19 November 2015
By Bryan T. Smyth
bryan@TheCork.ie
Cork’s only senior Minister is Carrigaline based Simon Coveney TD. He serves as Minister for Agriculture, Food and the Marine. Minister Coveney has welcomed agreement reached at today’s Task Force meeting on a new system for migrant workers in the fishing industry.
The Minister, who also chaired the Task Force, provided details of the new arrangements which have been agreed. The Government Task Force was set up to address the situation of non EEA workers in the Irish Fishing Fleet.
Welcoming the Inter Departmental agreement, Minister Coveney said ‘these new arrangements which have come about as a result of the cross Departmental Task Force, which I have chaired over the past 3 weeks. The Task Force has worked rapidly to examine potential solutions which will bring about a significantly improved situation for non EEA workers in the Irish fishing industry. It will see Ireland addressing what is essentially a global phenomenon. The new scheme will, I believe, greatly reduce the possibilities for the abuse of migrant works by unscrupulous employers. It will also provide a mechanism to assist those currently in Ireland, who are in difficult situations, to enter a new employment relationship. It will also help to improve the situation for Ireland’s operators in the fishing industry whose reputation may have been damaged by these allegations, due to the widespread coverage of the matter’.
The Minister said ‘the new scheme will allow this valuable Irish industry meet its necessary labour needs while simultaneously allowing a structured transparent scheme whereby non EU workers can be recruited. These workers will be guaranteed all appropriate employment rights and protections during the period of their employment’.
Minister of State for Business and Employment, Ged Nash, who also participated in the Task Force, commented ‘I want to commend everyone on the Taskforce who have responded with great alacrity to the widespread concerns relating to exploitation of vulnerable migrant workers in a section of the fishing industry. What we have now is a new scheme to assist non EEA workers who are already operating on Irish vessels and a process to fill vacancies on licensed trawlers that is robust and fair. The new system introduces clear contracts and minimum pay, terms and conditions which are enforceable in Irish and EU law. In other words these fishermen will now enjoy the same protections as apply to every other worker in Ireland.”
Among the main provisions of the new scheme are:
- · A new system of atypical worker permission to be put in place for recruitment of non EEA workers in the future.
- · The scheme will provide that during the first 3 months after its commencement, permissions will be limited to those non-EEA workers already operating in Ireland on fishing vessels.
- · Cross-sectoral pre clearance system ensuring a comprehensive legally binding contract of employment to be put in place.
- · Employers (who must be a licensed vessel owner) are to be responsible for ensuring that a valid contract of employment, certified by a Solicitor and drafted in accordance with National and EU employment rights legislation, is in place for all workers to also include repatriation arrangements.
- · A Memorandum of Understanding (MOU) is to be put in place by relevant State enforcement bodies to provide a rigorous and effective inspection system and the MOU will be in place before the commencement of the scheme.
- · State to set up a depository of contracts and monitor overall level of contracts which will be capped at a maximum of 500.
- · Employees will be guaranteed the national minimum wage, will be repatriated at the conclusion of the contract and will have in place health insurance for the employee for the duration of the contract.
Commenting following the third meeting of the task force which took place today (19 November) Minister Coveney stated, ‘The full report of the task force is currently being finalised and it is my intention to bring it to Government prior to publication in the coming weeks’.
Minister Coveney concluded that ‘ The agreement reached today represents a major step forward for the Irish fishing industry and for non EEA workers being employed in the industry. Appropriate flexibility will exist under the scheme for these employees to be recruited, but this can only be done in a clear regulated manner which ensures all relevant standards and protections for the employees’.
Details of the new scheme are set out in the attached appendix.
Among those who have made presentations to the Task Force were:
- § Migrant Rights Centre Ireland (MRCI)
- § International Transport Workers Federation (ITF)
- § Fisheries Producer Organisations (Killybegs Fishermen’s Organisation, Irish Fish Producers Organisation. Irish South & West Fish Producers Organisation and Irish South & East Fish Producers Organisation).
Appendix 1: Planned scheme for employment of non-EEA crewmen in parts of the Irish commercial Sea Fishing Fleet
The following Scheme will provide, in a structured and transparent manner, for the granting of up to 500 atypical worker permissions to non-EEA crewmen to work under a contract of employment with the vessel owner so as to guarantee the worker certain minimum terms and conditions of employment.
