Mr. Michael O'Brien:

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

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

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

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

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

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

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

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

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

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

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

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