Joint Committee on Jobs, Enterprise and Innovation díospóireacht

Atypical Work Permit Scheme: Discussion (Resumed)

Chairman

I remind members, visitors and those in the Gallery to ensure that their mobile phones are either switched off or placed in flight mode for the duration of the meeting as they interfere with the broadcasting equipment even when on silent.

The purpose of this meeting is to discuss the situation of non-EEA crew working in the Irish fishing fleet under the atypical work permit scheme and related matters. I welcome Mr. Patrick Murphy, CEO, Irish South and West Fish Producers Organisation; Mr. Francis O'Donnell, CEO, and Mr. Dermot Conway, solicitor, Irish Fish Producers Organisation; Mr. Hugo Boyle, CEO, Irish South and East Fish Producers Organisation; Ms Norah Parke, project co-ordinator, Killybegs Fishermen's Organisation; and Ms Trudy McIntyre, south east member, National Inshore Fisheries Forum.

Before we commence and in accordance with procedure, I am required to read the following. By virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the committee. If they are directed by the committee to cease giving evidence on a particular matter and they continue to so do, they are entitled thereafter only to a qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official either by name or in such a way as to make him or her identifiable.

I remind our guests that their presentations should be no more than five minutes in duration. The presentations submitted by today's attendees have been circulated to members. I invite Mr. Patrick Murphy to make his presentation.

Mr. Patrick Murphy

I thank the committee for inviting us to speak on such an important issue for the fishing industry. I am the CEO of the Irish South and West Fish Producers Organisation. The organisation is based in Castletownbere, County Cork, and represents the greatest number of fishing vessels in Ireland's fishing fleet. Our membership comprises fishermen who operate in every segment of Ireland's fishing industry with vessels that range in length between 9 m and 27 m. Our members utilise every type of fishing method - inshore and offshore - along the south and west coast of Ireland.

I come from a fishing background. My family has a proud tradition of earning a living from coastal waters. I have been told that I come from many generations of fishermen and I hope my son follows in my footsteps. The fishing industry is very dear to my heart. I have a young family who are interested in the sea but I fear for the future of the industry. I fear that future employment in the fishing industry for our young people will not be an option. My fear is based on the Government's current proposal to reduce the Irish fishing fleet in the 12 m to 24 m sector by up to 50 vessels. I fear that the three proposals put forward to address the matter will mean the end of many of our rural communities that depend on the coastal fishing boats, and the end of an era for many thousands of families who live along our coastline.

Ireland’s natural resource-based seafood industry provides an important source of economic activity in remote coastal regions. It provides jobs on fishing vessels, fish farms, in processing operations and in the distribution and marketing of seafood at home and to export markets abroad. Jobs are also provided in a large number of smaller ancillary companies that provide services to the mainstream industry operators such as net makers, etc.

The industry contributes approximately €700 million annually to the national income and employs an estimated 11,000 people, mainly in the coastal communities of Donegal and Louth. It is the duty of fishermen's representatives to ensure the future viability of this industry for all those who currently work in it. Fishing, as practised on the seas around our coastline, is not comparable with any other industry that is based on land. One must take account of the many different fishing methods that are used by the skippers and masters of fishing vessels. They have sole responsibility for the safety and well-being of their crews and vessels. Everyone must understand that fishing involves a dangerous and unpredictable working environment.

I shall address the topic that has caused much anguish in the industry to date. A sizeable number of our members who own fishing vessels under 15 m in length have been in touch with us. They have asked us to convey the message that they cannot contract available qualified non-EEA crew to go to sea due to the fact that the scheme only relates to vessels over 15 m in length. Also, they are seriously disadvantaged in their ability to hire qualified crew for their licensed fishing vessels.

We have been made aware that fishing vessels occasionally have no choice but to go to sea with one or two fewer crew members than would be preferred. If this is allowed to continue it could turn in to a health and safety issue as reduced crew numbers mean longer working hours for those on board. We respectfully request that the committee reconsider the parameters under which the atypical scheme is administered and possibly recommend that vessels under 15 m be included in it. We have circulated a petition among our membership and other boats in our area and have collected 50 signed petitions from the crew of vessels who say they would like to see that happen. That took place in the past couple of weeks and is ongoing.

The 2015 Government task force report said that the scheme was to allow for the structured and transparent employment of non-EEA workers within a defined framework in the Irish fishing fleet. It did not mention vessel size. In making its recommendations the task force was focused on practical arrangements which would enable the risks of exploitation to be minimised while ensuring reputable employers are able to recruit trained and experienced crew members. Ireland’s whitefish sector will benefit from the implementation of the main recommendations of the report. Allegations made last year in certain quarters and reported in the mainstream media gave the perception that the task force had failed in that objective. However, operations to follow up on the allegations were carried out in several fishing ports by many of the agencies involved in the task force, assisted by armed gardaí, the Navy and the Garda dog unit at what I assume was no small cost to the State but none of the alleged 2,000 illegal trafficked non-EU workers were found.

The 2015 report also noted that crew members on fishing vessels are traditionally share fishermen, meaning they receive a share of the proceeds of the vessel’s catch rather than a regular wage. In the 1980s skippers and vessel owners brought a High Court challenge which resulted in the crewmen in that case who were share fishermen being re-classified as self-employed rather than employees.

The crew of a fishing boat operate like a family who work together as a unit and share the workload to achieve one purpose, which is to leave the safety of the harbour to face the elements and spend days and nights at sea as hunter-gatherers and catch a valuable and important part of society's diet. In a world with a rapidly increasing population, food security is becoming more and more important.

Anything that adds risk or uncertainty to the changing of fishing operations should be considered very carefully. However, only one consultation was held with fishing industry experts prior to the atypical scheme. It would have been preferable if the industry had been fully included in its drafting. There is a consensus among fishermen with whom I have spoken that the complexities of how vessels operates and how operators often have to change a plan of operation in a moment is not understood or taken into consideration. When the weather or the catch of fish changes, a skipper has to respond and he or she puts the safety of his or her crew and boat as a priority in this unpredictable industry. In the farming sector one has to harvest crops based on weather conditions and long hours are put in, often even overnight. It is a mistake to imply that the fishing industry is unique. Weather conditions also affect the time it takes to shoot, haul and process the catch. For example, for safety reasons a net must be taken on board and not left on the outside of the boat because it could foul the boat's propeller with serious danger to the crew and vessel. The quality of fish also depends on the speed at which the crew process the haul. The crew cannot leave the deck and leave fish from a haul and come back to it later because, for food quality and safety reasons, it needs to be processed in as short a time as possible. Depending on the amount of haul in the boat there could be an extension of the duration for which the crew are expected to work. No responsible skipper or master will put the well-being of his or her crew at risk but in the environment in which he or she operates decisions are occasionally made that breach the working time regulations but nevertheless must be made for the safety of the vessel and its crew.

We advocate that legislators be informed of the complexities of this industry. It is not the same as a factory environment because it is an unpredictable hunter-gatherer industry that rewards skill, experience and those who endeavour to make their living in the face of the risk of facing the elements. I thank the committee for listening to my address and hope to answer any questions members may have.

Mr. Francis O'Donnell

The Irish Fish Producers Organisation, IFPO, welcomes the opportunity to present to the committee on issues regarding migrant workers in the Irish fishing industry. Much has been said in the print media and on the airwaves since The Guardian newspaper broke its story in November 2015 on alleged abuses of migrant workers in the Irish fishing industry. I stress that neither I nor the IFPO in any way condone the mistreatment of any employee, either Irish or non-EEA, within our industry or any other. The IFPO has been at the forefront in the national media to condemn any abuses of human rights of either Irish or non-Irish persons working in our industry. Like any industry, there may be those who are not committed to abiding by the law and we cannot and will not support that. However, very little of a positive nature has been said in the media about, for example, those in my organisation who are fully compliant with the atypical scheme for migrant workers and who are paying well above the minimum wage.

The IFPO does not support the employment of undocumented people on Irish fishing vessels which is why it has always pushed for a permit scheme. In 2008 the IFPO wrote to the Government to highlight the issue of undocumented workers. I wrote to the then Minister for Jobs, Enterprise and Innovation, Deputy Richard Bruton, in October 2015 to ask for a meeting to address employment issues within the fishing industry and, in particular, that he consider a work permit for non-EU citizens. I released those documents to the media two years ago to clear up any misconceptions the public may have had on where we stood on this issue. It is important to point out that happened before The Guardian broke its story or the Government set up the task force which ultimately resulted in the non-EEA scheme for migrant workers within the Irish fishing industry. Moreover, I wrote to the then Minister for Jobs, Enterprise and Innovation, Deputy Frances Fitzgerald, in January of this year to outline that the current scheme needed to be reviewed. In particular, I felt that a non-transferable permit put employees at risk and left them vulnerable. That letter has been given to the committee.

On 4 July 2017 the Migrant Rights Centre and the International Transport Workers' Federation presented to this committee in relation to migrant non-EEA workers in the Irish fishing industry. On foot of that I wrote to the committee asking that the fishing industry be allowed to give its account and clarify several important issues. Having viewed the footage of the committee meeting of 4 July I felt that the entire Irish fishing industry was painted as criminals involved in slavery. Much of the commentary was made under privilege. The suggestion that the Garda Síochána was tipping off fishing vessel owners prior to inspections or raids was of particular concern. That was an incredible suggestion and I can say with confidence that in my opinion it has never happened. It is a very serious allegation.

The committee was told that only 42 permits were applied for under the scheme. Dermot Conway, solicitor, who is sitting beside me, can confirm that his office alone has dealt with 135 individual applications. Other solicitors are processing similar applications. That does not include the numbers of renewals. The committee was told that there are 1,500 non-EEA fishermen in the country without a visa. As of 20 July 2017 the Workplace Relations Commission, WRC, had inspected 150 of the 176 whitefish vessels and none of the five resultant prosecutions relates to a crew member being on board without the necessary visa. If the Migrant Rights Centre and the International Transport Workers' Federation have evidence of the mistreatment of non-EEA workers in the Irish fishing industry they should hand that information to the WRC or the Garda Síochána. It is incredible to think that serious allegations of criminal activity which were alluded to on 4 July - not 3 July as I wrote in my presentation which was given to the committee - could be discussed at this committee and that those files, if they exist, have not been furnished to the relevant authorities.

I ask them to do so now in the interests of fairness to the employee, the employer, the WRC and An Garda Síochána. Not handing over this information would either suggest they are not doing their job, or that there is no such information to hand over. One way or the other, the accusations made are very damaging to the reputation of genuine fishermen and women and the wider fishing industry.

Mr. Hugo Boyle

I am CEO of the Irish South and East Fish Producers Organisation. As my colleagues have gone into the details of how the fishing industry works, I will keep my address brief.

The Irish South and East Fish Producers Organisation, ISEFPO, thanks members for giving us the opportunity to present and clarify some misconceptions about the treatment of migrant workers in the fishing industry. Our organisation does not condone the mistreatment of any person, worker or otherwise, and encourages anyone who is aware of such ill-treatment to bring it to the attention of the appropriate authorities. With other industry organisations, we have been proactive in looking for a scheme to regularise the status of non-EEA workers in the industry. This was achieved in 2016 with the introduction of the atypical workers scheme which was a welcome development, but like all new schemes, it needed some time to bed in and overcome the learning curve. To this end, we were ably assisted by the Workplace Relations Commission, WRC, in guiding the organisation and individual skippers-owners on the necessary measures to comply with the new legislation.

I refute completely any suggestion, as recorded here in July, that the WRC was not doing its job and fulfilling its role. We take issue with the fact that people who had vilified the industry with misleading and unsubstantiated accusations at every opportunity in various media were invited to come before this committee and make false allegations against the industry, the WRC and An Garda Síochána. Portraying these bodies as condoning modern day slavery - the words used in the presentation - was outrageous and I am surprised that it was tolerated in this chamber. Wildly inaccurate figures for migrant workers from the same presenters have been bandied about. In fact, on an RTE news programme in 2015 it was claimed that there were 8,000 such workers in the industry, when a figure of a few hundred would have been more accurate, but, of course, sensational stories make the news. If the ITF or migrant rights people have evidence to substantiate their claims, they should pass on the evidence to the proper authorities, as otherwise they are aiding and abetting criminal activity and should be answerable to the Garda.

