Joint Committee on Enterprise, Trade and Employment díospóireacht -
Wednesday, 20 Oct 2021

Resourcing and Capacity of the Workplace Relations Commission: Discussion

Chairman

I welcome members and thank them for participating in this meeting in line with exceptional circumstances and measures that we have to take due to Covid-19 pandemic. Members and others participating in the meeting room are asked to exercise personal responsibility in protecting themselves and others from the risk of contacting Covid-19. They are strongly advised to practise good hand hygiene and they will note that every second seat has been removed to facilitate social distancing. I urge those attending not to move any chair from its current position and to also maintain an appropriate level of social distance during and after the meeting. Masks should be worn at all times during the meeting, except when speaking. I ask for full co-operation on this. Members participating in the meeting remotely are required to do so from within the Leinster House complex.

The purpose of this meeting is an engagement with the Workplace Relations Commission on resourcing and capacity. Since the establishment of the committee, the resourcing and capacity of the Workplace Relations Commission and how it addresses issues facing migrant workers have been raised on a number of occasions. I am pleased we have an opportunity today to discuss this matter with Mr. Liam Kelly, director general, Mr. John Kelly, director of information, and Mr. Brendan Hogan, assistant principal officer and regional manager, Workplace Relations Commission, and from the International Transport Workers Federation, which was recently in contact with the committee regarding this matter, Mr. Michael O'Brien, fisheries campaign lead. This discussion is focused solely at a general level. The committee has no remit to discuss or refer to cases relating to any individual employer or employee. I request that members and witnesses respect this throughout the meeting.

Before beginning I will notify the witnesses about parliamentary privilege and explain some limitations to that privilege in the practice of the Houses in regard to references that might be made to other persons in evidence. The evidence of witnesses physically present or who give evidence from within the parliamentary precincts is protected pursuant to both the Constitution and statute by absolute privilege. However, some of today's witnesses are giving their evidence remotely from a place outside the parliamentary precincts and, as such, may not benefit from the same level of immunity from legal proceedings as witnesses who are physically present. Witnesses have already been advised that they may think it appropriate to take legal advice on this matter.

Witnesses are again reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity, by name or in such a way as to make him, her or it identifiable, or otherwise engage in speech that may be regarded as damaging to the good name of the person or entity. Therefore, if their statements are potentially defamatory regarding an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative they comply with any such direction.

The opening statements have been circulated to members. I thank the Workplace Relations Commission for the comprehensive briefing material it submitted, which has been also circulated to members. I now invite Mr. Liam Kelly to make his opening statement on behalf of the Workplace Relations Commission.

Mr. Liam Kelly

I thank the Cathaoirleach and the committee for the invitation to appear before them and to have the opportunity to outline the important work of the Workplace Relations Commission, WRC, its resourcing and, in particular, its statutory functions and work in relation to vulnerable workers. As mentioned by the Cathaoirleach, I accompanied by officials of the WRC, Mr. John Kelly, director of information, inspection and enforcement division, and Mr. Brendan Hogan, inspector regional manager, with particular responsibility for fisheries.

As the committee will be aware, the commission plays an important role in Irish society in terms of fair and proper treatment of people in workplaces and in the non-discriminatory delivery of services. In carrying out this role, staff of the commission interact with people and businesses in many ways. They deal daily with employees, employers, trade unions, employer bodies and other representative bodies in the private and public sector and with persons who feel they have been discriminated against by service providers simply because of who they are. From a service point of view, our functions focus on maintaining industrial relations stability through assisting collective bargaining, mediating and adjudication in individual disputes, whether work or service delivery related, identifying and raising awareness of good practice, improving industrial and employment relations generally and promoting, monitoring and enforcing compliance with employments as defined in Irish legislation. The commission has offices in Dublin, Cork, Ennis, Sligo and Carlow, and following significant investment over the past number of years, the full range of commission services are available in each location.

The commission has a staff complement of 206 whole-time equivalent civil servants, who are staff of the Department of Enterprise, Trade and Employment. These resources are supplemented by a further 42 external adjudication officers who are contracted to assist the adjudication service dispose of adjudication complaints on a case-by-case basis. There has been a 25% increase in our staffing resources since the establishment of the commission in October 2015. This increase has been required to service increasing levels of demand and service expansion. The extra resources to date have been assigned, in the main, to adjudication at administrative level and adjudication officer level and in areas such as ICT-corporate, the legal division, mediation and the inspection services. In terms of inspection, provision for the assignment of an additional ten inspectors was made in the context of the budget allocation for the commission in 2022. It is likely that these will be assigned and operational in the near future. The overall resource requirement of inspectors will be reviewed further with the Department next year.

In terms of its activities this year, the WRC has continued to provide most of its services remotely, with the exception of on-site inspections, which have combined important work on monitoring the application of the return to work safely protocol with the commission's statutory functions in relation to employment rights. Separately, in line with Government guidelines, commission staff have returned to their offices on a staggered and phased basis since 20 September 2021 and some face-to-face hearings and conciliations have taken place in that time, again in line with Government health guidelines.

If I may, I would like to outline to the committee the work of the commission and, more specifically, how it delivered its services during the challenges posed by the pandemic.

The commission’s information and customer service unit provides information to employees, employers and citizens generally by way of an information line which deals with over 50,000 calls annually and might deal with 60,000 this year. The WRC website, information leaflets, presentations to stakeholders and targeted social media campaigns are also provided.

In any given year, the commission’s conciliation service works with parties to collective disputes to assist their resolution and some 85% of such disputes are resolved at conciliation. The service has remained active at those demand levels throughout the pandemic and has provided this service primarily remotely and equally successfully, albeit in circumstances that make it more challenging for the parties to engage as closely as they might do in person. The issues in dispute have largely reflected the current economic and company level circumstances. Some 1 million employees are encompassed by these negotiations annually.

In a similar manner, the commission offers mediation in individual disputes, both by telephone and in person, and, more recently, virtually. These assist parties to resolve matters themselves without the need to have them dealt with at what can sometimes be a challenging adjudication hearing.

The commission works with trade unions, employer bodies and all stakeholders in publishing codes of practice and works with employees and employers to inculcate good practice around fairness and the proper conduct of industrial relations and the observance of employment rights at company level.

Specific complaint referrals to the adjudication service increased by 50% between 2016 and 2019 and required the additional resources to manage this demand, as mentioned earlier. While this demand tapered slightly in 2020, the volume received in that year still represented the second highest total received in any year since establishment.

After the pandemic hit, the WRC quickly introduced a service delivery model that comprised virtual and in-person hearings. While the initial impact of Covid-19 on scheduling hearings was significant, by early 2021 the weekly number of hearings scheduled had returned to pre-pandemic levels and the number of hearings taking place is now some 30% to 40% higher in any given week than was the case pre-Covid. This scheduling level is challenging for the WRC and the parties but it will enable to the WRC to return to pre-pandemic equilibrium in the near future.

Since the WRC was established, the inspectorate has fully completed a total of 33,000 inspections, recovered some €12 million in moneys owed to employees and pursued compliance to prosecution stage in almost 600 cases. In addition to carrying out its employment legislation inspection and enforcement role, the WRC inspectorate continues to carry out checks to ensure compliance with the Government’s return to work safely protocol.

In its invitation, the committee indicated that it would be considering how the commission addresses issues relating to migrant workers. With the permission of members, I will outline the statutory functions and work of the commission in this critically important area. A key component of the WRC’s mandate is to ensure that employees are aware of their rights under Irish employment law. For migrant workers, information and knowledge is key. The WRC website is translatable into 108 different languages and publications specific to migrant workers have been translated into up to ten key languages. Social media plays an important role and the WRC has run many campaigns on social media to assist migrant workers. For example, this summer the WRC participated in a Europe-wide campaign on Twitter targeting seasonal workers and prospective employers in the horticultural sector in Ireland. This was interlinked with a large number of inspections carried out in this sector throughout the campaign. A similar campaign on social media targeting the hospitality sector was carried out over September and October as the sector reopened.

In matters relating to migrant workers, the commission also works closely with Departments and international bodies, such as the International Labour Organization, the European Labour Authority, Europol and the Gangmasters and Labour Abuse Authority in the UK, as well as with important actors including the International Transport Workers Federation, the Citizens Information Board, the Migrant Rights Centre Ireland, embassies and others. In addition, as part of their work, all inspectors are trained in identifying indicators of human trafficking.

Since its establishment the WRC has carried out inspections in over 60 meat plants. Just under half were non-compliant and the main areas of non-compliance involved employment records, employment of persons without permission and breaches of the National Minimum Wage Act. As part of the seasonal workers campaign mentioned earlier, some 28 inspections have been carried out and contraventions have been identified in the areas of national minimum wage, record-keeping, public holiday entitlements and terms of employment.

