unit contacted the school and offered it a modular building. That is all it offered the school. What it told the school to do was to put a mainstream class into the modular building and rearrange a mainstream classroom as a classroom for an ASD class. There was no hall, no ASD suite and no sensory room. In fact, there were no proper facilities at all for autistic children. Subsequently, the board of management looked at the Department's proposal and said it would be a completely unfair to offer children with autism a classroom and nothing else for their full-time education. While the board is willing to manage with a modular unit while an ASD suite is being built, it will not accept it without a further commitment to an ASD suite. I would be very grateful if the Minister of State could give me an update on the position.

An Ceann Comhairle

I thank the Minister of State, Deputy O'Brien, for being here to deal with this issue.

Deputy Joe O'Brien

I thank Deputy Harkin for raising this matter as it provides me with an opportunity to clarify the position on the Department of Education's planning for school accommodation for children with special educational needs, specifically in regard to the application for additional accommodation made by Sooey National School, County Sligo.

The Deputy may be aware that Sooey National School is a Catholic primary school. The school had an enrolment in September 2022 of 120 pupils and, in September 2023, of 117 pupils. As of September 2023, the school has one teaching principal, four mainstream class teachers and two special education teachers. The school is in the Coola Cross school planning area and there are seven primary schools and one post-primary school in this school planning area.

The Deputy may also be aware that a building project for the provision of one mainstream en suite classroom and one special education teacher room, along with assisted users' WC, was completed at Sooey National School in 2021. The school submitted an additional ASA application to the Department of Education in February 2023 requesting funding for SEN accommodation, an outdoor classroom, an all-weather pitch, staff and bus parking and a general purpose room. The purpose of the ASA scheme is to ensure essential mainstream and special education classroom accommodation is available to cater for pupils enrolled each year where the need cannot be met by the school's existing accommodation or by available accommodation at other schools in the area. General purpose rooms are outside the scope of the ASA scheme.

The Deputy will be aware the Department has broadened its delivery streams and is utilising modern methods of construction, including modular accommodation, as well as traditional construction delivery methods. Modular accommodation has particular advantages in terms of overall timelines and climate impact in that it does not generally have a reliance on fossil fuels. In overall terms, it is important to have a range of delivery mechanisms for delivering school accommodation to support the current very strong and ambitious roll-out of school building projects. This is of particular relevance given the overall challenging construction sector market. A number of factors are considered by the Department of Education in determining the most appropriate construction method to meet a school's accommodation requirements, including the timing and duration of that accommodation need, and other school-specific factors.

Furthermore, the Department continues to undertake forward planning to meet the accommodation needs of increasing demographics at post-primary level. In addition, the Department also works very closely with the National Council for Special Education, NCSE, on forward planning for increased special education provision in the form of additional special classes and special school places.

In planning and providing for additional school accommodation, the Department must also have regard to construction inflation pressures and competing demands on suppliers of modular accommodation and project management services. In response to these challenges, both in terms of demand for accommodation and costs, the Department must prioritise spending and seek to achieve value for money in line with the public spending code and the national development plan framework. In general, demographics have been falling at primary level and are due to continue to decrease. Therefore the Department considers it prudent to maximise the use of existing spare accommodation capacity at primary level in the first instance before considering any applications for further accommodation needs. On the provision of primary special classes, the shared preference of both the Department and the National Council for Special Education is to use and reconfigure existing school accommodation to provide special classes.

Officials in the Department of Education have been engaging with Sooey National School regarding its application for additional accommodation. A previously proposed solution was not agreed by the school and the Department is now reconsidering the requirement for additional accommodation in the context of any wider opportunities to meet the need for special classes in the area.

Deputy Marian Harkin

I thank the Minister of State. I have had a look through his response. He tells me that, back in 2021, a new mainstream en suite classroom and special education teacher room, etc., was completed at Sooey National School. That is absolutely correct. The school got rid of its prefabs. Basically, what the Department is asking of the school is to now go back to having prefabs or modular buildings. The school is not going to accept that. The Minister of State also tells us that modular accommodation has advantages in terms of overall timelines. He is absolutely right. It is faster but the question is whether it provides an adequate service or suite for autistic children. He also talks about demographics falling at primary level. While that may be true generally, I just told him a few minutes ago that the numbers have increased in Sooey National School from 12 to 117 in the past 25 years, so he cannot use that as a reason - I will not use the word "excuse" - not to ensure there is a proper building for autistic children that will serve their educational needs.

The Minister of State did say the Department is reconsidering the requirement for additional accommodation in the context of any wider opportunities to meet the needs for special classes in the area, but I am not really sure what that means. I do hope it means the Department is engaging with the board of management and the principal in Sooey National School, who are ready, willing and able to provide two new ASD classrooms. They have provided the land already if the Department will work with them. Sooey is just 13 km from Sligo town. It is close to Collooney, Ballygawley, Ballysadare, Ballintogher, and Riverstown. There is a real need for these classes and Sooey is the ideal location. The Minister of State has it on a plate so far if he will just work with the board of management.