For us, there has been a serious misrepresentation of the facts of the engagement of non-EEA workers in the industry. We ask the committee to take account of factual information and not wildly outrageous claims made by parties who may have a vested interest in distorting these same facts.

I will answer any question or elaborate on the points I have made.

Chairman

Ms Parke represents the Killybegs Fishermen's Organisation

Ms Norah Parke

I thank the Chairman and committee members for giving me the opportunity to make what will be a very short presentation.

The Killybegs Fishermen’s Organisation does not have a problem at this time as its members do not employ any non-EEA personnel. Therefore, we can take a dispassionate view of the situation, particularly the ongoing process at the Joint Committee on Jobs, Enterprise and Innovation. However, the organisation has been closely involved during the years on a wide range of issues concerning the welfare of fishermen. We have engaged freely and proactively with the agencies concerned and made every effort to disseminate relevant information, clarify some of the more obscure ramifications and consequences of regulations and, in fact, lobby for the improved protection of fishermen - Irish, European Union and non-EEA alike. In addition, the CEO, Mr. Seán O’Donoghue, was a member of the interdepartmental task force set up by the then Minister with responsibility for the marine, Deputy Simon Coveney, in November 2015 to regularise the employment of non-EEA fishermen.

The Killybegs Fishermen’s Organisation has been a supportive member of the Santa Marta group – the North Atlantic Maritime Project - since its launch in Ireland in May 2016. I suggest the reports and views expressed at the most recent Santa Marta group meeting in Dublin on 20 June 2017 which appear to overlap considerably with this joint committee group should be given some consideration. My own experiences in dealing with Irish fishermen who were attempting to legally employ non-EEA workers might shed some light on the reasons there are occasions when it is simply impossible to be compliant, leading to both employers and workers falling through the cracks.

I can say categorically that there is no vessel owner, skipper or other member of the KFO organisation who has any desire to exploit his or her workers, let alone treat them as slave labour, and I am sure I also speak for my industry colleagues in that regard. However, we need to live in the real world and acknowledge that sometimes things go wrong. If a law does not work or is a bad law, we need to change it, but a successful change requires dealing with the facts, not emotional, exaggerated and sometimes slanderous allegations. Let us take the opportunity to identify the drivers of non-compliance, not alone regarding non-EEA nationals but also employed fishermen from our communities and within the European Union. This is not a situation which will be rectified by greater enforcement of short-term solutions but by appropriate regulation.

I will be happy to answer questions.

Chairman

Ms Trudy McIntyre is the south east member of the National Inshore Fisheries Forum.

Ms Trudy McIntyre

On behalf of the National Inshore Fisheries Forum, NIFF, I thank the joint committee for the invitation to attend the meeting.

The fishing vessels that come within the remit of the NIFF are trawlers, lobster and crab boats, whelks, razor, scallopers, gill-netters and small pelagics. The very nature of this meeting, the atypical work permit scheme and the position of the non-EEA crew on Irish fishing vessels do not cause any direct involvement for us, as under our terms of reference, we represent fishing vessels under 12 m, while the scheme has been designed for vessels over 15 m.

On the atypical work permit scheme, the NIFF has no formal position on what is a complex issue. To explain this, I will reiterate our chairman’s explanation at another committee meeting:

On policy and legislative issues such as this, the National Inshore Fisheries Forum, NIFF, takes direction from the six Regional Inshore Fisheries Forums, RIFFs. NIFF tries to form consensus based on the views expressed from each individual regional forum.

Following on from this, no formal issues have been identified or raised by any of the RIFFs in relation to the scheme, as it stands. Notwithstanding this, however, we would like to point out that the issues with lack of crew that our colleagues in the whitefish and prawn sectors face now also pose a big issue for fishing vessels in the under-12 m sector. Whether this is a direct result of skilled inshore crewmen heading into positions that may have been occupied by our non-EEA co-workers remains to be seen, but the fact of the matter is that we are finding it more difficult to crew our vessels with skilled, trained and competent individuals who understand what their jobs will entail. Life at sea is tough, regardless of the vessel one is on. Every fishery comes with its own challenges, even more so in the inshore sector as our jobs are more weather-dependent than for those on larger vessels. Our size often leaves us without income for weeks on end. Being a self-employed fisherman on any boat, one understands that when one is not fishing, one does not get paid. One understands one can haul one's nets or pots for a couple of boxes of fish or crabs that will not earn enough to cover the expenses to enable the boat to go out fishing that day or for that trip and one comes home with little or no money. One thing we are guaranteed is that there are no guarantees.

Considering these challenges, we would like to see the atypical permit scheme extended to the under-12 m sector, something which was mentioned as an option under consideration by the Government on a "Prime Time" programme segment on 6 April this year pertaining to the non-EEA fishermen in the fishing industry. We are calling for a scheme that could be adapted to include the inshore sector in a manner that would be fair to all. We acknowledge the complex issues with the scheme, but we are willing to come to the table to see what can be done in that respect.

I take the opportunity to relay a few observations from my own personal experience outside the NIFF on some of the circumstances surrounding the scheme.

We have enough people here today speaking about the facts and issues surrounding why we are here. I would like to tell the committee a bit about the other side of this awful story, one that has garnered much less attention and acknowledgement.

I am a proud member of the Irish fishing industry and take my participation in this industry very seriously. I take great offence at the recent attacks on the Irish fishing industry and the corresponding effort to paint us all with the same vile brush by individuals who know little or nothing about what it takes to be a fisherman or to be involved in the fishing community. In Ireland everyone is so quick to believe what is printed. A person is guilty until proven innocent and having to prove one's innocence often comes at a huge financial and personal cost. The losses incurred are felt by all those involved in the business, be it ashore or on the boat. What that also does is break a person. It causes mental anguish, it attacks his or her character, makes that person paranoid about what is going on and about who he or she can trust. The ripple effect extends to that person's family and to see that person crying and being hurt at the accusations being made against him or her is one of the hardest things anyone will ever go through. I know this because my dad, Lenny Hyde, and his business partner, Pat O'Mahony, have been living this for well over 15 months, and even today when hearing anything to do with this issue, they relive the nightmare.

Another proud member of the fishing community, Lia Ní Aodha, sent an open letter to the editor of The Guardian in response to an article published in that newspaper on 2 November 2015. She quite rightly states that the article unfairly and unnecessarily damages a small industry on the edge of Europe and harms the livelihoods of good, honest people, not only Irish skippers and crews but also the non-Irish. Further, it defames countless hard-working people, their families and their colleagues and causes insurmountable hurt to individuals, their families and their communities. She pointed out that the instances referred to in the article "are isolated and the exception rather than the norm". The people who may be guilty of the mistreatment of others do not differentiate between Egyptians, Filipinos, Irish, or with respect to skin colour. They treat everyone the same. This is a reflection of the person, perhaps, not knowing any different, carrying out his or her duties, oblivious to his or her ignorance and moral duties. These very people who have been spoken about in many interviews by the International Transport Workers Federation, ITF, have still not been brought to justice despite the “reams and reams” of evidence allegedly gathered against them. I am curious to know if this evidence and information has been handed over to An Garda Síochána and investigated.

At this committee meeting on 4 July, the Chair asked whether this is a racist issue. Mr. Ken Flemming of the ITF answered that it was. I absolutely disagree with that answer. Across all levels of society, one will find individuals in positions of power who mistreat people in pay grades below them. If the owner of a restaurant mistreats one of his employees, does that mean every restaurant owner is guilty of the same? I put it to the committee this way. Just because one or two individuals within the fishing sector of more than 2,000 fishing vessels may be guilty of mistreatment, why is the whole industry on trial?

I came across a presentation by the ITF and SIPTU to Seafish in Scotland. The last two points of that presentation got me really thinking. They read as follows:

As the internationally recognised premier organisation involved in looking after the welfare of seafarers the ITF is willing to inspect all Irish vessels and certify whether or not they comply with the ETI. ETI firms should only purchase produce from ITF certified vessels.

If the ITF and SIPTU are so concerned about bringing justice to the allegedly mistreated fishermen, why has this been drawn out? Why do they not hand over the information as it comes in? What of the dozens of fishermen whom the ITF has holed up in safe houses? Would these men not prefer to be at home with their families? In Irish law is it not illegal knowingly to assist an illegal immigrant to stay in the country? Withholding information from An Garda Síochána is a criminal offence. It is an offence that is not tolerated in the fishing industry, but it seems to be acceptable for the ITF to do so. Discrimination comes in many forms and can be interpreted by individuals as a personal attack. As an Irish citizen and a member of the Irish fishing community, I feel that we are being discriminated against by organisations and persons with an ulterior motive.

Chairman

Thank you very much, Ms McIntyre. I am afraid that we must suspend the meeting to allow Deputies to vote in the Dáil. We will resume as soon as possible.

Sitting suspended at 3.05 p.m. and resumed at 3.30 p.m.

Chairman

I thank Ms McIntyre for her presentation earlier. We had to suspend the meeting as there was a vote in the Dáil Chamber, which is now finished.

Before I afford my colleagues an opportunity to question the witnesses, I would like to refer to a comment made by Mr. Boyle. He stated that his organisation takes issue with the fact that "people who vilified the industry (...) were invited to come before this committee and make false allegations against the industry, the WRC and the Garda". As Chairman of the committee and on behalf of my colleagues, I would like to state quite clearly that I take issue with his comment. This is a fair and impartial, balanced committee. We were contacted by the Migrant Rights Council of Ireland, MRCI, and the International Transport Workers' Federation, ITF, as they had concerns. The members decided to invite them in as we do for all organisations. When the organisations left, we went into private session and decided we would hear from the other side. I would like to state on the record today as Chairman of this committee that I take offence at Mr. Boyle's suggestion that this committee would invite people in who are being misleading and making unsubstantiated accusations. There are two sides to every story and that is why we are here today.

I call Senator James Reilly.

Senator James Reilly

I support the Chairman's comments.

Chairman

I thank the Senator.

Senator James Reilly

This committee has always sought both sides of every story. To echo Mr. Boyle's own words, I am disappointed by his comments, while he might have his own disappointments. I do not think his language furthers his cause.

I want to deal with the issue because it is hugely important to us as a nation. Allegations have been made of extensive mistreatment and abuse of people within an industry. As somebody who lives in north County Dublin, I am very proud of the ports along our coastline, our fishing industry and the men and women who are involved in fishing. I am proud of the manner in which they do their work. As others have pointed out, they seek to feed our people. They are challenged not just by the market, but also by the weather, like many farmers. The huge difference between them and farmers is that their lives are challenged and their safety is at risk. All too often, sadly, we lose valued and loved members of our community. All here would hope to be able to support those involved in the industry in making it as safe as possible. I was talking to some of the organisation members today about the moves that have taken place in that regard such as, at a bare minimum, wearing a life jacket at all times.

I want to comment on the issues raised by a number of people around the scheme itself and how it does not apply to vessels under 15 m. As was pointed out, the task force never mentioned boat size when it came into being. I would support that changing and being open to all operators. We have a duty as legislators and as members of this committee in particular, however, to make sure that the scheme is fit for purpose.

I find a lot of the witnesses' evidence very compelling. What I do not find credible is the idea that there are no rogue operators within any industry or profession, including my own. We need to be realistic. I take on board the point that if there is evidence there, it should be made available to the appropriate authorities. Senator Gavan informs me that several cases of illegal trafficking are with the authorities at the moment. Let us be on the one side here, namely, the side of justice and fairness to all parts of the industry. Let us weed out those who are bringing it into disrepute and not have the entire industry tarred with the one brush because of the bad actions of a few.

I thank our guests for coming in. I reiterate that this industry is hugely important to us and will probably grow in importance. I would like to see that. Again, I reiterate the Chair's words. This committee believes in fairness and due process. That is why the witnesses were invited today to give their side of the story and bring balance. I thank them for doing that. In its own time, the committee will consider all the evidence that has been put before it.

I apologise as I have to leave now. I thank Senator Gavan for allowing me to speak first.

