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State indulges non-compliant employers

Labour inspector blows whistle on systematic favouritism to employers in the State’s Workplace Relations Commission

GEORGE MCLOUGHLIN made a Protected Disclosure in 2015 – when he was employed as a labour inspector with the Department of Jobs, Enterprise and Innovation (DJEI) – concerning what he perceived to be a culture of deference to non-compliant employers in the management of the National Employment Rights Authority (NERA) (subsequently the inspection services of the Workplace Relations Commission WRC).

The disclosure to Kieran Mulvey, WRC Director, his colleague Padraig Dooley, WRC Deputy, and Philip Kelly, Assistant Secretary, Department of Jobs, Enterprise and Innovation alleged: a distorted culture was generating inspections that were ineffectual; failure to identify and pursue serious breaches of basic employment rights detected at inspections; political interference in the inspection process; and deliberate and wilful misdirecting of the limited resources of the inspectorate into policing the work-permits regime to the detriment of its proper work in monitoring and pursuing employment-rights violations.

The department recognised the disclosure was protected, appointed former IBEC Director Turlough O’Sullivan to carry out an independent investigation of it; and over the following six months McLoughlin provided detailed evidence to O’Sullivan to substantiate the criticisms he had made. In May 2016 he was informed by the department’s Assistant Secretary that his allegations had not been substantiated. He was not given a copy of O’Sullivan’s report and, despite several requests, the rationale by which they had arrived at this conclusion was never explained to him.

In none of the cases he had referred to O’Sullivan and Kelly in support of the concerns raised was he offered any explanation to support their view that NERA/WRC management’s interventions in these cases could be presented as legitimate or consistent in any way with the proper remit of the inspectorate.

In July 2017, following legal advice to the effect that he could access O’Sullivan’s report under Data Protection legislation, he finally received a redacted copy of Turlough O’Sullivan’s report.

He remained unhappy at the manner in which the investigation had been conducted and in particular at the appropriateness of the department’s decision to appoint a long-standing employer representative and lobbyist to investigate allegations of a pro-employer bias in the management of a regulatory body of the State.

He told Village that “the proper work of the labour inspectorate in ensuring that employers in low-pay sectors of the economy comply with the state’s most basic employment rights legislation is being deliberately undermined by a management that sees its function as facilitating some employers in circumventing the very legislation they are supposed to be enforcing thereby leaving vulnerable workers at the mercy of unscrupulous employers”.

He immediately presented two commentaries on the report, detailing the inadequacies of O’Sullivan’s investigation as a new protected disclosure to then-Minister Frances Fitzgerald in July 2017 and requested that she arrange to have the concerns raised in his original disclosure properly investigated. Minister Fitzgerald’s office advised that the matter was still under consideration but he has heard nothing further from her or her successor since that time. Indeed he made a complaint to the WRC about her inaction which was not upheld and which he subsequently appealed unsuccessfully to the Labour Court.

From the time that he raised these issues he was subjected to a long series of punitive actions by the management of the WRC and the department. His allegations were also reported to Minister Fitzgerald in the hope that this unfair treatment would be addressed and, where possible, rectified but, again, no action was taken by her. McLoughlin submitted a complaint to the WRC about this penalisation but it was not upheld by either the WRC or on appeal the Labour Court; he has also made a complaint about Unfair Dismissal which was not upheld by the WRC and will shortly be heard by the Labour Court. He makes the point that “the odds are stacked against me as the WRC is judge and jury in its own case and the only avenue for appeal is to the Labour Court, a sister organisation of the WRC and another organ of the same department, all appointees of the respondent Minister”.

Concerns Raised in Protected Disclosure:
The main concerns with the management and direction of the inspectorate that McLoughlin raised in his disclosure were as follows:
(i) Inconsistencies in the Conduct of Inspections and Failure to Follow Up on Breaches Detected.
During the course of O’Sullivan’s investigation McLoughlin claims he gave him instances of a number of inspections where NERA/WRC managers had either turned a blind eye to blatant breaches of employment rights that ought to have been apparent in the records inspected or failed to follow up effectively to ensure that the employer became compliant and the employees affected were appropriately compensated.

“Following on my first meeting with O’Sullivan I gave him the contact details for a HR Consultant whom I had dealt with as an employer representative at a number of inspections over the years and who had raised concerns with me as to what s/he saw as glaring inconsistencies in the manner in which breaches of legislation detected at different inspections were pursued by different inspectors”.

The HR consultant in question had agreed to meet O’Sullivan and provide such evidence as s/he had available to this effect on condition that his/her confidentiality and the confidentiality of the employers s/he had been representing in those cases would be respected.

