Complainant

Respondent

Anonymised Parties

A crew member

A fishing boat owner/ operator

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00016641-001

04/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016641-002

04/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016641-003

04/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016641-004

04/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016641-005

04/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016641-006

04/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016641-007

04/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016641-008

04/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016641-009

04/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00016641-010

04/01/2018

The Complainant is an Egyptian national employed in the Irish Fishing Fleet through a “Atypical Working Scheme” introduced by the Government that would permit non-EEA workers take up positions in the Irish fishing sector.

A Memorandum of Understanding was entered into by various State parties in early 2016. This memorandum required inter alia that employers (who were licensed vessel owners) were responsible for ensuring a valid contract of employment drafted in accordance with National and EU employment rights legislation was in place for all workers.

The Complainant, through his representative, alleges that he was denied these rights.

This complaint was received by the Workplace Relations Commission (WRC) ON 04/01/2018.

Preliminary Argument.

There were two complaints made by the Complainant, the first complaint lodged with the Workplace Relations Commission (WRC) on 04/01/2018 and allocated the file reference ADJ – 00012857 – the named Respondent in this complaint was XXXX XXXXX Limited.

The second complaint was lodged with the Workplace Relations Commission (WRC) on 31/01/2018 and allocated a file reference ADJ – 00012854 – the named Respondent in this complaint was XXXX XXXXX.

In relation to the identity of the correct Respondent the representatives for both Complainant and Respondent made arguments and these were as follows:

Respondent.

Without prejudice to the following, the Second Named Respondent as named by the Claimant herein is the incorrect party to these proceedings. The proceedings herein arise out of a contract as between the Plaintiff and the First Named Respondent only. Whilst the Claimant has exhibited a contract signed by the Second Named Respondent, the said contract was executed by the Second Named Respondent on behalf of the First Named Respondent in his capacity as director of the said company. At all material times hereto, the Claimant was employed by the First Named Respondent and this is evidenced by the Claimant’s pay slips provided and P45 which specifically state and record that XXXXX Limited was the Claimant’s employer. Accordingly, the claim should be struck out as against the Second Named Respondent.

Complainant.

The Respondent alleges that the First Named Respondent i.e. XXXX XXXXX Limited is the correct Respondent.   It is submitted that it is entirely unclear who is the correct Respondent and this is a matter which is very much alive for the following reasons:

a) The Contract of Employment appears to indicate that XXXX is the employer.

b) The P45 in possession of the Claimant does not state the Employer’s name and address or the PAYE registered number.

c) The Atypical Working Scheme Letter of Approval from the Irish Naturalisation and Immigration    Service states that the name of the employer is XXXXX.

d) The payslips given to the Claimant appear to suggest that the employer is XXXX Limited.

Considerations.

I have considered the arguments from both parties and now comment as follows:

Contract of Employment.

Section 3 of the Terms of Employment (Information) Act, 1994 contains a requirement to issue to an employee, not later than 2 months after the commencement of an employee’s employment with the employer a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say –

(a)    The full names of the employer and the employee ………..

In the contract presented by both the Respondent and Complainant the name of the employer is not included. In relation to establishing who the correct Respondent is we are no wiser.

The P45 issued to the Complainant.

A copy of this document was presented at hearing.

In his submission to the Workplace Relations Commission the Respondent representative states:

“At all material times hereto, the Claimant was employed by the First Named Respondent and this is evidenced by the Claimant’s pay slips provided and P45 which specifically state and record that XXXX XXXXX Limited was the Claimant’s employer. Accordingly, the claim should be struck out as against the Second Named Respondent”.

The employer’s name and address was not inserted on the P45 – it should have been.

In relation to the payslips I have studied these very carefully, what they tell me is that the software used for payroll purposes is licensed to XXXX XXXXX Limited and the employer is XXXX XXXXX.

The Atypical Working Scheme Letter of Approval.

This letter from the Irish Naturalisation and Immigration Service states that the name and address of the employer is XXXX XXXXX.

Background to the status on non-EEA crewmen and the atypical worker permission scheme.

A Memorandum of Understanding was entered into by various State parties in early 2016. This memorandum provided a new system of atypical worker permission for non-EEA persons in the sea fishing sector. This memorandum required inter alia that employers (who were licensed vessel owners) were responsible for ensuring a valid contract of employment drafted in accordance with National and EU employment rights legislation was in place for all workers. It is quite clear that the intention of this scheme was inter alia to ensure that such workers’ employment rights were protected.

The scheme came into operation in 2016 and closed in or around the end of July 2016. 171 permits were provided to non-EEA workers under this scheme.

By letter dated 19th January 2018 and addressed to the Secretary, Guidance and Ethics Committee, Law Society of Ireland the Respondent’s representative states that “some 230 visas were processed largely through this office” – if anyone was familiar with the rules of this scheme, he was.

Contained in the document explaining the Context of the ‘Memorandum of Understanding for the Monitoring and Enforcement of the terms of employment for non-EEA crewmen in parts of the Irish Commercial Sea Fishing Fleet pursuant to the establishment of the Atypical Worker Permission scheme’.

“Employers (who must be a licensed vessel owner) being responsible for ensuring that a valid contract of employment, certified by a solicitor and drafted in accordance with National and EU employment rights legislation, is in place for all workers to also include repatriation arrangements”.

The ‘Irish Fleet Register’ maintained by the Department of Agriculture, Food and the Marine provides details of all registered vessels on the Irish Fishing Boat Register. The Complainant was authorised/permitted to work on two vessels, regarding the first named vessel the Vesselowner is listed as XXXX XXXXX, the second named vessel has XXXX XXXXX and one other named individual listed as the Vesselowner.

XXXX XXXXX Limited is not listed.

Conclusion.

The Respondent named in these proceedings is not the correct respondent and consequently the complaints listed under the file ADJ-00012857 are not well founded.

The Complaint against the correct respondent will proceed under file reference ADJ – 00012854.

Please see background.

The above complaints are not well founded for the reasons detailed