It is good to be back before this committee. I thank the committee for the opportunity to address it on the issue of the Right to Change Employer campaign sponsored by the Migrant Rights Centre of Ireland. I am aware of the ongoing campaign undertaken by the centre and the Department has been in discussions with it. The Department finds it completely unacceptable that any employer would mistreat, abuse or deny employment rights to any worker and, in particular, to immigrant workers.
The current employment permits system has changed significantly in recent years. The changes made have sought to strike a delicate and correct balance between the rights of the individual employee, the employer and the constantly changing needs of the labour market. Ireland's work permit system has developed from what might be described as a laissez-faire type approach prior to April 2003, with more interventionist policies emerging since then. In advance of the enactment of the Employment Permit Act 2003, the work permit system was almost entirely employer-led with almost no Government intervention. Prior to the introduction of the Employment Permits Act 2006, a special work visa-work authorisation scheme existed in the highly skilled and highly paid sectors but this scheme was replaced by the green card scheme when the 2006 Act was introduced. The work visa-work authorisation scheme was abolished due to operational difficulties and concerns that regulation was not sufficiently robust with the occurrence of specific instances in which the inbuilt flexibilities in the scheme were exploited.
The introduction of the Employment Permits Act 2006 implemented an actively managed economic migration policy that is vacancy-driven and where the offer of a job lies at its core. This approach, as opposed to a more crude system of points or a quota system, was decided upon as it could respond more efficiently to the emerging labour market needs. As the system is geared in this way, it is capable of flexibly responding to labour market needs while also ensuring that only those posts which need to be filled from outside the EEA are filled in this way. This ability to respond quickly to changing circumstances is very important as will be apparent to members of the committee, given the very significant challenges currently being experienced in the domestic labour market.
Under the operation of the system, a permit is only issued where a vacancy occurs that cannot be filled from within the European Economic Area in the first instance, and, second, by Bulgarian and Romanian nationals. A new work permit is only issued to a third-country national outside of the State where the employer proves that it has not been possible to fill the vacancy from within the EEA. To this end, a stringent economic needs test is applied entailing the advertising of the vacancy with FÁS for eight weeks and in the national and daily newspapers for six days. There is no doubt that currently workers from within the European Economic Area can fill vacancies for most of our skills shortages. This concurs with the conclusion of the Forfás expert group on future skills needs in its most recent national skills bulletin, published in July 2010, which found, in effect, that a limited amount of skills shortages cannot be sourced other than through economic migration from outside the EEA.
It is important to understand that migrant workers in the State are afforded exactly the same employment rights as other workers but I accept that, in some instances, it can be more difficult for migrant workers to seek redress in instances of exploitation. With this in mind, a range of measures aimed at specifically addressing migrant rights issues have been introduced in recent years.
The introduction of new protections for migrant workers was a key consideration behind the Employment Permits Act 2006. Under the Act, individual employees were given the right to apply for their own permit based on an offer of employment. This heralded a significant change that empowered employees, for the first time, to apply for a permit in their own right. This level of empowerment was further enhanced with the introduction of a provision allowing employees to change employers after one year. Over the past two years, for instance, more than 2,000 new employment permits were issued by my Department in respect of employees changing to new employers. These permit applications were issued without regard to the normal requirements of advertising the position in daily newspapers and with FÁS. Second, employment permits issued under the Act contain a statement of the rights and entitlements of the migrant worker, including that the employee may change employment, thus providing greater freedom and flexibility to migrant workers than was formerly the case. Furthermore, employers were prohibited from deducting expenses associated with recruitment from remuneration and from retaining personal documents belonging to the employee. These new measures, introduced post-2007, have substantially improved the situation for migrant workers.
A further improvement was introduced in August 2009. This dispensed with the requirement for a work permit for those who have been working lawfully and who have held an employment permit for five consecutive years. This measure means that employees have full access to the labour market for any type of job and with their employer of choice. These additional freedoms for migrant workers recognise the contribution these workers have made to the economy over an extended period and seek to reward that contribution.
Along with the arrangements I have just described, in October 2009, the Government also brought into effect changes which significantly improved the situation of certain migrant workers already in the country. I refer to the introduction of an undocumented scheme that allowed for persons who were formerly lawfully resident in the State but had, through no fault of their own, fallen into undocumented status. In order to qualify under this scheme, individuals were required to have been lawfully in the State and been the holders of an employment permit at some point. This scheme has allowed eligible migrant workers to obtain temporary permission to stay in the State and enabled them to regularise their situations by obtaining employment and further work permits. Separate provision has been made to allow employees who are made redundant during the currency of their work permits to extend from three to six months the time period within which they are allowed to seek and obtain further employment.
The Department also provides for new work permit applications to be made when allegations of mistreatment by the current employer are made. When such applications are supported by organisations like the MRCI, they are treated with sensitivity and fast-tracked by the Department. In such cases, the Department dispenses with the normal labour market economic needs test. That gives such individuals full and free access to all sectors of the labour market and to all employers. So far this year, the Department has received 83 applications for new permits of this nature, of which 67 have been granted, five have been refused and 11 await decision. These applications are dealt with expeditiously — normally within two weeks. I have nominated a designated officer within the Department to deal specifically with such applications.