The WRC also participates in European campaigns co-ordinated by Europol under the European multidisciplinary platform against criminal threats, EMPACT, programme. Sectors which Ireland has identified as of concern include nail bars and pop-up car washes. As part of this programme, in May 2019 inspectors carried out 169 inspections focused mainly on labour exploitation in the car wash and nail bar sectors. This operation also involved the Garda, officers of the then Department of Employment Affairs and Social Protection, and the Revenue Commissioners.

In the fishing industry, since the introduction of the atypical worker permission scheme in 2016, which allows the employment of non-EEA workers on whitefish vessels over 15 m in length, the WRC has carried out 490 inspections of the 170 vessels in the scheme. To date, some 20 prosecutions have been brought against fishing vessel owners for offences under employment legislation. However, unlike typical inspections, WRC inspectors do not have responsibility for enforcing compliance with rest period and maximum working hour requirements in the fishing sector. That role is carried out by the marine surveyors of the Department of Transport.

I thank the Cathaoirleach and the members of the committee for their kind attention and am very happy to assist the committee in its deliberations in any way I can.

Mr. Michael O'Brien

I thank the committee for the opportunity to speak. I will take the statement I issued in advance as read, for the most part, rather than reading it out in full because that would take more than the eight minutes I have been allocated. I want to make this an interactive session, if possible, and respond to some of the points that have been made by Mr. Kelly from the WRC. The statement goes into some recent historical context and I want to take time to acknowledge the pioneering work of my predecessor, Mr. Ken Fleming, who put the plight of migrant fishers from outside the EEA on the political map in this State. The recent historical context also shows that my predecessor made strenuous efforts to try to make the atypical work permit scheme work in the interests of fishers to give them a liveable income and a bearable work regime.

It is by accident rather than by design that the department of law at Maynooth University yesterday published a report based on a qualitative study comprising 24 in-depth interviews with migrant workers, giving the up-to-date situation. It is a coincidence that was released yesterday. There was fairly widespread media coverage of the report. The Maynooth law department has circulated that report to all Deputies and Senators. The report paints a picture of the five and a half years the atypical work permit scheme has been in existence and concludes that the situation has not fundamentally changed in that time. I cannot contest the various statistics that have been presented by Mr. Kelly from the WRC in terms of its overall performance across the entirety of the Irish workforce but there are legislative and operational impediments to achieving justice, not only for fishers. I will make some points about the legislative reforms I believe are necessary and which have implications for a wider cohort than just migrant fishers. That will be the main focus on my address.

I will begin with the case of undocumented migrant workers, especially fishers, who do not have the right to have their cases heard by adjudication at the WRC because the position taken is that an undocumented worker's employment relationship with an employer is not legal to begin with. The only route that has been open for the past seven years to vindicate the rights of undocumented workers who have been cheated of wages has been a provision in section 2B of the Employment Permits Act whereby the initiative is taken by the WRC at the behest of the Minister to conduct an investigation before taking a civil case against an employer to try to recover wages.

There is a case study that I cannot go into in immense detail, for obvious reasons, but committee members are aware of the case because I emailed them about it in July. That case has brought me here to address the committee. Through parliamentary questions and a freedom of information request related to that case, we have managed to establish that the provision in the Employment Permits Act has yielded something for an undocumented worker in either one case or no cases. My assessment is that if a documented worker came to the International Transport Workers Federation or any trade union movement, the quality of testimony they would provide to us would be of comparable strength to that provided to the WRC in the case in question.

However, it seems to me that they set an enormously high bar, probably beyond reasonable doubt, before they decide to take a civil case and hence, have not taken civil cases in the course of the last seven years, whereas we would take our chances in bringing a case to adjudication and on the balance of probabilities. Certainly, we have got results in that forum.

It is something that could potentially be resolved by the employer-sanctioned directive. Ireland and Denmark are the only two states that have not transposed the directive. I sent a link to the committee containing analysis in advance of the meeting. Unfortunately, given the way many labour inspectorates across Europe, and also in Ireland, operate, it can be very difficult for an undocumented migrant worker to engage with the WRC or via WRC inspection because there can be consequences for his or her status in the country. That was not always the case. When the WRC's predecessor, the National Employment Rights Authority, NERA, was in operation, there was what we would describe as a firewall between the labour inspectorate and what the Garda and the immigration authorities would do, which enabled undocumented migrants to engage with the NERA with a great deal more confidence than is currently the case.

Moving on, there are also issues in obtaining full justice for documented atypical workers. I refer to the cognisable period under the Workplace Relations Act 2015. What that basically means is that if any of the majority of us had an issue with our employer, for example, in respect of unfair dismissal or unpaid wages, we would not hang about for longer than six months. In all likelihood, we would take the case and seek redress fairly promptly. That approach works in most instances. The reality is that because of the way the atypical work permit scheme is constituted, as a visa scheme with exemption, the exemption being that the worker is tied to a particular vessel owner, even though a documented migrant atypical fisher may be aware that he is being underpaid, he will not feel that he can take a case with confidence to the WRC while he is tied to that employer, because to do so would precipitate the ending of the employment relationship. It is just a simple matter for the vessel owner to write to the Department of Justice and say that the employment relationship has been terminated. The fisher is then left with a small window of opportunity to try to find an alternative employer to engage him under the terms of the scheme or he will become undocumented. There are hundreds of undocumented fishers working in the Irish fleet, who entered under the atypical scheme and fell out of it for various reasons, not just the reason I described previously, but sometimes through injury.

The point we wish to make is that the cognisable period does not work in practice. I provided the committee with details of a particular anonymised case study, which was reported in yesterday's edition of the Irish Independent, of a pending WRC case where the claim we are bringing relates a four-year period. Unfortunately, if the WRC rules in the claimant fisher's favour, at best, he will get a small fraction of the moneys that he is due because of the cognisable period time limits.

On the working time at sea directive, the issue is that there is nowhere to go to seek a remedy. The directive is not a gift from the EU; it is the product of an international campaign waged by seafaring unions around the world that was taken on board by the International Labour Organization and translated into a convention. There was engagement at EU level between seafarer unions and employer representatives, from which an EU directive arose. It has been transposed in a botched fashion by the Department of Transport, to the effect that there is no way for a fisher to seek a remedy. Mr. Kelly, of the WRC, has referred to the fact that the Marine Survey Office has the responsibility to prosecute cases for excessive work hours, but it still remains the case that other working time legislation issues can be heard by the WRC. The directive must be retransposed correctly so that we can seek an effective remedy from the WRC. We will embark upon judicial review proceedings if we cannot get that.

My time is running out, so I will make my concluding remarks. One cannot contest the statistics provided by the WRC in terms of the number of inspections it has done in the fishing sector in the course of the lifetime of the atypical work permit scheme. It has done over 400 such inspections. Within that 400, a high rate of non-compliance was found, with the WRC detecting over 300 infractions of various types. The WRC has stated that 20 prosecutions have resulted from the infractions. I would say that where there have been convictions, they are simply not dissuasive, to the effect that there is repeat offending within the sector. While there has been a provision, from the outset of the atypical scheme, for vessel owners to be banned from availing of the scheme if they are found to have been guilty of various infractions, not a single vessel owner has been banned in the course of the five and a half years. We lack dissuasive penalties.

On the question of proactive inspections that are carried out, while infractions have been detected by the WRC, things can be missed. To give an example of another anonymised case study, a recent WRC case for unpaid wages, the respondents referred to the fact that six weeks into the engagement of two Filipino fishers, a WRC inspection was carried out at the quayside, and nothing was revealed by the two fishers in respect of their dissatisfaction with the job. Come on; what fisher is going to reveal to a State inspector, after six weeks on the job, that he is dissatisfied with his working conditions? I am sure that example could be replicated many times over.

I have identified some very simple amendments that could be made to a number of the Acts that would better equip the likes of the International Transport Workers Federation, ITF, and SIPTU, which has some pending WRC and Labour Court cases, to achieve full justice for migrant fishers in terms of unpaid wages. Even if those amendments were made that the working time at sea directive was correctly transposed, it would enable us to achieve justice after the abuses have taken place. Really, the core abuse arises from the employment relationship, which I realise is a matter for the Department of Justice. However, what we need, at minimum, is sector-wide permits that give fishers the freedom to change employers within the sector if they find that their working conditions are unbearable. We must liberate them from such situations.

Chairman

I invite members to discuss the issues raised with the witnesses. I remind members who are participating remotely to use the hand-raising function to indicate they wish to contribute and to remove it when they have finished speaking. The first speaker is Deputy O'Reilly, who has 14 minutes.

Deputy Louise O'Reilly

I thank the witnesses for their evidence and the information they have provided. I have a few questions. I am looking at the report published by Maynooth University in this area. It is a decent report. One of the key recommendations of the report, recommendation 3, states: "The Workplace Relations Commission (WRC) and the Marine Survey Office of the Department of Transport (MSO) should perform more outreach work and speak directly to migrant fishers in private as a matter of course". I know that Mr. Kelly has outlined details of the cases and the numbers and all of that, but we cannot lose sight of the fact that we are dealing with people.

