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 Acts (the “Act”) have been amended. The Acts now provide a defence and claim mechanism for vulnerable migrant workers without work permits who have, up until now, been deprived of employment law protection.

Background

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.

Enforcement proceedings were then brought against Mr Hussein, as he refused to pay the award. In return, Mr Hussein 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 (2003) prohibited a non-national being employed without the appropriate employment permit. This section applied to both the employer and the employee and a breach of this section was a criminal offence. However, section 2(4) went on to say that an employer could defend criminal proceedings on the grounds that he/she took all reasonable steps to secure compliance with the Act. There was no such defence available to the employee.

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 has led to the passing of the Employment Permits (Amendment) Act 2014, which commenced on 30 September 2014. This Act now addresses the deficiency identified in the Hussein case and provides a defence and claims mechanism for workers who can demonstrate that they took all such steps as were reasonably open to them to comply with the requirement to hold a work permit. How this will work in practice, remains to be seen.

This move in favour of workers who are often unaware of the illegality of their situation or blameless for it, has also been seen in the UK, in the UK Supreme Court decision in 2014 case of Hounga v Allen.

2014 Approach

It is an employer’s responsibility to obtain and process work 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 work permit records are maintained and available on foot of an inspection.

Other amendments under the Employment Permits (Amendment) Act 2014

1. There are now 9 types of employment permits.
2. A General Employment Permit replaces the work permit. It is available for occupations with an annual remuneration of €30,000 or more.
3. A Critical Skills Employment Permit replaces the Green Card permit. It is available for most occupations with annual remuneration of over €60,000.
4. For those whose employment permit has expired in certain circumstances there are new types of employment permits.
5. New application forms have been introduced for each category.