Rising to the Occasion? Trade Union Revitalisation and Migrant Workers in Ireland

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4.4. Politico - legal context

With no history of immigration to Ireland, little consideration was given to the development of a formal immigration policy. As the economy burgeoned and immigration developed at an ever increasing rate in the latter half of the 1990s “the country was faced with the difficulties of constructing immigration and integration policies against a background of a rapidly changing picture, limited experience, a less than positive attitude towards difference and a largely mono-cultural tradition” (Mac Éinrí 2005: 91). The prevailing official attitude towards immigrants, or ‘aliens’ as was the term generally employed, was one of caution, if not outright opposition (Mac Éinrí 2005).
At this early stage, the claim was made by the Irish Government that Ireland had “the most open economic migration system in Europe” (DJELR 2005 in IOM 2006) Indeed, there was some truth in this claim in that the immigration regime was entirely market-led and employer-driven, and thus had the facility to respond quickly to the labour demands of the rapidly growing economy. The onus was on employers to show that a particular individual or group of individuals was required and that no European Economic Area (EEA) persons were available and willing to do the job. Few restrictions were imposed on employers other than this ‘labour market test’, aimed at encouraging them to make efforts to fill existing vacancies with EEA workers before looking to employ non-EEA workers. The test required that vacancies be advertised with FÁS for a period of four weeks and be advertised in a local or national newspaper for a period of three days. It seems clear that this test was not always rigorously applied. In 2002 FÁS carried out a comparative analysis of the data on the potential labour supply, vacancies notified with FÁS, and work permits issued across the various occupations. The striking finding of this analysis was that the majority of work permits issued in that year had been issued for work in unskilled occupations for which there appeared to be a sizeable supply of local labour (IOM 2006).
Remarkably, at an earlier stage, when immigration was at miniscule levels the Government, through the relevant department, had consulted with trade unions with regard to labour market need:
I remember in the 1980s we used to get these exotic things in from the Department of Labour, a request for our opinion of a work permit application for somebody coming to work in a factory in Kildare or whatever. But, by the time migration became much more commonplace, either the original practice was just extreme courtesy to the trade union movement or else it had been completely revisited and revised and ditched. By the time immigrants were coming in numbers, there was no consultation whatsoever (Interview, Former SIPTU Regional Secretary, 2013).
In addition, until changes in policy introduced in 2005, large numbers of foreign students were able to come to Ireland to take advantage of opportunities to work part-time in low paid jobs with very little regulation of the education sector. Unlike most other countries of immigration, Ireland did not have any formal quota-based immigration policy with country quotas or special category immigration visas (with some exceptions). Ultimately, this market-led, administratively light policy was to prove inadequate to deal with the dramatic changes in labour market supply and demand which led to some well-publicised, and some less well-publicised, cases of exploitation (Mac Éinrí 2005; 2008)
Up to the mid 2000’s the core legislation covering the entry and residence of non-EEA workers and residents in Ireland continued to be the Aliens Act 1935 and the Aliens Order 1946, as amended. These ‘draconian provisions’ (Mac Éinrí 2008), reflected their origins in First World War British legislation, having been adopted at a time when all foreigners were regarded with suspicion. Also, wide-ranging and discretionary powers concerning immigration were conferred upon the Minister of the day, who could take decisions without explanation and without appeal. Following Ireland’s admission to the EEC in 1973, the regulations implementing the European Union Rights of Residence Directives came into effect (Joyce et al. 2008; Mac Éinrí, 2008). Other than this, much of Irish immigration policy was conducted by ad hoc ministerial orders, statutory instructions and confidential rules and procedures, resulting in parliamentary scrutiny rarely taking place, and civil society having little opportunity to engage with, or exert influence on, policy development. It is, however, the case that all of the employment rights legislation on the Irish statute books applied equally to migrant workers as to Irish workers. All workers, be they Irish, members of the EU or non-EU citizens are and were entitled to the same protection under Irish labour law and the laws covering equality and non-discrimination.