An obvious deficiency has been identified in the report. Perhaps Mr. Kelly can take us through how migrant workers are dealt with by the WRC. Is it routine to bring an interpreter when carrying out inspections? The report found that that is not happening. I would say that the WRC is already limiting its capacity to elicit the sort of information that it might need if the inspectors do not have an interpreter with them. I ask Mr. Kelly to talk us through how this happens and how the inspections take place. The Maynooth University report has found that the inspections are not necessarily working. In Mr. Kelly's opening statement, he said that 20 prosecutions have been brought against fishing vessel owners. I know, from talking to people in the industry, that the vast majority of employers, and indeed, any decent employer, want this scheme to work and want the workers to be protected. However, it seems to me that a core of rogue employers are not being dealt with. The report has found that they are employing workers who are not being spoken to in private, which I find quite unusual, and in some cases, they may not be able to speak even if the opportunity to speak in private is there, because there is no access to an interpreter. I ask Mr. Kelly to comment on that first, followed by Mr. O'Brien.

Mr. Liam Kelly

The Maynooth University report is a very good report, as always. The Deputy has raised a few key issues. One is the use of interpreters. The Oireachtas joint committee previously suggested that we should also use interpreters on the quayside and we are open to doing that.

The context of inspections can be challenging. We may get short notice of a trawler having arrived at a quayside during the middle of the night and we have to mobilise our inspectors to go there. It can be very difficult to organise interpreters, particularly where a number of nationalities may be on board. That is a key issue.

Deputy Louise O'Reilly

I appreciate that. On that specific point, I understand that if a vessel arrives during the middle of the night it might be difficult to scramble a team together, much less a team of interpreters equipped with all the language skills. At a guess, however, the vast majority of inspections do not take place in the middle of night. Where one has notice of the arrival of a vessel and that will account for the majority of cases, there will be an opportunity to have interpreters. In the small number of cases where inspections are carried out in the middle of the night there may be difficulty getting interpreters but in the instance of routine inspections, interpreters are still not available. As Mr. Kelly said, a recommendation that they would be available was made previously. I am struggling to understand why interpreters are not used when they could be used. I appreciate there are instances where it may not be feasible.

Mr. Liam Kelly

I should have gone into that initially. Mr. O’Brien referred to how there may be occasions when people are reluctant to talk to us on the quayside. We acknowledge that is true. In those instances, we provide contact details in order that we can be contacted subsequently. Any subsequent meetings with fishers are held with interpreters present. We recognise parties may be of the view that if they talk to us through interpreters on the quayside, this may in some way highlight the fact they are talking to WRC inspectors. We are sensitive to all of that and recognise this is a very challenging situation. We are examining whether we should review our policy and have interpreters available when we know when a ship is due to dock and the language skills that will be required. We are quite happy to report back to the committee on that.

Deputy Louise O'Reilly

Do the inspectors bring with them material in a range of languages to distribute to the workers, or is it only in English? We dealt with an issue related to work permits at the committee previously and while information on them was on the WRC's website in a range of languages, which is welcome, the signposts signalling people to go to the website was only in one language. The information is good when one accesses the website but if an individual cannot access it, it is of very little use. Will the inspectors bring with them material on workers' rights in different languages?

Mr. Liam Kelly

Absolutely, Deputy. All inspectors bring with them a multilingual questionnaire. As we talk to the fishers we take them through the various questions on their rights, for example, do they know what their rights are and what they are getting. That is in their native language. We do what we can in those circumstances. I will consider the broader use of interpreters and am happy to do so. It is clearly an issue which has been raised by the International Transport Workers Federation, ITF, the recent Group of Experts on Action against Trafficking in Human Beings, GRETA, report and the Migrants Rights Centre Ireland report, which are very good reports. We have to consider that.

Deputy Louise O'Reilly

That is welcome.

Mr. Liam Kelly

Turning to the Deputy's outreach question, we have engaged in considerable outreach with fishers in recent years. Given it is a small scale sector and pockets of people can be geographically spread around the country, it is apparent we need to think about and do more to reach them close to where they live. While social media is an important tool, we cannot beat presentations or talking to fishers face to face. It is our intention to work with trusted parties such as the ITF, Citizen Information and migrant rights groups to set up town hall meetings, if possible, where we can outline what people’s rights are on board vessels and hear any issues they have in order that we can advice how best they can address them.

Deputy Louise O'Reilly

That is very welcome. Does Mr. Kelly have a timeframe for the establishment of these town hall meetings and when they will happen?

Mr. Liam Kelly

In the near future. We had a very good meeting with the Mr. O’Brien and the ITF five or six weeks ago during which we talked about the case he mentioned and future co-operation. We certainly hope those will happen very early in the new year.

Deputy Louise O'Reilly

That is welcome.

Could Mr. O'Brien comment on the use of interpreters?

Mr. Michael O'Brien

Sure. I cannot do my work on a day to day basis without having interpretation at my disposal. The Egyptians all come from a small number of fishing villages close to the port of Alexandria. They speak Egyptian Arabic. The Ghanaians, who are another big group, speak a language called Twi. Some speak English, as it is a former British colony, but not all of them do. The Filipinos tend to come from the island of Cebu and speak Cebuano, not Tagalog which is the dominant language in the Philippines. We need to use literature in those languages and have interpretation at our disposal.

Mr. Kelly mentioned in his opening statement a Twitter-based campaign that was run during the summer. It was done in English but WhatsApp and Facebook are the platforms to use to communicate with these people. Twitter is not their platform of choice. I raised that in an email with the WRC when the campaign was being announced.

Another issue is that the Filipinos and Ghanaians tend to live on the vessels; the Egyptians do not. That makes them very difficult to reach. My natural comfort zone is to have big town hall meetings to address everybody at once. It is not always possible to reach everybody. What may work better when doing inspections is to hand out, for example, a business card with a hotline or contact number that would allow a three-way WhatsApp phone conversation between the WRC inspector, the fisher and an interpreter at a time that suits all three. That would be a much better way to proceed.

It would be helpful if all the fishers who came to Ireland under the atypical scheme were made aware of the ITF's existence. Some of them are aware of it but because we lack, mandatory recognition for trade unions, or anything like it, I have to engage in sleuthing and go out and find these people. I even have to go to Senegal in West Africa this Sunday for a week-long conference during which I will have face to face discussions with the Ghanaian seafarers union to try to get an information campaign running in the Ghanian fishing communities in order that some of them would engage with the ITF before they come to Ireland. In that way, we could give them some inkling of vessel owner they would potentially work for and advise them to beware of the various pitfalls. These are the measures we have to take because we do not have the access we need to these fishers before they set foot in Ireland.

Deputy Louise O'Reilly

I thank Mr. O'Brien for that response.

In his opening statement Mr. Kelly referenced that to date, 20 prosecutions have been brought against fishing vessel owners relating to offences under employment legislation. That is in the context of 170 vessels. I am interested to hear about repeat offenders. Mr. O’Brien outlined that the provision that exists for repeat offenders to be barred from the scheme has never been used. Any decent employer in the fishing industry would want the scheme to work and would show solidarity with those migrant workers. However, there is very little incentive to be a decent employer in this area if one is getting undercut all the time by employers who are not paying the proper rate. Of the 20 prosecutions, do they relate to the same 20 people? Twenty prosecutions in the context of 170 vessels represents 12%, which is unacceptably high. Do the prosecutions involve the same people, and if they do, why are those people allowed access to a scheme, which, essentially, is a pipeline of cheap labour for them to exploit? I am struggling to understand, if there are repeat offenders, why they have not been barred from scheme. Mr. Kelly might be able to explain that to me.

Mr. Liam Kelly

The Deputy is right. We have done 490 inspections of 170 vessels. Not all vessels have been inspected twice. We return to vessels where contraventions had occurred previously and where there is a risk associated with them. That is critical in using our resources effectively and in driving compliance within the scheme. We return to those vessels where issues arose in the past.

In the context of the scheme, there is a provision where breaches occur that the vessel owner is not entitled to use the atypical scheme. That is a matter for the Department of Justice in assigning permits.

We do not report those as breaches when we bring them to prosecution. It is certainly something that we should examine in any review of the scheme.

Deputy Louise O'Reilly

Prosecutions, including these 20, are not notified to the Department of Justice as a matter of course.

Mr. Liam Kelly

Not currently.

Deputy Louise O'Reilly

Seriously?

Mr. Liam Kelly

They are public prosecutions.

Deputy Louise O'Reilly

Is it expected that officials in the Department of Justice will just google to try to find out if there have been prosecutions? It strikes me that much more could be done by the WRC in this instance. I and Senator Gavan, who is also on this call, have used the services of the WRC as former union officials and I appreciate that it is stretched. It does not strike me as best practice, however, to not notify the Department of Justice of breaches of a scheme it administers and for the WRC to expect that, somehow, the officials in that Department will just pick up this information in the ether. I will put it that way, but I probably mean something a bit stronger than it not being best practice. Of those 20 prosecutions, are we talking about 20 separate employers or are there repeat offenders within that number?