Senator Paul Gavan

I support the comments of the Chair. I am quite taken aback that Mr. Boyle would come in and castigate this committee. It is made up of a wide range of parties and interests. I can say with my hand on my heart, particularly in respect of the Chair but also of all of us, that we always strive to work fairly and collegially and to get our work done. I do not think Mr. Boyle does himself or his industry any service by coming in with those remarks.

I would like to start with a couple of positives. I highlight Mr. O'Donnell's speech. His point about the permit scheme being altered to ensure that a worker does not "belong" to any particular employer is one we should heed. I welcome his comments. I also support what Senator James Reilly has said. Common sense suggests that boats under 15 m should be included in the scheme. Let us try to recognise that.

Overall, I must be frank in saying that I am very disappointed. There seems to be a large degree of denial from our guests today. The problem is that there is a large number of non-EEA, undocumented workers in the industry. I have huge respect for Ken Fleming, who is a trade unionist of high renown and a man of honour and integrity. We do not have to take his word for it, however. We can take the word of the MRCI, a body that has worked courageously with undocumented migrants for years. It is very clear about the abuses that unfortunately are going on within significant sectors of the industry. We will also hear from the Defence Forces later on this afternoon. I will cite their document. They inspected 63 Irish-registered fishing vessels and found 134 non-EEA crew members, of whom only 39 had the required letter of approval. Some 95 did not or, in other words, two thirds of the workers were working illegally. Are the witnesses seriously telling us that the Defence Forces are lying? If we are going to make progress on this issue, we need to acknowledge that there is a major problem with undocumented workers. We need to find a way of helping them to come back into the workforce legally. Can the witnesses explain to me why the Defence Forces found that two out of three non-EEA workers were working illegally on those 63 boats?

Mr. Francis O'Donnell

For clarity, has this been detected since the permit scheme came into operation?

Senator Paul Gavan

Yes.

Mr. Francis O'Donnell

Mr. Patrick Murphy

Specifically focusing on non-EEA statistics, during the period 1 January 2016 to 8 September 2017, the Naval Service boarded and inspected sixty-three (63) Irish registered fishing vessels over 15 metres in length relevant to the issue we are discussing today. The number of non-EEA crew members onboard totalled one hundred and thirty four (134). Of these one hundred and thirty four (134) non EEA crew members, thirty-nine (39) had the required letter of approval and ninety-five (95) did not. In line with the MoU, details relating to these non-EEA crew members were forwarded to the SFPA for onward transmission to the WRC.

That is exactly what it states. I call Mr. Conway.

Mr. Dermot Conway

First, that letter just shows that, respectively, there is some misunderstanding as to how this scheme operated. The article in The Guardian was November 2015. The task force agreed to set up the scheme in early 2016. Applicants could not apply for the visas until May 2016. That scheme was still open in October 2016. The distinction, when I refer to "that scheme", is that prior to October 2016 a person was entitled to be within the State and apply for the visa. After October 2016, a person could not be within the jurisdiction and apply for a visa. That remains the position today.

And the Defence Forces.

Mr. Dermot Conway

I do not know whether the evidence of the Defence Forces is that they have asked non-EEA nationals to produce their letter of authorisation and they did not have it with them but they did have a letter somewhere else.

Senator Paul Gavan

Perhaps the witness could look at this letter. This is a letter from the European Union sectoral social dialogue committee, signed by both the employer's organisation of fishers and the worker's organisation, and it agrees that migrant fishers are subject to, I quote, "Abuse of vulnerability, deception, restriction of movement, isolation, intimidation and threats, retention of identity documents, withholding of wages, debt bondage, abusive working and living conditions, and excessive overtime". It is signed by the employer's organisation as well as the employee's organisation. The witness needs to come out of the fog and recognise that there is a major problem with undocumented non-EEA workers. It is here.

Mr. Dermot Conway

Again, we-----

Chairman

I will let the Senator back in in a moment.

Senator Gerald Nash

We are here because there is a problem, and I am pleased that the witnesses are here to respond to some of the claims that were made just before the summer recess. I can assure Ms McIntyre that where the ITF or SIPTU has any evidence whatsoever in relation to suspected breaches or, indeed, any unlawful activity that that has been, to the best of my knowledge, passed on to the authorities, as should be the case. I want to put on record that I have met some individuals who have claimed that they have been trafficked into this country and I, along with other colleagues, have taken the necessary action, as one would expect from a Member of the Oireachtas and from a responsible citizen, to bring those matters to the attention of the authorities. I want to advise Ms McIntyre that where workers are designated as employees, trade unions such as the ITF and SIPTU are quite entitled to organise collectively with those workers and to seek to represent their interests. That is a fundamental human right and something that I do not believe anybody in this Chamber will apologise for. It was a hard-won right which is defended by the Constitution and international law, and that happens within in a legal framework. There are no passes for any industry in terms of the protection and vindication of the rights of anybody. I hope that she would accept that.

Nobody here wants to see any kind of ritualistic hand wringing and declarations that there are no problems at all. In fairness to some of the witnesses, they have recognised that there are some operators in the industry who do not uphold best practice, to put it charitably, and who are under suspicion for a whole host of reasons in terms of alleged breaches of this particular scheme and, indeed, much more serious elements of Irish legislation. It is in the interests of the industry in general to accept that there is an issue and to work with the authorities to address it because it is in the interests of good operators in this industry to root out those rogue elements and to ensure the reputational damage to the Irish fishing industry is arrested and addressed.

It is probably useful at this point in time to perhaps reflect on some WRC figures presented to us, which I understand are publically available. The WRC has only been statutorily responsible for monitoring and regulating sectors of the industry since the introduction of the scheme. Going back to first principles, the whole idea of the scheme was to classify people who were working here, in some cases illegally, and give them some kind of a status, but classifying them as employees. When they are classified as employees, the WRC as the labour inspectorate and the authority responsible for employment rights vindication in this country, takes responsibility for the way in which those workers are treated, at least from the perspective of employment rights. The information we have today, which the witnesses may or may not have, suggests that there have been 232 inspections to date up to September of this year. The scheme only went live in the middle of 2016. That is a significant number of inspections. Across a range of different elements of employment rights legislation 198 contraventions were detected. That is a very high non-compliance rate in anybody's language. The Naval Service had different responsibilities for regulating the fisheries industry over the years, but this is new for the WRC because of the classification of employees in the sector. In any person's language that is extremely high, and we all have to be concerned when we see figures produced by the WRC in the course of its work which suggest that 29 individuals did not have the relevant permission to work. The permission to work can mean a permit through the permit scheme or another type of arrangement that would ensure these individuals are lawfully here. That is high, and so is the reference to the fact that in the context of the 198 contraventions, 70 of them involved having no records whatsoever in their possession.

Mr. Conway referred to the fact there are only a small number of prosecutions, at least at this point in time, which are being pursued by the WRC. Of course, it is the function of the WRC to work with industry and trade unions to ensure there is compliance, and the WRC will comment on that later on today in terms of how that is working out. I am very interested to hear their views on the record in that regard. In anyone's language, the numbers are high. They are high for any sector. This is notwithstanding the difficulties that some may have had in bedding down and understanding how this new system operates. I know the WRC went to enormous lengths to work with the industry to brief it on what not just our expectations are but what the legal obligations of the industry operators are to the people who are working in their industry.

I would like to refer to a number of points made by the witnesses in the course of their contributions. Mr. Murphy and Ms McIntyre referenced the need to expand the scheme to vessels under 15 m and 12 m, respectively. That is worthy of consideration. Senators Gavan and Reilly expressed the view that they are open to that. It was also suggested that non-EEA fishermen should be enabled to be share fishermen, which is an issue previously discussion by the committee. I would be interested in hearing the witnesses elaborate on how that would be done. This scheme was introduced in response to complaints by the ITF, other trade unions and the Guardian investigation which highlighted a number of issues in the sector, including allegations of exploitation of fishers, particularly those from non-EEA states. I find it difficult to square that circle. If a person continues to be a self-employed share fisherman and he or she has no status in this country how can we as a state afford that person the type of protections I believe every citizen in this country or anybody working here should be entitled to. If the witnesses have a view on how that circle can be squared I would be pleased to hear it. I take a keen interest in this area at a policy level and I have not yet figured out how that could be permitted.

Mr. O'Donnell is on record over the years as identifying that it is very difficult to attract people to work in the fishing industry for a host of different reasons. We all understand the conditions are very difficult, that it is a unique industry in many respects and as such it is difficult to retain skilled and trained staff. Pay is an issue in the sector. There is no doubt about that. There are many fishing villages in my own constituency and I know that during the so-called boom years many people left fishing to work in construction and other sectors which were much more profitable and on their return to the fishing industry found it was not as profitable as when they have left it. I understand people make decisions in terms of what is best for them and their families and so on. That being the case, would the industry consider engaging in a sectoral employment order with those in the industry who seek to represent workers to ensure there is a basic statutory floor of pay and terms and conditions in the sector in order to retain staff and to promote the industry as a good employer and a sustainable industry? This is something that the industry should consider and keep an open mind on. We could be here all day and all year talking about the challenges the industry faces and how we can improve this scheme but at the end of the day fixing this scheme will not fix all the industry's problems. The industry has an issue in terms of sustainability of profitability in some sectors, on which I would like them to elaborate. I understand and accept that. Would it consider a collective agreement for the sector, which is enabled by the 2015 Industrial Relations Act to ensure that there is a basic floor of pay and terms and conditions in an industry about which it is clear all of the witnesses are very passionate? If they are as passionate about the industry as I think they are they should consider that.

I have a couple of questions for Mr. O'Donnell, to which some of the other witnesses might want to contribute as well. Mr. O'Donnell indicated that he had been in contact with the former Minister for Justice and Equality, Deputy Fitzgerald, who is now the Minister for Business, Enterprise and Innovation in regard to various amendments to the scheme which he believes would enable it to work better. Has he had any response from the Minister or any other Minister in recent months given that this issue has been front and centre in terms of public commentary? It seems that one of the problems is that there is no one Minister taking responsibility for the operation of this scheme or the improvement of it. I have a theory as to why that is the case, which I will share with the witnesses later. Has Mr. O'Donnell had any response on this issue? I want to him to be clear in that regard because what he says will help us to resolve the issues he is experiencing and the issues workers in the sector and the trade unions that represent them are experiencing.

I say that to agree with Mr. O'Donnell in that that may be one of the flaws in the scheme if somebody is in difficulty with his or her employer, that things happen.

Mr. Francis O'Donnell

I have never been afraid to put it in writing and to try to tease out the very serious issues here. Many of my vessels in their very early stages would have had non-EEA workers on board. I would not say it was an open secret but it was known that people were working in the country in 2006 in the fishing industry who were here illegally. We are on record in 2008 for writing to Fianna Fáil at the time asking for this to be looked at and addressed. We have done that on numerous occasions since. We could not say that it was not happening prior to 2006 and I cannot honestly say that it is still not happening now, but we are trying to do something about it. That is where we are. Nobody has responded to us. No one Minister is responsible.

I welcome what has happened here today because it has teased out some of the issues. I think we have to be fair. It is not that we are coming in and saying that we are angels. We are not saying that at all, but the arms of the State that are charged with policing and managing this have to be given due process and a fair crack at dealing with the problems. I said it myself on record. This is not about the industry and the International Transport Workers' Federation, ITF, or anybody else. I am more than willing to go with Ken Fleming or anybody else into any Garda station in this country and hand over any information or files because this is extremely damaging to us. Somebody, at some point, has to present the information, give it to the authorities and let justice take its course. The committee will not hear me saying that this should not happen or is wrong.

I remember one of the first raids that happened in Howth and Castletownbere. Everybody here knows about it. I was quite critical of the Garda approach at that time. They came on board fishing vessels with automatic weapons, sidearms and Alsatians. They inspected the vessels to see where employers were breaching the atypical working scheme or, even worse, if they had people on board who did not have visas. I felt it was very heavy-handed. I made a complaint to GSOC at the time because I felt there were other ways of doing this. Uniformed members of An Garda Síochána could have come down onto fishing vessels and carried out the inspections. I felt that it did not need that level of force. The job could have been done just as well. We were on the back foot again because this made international news: Alsatians and automatic weapons made the industry look very bad. In hindsight, I look back at it and think that it was not a bad thing. We had a very serious problem with all of these undocumented people. Nobody knew that this was happening. My phone started ringing that morning. I do not believe anybody was tipped off about this whatsoever. It was as much of a shock for us as it was for everybody else.

