Richard Bruton (Dublin North Central, Fine Gael) | Oireachtas source

My intention in creating this new civil proceedings option for illegal workers is to give them a chance to claim compensation in a situation where there is no legal contract of employment on which to base any other type of claim. The compensation provided for is the national minimum wage or other mandatory statutory rate of pay for the job, with the latter element to cover the reintroduction in the future of successors to EROs and REAs. These are rates provided for in law. There is no ambiguity or complex standard of proof for a court in determining compensation and is how the Labour Court determined compensation for Mr. Younis.

The amendment would only add complexity and ambiguity to a court's determination of what the foreign national should get paid. What is the rate for a regularised employee engaging in the same employment? A worker with a legal contract of employment is simply not an appropriate comparator to use in respect of an illegal worker. How would a court go about making the necessary comparisons? Would it seek testimony from legal workers in the illegal worker's place of employment? Do the Senators think such legal workers would come forward and volunteer in open court to say what their salaries were? How would such matters as overtime, long service increments and productivity bonuses, which are individual-specific, be factored into such a comparator exercise? The amendment is inoperable in practical terms and would result in the applicant's claim failing if such a rate - that is, the rate paid to regularised employees - could not be established to a court's satisfaction. On the other hand, the national minimum wage, or other statutorily provided wage, is clear and unambiguous and makes both the job of the applicant in making his or her case, and the court's job in determining the compensation, clear and straightforward. On that basis, I am not going to accept the amendment.