Mr. Liam Kelly

I will check. There may be one or two employers in that figure.

Deputy Louise O'Reilly

There was a slight dropout on the call and I did not hear that information. Did Mr. Kelly say that there were one or two employers involved?

Mr. Liam Kelly

There were one or two repeat employers in that total.

Deputy Louise O'Reilly

That is fine. I thought I had heard that all 20 of the prosecutions had been for one or two employers. The repeat offenders, therefore, are not-----

Mr. Liam Kelly

We must look at the issue of repeat offenders. There may not be an issue in cases where there is a once-off prosecution and an employer then becomes compliant. We should, however, consider reporting repeated prosecutions to the Department of Justice.

Chairman

I thank Mr. Kelly. The Deputy's time is up.

Deputy Louise O'Reilly

Those employers are abusing the scheme, so the WRC should definitely report those prosecutions to the Department of Justice. It is worrying that the WRC has not been doing that already. I apologise, because I had intended to give some time to Mr. O'Brien to allow him to comment. Perhaps I may get an opportunity to do that in the next round of questions.

Chairman

No bother. I thank Deputy O'Reilly. I call Senator Ollie Crowe.

Senator Ollie Crowe

I thank Mr. Kelly and Mr. O'Brien for their contributions and the time they have spent with the committee. Mr. O'Brien referred to research carried out by the department of law at Maynooth University, MU, in his statement and subsequent remarks. I only received the report yesterday, so I have not had the opportunity to go through it in detail. A brief analysis of the research showed that it highlighted poor working conditions and the need to reform the atypical working scheme, which Mr. O'Brien also argues for. The Minister of State, Deputy James Browne, has confirmed to me that the scheme will be reviewed following discussions with the Minister for Agriculture, Food and the Marine, Deputy McConalogue, and the Minister of State, Deputy English. That development will be welcomed by all members of the committee.

I also noted that one of the authors of the report, Dr. Clíodhna Murphy of the department of law at MU, stated "that inspections and policy changes have improved the industry". Mr. O'Brien seems to have a different opinion to that. I ask him to inform us of his views on those remarks.

Mr. Michael O'Brien

My reading of Dr. Clíodhna Murphy's conclusions is that the situation has not improved. She did acknowledge what the Senator referred to. This research was not a hatchet job by any stretch of the imagination and a minority of the fishers whom she interviewed had better experiences and better relations with their employers. The picture was mixed, to say the least, but predominantly it was not a good one. I noted the response from the Minister of State, Deputy James Browne, concerning the proposed review of the scheme. I hope there will be a decent level of engagement with the ITF on what the outcome of the review will be. We are clear that any scheme perpetuates an exclusive relationship of short-term and renewal contracts between a migrant worker and a single vessel or single employer will be a recipe for abuse and for those fishers to be taken advantage of.

Returning to the comment made by Deputy O'Reilly, this is not just a question of the WRC not proactively informing the Department of Justice of convictions of vessel owners. It is the same situation with the Marine Survey Office, MSO. Therefore, other agencies are also not feeding in information to the Department of Justice and the information on who the repeat offenders are in this area is not being centralised. That is why no vessel owners have been banned from the scheme.

Senator Ollie Crowe

I will leave it at that for now.

Chairman

I thank Senator Crowe and I call Deputy Bruton, who has indicated next.

Deputy Richard Bruton

I thank the witnesses for their presentations. My first question for Mr. Liam Kelly. Is there an EU standard in this area? Some of the procedures outlined by Mr. O'Brien were surprising. Is there an EU standard regarding a permit being tied to an individual vessel? I refer as well to redress being so difficult where a contract is illegal, the issue of yellow-carding people who have used a permit scheme but then abused it and the six-month statute of limitations or "cognisable period" as it is called. Are those procedures part of European standards or are we free to modify some of those aspects? I ask that because there does seem to be a legislative bias here against proper enforcement of the rules.

My second question concerns when a permit is issued. I presume an employee and an employer are involved in that regard. Would that not be the time to have the big push in respect of the interpretation of what rights the employee has in that context? Might there also be an opportunity in that regard to have a provision for some sort of compliance statement to be provided by either or both of the parties involved 12 months later in respect of what has been happening regarding the conditions of the permit? Can we make better use of that moment to ensure that people have better access to the enforcement system? My final query relates to the many sectors listed where the red lights flash. Those included horticulture, hospitality, meat factories, nail bars and car washing facilities and these were the areas where there were flashing amber lights from the perspective of the WRC's inspectors. It is necessary to try to create a culture of compliance in these sectors, because, as Deputy O'Reilly said, legitimate employers are undermined by those operating illegitimately. If the percentage of illegitimate employers continues to grow, then we could end up in a situation where bad currency drives out good, to paraphrase Gresham's law. If that were to happen, it would eventually destroy the culture of compliance in the sector. Therefore, are there approaches that can be taken to dealing with these sectors that tend to be prone to having legitimate operators offering decent employment undermined? Should we be looking not just at this sector but at initiatives that would cover all sectors and that could help in this respect?

Chairman

I call Mr. Kelly.

Mr. Liam Kelly

I hope I got all the areas the Deputy covered. I will take the questions in no particular order, if the Deputy does not mind. Starting with the scheme, when a worker is given permission to work within atypical working scheme, some of the revisions made to it in the time since it was established now mandate that the contract of employment is provided in the fisher's native language. A link is also provided to the WRC web page where information can be found on rights and how to file a complaint. That information is translatable into 108 languages and there are also various leaflets available in the main languages of the countries where fishers usually come from.

The employment contract is also required to state explicitly the pay for the hours worked. That is the national minimum wage. A minimum of 39 hours must also be paid, regardless of whether fewer hours were worked. There is also a requirement for workers to get their pay slips and the records of the hours worked. The letter of approval that goes to the worker has a section with the employment rights explained in the fisher's native language. In that context as well, a review was undertaken as part of the mediation agreement between the WRC and ITF in respect of it being permissible for people to transfer from a boat within the currency of the atypical working scheme.

Broadly speaking, people are informed before they become aware of what their rights are and where they can go if they feel those rights are not being observed. I understand and accept that in some cases there may be issues with literacy and we have to work to get past that in those cases.

Turning to the cognisable period, that does not just apply to fishers. It applies across what is called Schedule 5 cases in the Workplace Relations Act, so it applies to the national minimum wage, organisation of working time and matters such as that. Mr. O'Brien raised that. Insofar as the legal framework that our adjudication officers can look at, it is within six months of the notification of the complaint, and in reasonable circumstances 12 months. In reality, in quite a lot of cases the 12 months is examined. For example, there was a fisher case quite recently where due to the individual's language skills, the adjudicator said that in that case it absolutely should go back 12 months because the individual may not have been aware of his rights. In instances also of what is called the Von Colson principle in terms of the organisation of working time, it may be that as a dissuasive effect up to two years' pay may be allowed in circumstances where that happens.

With regard to Europe-wide approaches to campaigns and inspections, we work closely with the European Labour Authority on campaigns on employment records. We work bilaterally with countries to ensure that people who come here know what their rights are and who they should go to if they are being breached. Only four weeks ago, I met Mr. Boiangiu, the director of the European Labour Authority, to outline how we might progress the process in that area around bilateral agreements and practice for inspections drawing on the work of other inspectorates across Europe.

In terms of sector-wide initiatives, from time to time we carry out what is called inspection ready campaigns. For example, last year we met Meat Industry Ireland and outlined that if an employer is to be inspected, there are certain expectations of the employer. There have to be accurate records and they have to be up to date. They have to be in a particular format. The employer needs to be able to show that payslips are given to employees and also has to list the number of employees. We work with the sectors and that is just one example of how we can drive compliance in particular risk sectors. I mentioned some of them in my opening statement. They will come as no surprise to the members of the committee.

Deputy Richard Bruton

I will return to the issue of what applies in other parts of Europe. Is the idea of tying a person to a vessel a Europe-wide approach? It seems to be a fundamentally flawed model. It undermines people's rights if they are going to be indentured, or whatever the word used to be. To what degree is there a European standard for the way in which this industry works and for enforcement? Is there potential to identify better practice from other European countries or does Ireland have the freedom to move? I know that once rights are conferred in one part of Europe, they automatically apply in other parts of Europe. Is Ireland constrained in any way in seeking to change some of the features of the legislation that Mr. O'Brien identified?

Mr. Liam Kelly

The cognisable period was established nationally in the Workplace Relations Act, and following on from earlier legislation which is grounded in European regulations. I am not sure what the Department's or policymakers' room for manoeuvre on some of that is, but I can refer back to the committee on it. In terms of the scheme's approach to the length of contract for fishers on boats, that is consistent with European standards or how things are done across Europe. However, as was mentioned, the scheme will be looked again, and all these questions are absolutely appropriate for discussion in that context.