McLoughlin says “Mr O’Sullivan refused to interview this ‘witness’ as part of his investigation on the grounds that he would not be able to name the consultant or the businesses. In my view, in so doing he excluded evidence that was highly relevant to his investigation”. At the very least, he says, “a question has to be asked as to the appropriateness of Mr O’Sullivan’s refusal to even hear this authoritative evidence in support of my allegations, particularly when we see that elsewhere in his report he does not appear to demonstrate anything approaching the same rigour, sensitivity or objectivity in determining the credibility of the line fed to him by NERA/WRC management”.

Over the course of O’Sullivan’s investigation McLoughlin says he gave him several examples of cases where breaches of the National Minimum Wage Act and Organisation of Working Time Act detected by inspectors had not been pursued on the instructions of NERA/WRC management.

In January 2016 he gave him extensive documentation relating to so-called ‘Sleepover Cases’ where agencies providing overnight in-home care to elderly or unwell clients where the hourly rate of pay to the carer was below minimum wage. “Despite the clear-cut nature of the breach and the manifest exploitation of the care-providers in this rapidly expanding sector, NERA/WRC management failed to provide effective regulation in this area and used every tactic and pretext available to it to stymie and circumvent proper oversight”. In several of these cases NERA/WRC management allowed employers to use the idea of the ‘notional break’ to understate hours worked and thereby artificially increase the apparent hourly rate to a level that would appear compliant with minimum wage legislation.

McLoughlin told Village that “Clear and unambiguous evidence of this practice was provided to Mr O’Sullivan but this does not appear to have featured in his discussions with NERA/WRC management and is not referenced by him anywhere in his report to the department”.

McLoughlin also gave O’Sullivan details of a Dublin-based Home Care business where the inspector had detected breaches of the National Minimum Wage Act at inspection and, having failed in his repeated attempts to agree rectification and compensation for these breaches with the employer, referred the case to NERA/WRC management for prosecution in line with agreed procedures. NERA/WRC management refused the inspector’s request for prosecution apparently on the odd basis that the employees involved were not prepared to come forward as prosecution witnesses in the NERA/WRC case against their employer. McLoughlin made the point to O’Sullivan that central to the rationale for having a labour inspectorate in the first place is that breaches of legislation detected during inspections can be pursued on the basis of the documentary and other evidence secured by the inspector during the course of the inspection and should not have to rely on employees being put in the invidious position of having to come forward to confirm the validity of such records in sworn evidence against their employer. Here again, O’Sullivan does not address this case in his report and does not appear to have raised any concern with NERA/WRC management as to whether their decision to veto this prosecution had more to do with the fact that the business was owned by a cousin of Minister Richard Bruton (and there is no question of any impropriety on his behalf) than the pretext provided by management: “NERA/WRC management’s handling of these “sleepover” cases contrasts starkly with the equivalent UK authorities’ response to a similar problem in that jurisdiction where arrears of pay amounting to £400m have been calculated as being owed to the workers involved and the Revenue have put in place a compliance scheme whereby employers who underpaid the national minimum wage in the care sector can compensate to avoid being publicly named.

The only reference to these “Sleepover Cases” in O’Sullivan’s report is where, on page 7, he presents the following rationalisation of NERA/WRC management inaction in this area:

“Mr McLoughlin makes various allegations in relation to the enforcement or lack thereof regarding the pay of homecare workers. The payment of the minimum wage, rather than an allowance, where the worker was sleeping on the premises, was the subject of a number of conflicting legal opinions. The matter was clarified in September 2014 when the Labour Court issued a Recommendation stating that the minimum wage should be paid for all sleepovers. Around the same time in a prosecution case initiated by NERA in the name of the minister, an employer pleaded guilty in the District Court to breaches of the Minimum Wage Act in relation to ‘sleepovers’. At this time the law was clarified to the extent that it was possible to have a definitive view”.

There are a number of problems with this explanation:
(a) O’Sullivan repeats NERA/WRC management’s assertion that its inaction on this issue over the years was due to “a number of conflicting legal opinions” but provided no evidence of such “conflicting legal opinions” and references no legal advice to the effect that on-call duty does not constitute working time for the purposes of the National Minimum Wage Act.

(b) The National Minimum Wage Act 2000 is perfectly clear as to what is reckonable and what is non-reckonable in determining compliance with the minimum wage and there is no legitimate excuse for any confusion on the matter.

(c) The principle that on-call duty performed by a worker who is required to be physically present at a place of work must be regarded as working time was clearly established by the European Court of Justice as far back as 2003 and was common currency when this issue was being considered by NERA/WRC management well before September 2014.