Principles of scheme
1. The scheme will permit the employment of a maximum of 500 non-EEA workers at any given time as crew on licensed and registered sea-fishing boats in part of the Irish registered fishing fleet. The number of permissions in place at any time will be capped at this number.
2. The scheme will provide that during the first 3 months after the commencement of the scheme, the granting of permissions will be limited to non-EEA crew already operating in Ireland on fishing vessels. Subsequent to this period, new applications may be processed involving new crew coming from non-EEA countries.
3. For all Irish registered fishing vessels, at least 50 per cent of the members of the crew must be nationals of any of the Member States of the European Union.
4. The scheme will apply only to crew for licensed and registered fishing vessels in the Polyvalent, Beamer and Specific segments of the Irish sea-fishing fleet for vessels above 15m in length overall.
5. All crew from non-EEA countries must be employed directly by a sea-fishing boat licence holder under a written contract of employment for duration of 12 months. The minimum conditions of employment under the contract will be set out as a condition of the granting of an Atypical Worker Permission. Additional remuneration or additional more favourable conditions may form part of the contract, once they do not reduce the minimum statutory entitlements of the employee.
6. All Licence holders (employers) must comply with any requirements, for the time being in force, under EU Law and National Law applicable to employees working under the atypical worker permission including the particulars required under the Terms of Employment (Information) Act 1994 and, in particular, the National Minimum Wage Acts, 2000 and 2015 as regards rates of pay[1], the European Communities (Workers on Board Sea-Going Fishing Vessels) (Organisation of Working Time) Regulations 2003 (S.I. No. 709/2003) as regards maximum hours of work and minimum hours of rest for workers on board sea-going fishing vessels[2] and records to be kept of their hours of work or rest, and annual leave in accordance with the Organisation of Working Time Act, 1997[3].
7. The contract shall make provision for repatriation at the expense of the employer of the crew member on ending of the contract.
8. A contract of employment must commit to payment of annual wages of not less than the National Minimum Wage (PAYE and PRSI) based on 39 hours per week for 52 weeks[4] and must provide for the payment of pro-rata wages, at least monthly, including during periods of boat tie-up.
9. Prior to an application for an Atypical Worker Permission by the Applicant crewman, a Solicitor, acting on behalf of the licence holder (employer), must submit to the Department of Agriculture, Food & the Marine, as the Central Depository, the contract of employment, including supporting documentation, and supply a certificate confirming that it meets all the conditions of the scheme and is legally valid and enforceable in the State. The Central Depository will provide formal confirmation that the application and required documentation has been received and that the application falls within the quota number set for the scheme. This documentation will support the application to the Irish authorities for a visa, if required. Each contract will be centrally registered and uniquely numbered. Application for an Atypical Worker Permission will only be made when the procedures relating to the contract have been completed (as set out in the pre-approval application and contract sections below).
10. On commencement of the employment of the crew member in the State, a certificate that the employment has commenced must be provided by the solicitor acting on behalf of the licence holder (employer) within 10 days of such commencement to the Central Depository. Where a visa or immigration permission is not granted by the Irish authorities or the potential crew member decides not to proceed with the employment, a formal notification of same must be provided within 10 days by the solicitor acting for the employer to the Central Depository.
11. All documentation, including where appropriate a visa or an immigration permission, must be made available by the employee for inspection at point of entry to the State and a copy of all documentation must be carried by the crew member at all times within the State, including when on board the fishing vessel, to facilitate inspections.
12. A crew member, who is the holder of an atypical worker permission, may, subject to minimum statutory notice enter a new contract of employment with a separate licence holder (employer). Any such change of employment is subject to the same conditions as set out for any new Atypical Worker Permission (contract of employment, certification by solicitor for the employer that conditions of permission are met). Where the contract ends prematurely, the employer must notify the Irish Naturalisation and Immigration Service without delay.
13. A crew member whose contract with a licence holder (employer) ends and no new contract is available must be repatriated by the most recent licence holder (employer).
14. The Central Depository will prepare a rolling list based on confirmation received from the Irish Naturalisation and Immigration Service of all approved Atypical Worker Permissions in place giving details of the licence holder (employer), the fishing boat to which the crew member is assigned, crew member name, passport and immigration permission details. This information will be made available to the State inspection agencies to support inspection.
