Working without a work permit - no legal protection if exploited

Carawaystick

The Indo has a report of acase where a Pakistani man who was worked 7days a week for a piittance was found to have no right to compensation or have any employment rights as he had no work permit

The hc judge wrote ( or is going to write to) the Ceann Comhairle to hilight the issue

http://www.independent.ie/national-news/courts/award-of-92k-to-pakistani-chef-quashed-by-high-court-3216189.html

Procrastastudy

Whether or not one agrees that the exploited party is due compensation in this matter I certainly think the owner should have been hit hard where it hurts - in the pocket.

EDIT: To clarify I'm not doubting the legalities of the Judgment.

mitosis

In my opinion the judgement was correct. I do not, however, believe the exploiter should be able to walk away - there must be other legislation under which he can be prosecuted.

ResearchWill

mitosis wrote: »

In my opinion the judgement was correct. I do not, however, believe the exploiter should be able to walk away - there must be other legislation under which he can be prosecuted.

There is the Employment Permits Act 2003 - 2006


(3) A person who contravenes subsection (1) or (2) shall be guilty of an offence and shall be liable—
(a) on summary conviction, to a fine not exceeding €3,000 or imprisonment for a term not exceeding 12 months or both, or

(b) if the offence is an offence consisting of a contravention of subsection (2), on conviction on indictment, to a fine not exceeding €250,000 or imprisonment for a term not exceeding 10 years or both.

http://www.irishstatutebook.ie/2003/en/act/pub/0007/index.html

http://www.djei.ie/publications/labour/2006/emppermitsact2006.pdf

dermot_sheehan

ResearchWill wrote: »

mitosis wrote: »

In my opinion the judgement was correct. I do not, however, believe the exploiter should be able to walk away - there must be other legislation under which he can be prosecuted.

There is the Employment Permits Act 2003 - 2006


(3) A person who contravenes subsection (1) or (2) shall be guilty of an offence and shall be liable—
(a) on summary conviction, to a fine not exceeding €3,000 or imprisonment for a term not exceeding 12 months or both, or

(b) if the offence is an offence consisting of a contravention of subsection (2), on conviction on indictment, to a fine not exceeding €250,000 or imprisonment for a term not exceeding 10 years or both.

http://www.irishstatutebook.ie/2003/en/act/pub/0007/index.html

http://www.djei.ie/publications/labour/2006/emppermitsact2006.pdf

http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/3f2a0cfdd0d10ccd80257a6b004e2e1b?OpenDocument

ResearchWill

dermot_sheehan wrote: »

http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/3f2a0cfdd0d10ccd80257a6b004e2e1b?OpenDocument

While Hogan's judgement deals with section 2 (4) of the 2003 Act in showing the unfair balance in that Act, it does not say a prosecution could not have been taken against the employer.

The question asked was could anything be done to the Employer, that is the question I answered.

I would also wonder on the constitutionality of section 2 (4), considering for one side of the illegal act there is a defence and the other side it is strict liability.

MadsL

Can this loophole be retrospectively plugged so that this worker can get paid?

the_syco

MadsL wrote: »

Can this loophole be retrospectively plugged so that this worker can get paid?

So that more would come to work illegally here, knowing that when they leave they can bring the employer to court for lots of money?

I doubt it.

krd

mitosis wrote: »

In my opinion the judgement was correct. I do not, however, believe the exploiter should be able to walk away - there must be other legislation under which he can be prosecuted.

The law looks heavily weighted in favour of the employer. (It has a whiff of Fianna Fail dodgyness about it.)

(4) It shall be a defence for a person charged with an offence under subsection (3) consisting of a contravention of subsection (2) to show that he or she took all such steps as were reasonably open to him or her to ensure compliance with subsection (2).

It really leaves the door open for terrible exploitation.

I was talking to some Pakistani guys I know the other night - not about this case but about the work Visas - they were telling me there's been some changes. Something covering the hours they're allowed work.

But, I do know that there were many non-nationals on Visas that limited their work hours. The reality was that their employers - I know a few shops and what they're doing - they have the non-nationals working as many hours as they can get them to.

It would seem to me, though I can't really tell, that if a non-national working on a visa that restricts their hours, if their employer forces them to work longer hours without pay, then the non-national has no comeback.

If the employer can plead they did their best and were unaware that their employee was a scoundrel in violation of the terms of their work permit.

I knew one supermarket in Dublin, who in 2005, were paying Polish workers well below the minimum wage and getting them to work longer hours. And generally abusing them. The Polish workers were fully legally entitled to work, but they were a long way from home, and afraid of kicking a fuss up.

Just doing a Google search - apparently there isn't any law here against forced or slave labour.

I don't know the situation now, but I did know of places in Ireland were non-nationals were being as exploited as badly as the those workers who earned the Irish travellers in England a jail term.

ResearchWill

krd wrote: »

The law looks heavily weighted in favour of the employer. (It has a whiff of Fianna Fail dodgyness about it.)

(4) It shall be a defence for a person charged with an offence under subsection (3) consisting of a contravention of subsection (2) to show that he or she took all such steps as were reasonably open to him or her to ensure compliance with subsection (2).

It really leaves the door open for terrible exploitation.