If there were thousands of migrant workers in Ireland who were undocumented, surely at two of our major fishing ports, Castletownbere and Howth - Howth probably is not that big - this would start to surface and would have surfaced since. There may be some problems and there may be rogue operators, but at the moment we find ourselves here in front of the committee because there has really been no mechanism to address the issues if they are there. Nobody is taking responsibility and we have asked. We have not been sitting idle on this because we know it is very damaging. We are frustrated because we are not in a position actually to see the evidence and get to the bottom of it.

Senator Aidan Davitt

I know there are many personal stories and family-based stories there. Some of it was quite balanced, including the opening comments and the different aspects of work involved, and different concerns the witnesses have had. I appreciate Mr. Boyle's clarification with regard to his statement. I know he gave his reason why. He did not know he was going to be called, but we had decided a while ago that we would take both parties, but we have to take them one at a time, as the Chair has explained, so I suppose that can be a misunderstanding. I appreciate his clarification.

I have a couple of minor questions. I am a landlubber from Mullingar and would not be as au fait with the issues as my friends from Limerick and other places closer to the sea. We have heard from fish producers' organisations but are there other large organisations which could not come today, which would not come or which were not invited? Do the witnesses represent the main body of fishermen?

Is it not possible to recruit other people from within the EU, as has always been the case with farm workers? The witnesses will probably say it is not, which is why they use the scheme. There are similarities with farming as workers also work different hours and we have heard from the equine industry in that regard recently. There was an influx of people from Poland to work in agriculture so I am curious as to why that has not been the case in fishing.

Deputy Maurice Quinlivan

I thank the witnesses for the presentation. We are not here to have a go at them but to try to arrive at a solution. The previous presentations were distressing for a number of us so I am glad the witnesses have come here to tell us their side of the story.

I am aware that the numbers quoted were a surprise and that the witnesses were not aware of the documentation we received. We will hear a presentation from the Defence Forces later and they will give us the documentation. Were the witnesses surprised that only 29% of people had the letter on board when they were investigated by the Defence Forces? What documentation are fishermen supposed to carry on board?

Mr. Boyle said if anybody knows something and does not come forward with it they are aiding and abetting criminality and should be answerable to the Garda. Is he or anybody in his organisation aware of any criminality and has he gone to the Garda about it? Has Mr. O'Donnell been in discussions with Mr. Ken Fleming on the issue? Is he willing to talk to him?

Deputy Tom Neville

I thank Mr. Boyle for clarifying his comments. I come to this issue in a fresh way and my question is quite similar to that of Deputy Quinlivan. Mr. Murphy used the word "traders" from outside the jurisdiction in respect of trafficking and said skippers would go to traders to identify workers to bring back into the country.

Mr. Patrick Murphy

I did not use that word.

Deputy Tom Neville

I apologise if I have misquoted Mr. Murphy. Is there litigation from our own jurisdiction in respect of vetting? Is there anything in the pipeline? It is something we need to know. Mr. Conway mentioned applications for visas in 2016 but I did not get the finer points of what he was saying or whether this was in or out of the jurisdiction. Can he clarify? Whose responsibility is the paperwork on board? Is it the boat owner's, the skipper's or the worker's?

Deputy Bríd Smith

I missed the presentations as I was somewhere else. What familiarity do the witnesses have with workers who are brought in from abroad to work in the industry? Allegations have been made against the industry, which the witnesses refute and about which they are pretty annoyed, saying that the evidence does not bear it out. They are in a very competitive industry and there are huge pressures, globally and locally, not to mention the question of fishing resources with the sea losing resources on a yearly basis. The sea has been overfished and fishermen are not catching as much as they would have done previously. As native Irishmen and Irishwomen, they will have noticed that other industries have exploited foreign workers, such as the building industry, the au pair industry and many others. People will remember the Gama workers from Turkey some years ago and there have been investigations into migrant workers in the domestic and hospitality industries. It is not unusual in industries that are coming under pressure and are competitive. I would not find it at all unusual if there was evidence of exploitation within this industry but I would not find it acceptable. What is the opinion of witnesses on the abuse and misuse of labour from other countries? Do they regard it as something that happens because they cannot control everything or do they abhor it and think it should never happen, and should be totally outlawed and policed properly? I was familiar with an element of the fishing industry on a small scale and I witnessed widespread use of migrant labour, not always on equal terms to those from our native land. What are the witnesses' opinions on that? I am not accusing them of anything.

Chairman

There are quite a lot of questions so perhaps each of the witnesses can take a selection.

Mr. Francis O'Donnell

I have been in discussions, on and off, with Mr. Ken Fleming over the past two years. The relationship has been good at times and, at other times, a little strained but it has always been professional. I wrote the letter to the Minister, Deputy Fitzgerald, in the knowledge that if I had succeeded in getting a meeting of stakeholders into the room, Mr. Ken Fleming would have been there and I would talk to him.

Mr. Patrick Murphy

Deputy Neville said I used the word "traders" but the word I used was "agents". This is a family business and the person in question is from the Philippines. His mother is also involved in bringing over workers, not just for the fishing industry and not just to Ireland but for many areas and industries. They set up contracts in their own country, where there are different rules. Members can ask the WRC about this but it told us that if we do not pay a person but pay a third party instead, it can be construed as trafficking. There was no other system of getting workers. The Deputy asked about EU workers and, of course, there are EU workers but figures suggesting 500 or 600 non-EU workers surprise us. Given the number of vessels in our fleet, they do not add up.

Deputy Tom Neville

There was no other system whereby the industry could get non-EEA workers than the by the use of this one agency.

Mr. Patrick Murphy

The industry acted and looked for letters of proof.

We looked for a system to be brought into place in 2008. It was before my taking up my position. Surely it shows the intent of the industry. Of course we are willing to do this. We are passionate about our industry. Every one of us is. Mr. Boyle was a fisherman and I was a fisherman. Mr. O'Donnell was involved in the fishing industry in a different capacity. Ms Trudy McIntyre fished and she is the daughter of a fisherman. Her husband is a fisherman. We are passionate about this industry because it is relevant to us. I am still involved in the industry. I went to aquaculture, inshore fishing. I have participated in the industry and I know what it is like.

On the abuses, Deputy Bríd Smith missed the report Ms Trudy McIntyre gave. Fishing is unpredictable. A share fisherman is taking a gamble and does not know what he will catch. There are enough restrictions on the way fishermen fish and hunter-gather fish. There are so many regulations and rules pertaining to the amount of fish a person is allowed to catch that it makes it difficult enough. A person is not guaranteed as a share fisherman but he is aware of what he is undertaking when he goes to sea to fish.

Ms Norah Parke

On a point of information on the agents who were crucial in the recruitment of non-EEA personnel, certainly until recently, we feel we are victims of big generalisations. I do not want to do the same to the agents, particularly in Asia, but the business is renowned for bad practice and the exploitation of the people who would be put in touch with possible employers in this part of the world. The stories we have heard from that end of the business make what could possibly happen here pale into insignificance. That is not to say two wrongs make a right. That is not the case.

This has had quite an impact on how all this business has grown over the years. It would be well worth keeping in mind that this also needs to be investigated. At the last meeting of the Santa Marta Group in June, I spoke to the deputy director and he agreed with me wholeheartedly. The following week he was going to the South China Sea to investigate some of the bad practices there to determine whether those responsible could be prevented from supplying labour to Europe.

Chairman

Was there a question from Deputies Quinlivan and Neville on paperwork? What are the acceptable levels of paperwork?

Senator Paul Gavan

Is there any report from the visit?

Ms Norah Parke

The visit was only in June and I have not heard anything from the Santa Marta Group since on it.

Chairman

Will one of the witnesses address the issue of paperwork?

Mr. Dermot Conway

Traditionally, prior to the commencement of this scheme, the basic paperwork that had to be on a vessel had to include the fishing documents of the vessel - the certificate of registration, the licence, the logbook, the Marine Survey Office logbook - along with the basic safety training cards for each member of the crew. On foreign vessels, there would have been identification papers because of language issues. With the scheme having come into play, it is not entirely clear to what extent the Navy, in particular, has communicated to the owners that they must have a certain type of paperwork on board. Likewise, an awful lot of the back-office work documents of a trawler, such as payslips and accounts, would not be on board. Those documents would tend to be at the owner's place of business or work and would not be on the boat at all.

With regard to identification documents for migrant non-EEA workers, they must have their basic safety training course card which is issued by Bord Iascaigh Mhara. The card is not transferable from another jurisdiction to this one. One has to acquire it in this jurisdiction. The second document one would expect crew to have on board is the identification paper.

Certainly, the question has never been asked of me whether the non-EEA fishermen have to have their letters of authorisation on board. I am frequently asked to send on a copy of the letter of authorisation because the owner has lost it. I have frequently been asked to send it on because the crew member has lost it but I have never been asked whether the crew member has to have it at sea. The answer is that I have never come across a legal requirement for the non-EEA person to have it at sea. I have never been asked whether the owner or master has to ensure the non-EEA crew member has it at sea. It is a curious question because, ultimately, this is the original atypical worker scheme, with the fishermen added on. The original atypical worker scheme applied to a totally different type of business, such as a restaurant. In that case, the office is in the restaurant. It would be expected that the documentation would be available there.

I thank the witnesses for coming before us to engage with the committee.

Sitting suspended at 4.45 p.m. and resumed at 4.50 p.m.

Chairman

I welcome Dr. Susan Steele, chairperson of the Sea-Fisheries Protection Authority, SFPA, Mr. Micheál O'Mahony, authority member, Ms Margaret Stanley, PO in the Naval Service section in the Department of Defence, Commander Martin McGrath, Naval Service, and Mr. Brian Hogan, chief surveyor at the Marine Survey Office, to this meeting on non-EEA crew in the Irish fishing fleet under the atypical worker permission scheme and related matters.

Before commencing, and in accordance with procedure, I am required to bring the witnesses' attention to the fact that, by virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by it to cease giving evidence on a particular matter and they continue to do so, they are entitled thereafter only to a qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official either by name or in such a way as to make him or her identifiable.

I remind our guests that their presentations should be no more than five minutes in duration. The presentations have been circulated to members today. I invite Dr. Steele to begin.

Dr. Susan Steele

I thank the committee members. The SFPA is the independent statutory body responsible for the regulation of the sea fisheries and the seafood production sectors. It promotes compliance with the EU Common Fisheries Policy, sea fisheries law and food safety law relating to fish and fish products, verifies compliance and, where necessary, enforces it. As a State agency, we come under the Department of Agriculture, Food and the Marine.

The SFPA's mandate covers all fishing vessels operating within Ireland's 200-mile limit and more than 2,000 Irish-registered fishing vessels wherever they operate. Our fisheries controls are focused on the landing and subsequent sale of fish in Ireland. We are dependent on the Irish Naval Service and Air Corps under the terms of an agreed service-level agreement for fishery controls at sea. As a coastal state, Ireland has fishery protection obligations for the entire Irish EEZ, within which lies some of the richest fishing grounds in the EU.

In terms of seafood safety, our role covers the Irish seafood sector as a whole up to, but not including, retail. It involves inspections of primary food producers such as fishermen and fish farmers and Ireland's 170 seafood processing companies. Our remit includes the implementation of European hygiene package legislation as well as the inspection and health certification of export consignments going outside the EU. Under service contract to the Food Safety Authority of Ireland, the SFPA is responsible for audits and inspections of food businesses, including vessels, in the seafood sector to assess compliance with food safety legislation. Our seafood role also extends to verifying compliance with product labelling regulations, including geographical origin and species declaration.

The authority implements the national microbiological monitoring and classification programme for shellfish production areas and, in collaboration with the Marine Institute and molluscan shellfish safety committee, the national marine biotoxin monitoring programme to manage food safety risk of biotoxins and micro-organisms in molluscs farmed or harvested in Ireland.