In 1994 legislation had been introduced under the Terms of Employment (Information) Act to establish the initial work permit scheme which was effectively a response to employer demand and involved minimal Government intervention (Ruhs 2005). Then in response to growing political pressure and an evident requirement a variety of legislative measures was introduced from the late 1990s. These included the Refugee Act 1996; the Immigration Acts 1999, 2003 and 2004; the Illegal Immigrants (Trafficking) Act 2000; and the Employment Permits Acts 2003 and 2006. But while there were these legislative measures, it has been argued that the development of Irish immigration and asylum policy to the present time has been piecemeal, reacting to specific problems as they arise, rather than developing in a coordinated and consistent manner. For example, while a number of different government departments were involved in regulating the admission and employment of migrant labour, there was no permanent interdepartmental committee or working group to co-ordinate the work of these departments (IOM 2006). Allen argues that the basic structure of the Irish migrant labour scheme up to 2003 had developed in “a crude, ad hoc manner to serve employer interests by defining workers primarily as a marketable commodity” (2007: 92). Mac Éinrí (2008) too cited the piecemeal nature of policy changes, the lack of any long-term integration policy, and the public concern regarding well-publicised cases of exploitation as having led to a recognition that a more comprehensive and durable regime was needed. He highlighted issues such as the absence of transparent regulations about questions such as family reunification and the absence of any path to permanence (other than citizenship) in Ireland’s immigration regime.
With the introduction of the Employment Permits Act of 2003, the Irish state adopted a more interventionist approach to labour migration. It introduced greater restrictions with regard to work permits than heretofore while at the same time enabling workers from the new EU member states to freely access the Irish labour market. This approach made it more difficult for Irish employers to obtain work permits for unskilled non-EEA workers, and it also declared jobs in some sectors off-limits to non-EEA workers. Government policy developed on the assumption that, in the future, unskilled job vacancies would be filled by EEA nationals and future non-EEA migrants would be highly skilled. In line with this perception, Ireland adopted one of the most liberal positions of any of its EU counterparts, alongside Sweden, on the entry of workers from Eastern Europe. However, while there was a sharp increase in migration from the accession states, there continued to be a need for workers from outside the EU25 (IOM 2006; Ruhs 2005).
The government also introduced an Habitual Residence Condition for those EU workers who came in after 2004 which meant that they were not entitled to claim social welfare for at least two years from the date of their arrival in Ireland. This was introduced to quell public concerns about welfare abuse and the feared ‘welfare tourism’. However, there were concerns raised that the imposition of such a condition would expose EU migrants to poverty. Fanning points out “the Government used the occasion to remove a range of social security entitlements from new immigrants and their families for an initial two year period” (2007: 21). Amongst these, the Social Welfare Act 2004 removed entitlements to children’s allowances and other non-contributory payments previously available on a universal domiciliary basis for EU citizens’. Some amendments were introduced in 2006 allowing all EEA workers to access child benefit and allowing EEA workers with a record of employment in the State to access supplementary welfare allowances.
Since 1989, under a Supreme Court ruling, “Irish citizen children had the right to the company, care and parentage within a family unit” (Mullally 2007: 27). This meant that immigrant parents had been routinely granted ‘leave to remain’ in Ireland on the basis of the children’s right. Restrictions were imposed on these rights under a further Supreme Court ruling in 2003, leading to widespread confusion and fear among immigrant families affected. In 2004, the government held a citizenship referendum, the result of which removed the automatic right of citizenship for all those born in Ireland in the future and thus removed the right of both children and their parents to remain in the country. A scheme was subsequently introduced which, in effect, regularised the vast majority of parents of Irish-born children who had been left in legal limbo by the 2003 Supreme Court decision.
In 2005, there was a further shift towards a more managed approach to migration. That year saw the creation of the Irish Naturalisation and Immigration Service (INIS), a new ‘one-stop shop’ for applications for entry to the country. Following the accession of Romania and Bulgaria, the Employment Permits Act 2006 was introduced. On foot of this the old dual system of work permits and work visas was replaced by a new system with three main elements – a ‘green card’ scheme; a work-permit scheme; and an intra-company transfer scheme. The legislation liberalised conditions for employees in relation to work permits, specifically allowing the permit to rest with the employee rather than the employer, in an attempt to reduce the potential for employee exploitation. However, it severely limited access to work permits which are now generally only available in exceptional circumstances. The new ‘green card’ regime grants employment permits on more favourable terms to persons who either earn more than €60,000 p.a. or who earn between €30,000 and €59,000 in a category considered to be in short supply.
In April 2007 the government introduced the Immigration, Residence and Protection Bill, which attempted to codify many of the disparate instruments and administrative practices in order to present coherent managed immigration and asylum policies. The Bill fell with the General Election and change of government in June 2007 (Joyce et al. 2008). Following the election of the new Fianna Fáil / Progressive Democrat / Green Party coalition in June 2007, the Government appointed a Minister for State with Special Responsibility for Integration. Commentators welcomed this appointment as an indication of a more focused and positive approach on the part of Government to immigration. However, the post was dropped in a Cabinet reshuffle in 2009 which was seen as evidence of a diminution of Government commitment to the area, particularly as this followed the abolition of the National Consultative Committee on Racism and Interculturalism (NCCRI)22, and significant reductions in funding to the Employment Equality Authority (EEA) in the 2008 budget.