(d) NERA’s own information sheet on this issue references a 2010 decision by the Court of Appeal in New Zealand to the effect that an employee was working while on sleepover duties and that pay for the period must comply with the NZ Minimum Wage Act 1983 and this judgment further referenced two separate UK cases which had come to the same conclusion.

(e) If there had, genuinely, been any real doubt as to whether a particular practice was compliant with the National Minimum Wage Act then the required legal clarification was readily available to NERA/WRC and the department and the correctness of such advice could easily have been established in the courts through any one of the several test cases available to them.

(f) O’Sullivan claims that the necessary clarity on this matter was provided by the Labour Court in September 2014. However, his report does not address the fact that, even if this were the case, NERA/WRC management’s inaction and inconsistencies in this area continued well after this date and in no inspection after that date was appropriate compensation secured for any group of employees in this sector.

The WRC responded to McLoughlin’s claims as follows:
“While NERA published its view on overnight workers in the NERA Quarterly Update issue 2 2012, stating that employees were entitled to be paid in respect of the entire period in respect of which of which they are required to be present, this view was not shared generally by employers in the sector.

Definitive legal clarification by a competent statutory body on the status of overnight workers matter was provided in a 2014 Labour Court Recommendation.

Notwithstanding the uncertainty regarding the status of these workers until the Labour Court decision, NERA did pursue a number of cases in this period, one of which Mr McLoughlin specifically references: the case involving the alleged relation of a Minister named in the article was considered for prosecution in 2014 but, on review, it was decided that it would not have met the standard of proof for criminal prosecution without employee testimony to clarify what exactly were the hours they were required to be present at their workplace. It is important also to note that Mr. McLoughlin was not the assigned Inspector on this case and would not, in the normal course, have been aware of the details of the case. For absolute clarity, there were no political representations in relation to this case and there is no basis for Mr. Mc Loughlin’s assertions on this point.

Mr McLoughlin’s claim that no compensation was secured for this cadre of workers post the Labour Court Recommendation is inaccurate and misinformed. In fact, substantial arrears of wages have been paid as a result of WRC inspections involving overnight workers – most notably in 2017 when over 1600,000 in arrears were paid in respect of one employer in an inspection which commenced in July 2015”.

(ii) Ongoing refusal by NERA/WRC management to effectively pursue widespread breaches of the Organisation of Working Time Act in relation to annual leave and public holiday entitlements detected at inspections

As part of his investigation McLoughlin presented Turlough O’Sullivan with extensive evidence of his claim that NERA/WRC management was consistently refusing to pursue breaches of legislation relating to minimum annual leave and public holiday entitlements which had been routinely detected in inspections in the retail, hotels, restaurants, fast-food, homecare and other low-paid sectors of the economy. McLoughlin had been highlighting this problem with NERA management as far back as 2010.

Under (i) above McLoughlin mentioned the evidence to this effect that a HR consultant was prepared to provide to O’Sullivan on condition of confidentiality but which he refused to include in his investigation.

According to McLoughlin, “so ingrained in the management of the inspectorate was their deference to non-compliant employers that the organisation’s case management system (Reconcile) does not even record breaches relating to annual leave and public holidays on its database”.

NERA/WRC management’s stock excuse for its inaction in this area is its claim that the inspectorate had no enforcement powers under the Organisation of Working Time Act and that their only role in this area was to “point out errors” to the employer and advise employees that the “appropriate” redress mechanism was through the Rights Commissioners. However, this excuse ignored the powers available to NERA/WRC under Section 31 of the Act to refer breaches of the Act directly to the Rights Commissioner. Every request he made to management to use the powers available to it under Section 31 was dismissed and the only explanation provided for this dereliction of duty was that “we tried it once and it didn’t work”. There can be no doubt that had NERA/WRC management been prepared to structure the inspection process in such a way as to check rigorously for compliance with holiday entitlements and to use the power available under Section 31 in all cases where an employer refused to rectify any breaches detected then the problem could have been dealt with.

In his report O’Sullivan again accepts without question NERA/WRC management’s position that there were “a number of legal difficulties in taking cases” under Section 31 of the OWT Act and their efforts to pass the buck for their inaction by claiming that employees denied their annual leave entitlements should seek redress through the Rights Commissioners.

There are serious problems with this line:

(a) The power of the Minister to refer breaches of the Act directly to the Rights Commissioner is clearly stated in Section 31 of the Act; if management now claims that that there are legal difficulties in making such referrals then the onus is on them to clearly explain the nature of these difficulties and to show where they referred these legal impediments to government for remedy. There is no evidence that O’Sullivan has satisfied himself as to what these legal difficulties are or what specific steps NERA/WRC management has taken to remedy this situation.