The SFPA employs more than 90 people between its headquarters in Clonakilty, County Cork, and its offices in the major ports around the coast: Castletownbere, Dingle, Ros a Mhíl, Killybegs, Howth and Dunmore East, with 77 warranted sea fishery officers.

Regarding the atypical workers scheme, because we are one of the agencies with an ongoing presence on piers and fishing vessels, the SFPA was a signatory in 2015 to the interagency memorandum of understanding, MOU, for the monitoring and enforcement of the terms of employment of non-EEA crewmen in parts of the Irish commercial sea fishing fleet pursuant to the establishment of the atypical worker permission scheme. Arising from the MOU, a risk profiling and inspection group was established, and the SFPA has continued to participate with that group actively. Our resultant role is one of information sharing with the group. In practical terms, this might involve providing information on instances that may arise in the course of our normal inspections to verify compliance with fishery obligations. For example, we might observe indications of labour law breaches or receive information to that effect. In such instances, we have agreed to inform other members of the risk profiling group. Furthermore, if there is a vessel of interest identified by that group, the SFPA has agreed to provide data that are available to us for fishery control purposes. This could include vessel position or pre-notification of landing in order to ensure effective risk-based targeting by the relevant regulator. The SFPA does not carry out inspections to examine compliance with the terms of the atypical workers scheme specifically.

We would like to make the committee aware of a particular initiative undertaken by the SFPA. Following a survey of the fishing industry that indicated a preference for more direct and personal communication, we set up a series of information events covering all of the major fishing regions and invited all local members of the sea fishing and seafood industry. In order to create a one-stop-shop for industry, we invited all relevant State agencies to attend. Some of the participants at these information sessions included the Workplace Relations Commission, WRC, Naval Service, Department of Agriculture, Food and the Marine, Revenue, Customs and Excise, and Inland Fisheries Ireland as well as other relevant State agencies. Fishermen, therefore, had an opportunity to discuss any issue or concern directly with the WRC and other marine regulatory agencies at these sessions.

One particular aspect of overlap between our work in fishery protection and the matter of concern at this meeting is the provision in specific sea fishing licences for Irish vessels that over 50% of the crew must be EU citizens. As this is included in the fishing licence, it is one of the checks that falls within fishery control verifications but is more amenable to verification at sea.

Our legal mandate and allocated Exchequer funding are for the primary purpose of implementing fishery and food safety law and we have neither a mandate nor legal authority to verify compliance with labour law, including the atypical workers scheme. We do, however, have an ongoing regulatory presence on fishing vessels landing at Irish ports and we have proactively engaged with aligned State agencies to maximise our contribution to the State's role in that regard.

Chairman

I thank Dr. Steele. I invite Ms Stanley to make her presentation.

Ms Margaret Stanley

I thank the committee. I am an official in the Department of Defence and am speaking on behalf of my Department and the Naval Service.

I am here today to present a picture of the work of the Naval Service in the context of non-EEA crew in the Irish fishing fleet under the atypical worker permission scheme and related matters. In order to provide a clear picture, I would like to give some details relating to the role of the Defence Forces and in particular the Naval Service.

The Naval Service is the State's principal sea-going agency. Its primary day-to-day tasking is to provide a fishery protection service, in accordance with national legislation and the State's obligations as a member of the European Union.

The Naval Service is empowered to board and inspect all fishing vessels and their catch in the Irish exclusive economic zone, EEZ, and, when necessary, to detain vessels formally and direct them to port for arrest by An Garda Síochána. The power to do this derives from the Sea-Fisheries and Maritime Jurisdiction Act 2006. The Naval Service flotilla consists of eight ships, each of which operates an average of 185 days on patrol, termed "on sailing order", per year, that is, days away from the naval base. These days are divided into what are termed "patrols". Each patrol is on average 26 consecutive days where the ships patrol up to the 200 nautical mile limit of the State, and at times beyond this limit when ships are engaged in other fisheries or maritime defence and security operations. The total area patrolled is approximately 1 million km2. During these 26 day patrols, the ships will only come close to land due to severe weather, to rest the crew when there is fatigue or to take on provisions.

The Naval Service is empowered to board and inspect all fishing vessels and their catch. During an onboard inspection the Naval Service will collect information relating to licences, the vessel, crew and gear among other things. A copy of the inspection report completed by the Naval Service is provided to the master of the fishing vessel on completion of the inspection.

Naval Service boarding officers undertake this work as authorised sea fisheries protection officers in accordance with the Sea-Fisheries and Maritime Jurisdiction Act 2006. Section 18 of this Act, among other powers, authorises sea fisheries protection officers to board fishing vessels and gather crew details. The gathering of crew details is routine on Irish registered fishing vessels to ensure compliance with fishing licences which requires at least 50% of crews on Irish fishing vessels to be nationals of any of the member states of the European Union.

The Naval Service also acts as the official agency with responsibility for the operation of Ireland's Fisheries Monitoring Centre, FMC. The FMC is located at the naval base, Haulbowline, Cork. This fisheries monitoring responsibility is carried out as part of a service level agreement between the Department of Defence, the Naval Service and the Sea Fisheries Protection Authority, SFPA. The FMC carries out monitoring and surveillance of all vessels equipped with a vessel monitoring system, VMS, that are operating in the Irish EEZ and also of all Irish vessels operating in any jurisdiction. Monitoring and surveillance includes the entry and exit by all fishing vessels in the Irish EEZ.

The Naval Service, through its patrols, also undertakes a variety of functions in the maritime domain in accordance with its role in contributing to maritime security. This includes the provision of support to other Departments and agencies such the Department of Transport, Tourism and Sport, An Garda Síochána and the Revenue Commissioners. With regard to the issue that brings us here today, in late 2015 a Government task force chaired by the then Minister for Agriculture, Food and the Marine published a report with recommendations on a new scheme to address the employment of non-EEA workers in the Irish fishing fleet. The objective of the scheme is to minimise the potential for the abuse of migrant workers by unscrupulous employers and to provide a mechanism to assist those currently in Ireland who are in difficult situations to enter a new employment relationship.

On foot of a recommendation of the task force that the role of the relevant key enforcement bodies be underpinned by an interagency memorandum of understanding, MoU, the Department of Defence, Naval Service, signed up to the "Memorandum of Understanding for the monitoring and enforcement of the terms of the Employment of non-EEA crew in parts of the Irish Commercial Sea Fishing Fleet pursuant to the establishment of the Atypical Work Permit scheme". The purpose of the MoU is to provide for further coordination and cooperation between the parties to ensure the effective and efficient enforcement of statutory requirements relating to employment of non-EEA nationals on Irish-registered fishing vessels on the EU fishing vessel register and, in particular, to prevent the trafficking and exploitation of non-EEA workers on such vessels. It is also to further facilitate effective communication and exchange of relevant information in regard to the operations I have described above, avoid any unnecessary duplication of effort, support a coherent and transparent cross-Government approach, maximise synergies from the actions of all signatories and promote and support compliance. Within this MoU, it was codified that the roles and responsibilities of the Naval Service are:

physical inspection of active fishing vessels at sea...in line with risk assessments undertaken to best target those vessels which, through their actions and indications via electronic monitoring of their vessel activities, might be consistent with a risk of noncompliance with the rules in force in relation to their fishing area, target species or any other relevant European Union or national requirement. The inspections are required to physically check and record all findings in line with the specific detail as outlined in the EU Inspection Report as directed in Annex XXVII of EU Regulation 404/2011...

It is important to note that, as detailed earlier, the Naval Service already routinely collects significant amounts of information, including crew information, as part of its sea-fisheries protection role. Following the implementation of the MoU, the Naval Service provides details of Non-EEA crews it encounters on Irish fishing vessels during the course of its boarding operations at sea to the SFPA. Information relating to non-EEA crew on Irish fishing vessels is a subset of the information that is already gathered. This information is forwarded to the FMC in the naval base where it is collated before being sent to the SFPA. Naval Service involvement in the process stops once the non-EEA crew information is sent to the SFPA. However, I understand that the SFPA removes details from the information collected that could be considered commercially sensitive and this information is then sent onto the Workplace Relations Commission, WRC.

It is also appropriate to note that where a Naval Service boarding officer encounters a non-EEA crew member when on board an Irish fishing vessel, they now also request sight of the letter of approval granting the crew member authority to work on the vessel under the atypical work permit scheme. If this letter is not available on board, this is noted. The Naval Service has no statutory powers with regard to the enforcement of the atypical work permit scheme. The role of the Naval Service in relation to the enforcement of the scheme is to make available routine information relating to non-EEA crew collected during the course of their fisheries inspections.

In terms of this specific MoU and inter-agency cooperation, the Naval Service regularly communicates and works with both the WRC and the SFPA. This cooperation and communication facilitates the work of the WRC in locating Irish fishing vessels at sea which have availed of the scheme in order for the WRC to board vessels once they come ashore to land catch in order to ensure compliance with the scheme. The information in this regard, provided by the FMC, is limited to a vessel's position at sea and the likely time and place of landing ashore. The Naval Service is also a member of the risk profiling and inspection group chaired by the WRC, to progress the enforcement of the scheme.

Before concluding, I would like to provide the committee with some statistics relating to the work undertaken by the Naval Service in this area. During 2017, to end August, the Naval Service conducted approximately 760 patrol days relating to sea fisheries protection. The number of boardings at sea in that period was over 1,000. Specifically focusing on non-EEA statistics, during the period 1 January 2016 to 8 September 2017, the Naval Service boarded and inspected 63 Irish registered fishing vessels over 15m in length relevant to the issue we are discussing. The number of non-EEA crew members on board totalled 134. Of these 134 non EEA crew members, 39 had the required letter of approval and 95 did not. In line with the MoU, details relating to these non-EEA crew members were forwarded to the SFPA for onward transmission to the WRC.

The Department of Defence and the Naval Service will continue to cooperate in the whole of Government approach to ensuring compliance with State and international laws. The Naval Service takes this work very seriously. The Naval Service vessels are multi-tasked in the sense that they also undertake general surveillance, security and other duties while on fishery patrol.

On occasion, they may board other vessels for security reasons, but for operational and security reasons it would not be appropriate to disclose precise details of those boardings.

Mr. Brian Hogan

I thank the committee for inviting me here today. The issues which gave rise to the development of the atypical worker permit scheme, which is essentially concerned with the employment circumstances of fishers who may not enjoy the benefits enjoyed by their EU or EEA equivalents, deserve our attention. From my particular perspective, enhancing the safety of all seafarers, including fishers, operating in Irish waters, whatever their nationality, is a key aim of the Marine Survey Office. It is for this reason that I welcome the opportunity to contribute to the discussion here today.

In reviewing the transcript of the previous hearing it is clear that there may be some issues which need clarification in terms of who does what and who is responsible for what within the overall machinery of the State. This is understandable given the complexity of the issues and the regulatory framework in which we operate. While I can obviously only answer for the work and role of the Marine Survey Office, I believe the atypical scheme represents a genuine attempt to focus the efforts of the relevant State agencies to address the issues which had been identified, working within the overall legal and statutory powers that the respective agencies can exercise.

To begin, I would like to set out my role, as chief surveyor of the Marine Survey Office, MSO, in regulating maritime safety. I will explain the work and role of the Marine Survey Office and outline the manner in which the safety regulation of fishing vessels is undertaken by the Marine Survey Office. My aim is to demonstrate the very direct and positive impact of this work for the fishing sector generally and for those working in the sector.

First and foremost, the MSO is the safety regulator for maritime transport in Ireland. We regulate all vessel types in Ireland at sea and on inland lakes and rivers, regardless of whether they operate under the Irish flag. We also regulate all Irish flagged ships wherever they are in the world. Our primary focus in exercising this role is to ensure safe travel at sea. This means ensuring the safety of the vessel itself, from design stage, to launch and to periodic checks, and ensuring seafarers operating those vessels have the right qualifications and training, accredited by suitably certified training institutions, to operate them safely. We are very proud of the fact that Ireland has maintained an enviable safety record internationally, as evidenced by our white list status within the structures of both the International Maritime Organization and the Paris Memorandum of Understanding. This white list status is vital for Ireland’s maritime sector. Without it, our ships would face challenges as they ply their trade and our seafarers would face difficulties in attaining and retaining employment.