It has been suggested that a simple administrative change could be made to allow employees to change employers without the need to acquire a permit. In reality, the proposal represents a fundamental policy change. As I have said, a core and crucial element of the current system is that employment permits are vacancy-driven. They are only issued if the vacancy cannot be filled from within the EEA, or if the position on offer is highly paid and highly skilled. It has been proposed, in effect, that we revert to the type of scheme that existed prior to the introduction of the 2006 Act. It could have a much wider application than the previous scheme, however, as it would also apply to workers in low-skill jobs.
When an employer completes an application for a non-EEA national to come to the State and work for his or her company, he or she is required to carry out an extensive and expensive labour market needs test. This is necessary to prove the individual's skill level and expertise are critical for the maintenance and expansion of the relevant business. The statutory fee for such an application ranges from €500 to €1,500, depending on the duration of the permit for which the employer or the prospective employee must pay. Employers can expect employees to remain with them for a reasonable length of time following the interview process, the making of the job offer and incurring the associated financial expenses. The unrestricted movement of third country nationals would have the potential to undermine the basis on which such people enter the country in the first place.
It would be unfair on employers who have identified labour market shortages that justify the issuing of work permits — and the potential arrival of third country nationals into this country's labour market on that basis — if that person were able to take up employment with a different employer where no identifiable labour market shortage has been approved. The work permit process ensures, as far as possible, that a bona fide employer exists in the first place. Unrestricted movement between employers would circumvent that part of the process. Furthermore, on renewal of a permit, the employee may not have the required documentation to show that he or she has completed up to two years of legitimate employment, thus leading to further undocumented situations.
Our body of employment rights legislation, particularly the Protection of Employees (Fixed-Term Work) Act 2003, protects all workers who are employed on an employer-employee basis in Ireland. NERA is responsible for monitoring and enforcing compliance with certain employment conditions for all categories of workers in Ireland, including migrant workers. Where evidence of non-compliance with the relevant employment rights legislation is found, NERA works with the employer in the first instance to achieve compliance. Where breaches are not rectified, or where there are substantial breaches of employment rights legislation, NERA may initiate a prosecution. In 2009, €2.5 million in unclaimed wages was recovered on behalf of over 6,000 workers, including migrants who were identified as having been paid less than their statutory minimum entitlements. Other avenues of redress, such as referral to a rights commissioner and recourse to the Employment Appeals Tribunal, are also available to workers when breaches of employment rights occur.
NERA is willing and ready to investigate complaints made to it directly or anonymously. I emphasise that the current system can help to resolve particular instances of alleged breaches of employment rights, both formally and informally, through NERA or directly with staff in the employment permits section of the Department. It goes without saying that there is a responsibility on all concerned to provide information and details that come into their possession to the regulatory authorities where prima facie breaches of employment law have occurred, regardless of the circumstances.
The committee has specifically asked me to consider putting procedures in place to ensure that an employer who has been reported for exploiting migrant workers, and this complaint is sustained and the exploitation is proven to have occurred, is prohibited from ever employing anyone with a work permit again. The Employment Permits Act 2006 sets out various grounds on which an employment permit may be issued, along with the grounds for refusal. The Act also sets out the conditions under which an employment permit may be revoked. That may happen for a variety of reasons, for example, if the holder of the permit has been convicted of an offence under the Act, or if in the opinion of the Minister the permit was obtained by fraud or misrepresentation.
In addition to the legislative protections afforded by the Act, administrative safeguards are also built into the system. The employment permits section of the Department takes into account information supplied relating to allegations of abuse by employers in the context of applications to change employer or in relation to a new permit application. It is standard practice to refer serious allegations to NERA for examination and to put a notation on the processing system to alert processing staff that such an allegation was made. This measure is designed to try to ensure that employment permits are issued to bona fide employers only. Of course, it is only in instances where allegations are proven to be correct that definitive action can be taken. Allegations that are suggestive of exploitative or forced labour are matters appropriate for pursuance by the Garda Síochána.
The legislative protections offered under the Employment Permits Acts, as well as the administrative arrangements that are in place, act as a sufficient safeguard to ensure that only bona fide employers hold employment permits. I hope the committee is similarly assured in this regard. The improvements I have outlined, which were introduced to ameliorate the position of migrant workers, are considerable. I assure the members of the committee of the continued willingness of the Department and I to consider any reasonable step to safeguard the rights of potentially vulnerable employees. The essence of our current employment permits regime is the filling of identified vacancies. That is why there is an absolute need to retain the link to a particular employer. The retention of the current controls in the employment permits system is also in the best interests of employees. It allows the system to trace employers who employ permit holders, as opposed to a simple notification system, which might result in greater numbers of employees ultimately becoming undocumented. The flexibilities we have introduced into the system to deal with possible abuses of the employment rights of migrant workers mean that the arrangements for moving jobs are sufficiently flexible in the current circumstances.