Given its geographical position, and the fact that it is a small island nation, it is not surprising that Ireland did not experience large-scale irregular immigration. However, while there are no statistics on the numbers of migrants with irregular status in the country, irregular working of non–EEA nationals, following legal or illegal immigration, does exist and has been documented (MRCI 2006b, 2007). MRCI estimated that in 2010 there were approximately 30,000 irregular migrants living in Ireland. In very many cases, moving into an irregular situation and becoming undocumented seems to have followed a period when the individual’s position was legal and regularised (MRCI 2007; Hyland 2005). For example, some migrant workers may not have left Ireland after their employment permits expired, other work permit holders may have had to leave exploitative employment and thus became irregular through no fault of their own23. In a study carried out by MRCI, the vast majority of participants, 54 of a sample of 60, entered the country legally on a valid visa. All found themselves at some point with an irregular status (MRCI 2007). In other cases non-EEA students may have chosen to work more than the legally allowed 20 hours per week and there has also been anecdotal evidence that some ‘English language schools’ effectively sold visas to non-EEA nationals without providing any significant education services.
Ireland passed a number of laws aimed at combating irregular immigration, the Immigration Act 1999; the Illegal Immigrants (Trafficking) Act 2000; and the Immigration Act 2003. Together, these laws provided a legal basis for the deportation of immigrants in violation of Ireland’s immigration laws, and financial penalties or imprisonment for employers and workers who did not comply with the Employment Permits Act 2003. In addition, some state benefits were restricted for those in irregular situations (e.g., the payment of rent assistance was restricted in 2003). But, despite the introduction of these measures, there was no evidence of a serious crackdown on employers employing migrant workers in irregular situations. As of February 2005, only three employers had been convicted for violating the Employment Permits Act 2003. The failure to effectively prosecute employers who illegally employed migrant workers was widely agreed to be one of the most important factors leading to irregular immigration and irregular work and, as a potential consequence, to the failure of labour immigration policies. Joyce et al. pointed out that the low number of convictions did not necessarily imply low compliance with the Employment Permits Act but what it did do, was reduce the incentive of employers to comply (Joyce et al. 2008; IOM 2006). An MRCI staff member commented: “Even the MRCI doesn’t condone undocumented immigration but it happens, so there needs to be equally strict penalties applied and enforced against employers who hire undocumented” (Interview, MRCI Officer, 2012).
According to a study cited by Ruhs (2005: 37), the “single most important matchmaker between migrants and employers in Ireland are private recruitment agents”, whose number rose from 329 in 1998, to a peak of 778 in 2001 before falling to 541 in 2003, when they recruited one-third of migrant workers (IOM 2006; Ruhs 2005). According to SIPTU, between 2002 and 2003, there was a 68% increase in temporary agency work placements (SIPTU 2007) while the CSO estimated that approximately 2% of the total workforce in 2005 was employed as temporary agency workers. However, these are only estimates and there is anecdotal evidence to say the proportion is even higher, with some trade union sources suggesting it is likely to be closer to the UK figure of 5% (SIPTU 2007). In Ireland these agencies were regulated under the Employment Agency Act 1971 which was originally enacted mainly to protect Irish emigrants going to the United Kingdom from potential abuses by recruitment agents. Under the Employment Agencies Act of 1971, recruitment agencies must obtain licenses; neither employers nor recruitment agents are allowed to charge workers for jobs or work permits; and both the employer and migrant must sign the work permit application (Ruhs 2005). Agencies must renew their licenses each year at a cost of EUR €500, and face fines of EUR €2,500 for violations. Many of these conditions were routinely being broken by recruitment agencies operating in and into Ireland without prosecution or sanction. Many employment-related complaints from migrant workers referred to experiences with employment agencies. A senior INMO official told of large numbers of recruitment agencies being involved in the early days of nurse recruitment:
When overseas nurses first came to Ireland, there were recruitment agencies which did the work for the hospitals. The experiences these nurses had were very much dependent on the ethics and professionalism of those recruitment companies. In many cases they behaved well but in some cases there were very questionable practices. For instance, the contracts were supposed to start immediately but some people found they weren’t being paid during the six weeks orientation or that premium payments were not being made. And remember they were working in the public service (Interview, INMO Officer, 2013).