Deputy Richard Bruton

I thank Mr. Kelly.

Chairman

There are four minutes left in the Fine Gael slot.

Deputy David Stanton

I might come in again later but I will be very brief. I am from an area where there are a number of fishermen and I am concerned about the general impression that might be given about the industry generally, for example, that abuse is widespread. I ask Mr. Kelly and Mr. O'Brien to comment on that. I am worried about the owners of boats and people who are doing their best to comply, who are working hard and so forth, and that the impression might be given that the entire industry is abusing workers. Perhaps they would comment on that because it would be wrong to give that impression to the public. Certainly, in the media and elsewhere that appears to be the wide paint brush that is being used at present. To start with the general point, how widespread is the abuse? Are there many people and employers who are complying and doing their best to comply?

Mr. Liam Kelly

It is best to look at the most recent inspections because that reflects the current reality. We carried out 45 inspections in September, during which we found 45 contraventions which applied to 17 vessels. In looking at the contraventions, it is important to consider what we find. It may be that records are inadequate. In some cases the minimum wage is being paid, but under the scheme it is required to be paid weekly and in some cases it is not and is paid, perhaps, a month in arrears. The fisher is in receipt of the moneys, but not in the way in which the scheme was designed. We have come across some instances in which employers have misinterpreted the scheme and have become compliant with the 39 hours minimum wage, in that it was the rate of pay for the week. Many employers have become compliant in that regard over the time. Yes, we find some employers who we say are more likely than others to offend and we go back to them again, but when we say that there were 45 contraventions many of them were to do with record keeping or the slow payment of wages. That is not to say that they are not contraventions. We take them seriously and we work with employers to make sure they become compliant, but I wish to put that as a general context.

Mr. Michael O'Brien

The atypical scheme is only available to vessels that are over 15 m in length and certain categories within that. We are talking about 170 to 180 vessels out of the entire fishing fleet of 1,900. The vast majority of those would be smaller vessels, probably family owned and family run. That is not to say that some of those vessels do not employ undocumented migrants. They do, but our focus is on the larger vessels in the fleet. It cannot be said, therefore, that we are arguing that the entire industry is guilty of wrongdoing. However, a high proportion of the eligible vessels in the scheme are. That is the plain fact. To date, 35 fishers have been admitted into the national referral mechanism for human trafficking, including three individuals this year. They are incontrovertible facts. I do not know what more I can say about that as the figures for non-compliance speak for themselves.

With regard to the contract, the standard atypical contract provides for a 39-hour average working week. It is true that the amendment to the scheme specified that the workers must be paid for every hour worked, but the reality we often see for those who are in the atypical scheme and who come to the ITF is that they get the €350 into their bank account, but they work far more hours than that overall and there is an accumulating shortfall of wages due to them.

We can get the data from the fishing monitoring centre of the navy in terms of when the vessel is at sea and piece together and substantiate the case the fishers make to us of underpayment.

Senator Marie Sherlock

I thank the WRC and Mr. O'Brien for being here. I thank Mr. O'Brien for his enormous work on this issue. He is continuing the strong tradition and enormous work of Ken Fleming, my former colleague in SIPTU, who did so much to shine a light on practices in the sector.

My first question is to the WRC. I thank the representatives for the documentation that was submitted. Looking at the documentation, the number of inspections and the contravention and prosecution rates, a quick calculation suggests that across all inspections, there is a contravention rate of about 39%. In the fishing sector, the figure is 73% for 2020. I want to gain a better understanding of what happens in the WRC when figures such as that are seen. What mechanisms does the commission have to communicate to the Department that contravention of the law is endemic in the sector? I am sure there are good employers in the fishing sector but with such a high rate of contravention, what mechanisms exist to communicate with the Department? How has the commission responded in terms of the allocation of specific inspectors to the fishing sector?

Mr. Liam Kelly

The Senator is right. It is about 40% in terms of contraventions across all the sectors we cover. Some sectors have more risk than others. Some do not have high labour intensity or turnover, which depresses the figure. In other sectors, the risk of contravention is higher. We report to the Department regularly on contraventions, as well as in the annual report to the Minister. They are fully aware of the work we do in the area and the risks.

In terms of the inspectors assigned to fishers, that work, given its very nature, can be dangerous at times. We may need to-----

(Interruptions).

Mr. Liam Kelly

-----at times. There are currently seven inspectors but there were 16 at one stage. We have lost some through attrition. An additional four will be trained shortly to bring us to 11, which is approximately 16% of our total complement of inspectors. They are fully trained in relation to safety at sea. They do the proper training courses and are available to move to any port in Ireland. While they may be based in particular counties, when we need to send inspectors to a particular port, they are available and ready to go. We have a dedicated fishers team for the sector.

Senator Marie Sherlock

Notwithstanding that Mr. Kelly spoke about the difficulties of trying to mobilise a team during the night, is that number sufficient given that these figures seem to suggest contravention of the law is endemic among many, though not necessarily all, employers in the sector?

Mr. Liam Kelly

If there is one boat landing, we do not need all inspectors there. If there are two boat landings, we need more. If we are doing what you might say is a campaign in a port or region, we need all our inspectors on the ground. We have found that, largely speaking, to be sufficient. We have carried out 490 inspections of 170 boats in the period.

Senator Marie Sherlock

It seems to me that the numbers that the WRC has recruited or is about to allocate are insufficient for the scale of the problem we are talking about.

Mr. O'Brien set out in great detail the issues he sees with the atypical work scheme. A number of legislative changes need to take place. I will pick up on the earlier question put to Mr. O'Brien on how widespread exploitation is in the sector. Does the fishing sector have such a high level of contravention of employment law in other countries or do we have such weak legislation that it facilitates exploitation because the permit is tied to the employer in this country? Are freewheeling employers part and parcel of the fishing sector or do we have weak or poorly drafted legislation in this country?

Mr. Michael O'Brien

It is a combination of all of the above. I have identified gaps in the legislation that impede the International Transport Workers Federation, as well as unions like SIPTU, which also take fisher cases, from obtaining full wage recovery.

On international comparisons, I am not greatly familiar with the regimes in every country. In Scotland, a similar situation prevails but the UK system has a standard contract that provides for £1,200 per month. Once they are beyond the 13-mile limit anything goes, so the situation is quite grave there. I will attend a meeting of the ITF's European affiliates that organise the fishing sector on 15 November in person in Brussels so I will get greater detail in terms of how we stand up compared to others. There are issues in terms of the structure of the fishing industry here and the species fished. That lends itself to proportionally more migrants from outside of Europe being brought into the industry than in continental Europe.

Senator Marie Sherlock

I thank Mr. O'Brien.

Deputy Paul Murphy

I thank the WRC, Mr. O'Brien and the ITF. I refer to the Maynooth study and thank the researchers for doing it. The headline findings were that over two thirds of the participants observed they could work between 15 and 20 hours per day. One third reported feeling safe on the vessel, so two thirds did not feel safe. Over half of the participants had been subjected to racial and verbal abuse. On the point Senator Crowe made, all but two of the interviewees who had been in Ireland since before 2016 indicated that conditions in the sector had worsened overall since that time. We cannot say it is the first time we have heard about the horrific conditions that exist for undocumented migrant fishers in Ireland. There has been a criminal failure by the State to stand up for these workers' rights. To get a sense of how widespread the problem is, how many undocumented fishers does Mr. O'Brien estimate work in the sector in Ireland?

Mr. Michael O'Brien

I would have liked to be able to say the current labour force survey that Bord Iascaigh Mhara is conducting would give that answer but, unfortunately, the way it has gone about the survey means that, not only will it will not reveal how many undocumented fishers are in the fleet, but we will get wrong information down the road. I have engaged Bord Iascaigh Mhara about this. It is carrying out an online survey in the English language and is depending mostly on vessel owners to disclose the composition of their crew. Members can guess that skippers and vessel owners employing undocumented migrants will not disclose that in the survey. I am told it is open for crew to participate but I have made the point already about the language barriers. Basic things like Internet access and so on are extremely difficult. I have put it to Bord Iascaigh Mhara that if it conducts a similar labour survey again, it should engage with us and we could assist in promoting the survey among various groups. We have WhatsApp groups with the language-based communities in the sector.

In terms of our best guess, when the atypical scheme was conceived, the best estimate of the interdepartmental group that proposed the scheme was 500 migrant fishers in the fishing fleet five years ago.

