Wednesday, 4 July 2018
Schools Building Contractors
I welcome the Minister of State, Deputy Halligan, to the House to discuss the issue of a migrant worker who has been exploited by an unscrupulous employer. As there has been a huge amount of correspondence with the Department of Education and Skills on this matter I am sure the Minister of State is familiar with it. I welcome Mr. Porfireanu and his wife to the Public Gallery. I know from my background as a trade unionist that this case is not unique but it raises serious issues concerning the award of public contracts.
Mr. Porfireanu successfully made complaints to the Rights Commissioner Service under the Payment of Wages Act 1991 and Terms of Employment Information Acts 1994 to 2001 relating to his employment with this contractor. The contractor appealed those decisions to the Employment Appeals Tribunal, which upheld Mr. Porfireanu's awards on appeal in March of last year. The value of these awards is €14,246, which is a sizeable sum, the vast majority of which is unpaid wages. When this exploitation took place, Mr. Porfireanu was employed by P.J. McLoughlin & Sons on publicly-funded projects in Coolock and adjacent to this House at the National Gallery. Attempts to contact the contractor to ensure he fulfilled his obligations to Mr. Porfireanu were met with frustration. Despite repeated attempts to discuss the matter throughout last September no reply was forthcoming. Mr. Porfireanu was forced to engage a solicitor to seek judgment for registration in the Circuit Court and subsequently an execution order to the Sheriff to seek to enforce the court order. The original award and subsequent judgment remain undischarged.
I refer to section 5.3 of the public works contracts which provides that contractors must observe employment law and legally binding determinations of the Labour Court. The contractor self certifies using standard form MF 1.13. that it is compliant in this regard. I am sure the Minister of State will agree that this was not respected in this case. Section 5 of the public works contract reflects the agreements reached on outsourcing in section 20 of the Croke Park agreement and section 3.3.5 of the Lansdowne Road agreement.
We should not accept that this contractor can be awarded public contracts and operate on those same contracts while failing to respect or comply with the decision of the state industrial relations processes and subsequent Circuit Court judgments. This contractor is currently engaged as the main contractor on two Department of Education and Skills projects in Westmeath and Kildare, namely, Curraghmore national school in Mullingar and the Mercy Convent primary school in Naas. The Minister of State will not disagree that Mr. Porfireanu, who is with his family in the Gallery, has been waiting too long to receive money that he worked hard to earn. This is an example of a migrant worker, working here legally and being exploited by an unscrupulous employer, one which continues to be rewarded by the Department of Education and Skills. It is bad enough that this employer refuses to discharge an award of the state industrial relations mechanisms and is in violation of a Circuit Court judgment relating to that award but it is considerably worse that he is able to flout the terms of the capital works contracts.
Is the Minister satisfied with the current methods for ensuring that contractors awarded State contracts respect our industrial relations processes and does he have plans to ensure that contractors such as P.J. McLoughlin and Sons do not obtain state contracts while violating the rights of workers like Mr. Porfireanu? Also, will he help this man who is owed €15,000? P.J. McLoughlin & Sons continues to be awarded contracts by the Department of Education and Skills despite that it is flagrantly in violation of judgments of the Labour Court. To be honest, it is but one of many such companies but the Minister of State needs to do something concrete to help this man to restore his confidence in this State. Mr. Porfireanu has done everything possible to try to get justice but the State has failed him on every occasion.
I thank Senator Gavan for raising this matter and I acknowledge his work in respect of workers rights. I also welcome Mr. Porfireanu and his family to the Gallery.