(b) Even if there were genuine legal difficulties in referring cases under Section 31, it is totally unacceptable that breaches of the Act relating to annual leave and public holidays detected by inspectors on a daily basis should go unrecorded on the NERA/WRC case-management system and that the management of the labour inspectorate is content to sit on its hands and make no effort to secure full rectification of these breaches and appropriate compensation for the employees affected.

(c) The excuse that employees denied their entitlements have the option of seeking redress through the Rights Commissioners is disingenuous and self-serving: of course this option exits in theory but the practice is that any worker in the low-paid/zero-hours sectors who takes a complaint to a Rights Commissioner will very soon find that any advantage s/he may have gained in terms of holiday entitlement will be dearly paid for in terms of reduced hours, anti-social shifts, enhanced supervision etc etc.

The WRC’s view is that:
“Mr McLoughlin’s claims regarding non recording of breaches in respect of annual leave and public holidays and inaction regarding their rectification is disingenuous and a wilful distortion of NERA practice and policy. These breaches were not recorded on the NERA case management system as NERA had not got powers under statute to address these matters until the enactment of the Workplace Relations Act in 2015. Once the Act was enacted the case management system was immediately updated to accommodate these new powers”.

Around the time that O’Sullivan’s investigation of these matters was beginning McLoughlin carried out an inspection of a business in County Tipperary which was in breach of the legislation on employees’ public holiday entitlements. The employer undertook to rectify this breach and to compensate the employees affected for any underpayments in the year before his inspection. While the employer was in the process of calculating the arrear amounts due McLoughlin says he went on sick leave following heart-bypass surgery and the case was assigned to his line manager who promptly contacted the employer to inform him that he was no longer required to compensate employees for the underpayments identified. The case was subsequently closed in McLoughlin’s absence on the basis that his manager had re-inspected the records and found that no underpayment had taken place. Even the fig leaf of the inspector informing employees that they could seek redress through the Rights Commissioners was not followed in this instance. When he became aware of this development McLoughlin contacted his line manager and the Regional
Manager asking for an explanation as to why this inspection had been closed without securing payment of the arrear amounts due: the only response he received, he claims, was a series of registered letters from the NERA/WRC management threatening him with disciplinary proceedings for “working” while he was on sick leave. This case, he says, was a “smoking gun” in terms of the concerns he had raised in his disclosure. He contacted Turlough O’Sullivan with the details so that he could raise the matter with NERA/WRC management in his investigation but, once again, there is absolutely no evidence of his having done so and no reference to this case anywhere in his report.

The WRC maintains that:
“In this case Mr McLoughlin’s methodology for calculating arrears for public holiday benefit was found to be incorrect. This position was supported by legal advice”.

The fact remains that tens of thousands of workers employed in the lowpay sectors of our economy consistently do not receive their minimum legal entitlements to annual leave and public holidays as set out in the Organisation of Working Time Act 1997.

(iii) Fostering and deferring to political interference in the inspection process.

In his report O’Sullivan refers to McLoughlin’s allegation of political intervention in cases on behalf of non-compliant employers and claims that he has been unable to provide any evidence of this.

However, McLoughlin disputes this: “in my first communication with O’Sullivan I provided him with details of the case of a construction company in the Mid West that I had inspected where the employer had been in breach of the Construction Industry Registered Employment Agreement and owed significant arrears to employees for underpayment of statutory minimum rates”. When this employer ultimately refused to pay the amounts due, he referred the case for prosecution in accordance with standard procedures.

Before the case came to trial, according to McLoughlin, “the employer contacted a government minister who in turn made representations to NERA management on the employer’s behalf. I was instructed to cease contact with the employer by the NERA Regional Manager and when the case came to trial all charges against the employer were dismissed by the Judge on the basis of a technical fault in the Summons”.

McLoughlin says he raised concerns at the manner in which this case had been handled by the Regional Manager at that time. In particular he asked whether it was appropriate that a minister could make representations to a State regulatory body on behalf of an employer who was being prosecuted for breaches of legislation while the case was currently sub judice. “I also asked whether it was appropriate that, having taken over the conduct of the case shortly before the trial and having obviously met and corresponded extensively with the minister’s office, the department and the employer in that period, there is not one word recorded by the Regional Manager on either the paper file or the electronic file as to what meetings took place or what was discussed and agreed – this despite the fact that the NERA Procedures Manual clearly stipulates that full details of each and every letter, email, conversation etc relating to each inspection must be meticulously recorded on both files”. He received no response from NERA/WRC management at that time and O’Sullivan did not burden NERA/WRC management for any clarification as to the nature and extent of the minister’s intervention in this case during his investigation.