There was also a growing concern, particularly within the trade union movement, that the increasing tendency for employers to use temporary agency workers would lead to exploitation of these workers, displacement of directly employed staff and the undermining of standards of employment (Krings, 2007; SIPTU, 2007; MRCI, 2006b; 2007). A former SIPTU organiser told of the particular approach he used to take in trying to identify bad practices within recruitment agencies, particularly those in the construction sector:

These recruitment agencies were springing up all over the place. I used to phone them up and pretend I was looking for a gang of 20 or 30 workers. And when I asked how much they’d offer me them at, it was about half the legal rate. And some of these were big established employment agencies, not just small time cowboys. It was considered fair game (Interview, Former SIPTU National Organiser, 2013).

And so Ireland’s transformation into a country of net immigration obviously raised new issues that needed to be considered in the regulation of employment agencies. In 2005 the Department of Enterprise, Trade and Employment (DETE) instigated a review of the Immigration Act with a view to introducing new legislation which would meet the new needs and provide greater protection for migrant workers coming to Ireland. The new bill was to be introduced before the end of 2005 (DETE 2005b) but had not been introduced by the end of 2007. It was then overtaken by the EU Directive on Temporary Agency Work 2008, which provides that all temporary agency workers must have equal treatment as if they had been directly recruited by the hirer from their first day at work. This was scheduled to come in to effect in 201124. Prior to the transposition of the directive, all union sources to whom I spoke confirmed that there was still extensive use of recruitment agencies as a way of circumventing permanent and full-time employment and thus applying lesser terms and conditions. The practices were particularly prevalent in the domestic and care industry according to MRCI. Also, one SIPTU interviewee referred to a practice in the meat industry whereby the meat companies themselves set up recruitment companies in order to avoid direct employment of staff:

In this particular sector we have pockets of agency workers employed by agencies that are actually owned by the companies so they can be paid lower wages and have much lower terms and conditions than the guys working beside them on the factory floor (Interview, SIPTU Senior Organiser 2, 2012).
EU law is generally an important source of protection for migrant workers and another relevant directive here was the Posting of Workers Directive 1996 (PWD), which was transposed into Irish law in 1999. It had as its basic principle, that pay and working conditions in a Member State should be applicable to workers from that State and to those from other EU countries posted to work there. The impact of this directive was seriously undermined in 2007 and 2008 with the four judgments of the European Court of Justice (ECJ) on industrial disputes involving posted workers, namely Viking, Laval, Ruffert and Luxembourg. The ECJ ruled that the PWD neither justifies taking industrial actions to ensure compliance with collective agreements as in the Viking and Laval cases, nor that national labour legislation with regard to collective agreements (Rüffert and Luxembourg), can be forced upon service providers. The major issue in all cases was the priority established by the ECJ in favour of economic freedoms as opposed to fundamental social rights which weakened the position of trade unions vis-à-vis industrial action and effectively established the host country’s minimum wage as sufficient to meet the requirements of the directive, thus undermining the commitment to equal terms and conditions (Warneck 2010; Woolfson et al. 2010; Woolfson and Sommers 2006). According to the European Trade Union Confederation “the ECJ judgments are a threat to workers in terms of unfair competition on pay and working conditions, and unequal treatment between migrant and local workers” (ETUC 2008),.

As can be seen, much legislation was introduced over the period of the late 1990s to the late 2000s but it was in a piecemeal fashion and, importantly, there was an on-going issue with regard to enforcement of both existing and new legislation. As previously outlined, there was substantial anecdotal evidence supporting the view that employment legislation was not always translating into the effective protection of migrants’ employment conditions in practice. This obviously had adverse consequences for migrants but, it was argued, low levels of enforcement of employment laws and regulations could also harm Irish interests. For instance, it could put local workers at a disadvantage by undercutting local wages and employment conditions (IOM 2006). Jack O’Connor of SIPTU spoke of the trade union frustration around issues of enforcement:

