Written answers
Thursday, 23 February 2017
Department of Jobs, Enterprise and Innovation
Employment Rights
Tommy Broughan (Dublin Bay North, Independent)
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426. To ask the Minister for Jobs, Enterprise and Innovation if she will report on the continuing serious allegations of illegal pay and conditions for workers in the fishing industry; and if she will make a statement on the matter. [9355/17]
Mary Mitchell O'Connor (Dún Laoghaire, Fine Gael)
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In order to address the complex array of issues facing the State in monitoring compliance with employment legislation in the fishing industry, in 2015 the Government established a Task Force on allegations regarding treatment of workers on Irish fishing trawlers, which was chaired by my colleague the Minister for Agriculture, Food and the Marine. Arising out of the conclusion of the Taskforce’s work, an atypical work permission scheme was introduced for non-EEA fishermen working on Irish fishing vessels. The scheme is administered by the Department of Justice and Equality and the Irish National Immigration Service (INIS) on behalf of the Department of Agriculture, Food and the Marine.
A number of agencies and organisations are involved in the monitoring and enforcement of the scheme and have signed up to a Memorandum of Understanding (MOU) in order to provide a rigorous and effective inspection system. They include An Garda Síochána, Bord Iascaigh Mhara, INIS, the Marine Survey Office of the Department of Tourism, Transport and Sport, the Naval Service, the Health and Safety Authority, the Revenue Commissioners, the Sea Fisheries Protection Authority, the Workplace Relations Commission (WRC) and the Department of Agriculture, Food and the Marine.
The WRC’s responsibilities relate to the enforcement of the Employment Permits Acts and employment rights legislation including minimum wage legislation. The Marine Survey Office in the Department of Tourism, Transport and Sport is responsible for enforcing legislation relating to the rest periods and maximum working time of seafarers and fishing vessel crews.
By the end of 2016, the Inspectorate and Enforcement Division of the Workplace Relations Commission (WRC) had inspected two-thirds of the fleet that comes within the aegis of the Atypical Worker Permission Scheme and the remainder will be inspected by Summer of this year. Case files relating to all vessels will remain open until such time as WRC inspectors are satisfied that compliance has been achieved.
- 157 contraventions were detected in 2016 including
- 28 instances of illegal workers
- 58 records contraventions
- 12 contraventions of the Atypical Scheme
- 59 other employment rights contraventions
2 prosecutions have to date been initiated. The WRC's objective is to facilitate voluntary compliance insofar as contraventions notified are concerned. In this regard, Employers/Vessel Owners are afforded all reasonable opportunity to rectify contraventions and, where relevant, pay any unpaid wages and/or make good on entitlements arising from these contraventions. However, it is the policy of the WRC to issue Compliance Notices or Fixed Payment Notices and/or to initiate legal proceedings in cases where an Employer/Vessel Owner has failed or is unwilling to effect compliance.
The WRC informs me that it is committed to engaging with all stakeholders, including employee/fisher and employer/vessel owner representatives, with a view to facilitating awareness, and effective enforcement, of employment rights legislation.
The Health and Safety Authority (HSA), as part of its broader national remit also undertakes inspections of fishing vessels as these are defined as workplaces under health and safety legislation. In 2016 the HSA carried out 23 inspections of fishing vessels under the Safety, Health and Welfare at Work Act 2005. Planned actions in the HSA's Programme of Work for 2017 include 50 inspections of fishing vessels and continued support for the memorandum of understanding agreed by relevant state enforcement bodies to provide an effective inspection system for the sector.
Brendan Griffin (Kerry, Fine Gael)
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427. To ask the Minister for Jobs, Enterprise and Innovation her plans to abolish the mandatory retirement age; if she will set out the current situation and anticipated changes; and if she will make a statement on the matter. [9387/17]
Pat Breen (Clare, Fine Gael)
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Apart from public sector employees, where certain statutory retirement ages may apply, there is no statutory retirement age for employees in Irish legislation. A contract of employment will generally contain a retirement age but this is a matter of contract between the parties.
The upper age limit for bringing claims under the Unfair Dismissals Acts was removed by a provision in the Equality Act 2004. It is now the case that a person of any age, when dismissed, may take a case under the Unfair Dismissals Acts unless she or he has reached the “normal retiring age for employees of the same employer in similar employment”, if one exists. In such circumstances, the burden of proof is on the employer to prove the normal retiring age. Furthermore, the upper age limit of 66 years for receipt of statutory redundancy payments was removed by the Protection of Employment (Exceptional Collective Redundancies and Related Matters) Act 2007.
As the issue that arises around compulsory retirement at a given age is whether this entails discrimination on age grounds, the more usual avenue of redress for employees compulsorily retired is to take a claim, under the Employment Equality Acts, to the Workplace Relations Commission. Responsibility for employment equality legislation rests with the Minister for Justice and Equality.
The Deputy may be aware that an Inter-departmental Group (IDG), chaired by the Department of Public Expenditure and Reform (DPER), was established by the Government in 2016 to consider policy around retirement age in both the public and private sectors.
The Report recorded that the recently enacted Equality (Miscellaneous Provisions) Act, 2015 amends Irish equality legislation to bring it into line with the judgments of the CJEU interpreting the relevant provisions in EU Directives, as follows:
Section 34 of the Act of 1998 is amended by the substitution of the following subsection for subsection (4):
"(4) Without prejudice to subsection (3), it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsorily) of employees or any class or description of employees if—
(a) it is objectively and reasonably justified by a legitimate aim, and
(b) the means of achieving that aim are appropriate and necessary.".
The amended legislation sets out the grounds on which employers will have to justify the setting of particular retirement ages, such grounds being underpinned by the provisions of the Employment Equality Directive.
The Report points to examples of objective justification including:
- To create opportunities in the labour market for those looking for work
- To encourage recruitment and promotion of young people and prevent possible disputes on the fitness of employees to work beyond a certain age
- To ensure better distribution of work between the generations
- To ensure quality of service provision and address an age imbalance within a workforce
- To ensure motivation and dynamism through the increased prospect of promotion due to senior staff being retired.
The IDG made a number of recommendations, one of which related to my specific area of responsibility. On foot of that recommendation I wrote to the Workplace Relations Commission (WRC) to request them to prepare a Code of Practice under Section 42 of the Industrial Relations Act 1990 around the issue of working longer, which should set out best industrial relations practice in managing the engagement between employers and employees in the run up to retirement, including requests to work beyond what would be considered the normal retirement age in the employment concerned. The WRC has commenced work on preparing the Code, in consultation with relevant stakeholders.
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