Job to enforce law

Employment rights will be high on the agenda at the next round of pay talks as existing labour laws are more tightly enforced, writes Gerald Flynn

IT was no accident that the announcement of increased staff to monitor compliance with employment legislation was made on the same afternoon last week as the public service benchmarking report was published. Employment rights are the "mood music" for the next round of pay negotiations due to start within six weeks.

Tighter enforcement of labour laws is the latest "big issue" - like the affordable housing, workplace partnership and extensive childcare facilities pledged in earlier wage agreements, not yet quite delivered.

Eighteen months ago the social partners emerged from a protracted series of encounters to produce a 10-year social development plan called Towards 2016, which encompassed a 27-month pay deal.

The entire process was initially jeopardised by the controversial plans of Irish Ferries to replace nearly 500 ferry crew members with lower-paid migrant workers through an imaginative redundancy scheme.

The partnership negotiations only got into serious session five months later and, by the time they concluded in late June 2006, it had taken longer than the negotiation of the Versailles Treaty in 1919 which remapped most of post-Imperial Europe.

Within the next few weeks, largely the same social partners will be back for renewed pay negotiations. But first they will be looking back at what was agreed in 2006.

Key to the 140-page Towards 2016 is an entire section on employment rights and compliance. This was in response to demands, led by Siptu, for increased enforcement of basic employment entitlements such as paid holidays, minimum wage rates and protection of agency or sub-contracted workers.

A series of union-inspired exposés of exploitation, in the wake of the Gama manipulation of migrant Turkish construction workers, played to the unions' agenda amid calls for protection against "the race to the bottom".

Macro-economic arguments were presented that immigration had neither reduced employment standards nor deprived Irish people of decent employment opportunities.

But economists do not sit on the seats of dumpers shifting concrete; share a bedroom with up to six compatriots; or pick and pack mushrooms for up to 10 hours a day.

And a research paper from the ESRI last month estimated that non-Anglophone, central European, female migrant workers earn about 30 per cent less than their Irish counterparts.

There is plenty of evidence from those working with vulnerable migrants that some disreputable employers are abusing foreign workers, whether in their homes as domestic servants or in sweatshop conditions where they hire labour from a growing number of unregulated recruitment agencies.

The social partners, somewhat reluctantly, eventually agreed to set up a new Office of the Director of Employment Rights Compliance (ODERC) roughly similar to the Office of the Director of Corporate Enforcement which keeps an eye on unscrupulous directors of limited companies.

At that stage, in mid-2006, the effective number of labour inspectors operating throughout the State was just 14 for a workforce exceeding two million - roughly one for every 120,000 employees.

The pledge was that there would be 90 labour inspectors operating for the new ODERC by the end of 2007.

That has not quite happened. The new office, set up last February on an interim basis, is called the slightly less off-putting National Employment Rights Authority (NERA) and it is led by the energetic, former taxi regulator, Ger Deering.

By the end of 2007 it had 50 labour inspectors and 32 more expected to join their ranks this month followed by eight more foreign nationals with language skills.

Initially junior civil servants were reluctant to have many of the positions opened to "outsiders" but eventually conceded one in nine vacancies.

In some respects this is a reaction to the embarrassing situation which arose in the Gama case when the Minister for Enterprise, Trade and Employment, Micheál Martin was prevented, following legal action, from publishing the labour inspector's report into employment practices in the Turkish group's Irish subsidiary.

The real sting in NERA is not that fines for breaches of employment legislation will be increased to a ceiling of €250,000 but that it will have scope to team up with inspectors and investigators from the Revenue Commissioners and the Department of Social Welfare.

Unscrupulous or exploitative employers who fail to keep details of their employees' payments or issue pay slips; operate rosters exceeding 48 hours a week; ignore health and safety; breach minimum pay rates or charge excessive "accommodation and travel levies" may not be compliant when it also comes to VAT returns, PRSI contributions and income tax issues.

In a special deal, the TEEU electricians' union secured a section guaranteeing them legislation, also promised to be published in 2007, to strengthen inspections and compliance with the registered employment agreements in the electrical contracting sector.

Not all of the deadlines have been met. The Employment Law Compliance Bill, the anticipated Employment Agencies Regulation Bill and the Protection of Employment (Exceptional Collective Redundancies and Related Matters) Act 2007, have yet to be published or have real effect.

The last-mentioned piece of legislation is a direct response to Irish Ferries' wholesale replacement of its crews and associated de-unionisation as its crews are now lower-paid, mainly Eastern Europeans employed through a Cypriot agency.

The entire result is that employment rights are becoming much more a legalistic issue rather than being based on social or market norms, or on agreements reached with employee representatives, usually in the form of trades unions.

Last April, a confident Minister responded to Dáil questions that: "Sanction has been secured from the Department of Finance for an additional 59 labour inspectors. The necessary arrangements and selection process for the recruitment of the remaining inspectors are well advanced including the recruitment of ten labour inspectors with specialist language skills.

"To date, seven new inspectors have been appointed and the process is well on target to meet the commitment in Towards 2016 of having 90 inspectors in place by the end of 2007."

They had got as far as 50 inspectors by the end of the year with a total staff of 95 and another 30 to 40 vacancies due to be filled early this year while the core draft legislation may be circulated by the end of January or in February.

This is going to put more strain on state agencies like the Employment Appeals Tribunal, Rights Commissioner service and the Labour Court, all of which will be entitled to award up to two years' earnings to compensate claimants for their financial loss due to breaches of employment legislation.

In many respects, these rushed reforms are making up for a laissez-faire approach over the past 15 years which culminated in exploitation as soon as plentiful migrant labour became available to what some rather coyly call "rogue employers".

Gerald Flynn is an employment specialist with Align Management Solutions in Dublin.

gflynn@alignmanagement.net