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Illegal Immigrants

Dáil Éireann Debate, Wednesday - 10 July 2013

Wednesday, 10 July 2013

Ceisteanna (7)

Brendan Smith

Ceist:

7. Deputy Brendan Smith asked the Minister for Jobs, Enterprise and Innovation his plans to amend the Employment Permits Act 2003 to provide recourse for undocumented foreign workers who have little recourse in cases of exploitation; and if he will make a statement on the matter. [33564/13]

Amharc ar fhreagra

Freagraí ó Béal (13 píosaí cainte)

I assume the Deputy is referring to foreign nationals defined in the Employment Permits Acts 2003 and 2006 as foreign nationals other than nationals of member states of the EEA and Switzerland. The law is clear on the employment of third country nationals. It is illegal for a third country national to be employed without the State's permission and the offence where a third country national is employed is committed by both the employee and the employer concerned. Illegal employment of third country nationals creates a serious problem for the employees. They do not have a legally binding contract of employment and cannot, therefore, assert their rights under the contract or rely on the wide spectrum of employment rights legislation. Following the High Court judgment concerning Mr. Younis, I committed to amending the legislation to provide a defence for the employee and to give the courts some discretion when faced with similar circumstances. Subject to Government approval, I intend to introduce new safeguards in the legislation to ensure the situation which arose in the Younis case will not recur. The new safeguards will not undermine legal principles and are intended to ensure an employer cannot benefit from the fact that a contract of employment is illegal and, therefore, not legally binding.

Subject to Government approval, another key feature of the new Bill will be the establishment on a statutory footing of an employment permit for third country nationals who have fallen out of the employment permits regime. I recognise that there can be situations where a third country national finds that he or she has fallen out of the employment permits regime through circumstances beyond his or her control or even as a result of an omission in keeping a permit up to date. It will continue to be the case that an employer can be prosecuted for breaches of employment law, including the Employment Permits Acts, and it is the National Employment Rights Authority's policy to pursue such breaches.

The drafting process in respect of the employment permits Bill is almost concluded. I expect a further draft of the Bill this week. Subject to it fully meeting policy objectives, I envisage submitting it to the Government for approval at the earliest opportunity.

Let us recall the Younis case. Mr. Younis was forced to work a 77 hour week with no days off. He was forced to live in cramped, substandard conditions and brought his case to the Labour Court which awarded him €92,000. The employer appealed the award to the High Court which overturned the decision on the basis that as an undocumented migrant worker, Mr. Younis was not allowed to go to the Labour Court. The matter is before the Supreme Court. There are 24,000 people in the economy who are exposed on foot of the High Court judgment.

The initial promise to publish the new legislation to remove the loophole was made last year. None of us wants the situation to continue. One year later we are still at the drafting stage. I acknowledge that the NERA has stepped up its work in the area considerably. It is working very closely with the Migrant Rights Centre of Ireland on some of the worst cases. While the NERA can bring prosecutions, there is little it can do to provide recourse and compensation for those whose employment and human rights are being trampled on because of this legal lacuna. Can some timeline be provided for the legislation? Obviously, we will not have it by the end of the session. Will we have it early in the next session to allow us to address the issue once and for all?

As I indicated, I expect to have a draft of the Bill soon. We are in the final stages of the process and it appears that we will have it imminently. I hope we will have it before the end of the session. We will certainly make it available for the very start of the new session.

Mr. Justice Hogan reversed a Labour Court award having found that the contract of employment was illegal as Mr. Younis did not have an employment permit. The judge noted that the Employment Permits Act made it an offence for certain employees to work without a permit. The Acts do not provide for any defence for an employee which suggested to the court that it could not take into account mitigating circumstances and had no discretion to consider the contract of employment as other than illegal. The result, arguably, was that the employer benefited from the illegal contract. There are procedures for pursuing employers who seek to abuse the system. Clearly, there is a lacuna in that there has not been a defence for the employee. That is what we are seeking to correct in the legislation. The Bill will be before the House as soon as I can bring it forward. The Deputy will know about the frustrations of the legislative process, but we are at the end in this case.

The reaction of the Houses to this issue appears hypocritical sometimes when contrasted with the reaction of Members to the undocumented Irish working in the USA. We focus on the rights of Irish people but do not necessarily afford the same rights to migrants working here. It is a massive problem for those who are forced to work in the grey areas, many of whom are exploited because unscrupulous employers know they have significant legal leverage. We have seen this, in particular, in the case of au pairs working in the State.

While the Minister is attending Cabinet meetings, he might tell the Minister for Justice and Equality that migrant rights organisations, which do a tremendous work with individuals are having their funds cut and closing, while European funds channelled through his Department and the Department of the Environment, Community and Local Government remain unspent. It is important that advocacy groups have the resources needed to represent this section of society. When will the Minister ratify International Labour Organisation Convention 189 on domestic workers? Will he provide a precise timetable for the resolution of these outlying issues?

The Migrant Rights Centre of Ireland, with which I had severe disagreements when I was sitting where the Minister is now sitting, has built a bond of trust with undocumented workers and tends to be their first port of call rather than the law. The centre does a superb job but has funding difficulties which affect its capacity to continue to do this work. The Minister is beginning to sit down to prepare for 2014 and might look at that issue. As Deputy Peadar Tóibín said, there is unspent money available. It is not as if someone else would have to face a cut. The Department of Justice and Equality has an unspent fund which would allow the Migrant Rights Centre of Ireland and local organisations to do this work. If it is not done, we will not be able to expose those rogue employers who are exploiting people.

Deputy Calleary will have to take up the issue of unspent funds with the Minister for Justice and Equality. As the Deputy stated, there is a close relationship with the migrant rights organisations who have been instrumental in trying to make this system work. What we have recognised is that there are legal defects. We are seeking to correct those in the two types of cases that I outlined in the reply and we hope that will be a better legislative framework.

I held a ministerial conference at the ILO on the domestic workers convention and under the Irish Presidency we passed provision in the Council of Ministers to initiate the sanctioning by EU members of the domestic workers convention. We have initiated the change, not only for Ireland but right throughout the EU.

Question No. 8 is in the name of Deputy McGuinness.

It is already answered.

I beg the Deputy's pardon.

Question No. 8 is more or less already answered.

It is a repeat of an earlier question.

It relates to entrepreneurship and gender issues.

Then we will move on to Question No. 9.

Question No. 8 withdrawn.
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