As Senator Gavan will be aware a building project is a complex contractual arrangement between the client, the main contractor, specialist subcontractors, domestic subcontractors, suppliers of materials, suppliers of plant and so on. In general, all subcontractors employed on education sector building projects are employed directly by the main contractor or indirectly by the main contractor through subcontractors. As provided for in legislation, it is a matter for all subcontractors to agree terms and conditions and a schedule of payments with the main contractor as their direct employer.As these contracts involve contractual matters between private companies, my Department has no authority to intervene in these matters. I have checked this point. The Department, as funding authority, is not necessarily the employer under the public works contract on schools building projects. Where the Department does not own the site, the school management authority is normally the employer for the purposes of the public works contract. Many projects are devolved for delivery to outside agencies, such as education and training boards, the National Development Finance Agency, local authorities etc. In these cases the devolved agency would normally be the employer for the purposes of the public works contract. Also, in respect of non-compliance with relevant employment law, enforcement and prosecution falls under the remit of Workplace Relations Commission, WRC. Where the Department of Education and Skills becomes aware of issues regarding tax compliance or social welfare fraud, such matters are referred to the Revenue Commissioners or the Department of Employment Affairs and Social Protection or both, as appropriate.
The Department has taken a number of steps to deal with the use of bogus self-employment contractors on schools building projects. It has appointed an external consultant, Contractors Administration Service, CAS, to conduct random audits on schools building projects. Should irregularities be uncovered in terms of non-compliance with relevant employment law, enforcement and prosecution falls under the remit of the WRC and the Department reports any discrepancies found to it. If the audit uncovers any other matters of concern regarding tax compliance or social welfare fraud, such matters are referred to either the Revenue Commissioners or the Department of Employment Affairs and Social Protection or both, as appropriate. My Department does not have the statutory powers to investigate such complaints. This rests with the WRC, the Department of Employment Affairs and Social Protection or the Revenue Commissioners, as appropriate.
It is worth drawing attention also to the advice on the WRC website with regard to enforcement of decisions that "If an Employer/Respondent (Employer) fails to carry out a decision of an Adjudication Officer of the Workplace Relations Commission, or a decision of the Labour Court arising from an appeal of an Adjudication Officer's decision, within the prescribed time, an application may be made to the District Court for an order directing the Employer to carry out the decision."
I do have sympathy for any subcontractor or worker who is not paid either appropriately or what is due. I have held detailed discussions with officials of my Department on this issue. We are bound by legislation and criteria laid down by the Department. I have no problem with meeting the particular family with the Senator. I would be delighted to do so because I know the Senator does a lot of work in the area of workplace relations. I am not afraid to acknowledge that. I am not too sure what I might be able to do but I would be prepared to meet the family to see if we could go further on this issue. It does concern me.
I thank the Minister of State for his reply and I acknowledge that he has a record for protecting workers. I know where he comes from politically and I respect that. I welcome the offer to meet Mr. Porfireanu. I will take the Minister of State up on that and make an appointment. We will make it happen.
In respect of the reply he has given me I have two points to make, which I think the Minister of State already sees. This involves the main contractor, namely, P.J. McLoughlin & Sons. The Department is awarding contracts to a main contractor which has left this man short of €15,000 in wages and it has disregarded every State body in respect of that. The Minister of State pointed out the ability to go to the District Court but we have already done that. The sheriff has said she cannot intervene because several companies are registered at the address so she does not know whose property she is taking. We have exhausted the procedures. I have one suggestion which I hope the Department could do as it just means getting it to move slightly and that is to write to the employer asking it to comment on the status of this case. The Minister of State could write from the Department of Education and Skills saying this has been brought to his attention and he would like to understand why this award has not been carried out. Something like that could actually help. I welcome that the Minister of State has offered to work with me on this issue. Let us set up an appointment and see if we can get justice for this man.
I will meet the man as soon as I possibly can. As this is a very important issue, I will certainly meet early next week, if that would suit the Senator. I would be delighted to do that.
There are a couple of points I need to make on behalf of the Department. I am told the Department was not involved in any contractual arrangement in this particular case and the Employment Appeals Tribunal did not bring the matter to the Department's attention at any stage, as the Department was not a party to the proceedings or the contractual matters thereunder.
I will take into consideration the proposals the Senator has made and will go back to the Department with them. There may be something I might be able to do, there may be something I am missing out on that might come to light when I meet the family next week with the Senator.