Separate to this McLoughlin also provided him with details of a case involving a security company in Limerick that he had inspected in October 2014 on foot of complaints from two former employees that they were each owed a number of weeks’ pay. On inspecting this employer’s records he found that he was in breach of each piece of employment rights legislation covered by his inspection. For example payslips had not been issued, no contracts were in place, there were no records of hours worked or of annual leave or public holidays. This employer admitted that the two former employees were owed a number of weeks’ pay and expenses and also accepted that the list of current and former employees that he had provided at inspection was incomplete so that, potentially at least, there may well have been other employees in the same circumstances who had not yet been identified at that time. The employer undertook to rectify each of the breaches identified and wrote cheques payable to the two employees which he insisted McLoughlin should hand over to them only when some minor property items which he had issued to the employees in the course of their work had been returned. After the meeting, however, when the employer realised that McLoughlin was continuing with his efforts to identify and trace the “undeclared” employees, he cancelled the two cheques with his bank and wrote to the Minister claiming that McLoughlin was an “associate” of the two former employees and that he had a “vested interest” in the outcome of the case and had “bullied”, “intimidated” and “terrorised” him into paying over amounts that they were not owed. He then insisted that McLoughlin be removed as inspector in his case on the basis that he was now “under investigation” because of his false accusations. His allegations were the subject of a two-month investigation by NERA management and, despite the fact that, according to McLoughlin, each allegation was either withdrawn or shown to be baseless, he was not re-assigned to the case and the NERA management team that took over the case eventually closed it having secured payment of a Rights Commissioner’s recommendation in favour of the two employees but without securing rectification of any of the serious breaches of legislation detected in his original inspection or resolving the issues affecting the “undeclared” workers.

O’Sullivan’s references to this case in his report do not demonstrate any appreciation of the fact that, through a combination of ministerial intervention and baseless accusations, an unscrupulous employer was able to (a) circumvent a proper inspection of his employee records, (b) have the inspector who was carrying out this inspection removed and “investigated” and (c) achieve an outcome that, having paid the two employees the amounts due to them, absolutely no efforts were made to identify the ‘undeclared’ employees who might well have had similar issues with this employer”.

The WRC told Village:
“Following an internal review of a complaint by the employer, NERA management determined that the relationship between the employer and Mr McLoughlin had broken down to the extent that it was desirable to have another inspector complete the case. This has happened in a number of other cases involving other Inspectors, is provided for in the Inspection Procedures Manual, and was in no way the result of any political interference”.

There is also the case already referred to where NERA/WRC management refused to prosecute an employer for underpayment of the minimum wage to its employees on the specious grounds that those employees were not prepared to give evidence against their employer in court. There is no good reason why this prosecution could not have proceeded, as the vast majority of similar NERA/WRC prosecutions do, on the basis of the inspector’s testimony and the evidence in the records provided to the inspector by the employer during the inspection process. As with the previous cases, O’Sullivan did not pursue this matter in his discussions with NERA/WRC management and there is no reference in his report to his having satisfied himself that management’s refusal of the inspector’s recommendation to prosecute in this case was unconnected with the fact that the employer was related to a government Minister (and there is no suggestion that the Minister knew anything at all about any potential prosecution).

O’Sullivan made the point that McLoughlin had not provided evidence of political interference but he does not acknowledge that, given the restricted and off-the-record nature of such contacts, no inspector on their own can produce definitive proof as to the nature and extent of such interventions. Furthermore the department’s Interim Disclosure Policy under which he was assigned the task of investigating his disclosure expressly states that “workers are not required or entitled to investigate matters themselves to find proof of their suspicion and should not endeavour to do so. All workers should do is disclose what they consider to be an alleged wrongdoing based on a reasonable belief that it has, is or will occur”. It would be more appropriate for O’Sullivan, as the person assigned by the department to have investigated the concerns raised in McLoughlin’s disclosure, to fully inform himself as to the full nature and extent of the minister’s intervention in the cases mentioned above and to satisfy himself that this was entirely legitimate. There is no reference in his report to the fact that he either sought or received the necessary assurances on this from NERA/WRC management or, indeed, that the matter was ever even considered during the course of his investigation.

(iv) Failure to provide effective regulation of sectors of the economy which have been the subject of widespread public concern.

On 2 November 2015 the Guardian newspaper published its report of a year-long investigation into the Irish fishing industry which showed that African and Asian migrant workers were being routinely exploited on Irish fishing trawlers. The extent of the abuse and exploitation described by these workers and by agencies working on their behalf was summarised by the Guardian to include:

Withholding of pay, arbitrary cuts to rates of pay agreed in recruitment contracts, forced unpaid labour on net and boat repair in port.

