Seán Sherlock (Cork East, Labour) | Oireachtas source

I propose to deal with the amendments numerically. Deputy Tóibín’s amendment would place the onus on the foreign national of proving that exploitative work practices took place. Currently, the foreign national does not have to prove that this occurred in order to avail of the provision. Unscrupulous employers who employ illegal non-EEA nationals continue to face the possibility of prosecution under the employment permits legislation. If found guilty of an offence, such employers face a fine of up to €250,000, imprisonment for a term of up to ten years or both. An Garda Síochána and the National Employment Rights Authority, NERA, actively pursue breaches under the legislation and welcome information concerning possible breaches. On this basis, we will not accept amendment No. 7.

Regarding amendment No. 8, the new civil proceedings provide for compensation in a situation where there is no legal contract of employment – this point is important - and the compensation provided for is the national minimum wage or other mandatory statutory rate for the job. These are rates provided for in law and there is no ambiguity or complex standards of proof for a court in determining how much the compensation should be. It is also how the Labour Court determined Mr. Younis's compensation. The Deputy’s amendment would add complexity and ambiguity to a court's determination of what the rate for a "regularised employee engaging in the same employment" would be and could actually result in the applicant's claim failing if such a rate could not be established to the court's satisfaction. On the other hand, the national minimum wage is clear and unambiguous. It would be different if the contract of employment were legal, but in such a scenario it is not. We will not accept the amendment.

Amendment No. 9 provides for retrospective effect of the provision so that a person taking proceedings pursuant to the new section 2B of the 2003 Act can claim an amount of money for work done or services rendered during a period prior to, as well as after, the commencement of the section. The new section is providing a remedy to a defined class of persons who have not been properly recompensed for work done or services rendered by reason of the illegality of their contracts of employment. It covers those who never had permits and those whose permits lapsed through no fault of their own. The employer has benefitted from the work done or services rendered. If the employee had held an employment permit, the employer would have had to pay him or her at least the national minimum wage. As a matter of social justice, the Minister wishes to provide a remedy to the class of persons referred to in section 2B.

New subsections (6) to (9), inclusive, inserted into section 2B, impose limitations on the right of action conferred by section 2B and are proposed, following consultation with the Office of the Attorney General, for the purpose of making the section more likely to withstand challenge whether on constitutional or European Convention of Human Rights grounds. The new subsection (10) inserted into section 2B provides that, where the Minister institutes proceedings under section 2B, the court may award costs in favour of the Minister. We are considering some further amendments to these provisions and I will revert on this matter on Report Stage.

Amendments Nos. 10 to 12, inclusive, are drafting amendments falling out of amendment No. 9, which inserts new subsections (6) to (10), inclusive, into the new section 2B of the 2003 Act and relates to the bringing of an action against an employer. Amendment No. 13 is a drafting amendment and falls out of the insertion of a new subsection (14) into new section 2B, which is addressed in amendment No. 14. Amendment No. 14 defines terms used in section 2B. It also provides that proceedings taken against an employer under section 2B may be brought in the District Court for claims of up to €15,000 and in the Circuit Court for claims of up to €75,000.

We consulted the Courts Service regarding amendment No. 15. It has indicated that, in the cases provided for by this section, the only relevant interim relief would involve applying for an order preventing the employer dissipating or reducing his or her assets that might be required to meet the claim if the plaintiff were successful. Such relief would already be available by way of injunction in the High Court or Circuit Court. If by this amendment the Deputy is proposing that the plaintiff could apply for an advance of money that he or she might get in a settlement or court determination, the Courts Service has indicated that it is unaware of such relief being available where there is a dispute and pointed to the danger that allowing relief as proposed would pre-empt the outcome of the proceedings where the case remained to be determined. Therefore, on grounds that it is unnecessary or possibly ill advised, I am not accepting the proposed amendment.

The shoulder note for section 4 of the Bill as published must be amended to read: "Insertion into Act of 2003 of new sections 2B and 2C".