When the then Minister for Agriculture, Food and the Marine, Deputy Coveney, announced he was setting the cap at 500, the immediate response of the vessel owner representative associations was to ask that it instead be set at 1,000. That gives some idea. Before the deadline for enrolment in the scheme passed in mid-2016, there was an amnesty phase to regularise the situation of pre-existing migrants. Fortunately, the media furore and attention died down and we got some 250 people enrolled. There has been a churn in the subsequent five years but the reply to the most recent parliamentary question on the subject indicated that there are approximately 230 people currently registered under the atypical scheme, spanning 180 vessels. The reply also indicated that 45% of eligible vessels do not employ anybody under the atypical scheme. It is like a leaving certificate maths problem trying to figure out how the 180 largest vessels in the fleet are being crewed if there are 230 atypical workers. Each of them most likely has an Irish skipper. There are one or two Egyptian skippers who have obtained Irish citizenship but they are very much the exception. There are a number of EU-based share fishers from Poland and Latvia, as well as a number of non-European fishers who have obtained a stamp 4 visa for various reasons. The numbers, however, do not add up and the best answer I can give as to how many are involved is "hundreds".

Deputy Paul Murphy

I thank Mr. O'Brien for setting out a number of clear legislative and practice deficiencies that have resulted in significant failures for undocumented fishers. In regard to the cognisable period, Mr. Kelly's response to Deputy Bruton was that it can be set at 12 months in exceptional circumstances. Even allowing for that, does he accept there is a problem whereby what may work for regularised workers may not work for others? In the example given of the person working for four years and having an underpayment potentially of €114,000, the maximum that person would get is close to €30,000, which is only a quarter of what he or she would otherwise be owed. Does Mr. Kelly accept that this presents a significant problem for undocumented workers?

Mr. Liam Kelly

In terms of the cognisable period, that is the legal framework within which we operate, albeit with some variations allowed in particular cases. It is really a matter of policy, on which I am reluctant to comment. It is challenging for people, particularly in the fisheries industry, where some of the issues along the lines of those pointed out by Mr. O'Brien are arising. How such issues are dealt with is a matter for legislation and we operate within the legislative framework set out by the Oireachtas.

Deputy Paul Murphy

A problem undocumented fishers have in terms of vindicating their rights is that they are not in lawful employment, which means complaints related to fundamental rights such as the right to a minimum wage cannot be pursued by ITF on their behalf. Does Mr. Kelly agree that this presents a significant problem and means that it is, in effect, in the WRC's hands as to whether a case is pursued? Mr. O'Brien has made the argument that the WRC seems to be operating on the basis of a very high burden of proof, probably beyond reasonable doubt, in such cases. He claimed that, over seven years, it has taken, at most, one case relating to these matters. Does Mr. Kelly accept that point?

Mr. Liam Kelly

I accept the point about the number of cases we have taken. Section 2B of the Employment Permits Act provides that it is a matter for the WRC, through the Minister or the individual in question, to take a case. Regarding the bar that Mr. O'Brien mentioned, I do not want to talk about the particular case to which he referred. It was discussed with Mr. O'Brien at the meeting that was mentioned. There are issues with that particular case in that we felt it did not have a reasonable prospect of success. However, I would not take or extrapolate from this that we have a high bar. Those were the circumstances of that particular case.

Deputy Paul Murphy

How does Mr. Kelly explain there being only one case in seven years? We are hearing about how widespread the problems in the industry are and how workers do not have another recourse. Yet, the WRC has taken only one case in seven years.

Mr. Liam Kelly

Primarily, such cases are referred to us in one of two ways, either by the individual concerned or via the Minister. That is how cases come to us. One such case was the case that was mentioned and there was one other case. On the broader issue of the difficulties for people who are undocumented in taking a case to the WRC, I acknowledge that fact. I understand that several legislative proposals have been brought forward to see how we can move forward in that regard.

Chairman

I am afraid the Deputy's time is up. Round one has concluded and we will now begin the second round of questioning, starting with Senator Gavan.

Senator Paul Gavan

I thank Mr. O'Brien and Mr. Kelly for their presentations. I am incredibly frustrated listening to what they have said. In 2017, the predecessor to this committee, of which the Chairman and I were members, compiled a really strong report on exploitation in the fishing industry, which included 12 excellent recommendations. The findings of the report were not contested by any member of the committee, all of whom felt very strongly about the wrongdoing in the sector. I pay tribute to Mr. Ken Fleming in particular, who gave powerful testimony to the committee detailing shocking stories of abuse. I am at a loss today because from what I can see, that report was put on the shelf and has been ignored by the Government. That needs to be put on the record. Four years on from outlining the most horrendous issues of exploitation in the industry, those 12 recommendations have been ignored. That is appalling.

I have a few questions for Mr. Kelly in reference to the report. Recommendation No. 6 was that extra funding be made available to the WRC to allow it to continue with a rigorous inspection regime of the relevant Irish fishing fleet. Mr. Kelly indicated that the number of inspectors fell from 16 to seven and he is hoping to bring it back up to 11. Why was the recommendation on inspector numbers, made four years ago by the predecessor to this committee, not implemented? Why has the WRC not kept at least a minimum of 16 inspectors in place over recent years?

Mr. Liam Kelly

Regarding the reduction in the number of inspectors over the period in question, that happens in any public sector body. As I said, there is a training requirement for all fishing inspectors because of the safety issue. It was not possible to increase the number to the previous level in the past couple of years. Going back to previous discussions, we believe that, broadly speaking, we have been able fully to carry out our responsibilities in the fisher sector with the number of inspectors we have. There is no doubt, however, that the numbers have fallen over the period referred to by the Senator. We are currently trying to address that.

Senator Paul Gavan

I am frustrated because it was an explicit recommendation that resources be increased. Mr. Kelly indicated that there has been an increase in general terms in WRC funding, which is welcome, but he has also conceded that there has been a drop in the number of inspectors in what is probably the most exploitative sector anywhere across the State at present. I want to register my disappointment in that regard. I must move on now as I am conscious of time.

My second question relates to interpreters. If I heard him correctly, Mr. Kelly indicated that the WRC is open to the use of interpreters and is looking at whether they should be available. The fifth recommendation the committee made four years ago was that interpreters be readily available to the WRC. Has the commission ignored that recommendation as well?

Mr. Liam Kelly

Not at all. Interpreters are readily available to us. Perhaps I was not as clear as I might have been on that point. We use interpreters all the time when we are following up interviews with atypical fishers or we need to talk to undocumented people who have particular issues. Mr. O'Brien referred to a WhatsApp service, which is something we have been looking at in the context of having a conversation with fishers who require interpreters.

As I said, we have struggled with getting interpreters, maybe at short notice, on to a quayside. I accept that this does not happen that often. There is an issue with interpreters on the quayside and the willingness of fishers to talk to us while the interpreter is there. We give cards to all fishers to be distributed with our contact details. As I said, in many cases there are follow-up calls to us and we use interpreters as part of those discussions. They are readily available to us but the point is the most recent reports suggest we should look at whether we should have interpreters at the quayside in every instance. We must consider that seriously.

Senator Paul Gavan

I thank Mr. Kelly. I apologise as I want to give Mr. Michael O'Brien an opportunity to come in again. I really hope we will not be here again in two or four years to find this question of the number of inspectors and interpreters is still there.

Will Mr. O'Brien comment on the fact that we had an excellent report from this committee four years ago and it appears to me that effectively all 12 of the recommendations have been ignored? He might tell me if I am wrong.

Mr. Michael O'Brien

Exactly. It is not just about the recommendations of the committee. I rewatched the presentation given by my predecessor, Mr. Ken Fleming, at the time and it was pretty powerful and dramatic. The ITF took High Court action against the State when it became apparent to us that the atypical scheme in the hands of some vessel owners was effectively a tool for human trafficking. That resulted in a settlement agreement in April 2019 and there were approximately 20 points of reform that altered the position on paper. For example, there were basic points like providing the contracts in the language of the fisher and a stipulation that they should be paid for every hour worked. They had to be given some window of opportunity to change employer if they could not endure the abuse being suffered.

The Maynooth report published yesterday was to study in particular those fishers who worked in the sector in the course of the subsequent two and a half years. Frankly, a significant number of vessel owners are incorrigible. We must end the system of a tied relationship. It is the last chance saloon for the atypical scheme and we need sector-wide visas at an absolute minimum. Short of full trade union organisation, it would create upward pressure for pay and conditions if the fisher has some kind of mobility to leave the worst abusers in the sector.

Senator Paul Gavan

I know I am out of time but I acknowledge the incredible work of the ITF and wish it well in the months ahead.

Chairman

We are in a second round of questions if people want to come back in. Deputies O'Reilly and Paul Murphy are next. Mr. Kelly is indicating he wishes to speak but the time in the slot has run out. He might come in during another slot.

Deputy Louise O'Reilly

I will get back to the recommendations but I join with Senator Gavan and others in expressing our thanks to Mr. Ken Fleming for all the work he did in this area. Nobody can dispute that he was passionate and committed to shining a light on poor work practices. I say again, for the record, that we are not dealing with the majority of employers in this instance but employers who want to do the right thing are being hampered by the fact there are rogue employers for whom there seems to be precious little sanction.

