Seán Sherlock (Cork East, Labour) | Oireachtas source

-----and had little discretion but to consider the contract of employment as illegal. The result was that, arguably, the employer benefitted from the illegal contract.

The issue raised by the High Court judgment is one which has important policy and legal implications in the area of employment permits and also in terms of employment rights. As Mr. Justice Hogan noted in his judgment, "the Oireachtas must, of course, regulate the labour market by specifically deterring illegal immigrants from taking up employment, as failure to do so could have serious medium term implications for both employment and immigration policy". The relevant provisions of the Employment Permits Acts of 2003 and 2006 hold that where an employee who was required to hold an employment permit has failed to do so , he or she is guilty of an offence and the Acts do not provide for a defence for an employee in this regard.

As I understand it, the judge took the view that this lack of defence affects the court's scope to interpret the statutory provisions and compels the court to hold that the legislation has created an absolute offence in so far as an employee is concerned. Importantly, Mr. Justice Hogan indicated that it must therefore be taken that the Oireachtas intended that, as such, a non-national employee automatically commits an offence if he or she does not have a work permit, irrespective of the reasons for that failure, and that this has implications so far as the civil law is concerned in that such a contract of employment must also be taken to be void.

The judgment identifies something which appears to be inherently unfair, that an employee who has unwittingly entered into an illegal contract of employment may not assert rights under that contract of employment. That has been acknowledged. I note that the Minister for Jobs, Enterprise and Innovation, Deputy Bruton, upon receiving the judgment, quickly stated his aim to ensure an employer should not benefit from using an illegal contract of employment where he or she was a willing party to its creation. I also know that the Minister met Mr Younis and representatives of the Migrant Rights Centre of Ireland and repeated his assurance that he would make changes to the legislation.

The Senator's Bill is to be welcomed and it should be noted that Senator Quinn has gone to great lengths in bringing forward this legislation. It provides us all with an opportunity to reflect on the judgment and to identify a means of rectifying the legal position. The Senator's Bill makes two proposals. First, it proposes the introduction of a defence for the employee similar to that which currently exists for the employer. On the face of it this seems to be a reasonable proposition. However, a fundamental aspect of the current legislation is that it is generally illegal for third country nationals to be employed in Ireland without an employment permit. Such nationals therefore require the State to give its approval to the creation of the contract of employment. Consequently, this proposition may mean, in certain cases, that the State would not have had an opportunity to approve of the employment in advance. This is not a fundamental legal obstacle but requires to be understood and acknowledged.

Second, the Bill provides for a foreign national, so long as it is established that the person took all such steps as were reasonably open to ensure compliance, to enforce the contract of employment and any other employment related rights under any other enactment. This may include any employment related right, and not only those rights under what would generally be considered to be employment rights legislation but also those rights under other legislation. Arguably, a wide spectrum of legislation gives rights relating to employment. Again, this requires careful consideration as many rights can be deemed to be employment related.

We would want to ensure any unintended consequences do not arise.

The employment permits regime is a managed system in that both third country nationals and their prospective employers must seek permission from the State to work legally in the State and also provide details to the State concerning the proposed work. A key deterrent is the legal assumption, with certain exceptions, that not having an employment permit creates an offence for the employer and the employee. The question that arises for policymakers is the extent to which such workers should be dissuaded from working illegally in Ireland by virtue of there being a statutory offence to do so versus the extent to which certain employment rights should protect vulnerable migrants who find themselves unwittingly in such employment positions.

I understand my Department is advised that the judgment raises matters that are particularly complex and that these matters are receiving priority attention with a view to identifying the best way in which the legislation may be amended. The challenge is to meet the objectives of the Senator's Bill in a manner which does not affect the careful balance of interests between employers and employees across the employment rights legislation as well as other rights under other Acts. In particular, attention is being given to the way legislation can be drafted to ensure the particular outcome in the case to which the High Court refers can be prevented in future in a manner which does not result in any unintended consequences. Decisions on the legal options will be made in light of further legal advice and in consultation with other Departments.

I stress that the judgement relates only to the consideration of an employee's rights. It does not mean that unscrupulous employers can employ unauthorised third country nationals without running the risk of significant legal consequences. I emphasise that an employer who engages in this type of activity is open to prosecution under the employment permits legislation and could be found guilty of an offence, and liable on conviction on indictment to a fine not exceeding ¤250,000 or imprisonment for a term not exceeding ten years or both.