In the summer of 2004 there was a review of the then national agreement which was the Sustaining Progress Agreement. There was a formal review process and we endeavoured within that process to raise the employment rights issue with regard to migrant workers, the issue of the inadequacy of the legislation itself and the wholly inadequate enforcement of it. No we didn’t object to the opening of the borders and nor would we even still but we did argue that it could not be done unless the employment rights infrastructure and the enforcement of it was radically overhauled. But we failed to make any progress in the mid-term review (Interview, 2012).
While on the face of it that’s a fairly clear-cut critique of the state, O’Connor went on to explain the more nuanced context in which the union efforts took place:
…there was an understanding, the prevailing understanding which incidentally I did not share and I was party to the negotiation of the agreement in the winter of 2002/2003 that the review was simply about the second phase of the pay deal and didn’t relate to anything else. But that was the prevailing view; not just on the employers’ and the Government side, but on the trade union side as well. And so we failed to make the employment rights agenda an issue in those talks because of that but also because we failed to make it an issue within the trade union movement at that time (Interview, 2012).
Not everyone saw enforcement of legislation as the solution to the problems that existed. One SIPTU organiser said in response to the question “I guess I’m not a big fan of legal solutions, that’s why I’m in organising because I think enforcement, and all of that, only scratches the surface of the broader change needed” (Interview, Specialist Organiser, 2012).
The Labour Inspectorate of the Department of Enterprise Trade and Employment was the statutory body responsible for ensuring observance of occupational health and safety and of labour legislation up to 2007. It was responsible for enforcing and policing all employment rights, including those of migrant workers. At the end of 2004, the Labour Inspectorate stood at 21 with an administrative back-up of a further seven Officers. In practice, the number of actual inspectors was believed to be around 17 at the time as the “Labour Inspectorate has only very rarely had its full complement due to delays in filling vacancies” (DETE 2005a). In a press statement issued in 2004, SIPTU’s Mike Jennings observed that there were more dog wardens than labour inspectors in the country (50 as against 17), indicating the level of seriousness with which the state took abuse and exploitation of workers. There was a commitment to increase this number in 2005 and according to DETE at that time, the additional inspectors “will concentrate their efforts on issues of concern to migrant workers” (DETE 2005b). Later in 2005, under the Social Partnership Agreement, Towards 2016, a commitment was made to establish the National Employment Rights Authority (NERA) and to increase the number of inspectors to 90, following revelations of substantial cases of exploitation and abuse. Jack O’Connor again:
We insisted in the negotiation on the agreement which ran into the summer of 2006, on mainstreaming the employment rights agenda and the enforcement agenda and so on and the effect of Irish Ferries was to make that a mainstream issue in the trade union movement. And we ultimately emerged from that negotiation with a very comprehensive range of proposed legislative changes and the enhancement of the enforcement infrastructure and the creation of what became NERA much to the chagrin of the unscrupulous elements among the employers (Interview, 2012).
NERA was established on an interim basis by the Government in February 2007 despite what union sources described as ‘a major campaign’ against its establishment by IBEC and elements of Fianna Fáil (ICTU interviewee). Its remit was to ensure the compliance and enforcement of employment rights legislation through five main functions: information; inspection; enforcement; prosecution; and protection of young persons in employment. With increased powers and numbers of inspectors (though it never reached the promised 90) NERA had some success in recovery of wages, and improvements in compliance with regard to record keeping, working time and payment of wages acts. However, prosecution of employers was obviously an action of last resort with just 1% of its caseload in 2010 resulting in prosecution. Also, despite a commitment at the time of its establishment to place it on a statutory footing, this did not happen. A Mandate official spoke of the continuing frustration around inspections and enforcement:
They really need to tighten up enforcement. With regard to the inspectorate and all of that, I question whether it is just a resource issue or is there unwillingness to unearth the nasty stuff. Do people want it buried rather than identified? You’re dealing with prolific delays in trying to get anything done. I don’t think there’s any real desire to change it or to move things on and I think that’s where the biggest problems lie (Interview, Mandate Senior Organiser, 2013).
Of all those trade unionists interviewed, none were unequivocal in their support of NERA but almost all saw its existence as a positive force in employment protection while all agreed that its non-statutory basis was a weakness. Former SIPTU National Organiser summed it up:
NERA did start to make an impression but the employers whinged about various aspects of it – the criminalisation of employers for instance (though many of them were criminals). In truth, even at its height, there were very few prosecutions and not only that, at its height NERA used to publish its reports on the levels of money it recovered, something like €700,000 and SIPTU could have recovered €5million in the same year. But it was a deterrent and in exactly the same way as Health and Safety, when there was no price to be paid by employers, then for years and years nothing was done. And then when health and safety legislation came in (largely imposed through Europe) accidents and deaths dropped dramatically (Interview, 2013).
The economic downturn, rising unemployment and the breakdown of social partnership arrangements saw an increased threat to the state industrial relations machinery with employers and employer organisations speaking of over-regulation of employment relations and regulation and enforcement being a disincentive to employment creation and a block on competition. This has led to a move towards a streamlining of employment rights agencies and enforcement25. Trade unions argue that this will see the effective dismantling of NERA and more besides. David Begg:
There’s an interesting counter-movement. If you look at it, we [the unions] created NERA as a counter-movement to what had happened with the opening of the labour market, OK and now the employers are counter-moving that again by seeking to dismantle not just NERA but the actual architecture that sort of underpins it in a way. They weren’t threatened by the architecture historically because in most cases they could get away with doing what they wanted to do but then NERA arrived and started to enforce a lot of what was already there (Interview, 2012).

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