The 2012 case of Hussein -v- The Labour Court & Anor brought the issue of illegal and unenforceable contracts to the fore and resulted in the law failing to protect a vulnerable migrant worker. However, as a result of this case, the Employment Permits Act 2003 (the “Act”) has been amended. The Employment Permits (Amendment) Act 2014 now provides protection to vulnerable migrant workers who are working without an employment permit.
The employee in this case, Mr Younis, sought to enforce his basic employment rights against his cousin, Mr Hussein, under various employment laws including the National Minimum Wage Act. The Rights Commissioner found in the employee’s favour and awarded him a sum in excess of €90,000.
Mr Hussein refused to pay the award. He commenced judicial review proceedings in respect of the Labour Court’s decision and the matter came before the High Court.
Before the High Court, Mr Hussein claimed that Mr Younis could not invoke the protection afforded by the employment legislation, as he did not have a work permit and in the absence of an employment permit, any contract of employment was illegal.
The law as it stood
Section 2 of the Act prohibited a non-national being employed without the appropriate employment permit. As a result of this section, the High Court reluctantly found that the contract between the parties could not be enforced, as the party seeking to enforce the contract did not have a work permit.
On foot of the facts, Mr Justice Hogan departed from the norm in his judgement and called on the Oireachtas to intervene and reform the law in this area. The Rights Commissioner and the Labour Court had found that Mr Younis was the victim of “the most appalling exploitation” and in his view, the Act could have consequences for vulnerable migrant workers, which were not envisaged or foreseen by the Oireachtas.
The law now
This case led to the passing of the Employment Permits (Amendment) Act 2014, which commenced on 30 September 2014. The 2014 Act now addresses the deficiency identified in the Hussein case. How this protection will work in practice, remains to be seen.
It is an employer’s responsibility to obtain and process employment permits on behalf of its employees and if this is not done, and an employee takes all reasonable steps to ensure compliance, the employee will be in a position to avail of the protection of employment legislation, despite his/her illegal status. Therefore, employers should ensure that all appropriate employment permit records are maintained and available on foot of an inspection.
Other amendments under the Employment Permits (Amendment) Act 2014
- There are now nine types of employment permits.
- A general employment permit has replaced the work permit. It is available for occupations with an annual remuneration of €30,000 or more.
- A critical skills employment permit has replaced the green card permit. It is available for most occupations with annual remuneration of over €60,000.
- If an employee’s employment permit has expired, in certain circumstances an employee can now apply for new types of employment permits.
- New application forms have also been introduced for each category of permit.