Mick Barry (Cork North Central, Anti-Austerity Alliance)
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268. To ask the Minister for Jobs, Enterprise and Innovation if a foreign national worker who either is here illegally or does not have the required work permit can take a case against his or her employer for unpaid wages or unfair dismissal to the Workplace Relations Commission; and if there is any obligation on the Workplace Relations Commission to report such migrant workers to the immigration authorities. [21740/16]

Pat Breen (Clare, Fine Gael)
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It is important to point out it is an offence to employ someone or be employed without a valid employment permit, where such a permit is required. Where employment occurs in breach of this requirement, such contracts of employment are illegal.

However, the Employment Permits (Amendment Act) 2014 amended the Employment Permits Act 2003 to balance that requirement with measures to prevent an employer benefiting from a contract of employment that is unenforceable for the lack of an employment permit at the expense of a migrant worker.

Redress for issues arising under contracts of employment which are illegal by reason of non-compliance with the Employment Permits legislation cannot be achieved by reference to employment rights legislation which is predicated on legal contracts of employment. Thus the Act of 2014 addresses very precisely the consequences of those employers who breach the Employment Permits Acts with the intention of circumventing minimum wage requirements.

Section 2B of the Act of 2003 as amended provides that a foreign national who can satisfy a court that he or she took all reasonable steps to comply with the requirement of having an employment permit may take a civil action for compensation against the employer for work done or services rendered, notwithstanding the illegality of the contract. This is obviously in addition to potential criminal prosecution of the employer. The compensation for such work or services is to be calculated by a court by reference to the national minimum hourly rate of pay or any other rate of pay which is fixed under or pursuant to any enactment.

Additionally, I as Minister, in my absolute discretion, may take a civil action on the foreign national’s behalf as well as the responsibility for the costs of such action. This is in recognition of the fact that a foreign national may not have the wherewithal to take such action. This is also in addition to and separate from the existing prosecutorial powers.

Section 2B also imposes the following limitations on proceedings:

(a) Proceedings must be brought within 2 years of the date on which the foreign national ceased his or her employment or service with the employer; and

(b) Proceedings are limited to a claim for recompense for work done or services rendered during the period of 6 years prior to the cessation of the foreign national’s employment.

Section 2C of the Act of 2003 as amended provides that proceedings taken against an employer may be brought in the District Court for claims up to €15,000 and in the Circuit Court for claims up to €75,000.

The Workplace Relations Commission under section 32(2) of the Workplace Relations Act 2015, may provide to an official body any information -

(a) obtained by it in the performance of its functions, and

(b) that causes the Commission to suspect that an offence has been committed by any person.