15. Where the contract is breached by the licence holder (employer), no further Atypical Worker Permission will be made available to the licence holder (employer). In such cases, the licence holder (employer) is responsible for repatriation of the employee (crew member) where no new contract has been secured by the employee (crew member).
16. The Atypical Worker Permission will be removed/invalidated where the contract is breached by the employee (crew member) and no further Atypical Worker Permission will be granted to that person. In such cases, the licence holder (employer) is responsible for repatriation of the employee (crew member).
17. Where the atypical worker is applying from outside the State and is from a visa required country their visa application will only be made after they have received their Atypical Worker Permission. A copy of their permission must be included in their visa application (in the same way as an employment permit holder would submit his/her permit when applying for a visa).
Pre-approval application
Certification is required from a Solicitor, acting on behalf of the licence holder (employee) to the Central Depository as part of the pre-approval application process that the terms of the scheme have been met and specifically that:-
A. A copy of the contract of employment between the Licence holder (employer) in respect of a named vessel or vessels and the non-EEA crewperson for employment is in place that meets in all aspects the pre-conditions for the scheme. A copy of contract accompanying the certification to be submitted to the Central Depository.
B. The applicant is the owner of the currently licensed and registered sea-fishing vessel or vessels which are the subject of the contract. A copy of the current Sea-fishing Boat Licence(s) for the relevant vessel(s) to be provided to the Central Depository.
C. A statement from the licence holder (employer) that he/she will the enrol the crew member into the BIM safety training scheme and that the training will be completed in advance of the crew member commencing employment on the fishing vessel.
D. A statement from vessel licence holder (employer) that at least 50 per cent of the members of the crew of the vessel or vessels in question are nationals of any of the Member States of the European Union at all times.
E. Evidence from the solicitor acting on behalf of the licence holder (employer) of the employee’s (crew member) previous employment and/or relevant qualification as an experienced fisherman in his/her country of origin.
F. In the case of non-EEA crew members applying during the first three months of the scheme, evidence of previous work on licensed and registered Irish fishing vessels before 1st November 2015 will be required.
Where a contract is being renewed, the Solicitor acting on behalf of the licence holder (employer) must certify that the new contract fulfils the terms of the scheme. The Solicitor must submit certification of same to the Central Depository and supply a copy of the documents at A and B above before any such renewal of the contract is valid.
In the event that a crew member (employee) changes licence holder (employer) during the period of the contract, the solicitor acting on behalf of that employer, must submit a statement to the Central Depository specifying the termination of the original contract. A solicitor acting on behalf of the new licence holder (employer) must submit a new certification (with documents at A and B above) in respect of a new contract with a new licence holder.
Contract template (minimum conditions)
· Contract must be for 12 months and may be renewed for periods of 12 months on basis of conditions of the scheme.
· Contract must be between a licence holder (employer) and employee (crew member) in respect of a named registered and licensed sea-fishing boat or boats.
· A contract of employment must commit to the conditions set out in paragraphs 5-8 of this document
· Health insurance from a health insurer, registered with the Health Insurance Authority, to provide primary and secondary care access for the employee must be provided at the expense of the employer.
· All appropriate training required for the position must be provided in advance, including safety training for crew.
· Where the licence holder (employer) owns more than one vessel, the contract of employment may provide for employment on any of these vessels, as named in the contract.
Other Immigration Requirements
Atypical workers in common with other persons who have immigration permissions in excess of 3 months duration are required to register with the Garda National Immigration Bureau, if based in the Dublin metropolitan region, or their local registration office (i.e. Garda District Station). Annual registration costs €300. This is in addition to the Atypical worker permission cost of €250.
Monitoring and Enforcement
The task force is also recommending that the role of the relevant key enforcement bodies such as the Naval Service (NS), Marine Survey Office (MSO), Health and Safety Authority (HSA). Sea Fisheries Protection Authority (SFPA), the Workplace Relations Commission (WRC) and the Revenue Commissioners will be underpinned by an inter agency Memorandum of Understanding (MOU) specifically for this purpose.
The MOU will be in place in advance of this scheme being implemented.