The maritime transport sector is among the most highly regulated in the world. The International Maritime Organization sets that regulatory framework and it is our job to ensure Ireland complies. This compliance is assessed vigorously and regularly at an international level by the International Maritime Organization and at a European level by the European Maritime Safety Agency, EMSA, on behalf of the European Commission. We cannot afford to be complacent about this and we do our best to guard our white list and other similar statuses. Our ships and our seafarers depend on it.

The MSO carries out a very wide range of statutory functions in relation to maritime transport. This includes the statutory survey and certification of all domestic passenger ships and boats operating in the State. The MSO carries out port State control inspections on all international passenger ships including the ro-ro passenger ships operating to the United Kingdom and France. In addition, the MSO surveys all Irish merchant ships and carries out port State control inspections of foreign flagged merchant ships calling to Irish ports. The MSO approves and regulates the port security arrangements in all Irish ports and the port reception facilities for ship generated waste. The MSO is tasked with regulating the prevention of ship source pollution, including air emissions from ships and other discharges. The MSO also oversees maritime education and training in Ireland at all of our maritime colleges. With our team of marine surveyors, based in three offices in Dublin, Cork and Ballyshannon, we work constructively with the maritime transport sector and the various educational and training institutions in Ireland to ensure we maintain and safeguard maritime transport for those working in the sector and those who rely on it to transport people and goods. How does our work impact on the fishermen in question here?

There are some 2,020 Irish fishing vessels, every one of which must hold a sea fishing boat licence. These licences are issued by the sea fish licensing authority. Such a licence is required to engage in commercial fishing. The role of the MSO in relation to these vessels, as for all vessels, is to oversee safety regulation. For the purposes of regulation of safety, the Irish fishing fleet is divided into three categories based on length: there are 75 vessels more than 24 m in length, 130 vessels between 15 and 24 m, and approximately 1,815 vessels less than 15 m. As the safety needs of the vessels in each of these three categories are different, the MSO regulates each category differently. Essentially, each fishing vessel must hold a safety certificate issued by or under the authority of the MSO. These safety certificates are issued following an initial survey for a period that varies depending on the size of the vessel, essentially four years. Vessels must undergo some form of intermediate survey, depending on their length, and at the expiry of the certificate, each vessel must undergo another survey for the issue of a new safety certificate, and the cycle repeats.

The safety regulation for fishing vessels is very comprehensive and covers the design and construction of the vessel, including the materials of construction, the strength of the vessel and the stability and watertight integrity of the vessel. The regulations also cover the mechanical and electrical systems, including the machinery, and all systems on board. The regulations also cover lifesaving and firefighting requirements. The regulations require that all aspects of the fishing vessel are designed and built under the supervision of the MSO. A survey can extend from several months and longer for a new construction to several days for a renewal survey. The application for the survey is made by the vessel owner who pays for the survey. The successful conclusion of a survey results in a certificate or the endorsement of an existing certificate. The MSO also regulates the training and competency of the crew and issues the crew with certificates of competency.

In line with other similar jurisdictions, the MSO has its own core group of surveyors who survey approximately 10% of the Irish fleet directly. We delegate the remainder of our survey work to private sector organisations approved by us and acting on our behalf. For the larger fishing vessels in the 15 to 24 m category and the over 24 m category, these organisations are known as classification societies. They perform this role for us. A panel of private surveyors, established by the MSO, carries out surveys for vessels less than 15 m in length.

The committee may be interested to know how fishing vessel safety regulation has developed in Ireland. The main source of regulation for many years was the 1967 rules which dealt with lifesaving and firefighting requirements. The first major development in recent years was the adoption of EU Directive 97/70, which made the International Maritime Organization’s Torremolinos Protocol applicable in the EU. This was transposed into Irish law. This directive and protocol requires that all fishing vessels greater than 24 m meet the requirements of the protocol and that they are subject to a survey and issued with safety certificates. The Torremolinos Protocol has recently been amended by means of the Cape Town Agreement, although this has not yet entered into force internationally.

The next major development was the implementation of the fishing vessel code of practice for the design, construction, equipment and operation of small fishing vessels of less than 15 m in length. This code of practice was issued in 2004 and has been updated on two occasions. All fishing vessels in this category have been regulated by this code since that date. Regulation of the remaining category of the fleet – vessels between 15 m and 24 m in length – began in 2007 and, since then, there has been a progressive implementation of safety standards for such vessels. The vessels in this category have been fully regulated since 2011.

Since the introduction of these safety regimes, the safety record of the sector has been progressively improving. While it is very important to avoid complacency, it is the case that there has been a positive trend over time and we will continue to work with the industry to ensure this trend continues. The focus of the MSO is, and must be, on safety.

The Garda authorities have confirmed that this case is now being pursued by Interpol. Given the horrific nature of this incident, which involved a man being dumped into the ocean, I find it absolutely astounding that the head of the Marine Survey Office can basically say "You know what - you can go and ask him yourself".

My final question relates to compliance standards in respect of logbooks. Just 116 logbooks were returned in the first six months of 2016. The figure decreased to 60 in the second six months of that year. I would like Mr. Hogan to tell us what measures he has taken to improve compliance because it looks pretty poor.

Mr. Brian Hogan

I have with me the contemporaneous notes of the meeting held with the ITF. I also have with me the reports which I was supposed to have thrown in the bin. I could not have thrown them in the bin if I still have them with me today.

Senator Paul Gavan

That is fair enough, unless Mr. Hogan printed them off again.

Chairman

I ask the Senator to allow Mr. Hogan to respond.

Mr. Brian Hogan

The point I would like to make is the point I made at the meeting. I am sorry that there may have been a misunderstanding at the meeting. I will explain the issue with the reports. I do not know if anybody has seen the reports. They contain personal information in the form of photographs of passports, identification cards and atypical worker permit permissions. My point was that the MSO does not have a role in the enforcement of worker permits. We have a problem with receiving personal information. The information was sent over the Internet on email web addresses. I am a civil servant. Data protection is the first thing I think about when I receive such information. We have a problem when we receive very personal information that is not relevant to our work. We do not know what to do. I was concerned that I needed to shred the documents in this case in the interests of confidentiality. Perhaps that was misinterpreted as putting them in the bin. We have procedures. I will suggest why the misunderstanding could have occurred. I raised a concern about data protection issues. Obviously, the last thing I would do is put the documents in question in the bin. That would be an absolute contradiction of my reasons for raising this issue in the first place. I still have the documents. I have not destroyed them. I have not put them in the bin. We have a data protection concern about the receipt of this information. That is what I have to say about the first issue.

I will move on to the next issue raised by the Senator. I am not able to discuss any personal cases or names or any other issue relating to cases. I will talk about the case in a generic sense.

Chairman

That is fine.

Mr. Brian Hogan

I note that this case was raised at the previous meeting in July. We are discussing non-EEA workers in the Irish fishing fleet with atypical worker permissions. The vessel was a UK-flagged ship, so it could not have been part of the Irish atypical scheme. It was outside the scheme to begin with. While the case that was presented was very concerning in some ways, it is not relevant to the discussion we are having about the atypical worker scheme. It certainly merits discussion and concern, but it is not encompassed by the atypical scheme, so I will move on to the next issue about that case. I had not intended to raise it because of certain issues. As the case has been raised, I would like to read from an email I received from the ITF. It was addressed to a Garda superintendent and me, and was also copied to many other people. It reads:

I attach a statement from Mr. ------ which gives details of his unearthly experience on board the fishing vessel [I will leave the name out]. As I understand it from the blanket of silence from both the Irish MSO department and the Garda, no charges have yet been put to anyone connected with this horrible act. Equally disturbing is the fact that the area of the vessel where ------ fell and consequently injured himself has not been the subject of a marine survey by either the UK or Irish authorities to determine if the vessel's working environment was fit for purpose. Further to this neglect of responsibilities on both flag states, and despite the fact that Mr. ------ made a formal complaint to the Garda in Anglesea Street on the matter on the 12th of May 2017, five days ago, the matter is not receiving the attention such a serious charge clearly deserves.

It goes on. I will not read the whole thing out. I received that on 17 May last. I wrote back to everybody as follows:

Dear all,

I refer to the e-mail below and wish to advise that the MSO did carry out a port state control inspection and a flag state inspection of the vessels on the 13th of May. [We had already acted, even though we received an e-mail saying we had not.] I wish to advise that the name of the vessel for the United Kingdom vessel is incorrect and [I gave the correct name].

Then I got an email from the ITF, as follows:

Hi Brian,

That is an excellent bit of information [in relation to us carrying out the inspections] and many thanks for the useful correction also [in relation to the name of the vessel].

The MSO has been very active regarding that vessel, bearing in mind that we work under international protocols and we respect the international conventions under which we operate. The vessel is registered in the United Kingdom. As I understand it, the incident happened 140 miles off our coast. We cannot be responsible for everything that happens outside our 12-mile jurisdiction. The protocol we follow is that we refer any such query relating to foreign-flag ships to the owner and to the flag state. That is the correct protocol. If somebody wants to get information on a vessel in a case like that, he or she needs to contact the relevant flag state. We cannot give it. I remind the committee that this is confidential information. There is an owner involved here. Regardless of the merits of the case, we are bound to comply with the normal procedures and ways of working. As a maritime administration, we have to do that and comply with international conventions and ways of working.

The Senator's third question relates to logbooks. I would like to speak about the requirements. The word "logbook" is an all-encompassing one. There is no such thing as an actual logbook, even though the term "logbook" might be used. It means many things. Fisheries vessels also carry fisheries logbooks. We need to be careful to know what logbook we are talking about.

The requirement to carry a logbook on a fishing vessel dates back to the 1894 Merchant Shipping Act, a very long time ago. The fishing industry has of course gone through many iterations throughout its history. The Merchant Shipping Act was part of previous UK legislation. Parts of it are still in place in this country while other parts are not. It is a very complicated Act. To return to the issue of logbooks, the logbook itself fell into abeyance for many years. It was a very unwieldy document. In Victorian times it was the equivalent of A2 or A3 in size, although they did not have A3 back then. The language used is also very Victorian and out of date. This language is set, however, in the 1894 Merchant Shipping Act and we have to be very careful before we change any of it.

What, then, did the Marine Survey Office do? I have explained how, together with the industry, we have brought together a new framework for the fishing industry in Ireland. This goes back a long time and has taken many years to develop. As part of the introduction of this framework, and after the last set of fishing vessels, the 15 ft to 24 m vessels, came in in 2011, both ourselves and the fishing industry came to see it as necessary that we would help them manage safety on board their ships. It was decided then that it would be a good idea to try to revive the logbook. This was for safety purposes only. We worked with the industry and gave it many assurances that if we developed a new logbook it would be for safety only and we would not use it for other purposes. We essentially incorporated four things into this new version of the logbook. The first of these is the crew agreement. I do not wish to go on for too long about this but it is very complicated. I am delighted that the committee asked us in today because we would like to explain to the members the complexity of the fishing industry. I would like to say something about the complexity of ships, in particular. Everybody always asks why we cannot just have one agency looking after the marine. We cannot, just as we cannot have one agency looking after the land. Everything that happens on land also happens on a ship. Every Government Department which acts on the land also acts on a ship. Ships are not simple things, they are in fact very complicated, and fishing vessels are a form of ship.

I say that because it is very important that the atypical working scheme is signed by the fishing vessel licenceholder. That is not the same thing as the vessel. Mr. Conway from the IFPO made this very point earlier, that there is a shore-based component to this. This includes the employment records and, indeed, all the other records. Fishing is actually a shore-based activity that just happens to use fishing vessels to catch fish. The business, however, is a shore-based business, a food business. This is relevant because there are essentially two contracts of employment here. One has to be lodged with the Department of Agriculture, Food and the Marine, and concerns the atypical scheme. The MSO has no involvement with that contract whatsoever. Also on board each vessel, however, is a document called a crew agreement. The crew agreement is included in the logbook and is an agreement between a seafarer and the master with regard to the conduct on board the ship. The crew agreement is not the employment contract, however, and is very different. We incorporated this into the logbook, although formally it is a separate document.