Rates of pay a fraction of the legal minimum and a fraction of what local or EU fellow workers are paid.
Workers passports being withheld by owners/skippers.

Workers denied freedom of movement, told to hide when inspectors or the Navy board and being required to live on board because of their immigration status.

Severe sleep deprivation, with workers being required to work in near continuous shift for several days without mandatory rest periods.

Reports of verbal abuse and, in occasional cases, physical abuse such as slapping …”

McLoughlin gave Turlough O’Sullivan a copy of the Guardian report for consideration in his investigation along with details of a relevant case which in September 2015 he had asked NERA/WRC to assign to him for inspection on the basis of complaints he had received alleging exploitation of undocumented migrant workers on a particular Irish fishing trawler – one which subsequently featured in the Guardian report. The boat worked out of a port covered by the NERA/WRC Shannon office where McLoughlin was based. Given the nature of the complaint and that the records produced for inspection by the employer would be unlikely to show any undocumented workers, it was obvious that an effective investigation of this complaint would have required some advance surveillance and unannounced visits to gather information and interview employees before meeting the employer. Not only was McLoughlin’s request to inspect this vessel refused by his line managers without explanation but, by contacting the employer and his accountant by phone for details of employees in advance of any information-gathering, they sabotaged any possibility of effective inspection or sanction.

The WRC notes that:
“The case was not assigned to him by his manager. For good governance reasons, WRC procedures do not provide for self-selection of cases – Mr McLoughlin is fully aware of this policy”.

McLoughlin told O’Sullivan that, despite the fact that the level of exploitation in the Irish fishing industry was an open secret at that time, NERA/WRC regulatory activity in this area was not fit for purpose. It was only after the furore that the publication of the Guardian article had generated that any effort was made to address this deficit and, even then, the main thrust of its activity was once again on policing work permits rather than on enforcing employment rights.

In his report O’Sullivan again accepted without any critical analysis NERA/WRC management’s rationalisation of its failure to ensure proper regulation in this sector on the basis that the workers in question are self-employed and so beyond the inspectorate’s remit. This is not so as the Guardian investigation showed.

The WRC replied to McLoughlin’s allegations:
“Mr McLoughlin is incorrect regarding claims of WRC/NERA inaction in relation to the fishing sector. In 2010 a campaign of inspection identified the status of shared fishermen (i.e. self-employed and therefore outside NERA jurisdiction) as an issue which needed examination. In September 2014 NERA participated in meetings of the ‘Santa Martha Project’, an international project focussed on dealing with exploitation in the fishing sector. Following on from the report of the Report of the Government Task Force on Non-EEA Workers in the Irish Fishing Fleet of December 2015, the WRC has trained 12 Inspectors, and a Manager, in Safety at Sea/Sea Survival skills. In addition to several targeted day-long port operations, over 350 port inspections have been carried out with 12 Prosecutions initiated and 5 convictions secured to date. The WRC remains very active in this sector”.

The absolute need to separate employment rights inspections from immigration control is further underlined by four United Nations Special Rapporteurs in their report of 12th February 2019 on ongoing breaches of international human rights law in the Irish fishing industry. The UN Special Rapporteurs issued an exceptional rebuke to the Irish government saying that they have evidence of serious abuse of migrant workers on Irish fishing vessels and they make the point that the Atypical Working Scheme permit scheme operated by the Department of Business Enterprise & Innovation is making migrant workers from outside the EU vulnerable to modern slavery.

A separate area of public concern that McLoughlin drew O’Sullivan’s attention to related to the “alarming exploitation” of domestic workers/au pairs on which the Migrant Rights Centre Ireland (MRCI) had been campaigning for some years and which had been highlighted in an RTÉ Investigates report.

A survey of 554 domestic workers/au pairs carried out by the MRCI found that 58% earned less than 1120 per week and almost four in five had no written contracts while the RTÉ Investigates programme found evidence of “widespread employment abuses among the estimated 20,000 au pairs working in Ireland”, leading one international expert to describe this country as “The Wild West” in terms of employment-rights regulation in this sector. One worker featured in the RTÉ programme worked 12 to 14 hours per day for six days a week and was paid 1100.

McLoughlin provided O’Sullivan with statistics for NERA/WRC inspections of domestic workers/au pairs during the period 2011 to 2014 inclusive during which a total of 143 inspections netted a grand total of 16,751 in arrears of pay for the entire four-year period – an average of 147.21 per inspection.

