Feargal Quinn (Independent) | Oireachtas source

I move: "That the Bill be now read a Second Time."

I welcome the Minister of State, who I hope will make this Bill welcome. It addresses a discreet issue that has as its basis the High Court decision of Mr. Justice Gerard Hogan in Hussein v. the Labour Court & Anor. [2012] IEHC 364, which was delivered last August. Mr. Justice Hogan is well known to Senators as having been a leading constitutional lawyer prior to his appointment to the Bench.

The Bill is designed to amend the Employment Permits Act 2003 to address certain shortcomings highlighted by Mr. Justice Hogan in the Hussein judgment. I will briefly explain the background. For many years, Mr. Mohammad Younis, a restaurant worker, was paid well below the minimum wage by his employer. He was paid 55 cent per hour, worked extremely long hours, had no days off and lived in hostel-type accommodation. He was subjected to threats and was exploited. Due to this, he was awarded ¤92,000 following an official complaint about alleged breaches of his employment rights.

However, Mr. Justice Hogan overturned the determination of the Labour Court to make this award to Mr. Younis, who I hope is present. He is in Leinster House somewhere, but I do not see him right now. The restaurant owner had appealed the determination of the Labour Court on the basis that, as the worker was not employed under a work permit, his contract of employment was illegal and, therefore, the worker had no standing to invoke the protection afforded by the State's employment legislation.

In Mr. Justice Hogan's judgment, he found that, under section 2 of the 2003 Act, "the Oireachtas has declared that a contract of employment involving a non-national is substantively illegal in the absence of the appropriate employment permit". As neither the rights commissioner nor the Labour Court could lawfully entertain an application for relief in respect of an employment contract that was substantively illegal in this fashion, Mr. Justice Hogan felt compelled to overturn the award made by the Labour Court. Under existing legislation, a non-national employee who works without a permit automatically commits an offence and his or her contract of employment is void. The Labour Court cannot make awards if a contract is void.

However, Mr. Justice Hogan recognised that, on the basis of the restaurant worker's account, "he has been the victim of the most appalling exploitation in respect of which he has no effective recourse" and that this would give rise to "consequences which were not foreseen or envisaged" when the 2003 Act was enacted. Mr. Justice Hogan stated, "It may not have been intended by the Oireachtas that undocumented migrant workers - not least a vulnerable migrant such as Mr. Younis ­ should be effectively deprived of the benefit of all employment legislation by virtue of his illegal status, even though he or she may not be responsible for or even realise the nature of the illegality." He also stated, "The Oireachtas must, of course, regulate the labour market by specifically deterring illegal immigrants from taking up employment" and that legislation, if applied unyieldingly, "might have serious consequences for vulnerable migrants who found themselves exploited by unscrupulous employers." Most interestingly, Mr. Justice Hogan's recognition of the unsatisfactory state of the law in this area is perhaps demonstrated by the fact that he resolved to transmit a copy of his decision to the Ceann Comhairle, the Cathaoirleach and the Minister for Jobs, Enterprise and Innovation.

It falls to us as legislators to remedy this anomalous situation of certain non-national workers. On this basis, the Bill seeks to effect a number of amendments to the 2003 Act and to remedy the position of the identified groups in our law. No more, no less.

I will explain the Bill's provisions. Section 1 seeks to amend section 2 of the 2003 Act so as to insert a new subsection (4A) that will provide a defence to a foreign national who is charged with being employed without a valid work permit. The 2003 Act provides for a similar defence in respect of an employer, but no such defence is provided in respect of the employee. Therefore, the purpose of this provision is to place the employer and employee on an equal footing in that regard. This provision seeks to address directly the legislative gap identified at paragraph 15 of Mr. Justice Hogan's judgment.

Section 1 also seeks to amend section 2 of the 2003 Act so as to insert a new subsection (4B) to enable an employee who does not hold a valid work permit to seek redress and to enforce his or her employment rights provided that he or she can demonstrate that liability for the failure to secure a work permit does not rest with him or her. This provision seeks to address directly the legislative gap identified at paragraph 20 of the judgment.

Section 2 sets out the Short Title to the Bill and provides for a collective citation.

I am grateful to the Minister of State and his officials for the assistance they provided while the Bill was being drafted. Dr. Brian Hunt also invested a great deal of effort in helping me. If the Minister of State could see his way towards accepting the Bill, I would suggest that we take all Stages today, although that is unlikely to happen. If we could manage to get the Bill through-----