That letter then states that the individual is officially employed on that vessel. Is that basically what the letter is for? Does it authenticate the crew member as having been officially employed on the vessel? Is that the whole idea? Does it amount to the crew member's official papers?

Ms Margaret Stanley

I do not want to speak on behalf of the Workplace Relations Commission. I believe that this letter is produced by the WRC for its workers, but as I do not work in that area I would hesitate to give any details on it.

Senator Gerald Nash

I have some questions for Mr. Hogan. Does the Marine Survey Office, MSO, have a problem sharing information with other State agencies? It seems to me from my experience that it does. What Mr. Hogan neglected to tell us in his contribution is that, apart from general issues to do with safety at sea and on vessels, the organisation is responsible for the monitoring, regulation and enforcement of working time directives at sea, rest periods and so on. In the course of his work and that of his inspectors and others engaged on behalf of the MSO, he would encounter information from organisations like the Naval Service, the Sea Fisheries Protection Authority, SFPA, the Revenue Commissioners, An Garda Síochána and others that would be relevant to the operation of the scheme.

From the get-go, the MSO resisted membership of the implementation group. It essentially refused to sign the original memorandum of understanding. It appears to have given a commitment some time ago to the industry that, when revising the log books, it would not share any information whatever with any other agency, even if it was relevant to the enforcement of important legislation. The MSO does not only have responsibility for marine safety. Its parent Department's website describes the functions of the MSO very clearly, including "the living and working conditions of all ships and crews". The MSO has a wider responsibility than Mr. Hogan indicated in his contribution. For the life of me I cannot understand why it resisted signing the original memorandum of understanding. Organisations like the Sea Fisheries Protection Authority, SFPA, and others that might have a more tangential relationship to employment rights at sea were quite happy to sign it and work with other agencies in risk-profiling potential vessel owners who might be at risk of non-compliance. All the agencies should be facilitated in doing their jobs effectively and implementing the scheme the Government asked them to implement.

I cannot understand why the MSO appears to refuse to share relevant information. It is almost as though it were a policy position, although I do not know who could have adopted it. Perhaps it was the MSO itself. It was clear in conversations I have had with a previous Minister that the Department did not want this to be the case. I would be very interested to hear Mr. Hogan's position on sharing information with colleague agencies and whether he is involved in the risk profiling group operated by the Workplace Relations Commission, WRC. What type of information does the MSO share? Does it share information that would be extremely useful to other agencies and Government Departments in terms of the implementation and enforcement of this scheme?

Mr. Brian Hogan

The MSO is very active in the task force. We have provided a lot of key information to it. I think everybody who is involved has acknowledged that. The memorandum of understanding, MOU, was established subsequent to the task force and the MSO did not resist signing it.

I am a creature of statute. I can only do what the law allows me to do. I cannot do something just because it might be a nice thing to do. We have a number of judicial reviews against us currently. The last thing we can do is undergo more judicial reviews. We will defend our position where we are sure of it and we are sure of it in the cases we have. However, we will not take on unnecessary cases in which we are concerned about our powers. We can only be bound by the law. An MOU is not legal and we cannot be bound by it. It cannot change the law. We are bound to comply with the law. We did sign the MOU.

Senator Gerald Nash

The MSO signed a revised MOU that was, in a sense, diluted. It did not accept the responsibilities that were originally considered to apply to it and was less than helpful at the time.

Mr. Brian Hogan

I do not agree that we were less than helpful. The MSO is bound by the law. I am a civil servant. I must comply with the law. That is a fact. We do comply with the law. I do not know about the issue of revising the MOU. I think we contributed positively to it, to ensure that it complied with our legal requirements. We cannot commit to something which is not in accordance with the law. It is that simple. We are a regulator and that is how we act.

I think I need to explain a little more about what the Marine Survey Office actually does and how we actually operate. We are not an inspectorate.

Chairman

That is a fair point. It is not an inspectorate and Mr. Hogan has said that.

We inspect on landing. During landing of vessels, there is a lot of activity. The comparison would be with an aeroplane coming in and being refuelled to go back out. We do not restrict crew members going on board or coming off the vessels while we are doing a landing inspection. We believe that the checks are more amenable to verification at sea. We have had two cases reported to the SFPA, one on inspection and one whereby an individual reported to the Howth office. We will have passed those reports on to the relevant authorities as per the memorandum of understanding.

I thank the witnesses for engaging with the committee.

Sitting suspended at 5.52 p.m. and resumed at 5.55 p.m.

Chairman

I welcome Ms Oonagh Buckley, director general, WRC, Mr. Padraig Dooley, principal officer, inspections and enforcement services, WRC, Mr. Martin O'Halloran, chief executive officer of the Health and Safety Authority, HSA, and Mr. Brian Higgins, assistant chief executive officer, operational compliance and prevention, HSA, to the final session of the meeting to discuss the position of non-EEA crew in the Irish fishing fleet.

I will not repeat the privilege note as everyone was present earlier. I call Ms Buckley to make her presentation.

Ms Oonagh Buckley

I thank the committee for the invitation. I am joined by Mr. Padraig Dooley who is the head of our inspection service and he will be able to answer questions in greater detail.

The WRC plays the same role in inspecting the 176 whitefish vessels more than 15 m in length as it does for places of employment generally with two exceptions. First, authorised officers of the Department of Tourism, Transport and Sport, that is, marine surveyors, have responsibility for enforcing compliance with rest period and maximum working hours requirements in the fishing and merchant shipping sectors, not the WRC. Second, Irish employment law does not apply to persons classed as "share fishers" for Revenue purposes, as they are deemed to be self-employed. Delivering on our responsibilities, which we take seriously, under the MOU, which we were heavily involved in drafting and which we were keen to sign up to, was a significant challenge for us because we were not used to inspecting fishing vessels.

We have put significant resources into inspections and we estimate that since February 2016, we have deployed more than 1,800 WRC inspector hours to inspecting 170 workplaces, which equates to more than 100 hours per vessel. Our inspections cover surveillance, inspections on sea and follow-up compliance checks, and repeated correspondence with the employers, and, ultimately, if we cannot secure compliance, which is our aim across all places of employment, we follow up with prosecutions. A number of prosecutions have been commenced by the commission in this area. At this stage, we have inspected 96% of the relevant vessels. This is not easy because these involve a moving workplace. I understand that we cannot inspect the remaining 4% because they are fishing tuna somewhere off the Spanish coast but we intend to get to them when they return to our shores.

We co-operate strongly with the other stakeholders under the MOU. We share and receive substantial volumes of information. This is an extension of our work of sharing information with all other investigative agencies. For example, on land, we share information with the Department of Social Protection and the Revenue. I heard the WRC mentioned frequently in the context of people passing information during the earlier exchanges. We are at the end of the pipe for much of the information sharing. We have engaged extensively with stakeholders, including the ITF, the Migrant Rights Centre and the IFPO. Mention was made earlier of a difficulty involving inspection of log books late last year and early this year but we have reached a satisfactory compromise, which allows us access to the information we need on board the vessels.

It is clear that fishing vessels are difficult places to work. This is clear internationally. The ILO recently produced a report, which is being discussed in Geneva, in which the difficulties regulatory authorities experience in dealing with working conditions on board fishing vessels are clearly laid out. It shows that many times regulations are passed but the follow-up inspections are not perhaps as evident.

I hope the committee will find from the information we have provided it that the WRC, at least, has performed its responsibility under the memorandum of understanding and has followed up with the necessary inspections to the best of our ability.

Mr. Martin O'Halloran

I will try to touch on some key observations, as the WRC did, and will take our statement as read.

Established in 1989, the Health and Safety Authority is the national statutory body with responsibility for enforcing occupational safety and health law, promoting and encouraging accident prevention, and providing information, advice and promoting education on safety and health for all companies, organisations and individuals. We advise the Minister on the making of legislation and regulations in this area and represent Irish interests at EU committees dealing with proposed directives and regulations.

In 2014 the authority took responsibility for the Irish National Accreditation Board which is there to promote and foster best practice in business. The authority has a very broad scope. Anywhere in the economy that work happens, we have an involvement. Everything from agriculture, construction, diving, docks, forestry, education, fishing, health care, manufacturing, mines and quarries, public sector, transport and storage, chemical manufacturing, import and formulation, and control of major accident hazards. We are also the agency responsible for accompanying UN international chemical weapons inspectors. Our remit is extremely broad.

Like other public sector organisations, the authority has experienced a reduction of available resources since 2008. Notwithstanding that the authority’s approach is a risk-based model where we identify those areas where we have a legal mandate, where we carry risk profiling where the need is greatest and where our interventions can have the maximum impact. That is the model we have evolved.

The authority believes it is critically important that we work collaboratively with other organisations, and the working group on the task force of fishing is a case in point. We are a regulator and inspectorate and our regulatory remit touches and overlaps with other organisations. Our philosophy is that we engage with them. We have more than 25 service level agreements and memorandums of understanding, and are fundamentally a creature of collaboration. We feel that by sharing information and experience, we individually and collectively can deliver a better result for the workers of Ireland.

Since the establishment of the authority in 1989 the overall workplace fatality rate has been driven down from 4.9 per 100,000 workers in employment in 1990 to just over two fatalities per 100,000 workers today. Ireland can take some level of satisfaction that we have achieved a reduction in fatalities. Our approach is to create a culture of safety which is how we believe we can achieve the best sustained improvement. A single entity cannot deliver everything. It requires a sustained, collaborative effort among all in the marine sector to achieve the improvement in the sector.

The Health and Safety Authority’s priority is to ensure that workplace injuries and fatalities are minimised through the work of our inspectorate and our advice, information and guidance. We also provide tools to all sectors of industry to make it easier for them.

On the marine sector and fishing, fishing vessels come within the legislation enforced by the authority since the Safety Health and Welfare at Work Act 1989. Under the Safety Health and Welfare at Work Act 2005 a vessel is defined as a place of work and falls clearly in the scope of that legislation. The 2005 Act also interprets share fisherman as an employee of the owner or the skipper of a fishing vessel. Therefore, if they are a share worker, the duty of care to their workplace safety and health is extended fully to them.

My submission to the committee includes some information on awareness raising which I will take as read but I will give a sense of the partnership working. As stated earlier the authority has long recognised the need and values of a partnership approach to bringing about change. This approach relies on the commitment of the regulator together with stakeholders working to a common aim and with an agreed set of objectives to bring about improvements in the workplace. One key example of this from the authority’s perspective is the construction safety partnership advisory committee, where, through working collaboratively with all players, namely, the regulators, industry players, employers and the employee groups, we have achieved a common approach to drive down accident rates. In addition, as a regulator, the authority has acknowledged the potential overlap of regulatory bodies and their engagement with different sectors. The Health and Safety Authority therefore was a committed participant in the joint ministerial task force on fishing which we felt was a very progressive development, and is a signatory to the memorandum of understanding. What that means on the ground is that if one of our inspectors goes into a workplace and sees something which is not directly within our mandate or remit, we have a one-on-one relationship and the inspector can say that he or she is not competent to deal with the matter but knows someone who is. It is a very pragmatic, sensible working arrangement on the ground.

The HSA’s programme for work in 2017 has identified 50 specific fishing inspections. The focus of these inspections was on the management of health and safety of all crew on the vessel with particular reference to the presence of safety statements and risk assessments. These are the mandatory requirements under the 2005 Act. It is essentially a safety management system. To assist in that, we have prepared guidance, which is in the awareness raising, that helps make it easy for the skipper to discharge. This was distributed widely.

The 2017 inspection programme has to date resulted in 46 inspections, or 92% of programme. Based on these inspections 52% of vessels inspected had a safety statement and risk assessment in place. That does not sound terribly high but it is something of an improving trend.

The 2005 Act is applicable irrespective of vessel size and while no specific focus on vessel size was applied in the current programme, just over 60% of the vessels inspected were in excess of 15 m, so they would have been in the scope of the EEA programme. Inspections have taken place in different locations around the country including Howth, Dunmore East, Kilmore Quay, Cahirciveen and Castletownbere.