McLoughlin says his point to O’Sullivan was that the level of inspection activity in the domestic worker/au pair sector clearly did not reflect the level of widespread non-compliance that was evident in the concerns being highlighted by workers, stakeholders and media and was further evidence of the “light-touch” approach to regulation that he had complained about in his disclosure. Here again, O’Sullivan makes no reference to these legitimate concerns in his report and we are left to assume that he considers NERA/WRC management’s token efforts in this area to be fit for purpose.

The WRC replied as follows:
“NERA/WRC has long recognised the particularly vulnerable position of Domestic Workers and has been carrying out Inspections in private homes since 2011. The Irish approach is recognised internationally as being both progressive and innovative; and featured on the ILO website in October 2012. Between 2011 and 2016, almost 200 inspections were carried out, resulting in over 18,900 in unpaid wages being recovered for employees”.

(v) The Negative impact of policing the Employment Permits Regime on the core work of the Inspectorate:

The first tranche of documentation that McLoughlin provided to O’Sullivan after their initial meeting elaborated on his concern that the additional role in policing employment permits that NERA/WRC management assigned to labour inspectors from 2010 has had the effect of not only diverting scarce resources away from the inspectorate’s core remit in monitoring and promoting employment rights but has so fundamentally altered the perception of the inspectorate in the eyes of vulnerable migrant workers as to undermine their trust.

Traditionally, the labour inspectorate did not have any role in policing employment permits and the ethos in the department had always been strongly against requiring labour inspectors to take on this additional role. The following is from a memo from Eddie Nolan, Principal Officer Labour Relations Commission on this very question:

“The role of the Labour Inspectorate is to protect the employment rights of workers and not enforcement of right-to-work or immigration control measures. It follows, therefore, that the role for enforcement of the new statutory Employment Permits Act should rest with specifically appointed “authorised officers” of the Work Permit Section or, indeed, where breaches of our immigration laws are involved, with the Garda Síochana. …The Inspectorate has no function in the policing of immigration policy and it is entirely inappropriate that the Inspectorate be required to do so”.

The following extract is from NERA Director Ger Deering’s email of 22 May 2007 to Dermot Mulligan regarding the proposed role for NERA in relation to employment Permits:
“Policing illegal immigrants in the workplace or any other location which involve identifying individuals, examining their passports and immigration documentation is clearly a role for the Gardai. Undertaking such a role would involve a major change in the operation of the Labour Inspectorate and would be in conflict with their ethos and role of protecting worker rights”.

This potential conflict is recognised in the Inspection Convention of the International Labour Organisation which, having defined the role of labour inspectors, specifically states in Article 3(2) that:
“Any further duties which may be entrusted to Labour Inspectors shall not be such as to interfere with the effective discharge of their primary duties or to prejudice the authority and impartiality which are necessary to inspectors in their relations with employers and workers”.

If there is any doubt as to whether these conflicting views of the proper role of the labour inspectorate would impact adversely on the conduct of inspections and the quality of the interaction with vulnerable employees one has only to consider the following extracts from the letter of 22 October 2015 from Edel McGinley Director of the MRCI to Kieran Mulvey Director General of the WRC drawing his attention to this escalating problem as evidenced in an extensive study that the MRCI had carried out with migrant workers in low-paid jobs in the retail, domestic, care and restaurant sectors:
“Unfortunately, the research shows that exploitation and discrimination of migrant workers is commonplace in the sectors we surveyed and ones that labour inspectors will be familiar with…
The research also shows that it is widely believed by migrant workers that the labour inspector’s main function is to enforce immigration rules and target workers, not to target exploitation or unscrupulous employers. This belief is based on people’s experience of inspections. Many workers feel that labour inspectors prioritised checking immigration status rather than working conditions when carrying out inspections.
… We believe that the model of joint inspections is the cause of the negative perception of the labour inspectorate to developing a reputation of protecting and enforcing workers’ rights with migrant workers”.

This lesson is reinforced in the 2017 GRETA Report (Report Concerning the Implementation of the Council of Europe Convention on Action Against Trafficking in Human Beings by Ireland) and by The US State Department’s Trafficking in Persons (TIF) report released in June 2018 which has downgraded Ireland to a Tier 2 ranking (in the company of countries from Afghanistan to Zambia) because of what it perceives as our failure to adequately protect victims of trafficking for sexual exploitation and labour abuse and our failure to convict traffickers. In highly critical findings the US report highlights forced labour in the Irish fishing industry and the state’s prosecution of Vietnamese and Chinese men for cannabis cultivation despite indications that they were victims of modern slavery. And, echoing the same concerns expressed by MRCI and the GRETA report, the US State Department in June 2018 also singled out the practice of joint inspections between labour inspectors and immigration police for particular criticism:
“Joint inspections between labour inspectors and immigration authorities intimidated undocumented potential victims and posed a barrier to the identification of victims”. (US State Department’s Trafficking in Persons Report June 2018, page 236-7)

This message has been further reinforced by the Irish Congress of Trade Unions’ 2018 submission to the
“It is the view of Congress, backed up by research by the Migrant Rights Centre of Ireland, that it is still widely
believed by migrant workers that the labour inspectorate’s main function is to enforce immigration rules and to target workers, not unscrupulous employers”.