Deputy Joe O'Brien

As I have outlined, the Department has been engaging with this school regarding its application for additional accommodation. While the provision of a general purpose room is outside the scope of the additional school accommodation scheme, the Department has liaised with the school regarding the potential provision of accommodation for children with special educational needs. As Deputy Harkin will appreciate, the provision of school places, including for children with special educational needs, is a priority for the Department of Education and the NCSE, and the Department will continue to work to ensure there are sufficient special classes available to meet the needs of pupils in the Coola Cross school planning area and across County Sligo.

As is very often the case with Topical Issue matters, we learn a lot more when the Deputy presents the case in a little bit more detail. Deputy Harkin has set out some detail that I was not aware of that I can take back to the responsible Minister.

Workplace Discrimination

Deputy Mick Barry

I do not need to wax lyrical about the role of migrant nurses in our health service, and I do not need to wax lyrical about the role of migrant workers more generally in our health service. We all know their role is critical and that, without their contribution, some say the service would collapse within a matter of days. I suspect it would actually collapse within a matter of hours. Irish society owes these workers a real debt of gratitude, and like all workers, they deserve to be treated with courtesy and respect.

According to reports in the Irish Independent today, migrant nurses may have been treated with anything but courtesy and respect at one of our largest hospitals, namely, Cork University Hospital, CUH. One nurse with more than a decade's experience in nursing claimed that a manager said to a group of nurses there:

You only move here to steal our benefits; you get pregnant as soon as you land, have three or four babies and take everything from us; you smell, don’t wash your hands after using the toilet and spread Covid in our country; you kill Irish patients.

Another nurse from Pakistan told the newspaper:

The very first day of adaptation, when we were expecting welcoming words from the coordinator, a senior member of management entered the room and started saying horrible things [...] No welcome, absolutely no respect. There was a lot of racism. This person was always screaming and shouting at us. It was such a stressful environment to work in.

That one nurse would make such an allegation would be a matter of concern to me. That two nurses would make such allegations would only heighten my concerns. However, that 29 nurses signed a petition addressed to the Irish Nurses and Midwives Organisation outlining what the Irish Independent described as similar allegations should lead to alarm bells ringing here.

I understand that there are cases before the Workplace Relations Commission, with the complainants supported, by the way, by both Migrant Nurses Ireland and the Irish Nurses and Midwives Organisation. However, I am going to move on from the particular to the general. A representative of Migrant Nurses Ireland told the newspaper:

Our concern is that this is not an isolated case in the Irish healthcare system. The most concerning aspect is that, despite previous complaints, the same manager continued the excessive hate speech and racist attitude by abusing their position of authority.

I am concerned that a worker facing abuse of this kind is automatically placed in a very vulnerable position by the State's visa policy. Most migrant nurses move to Ireland through the atypical working scheme. A visa only allows a person to live legally in this country for a period of six months. After this, a nurse receives a personal identification number, PIN, which they take to immigration to secure a work permit that lasts for a year. How vulnerable does this make a worker who has been trained by a manager who might be racist, and who in effect has the power not only to fail them but to force them to go home? How vulnerable does this make other such workers who witnessed such treatment and who tremble at the idea of speaking out for fear that they will be forced to go home? Does the Minister of State accept that this is potentially an extremely important case at CUH, and does he also accept that the State's visa policy may well be a contributory factor in this whole sorry situation?

An Ceann Comhairle

I thank the Deputy for raising this matter. Before I hand over to the Minister of State, I want to say that it has been my direct experience, and that of my family, to have a lot of contact with migrant nurses and care workers. What has distinguished them has been their utter professionalism, their deep sense of care and integrity, and their fundamental kindness that has made them outstanding in their field.

Deputy Joe O'Brien

I thank the Ceann Comhairle. I agree with that and with Deputy Barry's sentiments on how crucial migrant nurses are not only to our hospital system but also to our care system, more broadly speaking. Before I read my answer, which is important, I want to say I heard the media report this morning and it stopped me in my tracks. The small clip I heard was shocking, and I have since read the article. It is important that I read in this formal answer, and I genuinely thank Deputy Barry for raising the issue today.

The HSE CEO and the Minister for Health have both been very clear that no employee of the public health service should ever have to endure racism while carrying out their duties. It is intolerable and completely unacceptable. Everybody is welcome in the health service in Ireland, regardless of race, creed or ethnicity. More than two in every five doctors and nurses employed in the HSE were not trained in Ireland. Without these employees, essential healthcare could not be provided to our most vulnerable citizens, and Government wishes to thank them for all they do for patients and their families.

