Michael McDowell (Dublin South East, Progressive Democrats)

The effect of the Senator's amendment would be to put the position of an employer who employs someone unlawfully without a work permit on exactly the same basis in terms of potential punishment as an employee who works illegally without such a permit. It would prevent any of these offences from being tried on indictment, in the case of an employer, and it would limit the maximum fine that could be imposed on, for example, a company to €3,000.

There is a radical distinction between the position of an employer who knowingly employs someone in breach of the law, potentially speaking, and that of an employee. I will give the Senator an example. First, there is a possibility that a sizeable corporation would deliberately decide to employ someone on a substantial salary, perhaps €200,000 per annum, knowing that it cannot be sent to jail and the most it can suffer, if discovered, is to pay a €3,000 penalty. To fix that as the maximum penalty in those circumstances would be to make a mockery of the law.

On Committee Stage the Senator expressed the view that the possibility of trial on indictment for employers is over the top. I could imagine a set of circumstances where it would come to light that an employer in, for example, the horticultural area or in mushroom production – I am not pointing the finger at particular areas of business – would decide to employ illegal immigrants at knock-down wages and threaten that they would be exposed to the Garda national immigration bureau if they did not behave and continue to work. When negotiations about conditions of work took place, the employers would be able to use the constant threat that the type of employees to whom I refer could face deportation if they did not behave and continue to work in exploitative circumstances. This may not be something that happens every day – I hope it does not happen at all in future – but, in light of human nature, the situation of an employee who is working illegally is essentially vulnerable.

The situation of an employer who consciously takes on employees in these circumstances is essentially one of temptation to exploit the illegal status of those employees. I am saying, by way of two examples, that a conscious and deliberate violation by a corporation, which might not even be physically located in this country, to employ someone here in breach of the work permit law should be capable of being visited with more than a €3,000 penalty. In the final analysis, we could be referring to people whose salaries amount to ten or 20 times that amount in a given year and for whom there would be no deterrent.