Turlough O’Sullivan does not address whether NERA/WRC’s role in policing employment permits might, legitimately, be seen as conflicting with its primary role in promoting employment rights. He does not appear to have established that there is any authoritative opinion available to the department to the effect that this role does not conflict with the State’s obligations as a signatory to the ILO Inspection Convention.

Having read his report McLoughlin is convinced he was not an appropriate person to conduct the investigation on behalf of a State body with a sensitive neutral role between employers and employees.

Since being informed by Philip Kelly in May 2016 that O’Sullivan’s investigation did not support the concerns raised McLoughlin has persevered within the department with both Minister Mary Mitchel O’Connor and Minister of State John Halligan. Both ministers refused to revisit the matter on the basis that his concerns had been “independently investigated” and found to be without foundation.

At that stage McLoughlin had been denied access to O’Sullivan’s report and so was unable to comment in detail on this claim. Having now at last managed under Data Protection legislation to access a redacted copy of the report which he considers a “whitewash”, he now wants his original disclosure of October 2015 re-investigated, properly. Last year McLoughlin lost an entirely separate claim that he had been unfairly dismissed from his job working in the department, when he turned 65 in January 2017.

The WRC and Labour Court on appeal found that just because there was a mechanism for a civil servant to apply to be retained in the job past 65, it did not mean that particular civil servants had rights to be retained, and it didn’t affect the requirement for McLoughlin to retire once he’d reached that age. McLoughlin claims that he qualified for retention in accordance with both alternative sets of criteria as set out in the relevant Civil Service Circular but that these criteria, which had applied since 1975, were changed immediately after he submitted his application and his request to continue working was refused, ultimately, he believes, because he made his protected disclosure.

After he initiated legal action the matter has been referred back to the Labour Court for a rehearing. The WRC replied about work permits as follows:
“The WRC’s role in all matters is set by statute. The policy decision of the Government regarding assignment of duties regarding enforcement of the Employment Permit Acts to NERA (now WRC) was made in 2008. Subsequently, in 2010, the Office of the Attorney General advised that ‘Checking of employment permits in a workplace would in no way interfere with the discharge of the NERA Inspectors’ duties’”.

Village put the entire contents of this article to the DJEI and to the WRC, both of which replied at length. It also asked for comments from Mr Mulvey and Mr O’Sullivan. Mr Mulvey replied that he was not actively involved in
the investigation of this matter and that he has been retired since June 2016 and does not have access to the papers/ investigations on this case. Mr O’Sullivan did not reply.

As regards the protected whistleblower disclosure, the DJEI considered:
“The individual was offered, in writing, the opportunity of a review of this decision. This offer was not taken up by the individual within the timeframe provided. The individual subsequently re-raised the matter with Minister Mary Mitchell O’Connor in November 2016 and with Minister of State John Halligan in early 2017 and also raised with them claims of penalisation as a result of making a protected disclosure. Both Minister Mitchell O’Connor and with Minister of State Halligan, having reviewed the matter, were satisfied that an appropriate process had been followed”.

More generally, the WRC told Village: “The fundamental aim of the WRC Inspection Division is to ensure compliance with employment legislation, and, where necessary, the prosecution of the employer in terms of the enforcement of the relevant legislation. WRC prosecutions result in a criminal conviction and therefore are required to meet the criminal standard regarding proof of the offence. In such cases, corroborating evidence is required to support the inspector’s findings. To ensure that such standards are met, all decisions regarding prosecutions are subject to internal scrutiny by a Legal Procedures Committee, which comprises senior management and the WRC prosecuting Solicitor. For example, the Division completed 5,753 inspections during 2018 – an increase of 20% on 2017. Some 45% of employers inspected were found to be in breach of legislation in one form or another; the most common breach being the failure to keep adequate records (52% of those in breach). The Inspectorate achieve compliance subsequently in non-compliant employers by pointing out the breach(s) and affording them a specific time in which to rectify them. Occasionally the Inspector may issue “Compliance Notices” and “Fixed Payment Notices” in this regard. The success of this approach is such that prosecution is required in a very small percentage of cases (less than 5%) to achieve compliance. The Division recovered 13.1m in unpaid wages for employees during 2018”.