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

Like others, I acknowledge the work of the Migrant Rights Centre in this important area. I hope this Bill brings some fairness to the process. We have tried to ensure that we make changes in the legislation in order that if a person had a permit previously he is able to get back into the system. We have created a specific category of permit for such a situation. I realise this was an area that gave cause for concern.

In this section we have provided a defence for people who were working without a permit - that is what we are discussing in this case - and for people who have not been paid, as well as the possibility of getting compensation and of that compensation being retroactive. We have gone a long way in trying to strike a fair balance. That is the context.

While I fully understand the rationale for seeking amendments Nos. 1, 2 and 3, I am firmly of the view, having considered the "Younis" provisions very carefully, that the inclusion of "exploitative work practices" would in fact raise the bar with regard to the evidence an applicant would have to submit to a court in order to satisfy that court of the applicant’s entitlement to compensation under the provision. Under the legislation, as drafted, in the new section 2B(3), all the applicant has to do to enable a court to make an order for recompense for work done is to satisfy the court that he or she took all reasonable steps as were reasonably open to him or her to comply with the requirement to have a permit. If I were to add recognition of the existence of "exploitative work practices" it would, I believe, run the risk of giving rise to an unintended consequence in the form of additional evidence which would have to be adduced and established before the test was met by an applicant.

How might a foreign national, who may well be hesitant about reliving the abuse or exploitation he or she had suffered at the hands of an unscrupulous employer, set about showing that his contravention arose as a direct result of exploitative work practices engaged in by his or her employer against him or her? The benefit of the provision, as drafted, is that it does not require the applicant to establish such facts in order to apply for the compensation. Apart from the considerable obstacle of defining what is meant by "exploitative work practices", the amendment additionally would require a nexus to be established between the particular work practices and the failure to obtain a work permit. It would have to be established in court to the requisite standard of proof that the exploitation was engaged in. The employer would have a right to defend himself in such a scenario therefore potentially giving rise to a trial within a trial. The existing provision will permit evidence of exploitation to be given in the course of an application to the court under the section without a minimum threshold of "exploitation" being a condition precedent to relief or compensation.

The defence was carefully drafted on the considered advice of the Attorney General's office and deliberately includes a test of “reasonableness”. The test of “reasonableness” is well established within our legal system and gives a court hearing the application discretion to consider the application within the context of the particular facts of the case before it, which is crucial to the success of a provision such as this working in practice. The term “exploitative work practices” is not defined and would be difficult to objectively define without exposing the section to challenge and ultimately weakening the provision and creating an additional hurdle for the applicant to overcome. A provision, when invoked, which requires the court to make a determination of exploitation against an employer will necessarily be contested by impugned employers and will inevitably render the application more difficult and contribute a further unnecessary hurdle for the applicant and, as I said, it could give rise to a prolonged trial within a trial. It is for those reasons, I am not able to accept the Senator's amendments.