A number of issues were identified. Our approach is to identify and address these with the duty holder, in this case, the skipper or the owner and if he or she is willing to voluntarily agree compliance then we use that approach before we implement the regulatory legal enforcement instruments. The issues identified included the absence of a safety statement, the risk assessment, training, understanding of English by non-Irish national crew members, and emergency plans. During that programme it was interesting to note that the nationalities identified included Lithuanian, Polish, Egyptian, Czech Republic, Rumanian, Ukrainian, Latvian, Filipino and Indonesian, which I do not believe is an exhaustive list, but it includes both EEA and non-EEA members, the latter being Egyptian, Ukrainian, Filipino and Indonesian.

The graph says no records, which is why I asked the question.

Senator Gerald Nash

I thank the representatives from the WRC and the Health and Safety Authority for their commitment to this process and scheme from the get go. Of course this is a relatively new scheme, and it is fair to say they were both early adopters and very committed to making the scheme work, notwithstanding some of the major challenges that were apparent from the outset.

I understand that but I am trying to ascertain legacy issues that would influence this debate and that date from prior to February of this year.

Mr. Padraig Dooley

When we went into it with the producer organisations, they explained the type of arrangement that was being proposed to them by these agents and we just said "No" to it.

Deputy Bríd Smith

I am interested in the question Senator Gavan posed about language and communication. When the new scheme came in and the WRC made an issue of visits to vessels to inform the owners and the employers of the new scheme, did it attempt in any way to talk to the workers, to inform them of their rights or to communicate those rights to them? I suppose it is the same question in a roundabout way. Had the WRC considered that this scheme covers workers as well as employers and whether the WRC could inform the workers of what they are entitled to? Locating an Arabic translator in this country does not involve rocket science. One could pick one up anywhere. I do not mean that in a derogatory way but there are plenty of good people with strong linguistic skills who can speak both Arabic and English very well. It is a matter of reaching out to inform these workers of their rights. I would like the witnesses to expand a little on what they may have done, even if they could not speak to the workers directly, to give them some information about their rights. Have the witnesses' organisations, particularly the WRC, made contact with any of the fishers who suffer exploitation? Have they ever had contact with them, sat down in front of them, even through an interpreter, met them, seen them as real people and discussed their issues directly with them?

What I cannot get over - it struck me during the previous session as well - is the disparity between the evidence and the reports of the ITF versus the evidence from the industry and those before us. The ITF seems to have been able to illustrate to us dozens of incidents of exploitation but no one else, including the industry and those present, seems to be able to match that. Can the witnesses explain this disparity? Is someone telling porkies or dreaming this up? What is the problem? Does the WRC have a sufficient number of inspectors to carry out its work in general? The answer to that question might shed light on the situation. Famously, someone once said that the Labour Relations Commission had fewer inspectors than there were dog inspectors in the country. If the position has changed, has it changed sufficiently to allow the WRC to do its job properly in respect of workers' rights as well as employers' obligations? How many inspectors does the WRC have and is the number sufficient to cover what is required?

Have the witnesses ever found actual employment breaches and, if so - leaving aside what is in the documentation - how many? I understand that logbooks and documentation are a confusing part of the fishing industry and often do not match up to what one would find in an office, on a factory floor or whatever. That should not be the case but it is. Do the witnesses have other evidence of breaches of employment law in the industry?

Ms Oonagh Buckley

I will answer a number of those questions. At a certain point I will hand over to Mr. Dooley, who would have more information about the information sessions and what was done with employees. I will take the questions in reverse order.

We have found substantial numbers of employment breaches. The figures I have, which are for up to 8 September, show 198 employment breaches across 110 vessels. Of these, 14% or 29 were employment permit breaches.

If I may, I will return to evidence given earlier in the session regarding the Naval Service referring 134 cases involving non-EEA nationals. We had a figure of 66 inspections but there was a discrepancy in this regard. I am advised that when we followed up on those reports we found in the vast majority of cases that the individuals either had permission to work in the country - they had proper employment - they had an employment permit or they were not carrying their permit on their person at the time. While the rules of the scheme require persons to carry their employment permit, as has been explained, people do not necessarily carry pieces on their person on what is likely to be a very wet fishing vessel.

A substantial number of these employment breaches related to paperwork. That is our experience in all employments. We find the vast majority of breaches of employment law in basic paperwork and this follows through into the fisheries sector and the 170 vessels.

Deputy Bríd Smith

I apologise for interrupting at this point. Is that because it is what the Workplace Relations Commission looks for in its inspections?

Ms Oonagh Buckley

No, we look for breaches that we are competent to look for across the range of legislation.

Deputy Bríd Smith

Does the WRC look for physical evidence of breaches rather than asking for paperwork for this or that?

Ms Oonagh Buckley

Perhaps I should explain. I did not go through what we do on an inspection because I curtailed my opening statement. We interview the people on board. While I take the Deputy's point on language difficulties, as Mr. Dooley stated, language has not been significantly restrictive on our activities. Many employment rights follow through from decent paperwork, and if someone cannot show this, for example, that payslips are being issued, he or she cannot show that the minimum wage is being paid or that a host of other things are being done. It is a very important part of the process that we establish and ensure employees get what they require and employers give this to them. That is across a range of employments. Our investigations involve a substantial process.

The Deputy asked about the number of inspectors. I have 53 labour inspectors or whole-time equivalents on the books at the moment, with the figure rising to 57 if one includes Mr. Dooley and his managers. There is probably not a public service manager who would say he or she has sufficient staff or resources. We have had to cut our cloth in recent years in the context of the moratorium on public sector recruitment and so forth in terms of the number of people we have available to do the work. That being said, we carry out more than 5,000 inspections per annum and do substantial compliance and follow-up.

As I stated, fulfilling our obligations under the memorandum of understanding has been an incredibly resource intensive activity for the Workplace Relations Commission. We are talking about 170 workplaces which we have spent a large amount of our time inspecting. That level of intensity, which we have sustained for two years, is not feasible in the longer term based on our current resources. We will not stop inspecting fisheries vessels - that would be wrong - but we will not be able to maintain an inspection rate of 50% of the relevant fleet. It should be said, however, that as we return for the second inspection, we see more compliance. We narrow down and risk profile cases to go back to workplaces about which we have concerns. That exercise takes place on land and at sea.

With regard to the discrepancy on figures, there is no baseline survey of how many non-EEA workers are working in the Irish fishing fleet. An estimate done by the International Transport Workers Federation indicated there were roughly 1,500 non-EEA workers in the fleet. Last year, the European Commission estimated, based on figures from the Central Statistics Office, that there were 1,500 non-local workers in the entire fishing fleet. This figure covers every nationality other than Irish and would, therefore, include a substantial number of people from within the EEA. The Commission's estimate was based on what it said were the best available official data, namely, CSO figures. It had to extrapolate from a NACE code, which covered agriculture, forestry and fisheries. The task force estimated, based on Marine Survey Office inspection data, that there were roughly 500 non-EEA workers at that time. As members will be aware, slightly more than 200 employment permits have been applied for and issued. The figures are very different. In the course of our inspections, we found 29 non-EEA workers without employment permits or other rights to work. These cases have been corrected or the individuals were informed at the time that they did not have a right to work in the State, absent the necessary consents.

Mr. Dooley will address the issues of meetings and briefings for employees during the information period in early 2016.

Deputy Bríd Smith

I also asked a question on language.

Mr. Padraig Dooley

On language, our website contains all basic employment rights literature in multiple languages.

The original educational visits were part of the inspection programme and were aimed primarily at trawler owners to bring them up to speed as to what was required and what we expected of them. Since then, the Sea-Fisheries Protection Authority has held information sessions in all ports, which we have attended, as have other agencies. This is a one-stop-shop that allows anyone to come in and speak to us. It is a normal activity to provide an information booth with the other agencies.

I am delighted we had this discussion on this contentious issue because the Workplace Relations Commission has confirmed there are large numbers of undocumented non-EEA workers in the fishing industry. I am concerned about this issue and I ask the witnesses to address it to the Minister. We know how bad conditions can be for these people. The witnesses will probably have heard that two cases of trafficking have been submitted to the Garda, with a further 17 such cases in train. I hope it does not come to that. I also hope the industry will come to its senses and engage with the International Transport Workers Federation and reach a sensible agreement to keep the industry going in a way that does not disrespect workers' rights and fundamental rights such as the right to be treated with respect and dignity. However, I am extremely concerned that the WRC will have to step back in circumstances in which it knows, as Ms Buckley stated, that large numbers of undocumented migrant workers are employed in the industry.

Ms Oonagh Buckley

I do not want my comments to be misinterpreted. What I said with regard to the number of non-EEA workers is that there have been a number of guesses about the numbers.

The only facts we have are the ones that have been found in inspections, including by the Naval Service, the vast majority of whom, in fact, had permission to work in Ireland. They were either on the atypical scheme or they had permission under general employment permit law. We have found 29 without permission to work. Those are the actual figures.

There were estimates done which vary widely. As to whether they are accurate, they are an estimate, at best probably a guesstimate. I am not telling the Senator that there are 300, 350 or 1,250 undocumented non-EEA workers out in the fishing fleet because, frankly, that is not information that I have.

Senator Paul Gavan

I accept it is an estimate, but Ms Buckley's own report states that the figure is likely to be closer to the 42%.

Ms Oonagh Buckley

That is a better-----

Senator Paul Gavan

That is what Ms Buckley has in her document.

Ms Oonagh Buckley

It is a better estimate than others we have heard but we are not finding them when we come to do inspections.

I thank Ms Buckley. That concludes all the questions. I thank the witnesses for coming in. I note they had a long wait and we appreciate the fact that they stayed. That concludes all our business on today's agenda.

The joint committee adjourned at 6.42 p.m. until 4 p.m. on Tuesday, 3 October 2017.

Joint Committee on Jobs, Enterprise and Innovation díospóireacht - Thursday, 21 Sep 2017

Atypical Work Permit Scheme: Discussion (Resumed)

Mr. Patrick Murphy

Mr. Francis O'Donnell

Mr. Hugo Boyle

Ms Norah Parke

Ms Trudy McIntyre

Mr. Francis O'Donnell

Mr. Francis O'Donnell

Mr. Francis O'Donnell

Mr. Francis O'Donnell

Mr. Patrick Murphy

Mr. Patrick Murphy

Mr. Patrick Murphy

Mr. Patrick Murphy

Mr. Patrick Murphy

Mr. Patrick Murphy

Mr. Patrick Murphy

Mr. Patrick Murphy

Mr. Patrick Murphy

Mr. Patrick Murphy

Mr. Patrick Murphy

Mr. Patrick Murphy

Mr. Patrick Murphy

Mr. Dermot Conway

Mr. Dermot Conway

Mr. Dermot Conway

Mr. Dermot Conway

Mr. Dermot Conway

Mr. Dermot Conway

Mr. Dermot Conway

Ms Trudy McIntyre

Mr. Hugo Boyle

Mr. Hugo Boyle

Mr. Hugo Boyle

Mr. Patrick Murphy

Mr. Patrick Murphy

Mr. Patrick Murphy

Mr. Patrick Murphy

Mr. Francis O'Donnell

Mr. Francis O'Donnell

Mr. Francis O'Donnell

Mr. Patrick Murphy

Mr. Francis O'Donnell

Mr. Patrick Murphy

Mr. Patrick Murphy

Ms Norah Parke

Ms Norah Parke

Mr. Dermot Conway

Mr. Francis O'Donnell

Mr. Francis O'Donnell

Mr. Francis O'Donnell

Mr. Francis O'Donnell

Mr. Francis O'Donnell

Mr. Francis O'Donnell

Mr. Francis O'Donnell

Mr. Dermot Conway

Mr. Francis O'Donnell

Mr. Francis O'Donnell

Mr. Francis O'Donnell

Dr. Susan Steele

Ms Margaret Stanley

Mr. Brian Hogan

Mr. Brian Hogan

Mr. Brian Hogan

Joint Committee on Jobs, Enterprise and Innovation díospóireacht -
Thursday, 21 Sep 2017