The HSE is committed to fostering an organisational culture where every employee is valued and celebrated, where employees are treated with dignity and respect, and where discrimination in any form is not tolerated. The HSE has a diversity, equality and inclusion policy in place which reflects the protections provided to its employees on the grounds of ethnicity, race and culture in line with equality legislation. The HSE is committed by that legislation to taking proactive steps to eliminate the potential for discrimination from its day-to-day operations, and training is mandatory for staff in respect of this policy.

Racist behaviour in the workplace is illegal under the Employment Equality Acts 1998 to 2015, and is explicitly proscribed by the HSE’s dignity at work policy. That policy puts an onus on health service employees and managers to create an environment in which staff are treated with dignity and respect. The policy also sets out informal and formal procedures to deal with complaints. Health service managers have a key role in communicating the policy to all staff, ensuring they understand its contents. A number of national training programmes are available to support the policy, and racist behaviour is specifically addressed in the HSE’s three e-learning modules on diversity, equality and inclusion at work, which are available to all staff online.

The HSE is working with partners such as the Nursing and Midwifery Board of Ireland to strengthen supports for staff coming from outside Ireland to ensure a soft landing, an effective orientation and induction, and to enhance local supports available to staff, particularly in the first weeks of their employment in the HSE.

With regard to the article that the Deputy is referencing, Cork University Hospital has confirmed to the Department of Health that an independent external investigation is under way into a series of allegations. I understand that HSE management at Cork University Hospital are treating the allegations very seriously. In these circumstances, it would be inappropriate to comment any further on the details of this investigation while it is ongoing.

I would like to finish my first contribution by thanking the nurses for coming forward with their story. I ask any worker in any sector of the economy who faces situations like this, where their position is exploited and where they are victims of very clear racial abuse, to please come forward and report it, and look at the procedures that are within their organisation as well. I fear this is not the only situation where occurrences like this are happening. Well done to the nurses for coming forward and telling their story.

Deputy Mick Barry

I, too, fear this is not an isolated case. I have to wonder, if allegations such as this can be brought forward by more than a score of nurses in a public sector workplace, which is a unionised workplace, what is going on in some private sector workplaces with vulnerable workers who do not have trade union protection and who are in fact employed in places that are not just non-union but anti-union.

With regard to some of the wider questions that are raised by this case, Migrant Nurses Ireland stated, "We strongly seek the implementation of mandatory training in the areas of equality, diversity and inclusion." That is mandatory training. It also stated: "We’re bringing people from other parts of the world to support the health system – but we do nothing to support them in return."

I point out that the Minister of State did not address one of the questions I asked him. Does he not think that the State's visa policy creates a situation where there is a huge power imbalance between, say, a manager on one hand and a vulnerable worker on the other and that where such a massive power imbalance exists, these types of situations are more likely to occur?

I will conclude on this. I know it is not the exact same case and the Minister of State will not have prepared a response, but I would like if he could come back to me in writing in the next few days with an answer on the 1,000 Indian nurses who were brought to this State to work as healthcare assistants at the start of the year and whose exploitation has been highlighted in the media. Both the Department of Enterprise, Trade and Employment and Department of Justice were working over the summer on various changes to the rules and regulations and visa systems which might be of benefit to these workers. Have we any update on the deliberations of those two Departments?

Deputy Joe O'Brien

I do not have the specifics on that. I will bring it back to the Minister to follow up on that as well. I indicated in my initial contribution that mandatory training was part of what was required in the HSE. I have an additional interest here. I am responsible for the national action plan against racism, so I will be delving into that a little bit further to see how thorough that is and to see who is captured by that mandatory training because it is not always everyone who does it. One of the weaknesses of the training that is provided or at least offered across different Government Departments, and I have been asking about this as well, is that generally it tends to be optional. What we find is that the people who are most interested in doing the job right and are more open-----

Deputy Mick Barry

Are they mandatory?

Deputy Joe O'Brien

-----to diversity are the ones who go to it. Therefore, when it is not mandatory, it is a problem. When it is stated as mandatory, I would like to see how comprehensive that is. I am committing to the Deputy that I will find out more about that. Of course, training does not solve it either. Racism is deeper than that for many people. We have much work to do in that regard.

With regard to the Deputy's question about the employment permit system, I worked with many people on a one-to-one casework basis who, in one way or another, came here through the permit system. Certainly, the employer-employee relationship is an imbalanced one in terms of where the power lies. It is fair to say the permit system exacerbates that to some extent as well, which is why we need to pay particular regard to the vulnerabilities of people who are here on temporary permissions that have to be renewed on a regular basis and who are in these situations where they can be subjected to these kinds of prejudices. It does require additional care and additional cognisance of what people need in terms of protections when they are coming here from another country.

The Dáil adjourned at 9.33 p.m. until 9.10 a.m. on Wednesday, 8 November 2023.

Dáil Éireann díospóireacht - Tuesday, 7 Nov 2023