I want to go back to the two matters I raised previously with Mr. Kelly, starting with the meetings he spoke about, the fact it is good practice and that the intention is to have them soon. I appreciate we are under restrictions etc. and nobody really knows with any certainty what way that will go. All things being equal, is Mr. Kelly looking at having these meetings in the first three months of the next year? I am seeking a commitment that the meetings will happen and an acknowledgement that they must be only part of the work that needs to be done. I have organised workers in industries where they were very reluctant to come forward and much more work must be done. Town hall meetings are definitely part of the process. Is that the commitment this morning?

Mr. Liam Kelly

Absolutely. It is something we have thought about doing as society opens. It is an area we must address and not just with fishers. There are other sectors where people come in from both within the European Economic Area, EEA, and outside it. We need to look at maybe reaching into communities and areas where people from particular countries may congregate. We recognise the deficiencies sometimes apparent in social media and it is always a learning experience for us. We accept and recognise, both in our work and with the European Labour Authority, that the personal approach is absolutely required. We need to work with community leaders and people within sectors.

We will absolutely do that next year and we must worked with justice parties like the ITF or the Migrant Rights Centre Ireland, MRCI. We must ensure that if we set up a town hall meeting, somebody will come. Those are the types of bodies that can help us in that regard. If it cannot be done because of geography, we will have to look to see how best we can deal with it as we are dealing with matters this morning.

Deputy Louise O'Reilly

Will Mr. O'Brien elaborate on the issue with a Twitter campaign? That is a version of social media but anybody who uses social media knows there are horses for courses. Will Mr. O'Brien detail how the Twitter campaign may have been limited in its reach? What could be done about that? If there is a social media campaign and we add town hall meetings to it, what else can be done to reach out to these communities? I know the ITF and others are doing this but these people need to link not just with their union - anybody who knows me can tell I see it as a person's best protection at work every single day - but other services as well. How can we join this and what would be the recommendation to the committee?

Mr. Michael O'Brien

As I said earlier Twitter is a very public platform but it just does not appear to be the platform of choice for migrant fishers. Eight months into the role, I have become acquainted directly with approximately 150 fishers and WhatsApp is the platform of choice. It is relatively secure. They also use Facebook, which can be used with private settings. That is how they communicate.

On the question of town hall meetings, it is difficult to get many fishers together in one place and at one time. A typical voyage or fishing trip could be two to three weeks and sometimes they might land on shore and go back out on the same day. If a town hall meeting is to be organised, particularly for the prawn sector, it should be on the night of a full moon. Some Deputies and Senators may laugh if they are unaware because on such a night all the vessels would be in Howth Harbour. The prawns behave differently and cannot be caught easily and that is when fishers will be available. I cannot vouch for fishers of other species but a certain critical mass of fishers could be gathered if it was timed that way. Otherwise, there might not be a great attendance.

Deputy Louise O'Reilly

That is very good advice and I was aware of it because I live in a small fishing community. The full moon does things to prawns, although I do not know what. There was a submission from Mr. O'Brien and the ITF to the committee and it references the penalties applied, arguing they are not dissuasive enough to prevent repeat offending by some vessel owners. I stress it is a small number of vessel owners but these are the people who give the industry a bad reputation. The decent employers are getting lashed by that bad reputation as well, which is unfair. It is in everyone's interest to stamp this out.

The reference was to penalties not being dissuasive enough to prevent repeat offending. Reporting people for abuse of the scheme to the Department of Justice might be a good way to start. What is Mr. Kelly's view on the penalties available and whether they need to be increased or different? How can we deal with the question of repeat offending? It strikes me there are thousands of fishing vessels around the coast and there is a small number of rogue employers. We should be dealing with them.

Therefore, the penalties must be dissuasive enough in order that the employers who want to do the decent thing are not competing on an unequal playing field.

Mr. Liam Kelly

It is important to remember that, as the Deputy says, there are 170 vessels in the scheme. There are 200,000 employments we need to inspect as well. We are very much committed to the scheme and the number of inspections we have carried out to date shows that. On the dissuasive effect of the penalties, I take her point on referral to the Department of Justice for repeat offenders. In that context, if there is a review of the scheme, that would be the appropriate place to discuss it to look at it in the round, in order that we have the full information on what the appropriate dissuasive penalty would be. I would be reluctant to say any more than that. Broadly speaking, it should be discussed in the context of a review.

Deputy Louise O'Reilly

Okay. I appreciate Mr. Kelly is reluctant to say but surely the penalty must hit them in the pocket as otherwise they will not hear the message. Does Mr. O'Brien have a view on what would constitute a sufficiently dissuasive level of penalty to discourage employers who do not seem capable of doing the right thing in some instances?

Chairman

I ask Mr. O'Brien to be very brief.

Mr. Michael O'Brien

Many of the cases taken by the WRC and the Marine Survey Office are at District Court level. You are talking about fines of €500 when a full catch of 5 tonnes of prawns on the basis of a two- or three-week fishing expedition nets €25,000 and fishers are being paid minimum wage, if that. Members can see the economics of it. You are talking about Circuit Court or maybe High Court-level prosecutions and four to five-figure fines, or jailings in some instances, because of the scale of some of the abuses.

Deputy Paul Murphy

I add my voice to those thanking Mr. Ken Fleming for his work and hoping Mr. O'Brien will be able to fill his shoes. I have a question for him. In his opinion, what impact would the Government's proposed documentation scheme for migrants have on the fishers?

Mr. Michael O'Brien

I am really glad this question has been asked. Scores and scores of fishers I have been speaking to in the course of the year and who are undocumented are at the edge of their seats over this scheme because they feel it is a potential route to being documented, again, in some instances, or for the first time in a small number of cases. The Department of Justice is proposing a stamp 4 scheme which, if these fishers obtain it, will give them the freedom to move employers or even move out of fishing altogether. The problem is - there is immense anxiety among the fishers about this - the terms of the scheme as announced and of which we are yet to see the full details are that a person must be undocumented for four continuous years or three years in the case of a person having a child. The problem is many of the fishers we would like to be regularised out of the scheme do not quite fit that bill. They entered Ireland in a documented fashion but maybe two, three or four years ago fell out of the scheme and are currently undocumented but cannot point to being undocumented for four continuous years. The other issue concerns those who are actually in the atypical scheme, some of whom have been in the scheme since its inception and are therefore on their sixth atypical contract. They are asking me how it is fair that they are in their sixth year as an atypical fisher on a stamp 1 visa, tied to this employer who is not very nice to them and when they put in an application via a solicitor, as does happen, to the Department of Justice for a change of status to stamp 4, the Department always says "No" but yet, the fisher's crew-mate who has been undocumented for four years has a clear path to a stamp 4. Members can see how divisive it is.

I say this to the Government Senators and Deputies in particular. I ask them to please convey this to their colleagues and the Minister. There is a promise out there. Sorcha Pollak from The Irish Times interviewed me about this six weeks ago and the Department said the scheme would be "inclusive". The Minister of State, Deputy James Browne, said the other day in response to the Maynooth report that this documentation scheme may offer a path. I really hope so because this would be the mainstay of the ITF's work, alongside everything else, if this scheme is not inclusive and you have hundreds of undocumented fishers left in limbo-land and then scores of long-term atypical workers who are going to be, in their eyes, leapfrogged by people who have been undocumented while they are stuck in their exclusive relationship with abusive employers. This scheme has to be got right.

Deputy Paul Murphy

I thank Mr. O'Brien. I presume he would agree with Deputy Bruton's highlighting of a fundamental problem with the atypical scheme being the tying of a worker to a particular employer and that it massively shifts the balance of power in the employer's favour. It certainly creates an environment whereby this sort of abuse is more likely to happen.

Mr. Michael O'Brien

Yes. The fishers have a high threshold for abuses, I am sorry to say. For the Egyptians, there is unfortunately a mythology within the sector that if they do the five years within the scheme that they have a clear path to a stamp 4, which unfortunately is not the case. Many of them are led to believe it is, so they will put up with those abuses at the hands of individual employers. For the Filipinos and Ghanaians, even the pittance they are paid counts for a lot when they send much of it back home and consequently, they will put up with it, albeit at great risk to themselves. It is true the fishing sector is a small one relative to the overall size of the workforce in this country but the dangers posed to fishers are very acute. You are talking about back injuries, loss of digits, premature aging and the wear and tear of doing it. It is a young person's job but some of the fishers out there are in their 40s and 50s and frankly, they look like old men. They need to be able to move on to do other work and they have earned their right to do so. People in this country have made enormous sums of money out of these individuals' labour and to be frank, they deserve a break from the State.

Deputy Paul Murphy

I thank Mr. O'Brien. Turning to Mr. Kelly, I wish to follow up on the question of one case in seven years, as we finished our engagement when he was making that point. Is he basically saying that is because the Minister has only made what sounds like two requests, those being the one successful case and the case the WRC decided not to pursue. Is that fundamentally why the commission has so few cases?

Mr. Liam Kelly

No, it is just in terms of the referrals that have come to us or to the Minister where we have been asked to carry out an investigation. It is the referrals, rather than the actual cases or a willingness to take on cases.