I was talking to some Pakistani guys I know the other night - not about this case but about the work Visas - they were telling me there's been some changes. Something covering the hours they're allowed work.

But, I do know that there were many non-nationals on Visas that limited their work hours. The reality was that their employers - I know a few shops and what they're doing - they have the non-nationals working as many hours as they can get them to.

It would seem to me, though I can't really tell, that if a non-national working on a visa that restricts their hours, if their employer forces them to work longer hours without pay, then the non-national has no comeback.

If the employer can plead they did their best and were unaware that their employee was a scoundrel in violation of the terms of their work permit.

I knew one supermarket in Dublin, who in 2005, were paying Polish workers well below the minimum wage and getting them to work longer hours. And generally abusing them. The Polish workers were fully legally entitled to work, but they were a long way from home, and afraid of kicking a fuss up.

Just doing a Google search - apparently there isn't any law here against forced or slave labour.

I don't know the situation now, but I did know of places in Ireland were non-nationals were being as exploited as badly as the those workers who earned the Irish travellers in England a jail term.

Your friends or on Stamp 2 Student Visas, restricted to 20 hours work per week during term, 40 hours per week out of term. The change is that timed out students, that is students here pre Jan 1st 2005 (stamp 2 can only be received for 7 years) can get a 2 year stamp 2 with 40 hours work per week and no need to study. After that 2 years they may get stamp 4.

As stamp 2 students are not on a stamp 1 the working permits legislation would not I believe apply to them. So I'm not sure they would be in the same position.

IrishAm

How many labour inspectors are in Ireland? After issuing a work permit to a non EU national, should they not be paying an annual visit to his or her workplace and making sure all is above board and running smoothly ? Another question, his employer/cousin confiscated his passport, is that not a criminal act? Is a Pakistani passport not the property of the relevant Pakistani authorities/Pakistani Department of Affairs?

F*cking horrible case and a lot of blame lies at the feet of the Irish state. I dare say this lad is not the only such victim. Tip of the iceberg stuff.

MadsL

the_syco wrote: »

So that more would come to work illegally here, knowing that when they leave they can bring the employer to court for lots of money?

I doubt it.

Sorry what??? The guy was legal, his employer failed to renew his work permit making him illegal. He came to work legally.

Why are you shaping the facts of this case to fit your own prejudices?

the_syco

the_syco wrote: »

MadsL wrote: »

Can this loophole be retrospectively plugged so that this worker can get paid?

So that more would come to work illegally here, knowing that when they leave they can bring the employer to court for lots of money?

I doubt it.

MadsL wrote: »

Why are you shaping the facts of this case to fit your own prejudices?

I was responding to the way that I doubt that the gombeans in charge will do anything that may come back to haunt them in the future.

MadsL wrote: »

Sorry what??? The guy was legal, his employer failed to renew his work permit making him illegal. He came to work legally.

One thing I'm confused about is that he came with a one year work permit; did he just assume naively that his cousin would sort everything out since 2003? If he was an illegal, I'd understand not wanting to be noticed by the authorities, but since he was legal, I do not understand why he didn't look for help outside of his workplace.

ABajaninCork

As I understand it, the gentleman speaks no English. Perhaps he relied on his cousin to do the paperwork. And I doubt his cousin would've pointed him in the right direction.

ResearchWill

the_syco wrote: »

I was responding to the way that I doubt that the gombeans in charge will do anything that may come back to haunt them in the future.



One thing I'm confused about is that he came with a one year work permit; did he just assume naively that his cousin would sort everything out since 2003? If he was an illegal, I'd understand not wanting to be noticed by the authorities, but since he was legal, I do not understand why he didn't look for help outside of his workplace.

Work permits are usually annual, he would have had a stamp one indorsed in his passport, and then at that time his employees would have received a work permit. That work permit would only allow the person to work for the said employer. Add to that the fact they are related, the employee is working so much he has no time to learn English and you end up in a situation of abuse.

Many educated people as shown here do not understand the Irish immigration system, the amount of misinformation on this and other forum is amazing, so how is a person in such a position supposed to understand the Irish system.

Hogan did the right thing he has shown up a serious issue with the Irish immigration system, but I can bet the Irish Dail will not fix the issue it's too much of a problem.

krd

ResearchWill wrote: »

Your friends or on Stamp 2 Student Visas, restricted to 20 hours work per week during term, 40 hours per week out of term. The change is that timed out students, that is students here pre Jan 1st 2005 (stamp 2 can only be received for 7 years) can get a 2 year stamp 2 with 40 hours work per week and no need to study. After that 2 years they may get stamp 4.

As stamp 2 students are not on a stamp 1 the working permits legislation would not I believe apply to them. So I'm not sure they would be in the same position.

Yeah, that sounds like what they were talking about. It was one of these quick conversations with about 5 nationalities joining in.

Over the years I've known a good few non-nationals. Eastern Europeans were exploited a lot - not so much now. But Asians are still getting it. Something like they may be in retail - in management - but they're only getting minimum wage.

I'm not going to turn the guys in, but I know a few who do work well over the 40 hours - and sometimes extremely over the 40 hours. And talking to some of the guys, they say it may be bad but nowhere near as bad as life was for them in *********.