Deputy Paul Murphy

Mr. Kelly is saying the WRC only got two referrals over the course of the last seven years.

Mr. Liam Kelly

That is my information, yes.

Deputy Paul Murphy

That is two referrals from the Minister.

Mr. Liam Kelly

To the Minister, which could be passed on to us for investigation.

Deputy Paul Murphy

Okay. I have a few more questions. One is about resourcing. Famously, I think it was former Deputy Joe Higgins who made the point about how there were more dog wardens than labour inspectors in the State. Would Mr. Kelly consider the number of labour inspectors to still be considerably less than what we need? Finally, I assume he is aware of the allegations made by George McLoughlin, who was a former inspector for the National Employment Rights Authority, NERA, the forerunner and predecessor of the WRC, who has made two protected disclosures. I have spoken to him and he makes a credible case of repeated failures to have proper inspections take place, including into the fishing industry, as well as tipping off of employers, not having unannounced inspections and so on. Would Mr. Kelly like to respond to any of that?

Mr. Liam Kelly

I will take the latter point first. The protected disclosure to which the Deputy refers was made a matter of weeks after the establishment of the WRC and referred, I think, primarily to the work carried out by inspectors during the period of NERA. It was made to the Department and the Department assigned an independent investigator to carry out an investigation. My understanding is the result of investigation - we were not shown a copy, for the reasons I will outline - was there was no systemic wrongdoing in the work of the inspectorate and as such, no issues for us to deal with. I do not know if that answers that particular point.

On the number of inspectors, there is no labour inspectorate or regulator in the world which would say it had enough inspectors to carry out inspections. In the end, there are two ways to drive compliance. One is through outreach campaigns, because it is not possible in any circumstance to visit every employment in any given year or any number of years due to the sheer volume of employments. Thus it is really key we have a very good and up-to-date outreach campaign along the lines of some of the issues we have discussed today.

In the early part of this year we established internally a communications unit to help us work on the outreach that the information customer service does. We will get better and will hone it so that it is more effective. It has to be sustained and supplemented by inspectors. We have engaged with the Department over the past while about increasing the number of inspectors. As I mentioned, we received additional funding for ten inspectors, which is an 18% increase in our overall number of inspectors. We will assimilate them over the next six to seven months and will train and on-board them. At some time towards the middle of next year, we have agreed with the Department that we will return to this discussion to see if that can be moved forward in subsequent years. It is no secret that we are working to build up our total inspectorate numbers.

Chairman

Deputy Paul Murphy’s time is up. The next person who has indicated a wish to speak is Deputy Stanton, who has seven minutes.

Deputy David Stanton

I thank the Chairman. I join with Deputy O’Reilly where she pointed out that there are employers who are trying to do the right thing and we have to be careful that we do not give the impression that every employer is breaking the law. I take what Mr. Kelly said earlier on that there are some contraventions that are administrative and so forth but there are also some that are very serious.

I ask Mr. Kelly to comment on trafficking and the extent to which the WRC has encountered this in the fisher industry as well as across the board in his other work and what actions have been taken there.

Mr. Liam Kelly

Returning to a point that I perhaps should have covered earlier, on the Oireachtas joint committee report, there are four issues and Senator Gavan has raised one of them. As part of our standard functions, we report all suspected trafficking cases in the fishers’ sector to the Garda as these people are very vulnerable and perhaps exploited.

On the most recent campaign, the so-called Palace campaign with the fishers, of all of the fishers that we spoke to we came across three who were undocumented. They are out there and all of our inspectors are fully trained in looking for signs of trafficking to be reported to the appropriate authorities because they are the most vulnerable people who we come across as part of our functions.

As for what are the types of signs we look for, one is the abuse of someone’s vulnerability on the part of the employer. Are the employees restricted in terms of their movements? Are they subject to violence or intimidation as part of their work? Are their travel documents retained for any periods? Are they involved in debt bondage? These are just some of the things we look for when we talk to workers on the ground; these are questions we may look out or ask of them. If we do find anything we refer to the appropriate authorities, as this is very serious. This is in addition to our work with the European Labour Authority in identifying where channels of trafficking come from in particular sectors.

Deputy David Stanton

Apart from the fishers’ sector, has Mr Kelly encountered trafficking in other areas of employment in his work?

Mr. Liam Kelly

We have. I mentioned one or two in my statement. Again, we have to be very careful as most employers in these areas absolutely are trying to do their best for their employees. Certainly, in 2019 and since, areas such as nail bars and pop-up car washes, particularly, may be sectors where it may be more prevalent than others.

Deputy David Stanton

I thank Mr. Kelly. I will return to Mr. O’Brien with other questions in respect of citizenship. We know that after five years on the atypical scheme, workers can apply for citizenship. Is he aware whether this is known or whether many people have done that?

Mr. Liam Kelly

Is this within the fishers’ scheme in terms to the stamp?

Deputy David Stanton

Yes.

Mr. Liam Kelly

That is well known. It is not a matter for ourselves but for the Department of Justice.

Deputy David Stanton

Has Mr. O’Brien any comment on that, please?

Mr. Michael O'Brien

Some fishers have obtained Irish citizenship. This requires five years continuous documented employment but also being continuously in the State for the preceding full year. This unfortunately knocks some of them out because if they make a short visit to Egypt, or wherever, that disqualifies them. It is more costly also than obtaining a stamp 4 but certainly, it is an option that is recommended to them if they can obtain it. It is not as available to them as this documentation scheme potentially can be.

I will comment on the human trafficking side of things so that people are aware. We have had human trafficking legislation in Ireland since 2008 and we only arrived at our first ever conviction a few months ago involving two Nigerian sex workers who were brought over here. That is the reason that the United States State Department has downgraded Ireland again to a tier 2 watch-list country, alongside Romania, Azerbaijan and Belarus, as the worst performers in Europe in combating human trafficking.

Alongside the symptoms of human trafficking that Mr. Kelly described, there is also being coerced into an illegal act. For example, if one is told by a vessel owner to hide an over-quota catch from the authorities where the fishing of a quota species is involved, all of the migrants who have come to us have testified to us about that. They may also have been told to hide from the authorities, be that the Naval Service or the WRC. That is also an illegal act which they may have been coerced into doing.

There is also fear of denunciation and trafficking by deception. Most people who have been admitted into the referral mechanism were brought in legally on the strength of the contract that there were promised. They then experienced something that was severely at odds to this. That is how the conviction was arrived at for the two Nigerian sex workers who were promised something entirely different but when they came to Ireland they were treated as sex slaves.

The Department of Justice in its response to the 2021 Trafficking in Persons Report, TIP, report in July uniquely contested that fishing is a site of exploitation and trafficking. It did not contest any of the other sectors that are seen as vulnerable? Why was that? The reason, I believe, is because the perpetrators are Irish and the people who were convicted in the Nigerian sex workers case were Nigerian. The perpetrators in this sector, however, are Irish, which is why we have not had a conviction as yet.

I am going to a meeting in 25 minutes' time of a number of NGOs and the Irish Human Rights and Equality Commission. There are going to be reforms to the national referral mechanism, which are welcome in order that we are not dependent solely on the Garda to admit people back into the scheme.

Deputy David Stanton

Can I come back in there, Chairman, please, because my time is very limited? My apologies for interrupting.

Turning to Mr. Kelly, with respect to those who are involved in serious infringements in the fishing industry, is it the policy of the WRC to name and shame these employers?

Mr. Liam Kelly

All successful prosecutions are published in the annual report.

Deputy David Stanton

Can we go beyond that to make it even more public? I ask because I have been contacted by a number of employers who are very angry at the small number of people who are involved in the major infringements that we have mentioned. One suggestion is that they be named and shamed.

Mr. Liam Kelly

On that issue, we have considered over the past number of months if we should, on a quarterly basis, issue press releases where successful prosecutions have happened in the previous quarter rather than just in the annual report. As part of our strategy for 2022, that is what we are going to do.

Deputy David Stanton

The employers who are compliant and are doing their bit would welcome that in respect of the serious infringements.

Finally, we probably are all aware that there is a major review into the atypical scheme with regard to the fishing industry. This hearing is timely today and I thank the witnesses who have come before us because they have given us some very interesting information. The fact that this review has now begun, and hopefully it will not take too long, may see many of the changes happen that have been advocated by colleagues here and by our witnesses.

Chairman

I thank Deputy Stanton, Mr. Kelly and Mr. O’Brien. As nobody else has indicated their wish to speak, that concludes our consideration of this matter today. I thank the witnesses from the Workplace Relations Commission and from the International Transport Workers Federation for assisting the committee in this matter today. This concludes the committee’s business in public session for today. I propose that the committee goes into private session now to consider other business. Is that agreed? Agreed.

The joint committee went into private session at 11.19 a.m. and adjourned at 11.53 a.m. until 9.30 a.m. on Wednesday, 3 November 2021.