Complainant

Respondent

Parties

Sampson  Koomson

Millbay Fishing Company Ltd

Complainant

Respondent

Anonymised Parties

Representatives

Michael O'Brien International Transport Workers Federation

Mr Liam O’Flaherty BL instructed by  Conway Solicitors.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00058479-001

23/08/2023

The Atypical Work Permit Scheme for Non-EEA Fishers (Atypical Scheme for short) was introduced by the Government in February 2016 to fulfil two objectives. Between the time of its introduction and July 2016 it provided an opportunity to owners of vessels eligible for the scheme to regularise the status of their non-EEA crew. Secondly, it provided a path for vessel owners to legally employ new non-EEA crew thereafter.

The Complainant is a non-EEA national employed under the aforementioned scheme.

The Complainant was employed as a fisherman from 16th August 2016 until 15th May 2023.

This complaint was received by the Workplace Relations Commission on 23rd August 2023.

Essential context of Atypical Work Permit Scheme for Non-EEA Fishers.

1.       The Atypical Work Permit Scheme for Non-EEA Fishers (Atypical Scheme for short) was introduced by the Government in February 2016 to fulfil two objectives. Between the time of its introduction and July 2016 it provided an opportunity to owners of vessels eligible for the scheme to regularise the status of their non-EEA crew when it was recognised that up to 1,000 non-EEA fishers across the sector were working in conditions of illegality. Secondly, it provided a path for vessel owners to legally employ new non-EEA crew thereafter.

2.       Following the publication of research by the Law Department of Maynooth University in October 2021, Experiences of Non-EEA Workers in the Irish Fishing Industry, the government conducted a review of the Atypical Scheme and following submissions from interested parties in the sector announced its abolition.

3.        On 22nd November 2022 the Department of Justice, who administered the Atypical Scheme, announced that no further approvals for this scheme would be issued after 31st December 2022. On 3rd January 2023 all fishers enrolled in this erstwhile scheme were advised to register for Stamp 4 visas thus bestowing upon them full labour market access.

4.       The minimum conditions of employment for the Atypical Scheme were set out in a template contract.

5.       As can be discerned from the Department of Justice template contract the Atypical Scheme required yearly renewals of approval from the Department of Justice accompanied by a corresponding yearly renewable Visa Stamp 1 obtained from the Garda National Immigration Bureau.

6.       Unlike the permit schemes run by the Department of Enterprise, Trade and Employment the Atypical Scheme did not allow for automatic progression from Visa Stamp 1 to Visa Stamp 4.

Further essential background and context – Bord Iascaigh Mhara voluntary vessel cessation scheme

1.       In the course of 2022 Bord Iascaigh Mhara invited applications from interest fishing vessel owners to apply for the Brexit Voluntary Permanent Cessation Scheme

2.       The intention of the scheme was to shrink by about 25% the fleet of the largest approximately 200 or so vessels that whose target species are subject to quotas under the Common Fisheries Policy, quotas which had been cut arising from Brexit.

3.       10. The Guidelines for applicants (page 19 below) includes in Section 3.8 (page 28 below) the provisions for a crew to receive a share of the compensation for the decommissioned vessel. Simply put any crew that served at least 90 days at sea in both 2020 and 2021 were entitled to €1,000 per years’ service for the first 15 years and €1,500 per year for every year above 15 years’ service. 11. The crew compensation element of this scheme bore no relation nor had any impact on the statutory redundancy entitlements as confirmed by a response from the Minister for Enterprise, Trade and Employment to a Parliamentary Question

4.       The compensation payments made to the vessel owner applicants of the vessels in multiple tranches, including three payments totalling €2,005,885 made to Millbay Fishing Company Ltd.

Redundancy complaints

1.       The following table summarises the claim of the seven crew members who worked on the St Rose and St Clair fishing vessels which were decommissioned. 

2.       The Complainant has a statutory redundancy claim as shown in the table contained within the submission.

3.       Each of the complainants possessed an incomplete set of documents related to their employment but sufficient documentation was supplied and appended to this submission to satisfy the claim.

4.       On 4th May 2023 the employer had each of crew sign a letter which was not understood by them. Advice was sought, unfortunately after the letter was signed, by a number of the crew from Michael O’Brien of the Fisheries Section of International Transport Workers’ Federation (ITF).

5.       The co-signed letter referred to 21st September 2022 when the crew were given forms to sign pertaining to the amount of compensation due to them under the Bord Iascaigh Mhara Voluntary Permanent Cessation Scheme.

6.       Mr O’Brien (the Complainant’s representative) attempted to clarify with Mr Rooney (The Respondent company owner)  the employer in a phone conversation the content of the letter which clearly conflated the crew compensation arising from the Brexit Voluntary Permanent Cessation Scheme with the entitlements of the crew for statutory redundancy alluded to in the co-signed letter. Unfortunately, Mr O’Brien’s attempt to clarify the matter with Mr Rooney was met with obscenities. A subsequent email and letter sent on 31st July 2023 by Mr O’Brien to the company outlining their obligations in this matter went unanswered.

This question was the subject of a Parliamentary Question (PQ) in January 2023. (1178 / 23).

The question asked was:

To ask the Minister for Enterprise, Trade and Employment if a non-EEA fisher who holds an unexpired atypical work permit scheme contract, who has been continuously employed on a vessel for two years or more and loses their employment arising from decommissioning is entitled to redundancy pay separate and distinct from the compensation for crew provided for by the terms of the Bord Iascaigh Mhara fishing vessel decommissioning scheme; and if he will make a statement on the matter.

Reply.

Irish employment rights legislation applies to workers – national and non-national – on board Irish registered ships.

In order to qualify for a statutory redundancy payment, an employee must have 104 weeks continuous employment, be an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts and be over the age of 16 years.

An eligible employee is entitled to two weeks’ normal weekly remuneration for every year of service, plus a bonus week. The redundancy lump sum calculation is based on the worker’s length of reckonable service and weekly remuneration, which is subject to a ceiling of €600 per week.

By law, it is the employer’s responsibility to pay statutory redundancy to eligible employees. Where an employer is genuinely unable to pay statutory redundancy due to financial difficulties or insolvency, the State provides a safety net and may make the payments on the employer’s behalf from the Social Insurance Fund. An application can be made to the redundancy payments scheme which is administered by the Department of Social Protection.

The Brexit Voluntary Permanent Cessation Scheme is a matter for the Department of Agriculture, Food and the Marine.

In summary the crew, as a whole, have been treated shoddily. Millbay Fishing Company remains in existence. Its proprietor was handsomely compensated by the Brexit Voluntary Permanent Cessation Scheme. A blatant attempt was made to deceive the crew that their entitlements under the Brexit Permanent Cessation Scheme (which fell short in two of their cases) somehow also met a separate obligation for statutory redundancy.

The Representative for the Respondent stated that he had come on notice at a late stage and had not completed a written submission.

In his oral submission the Respondent’s representative stated that the Respondent opposed the entirety of the complaints as presented.

The payment made to the complainant was in lieu of any entitlement under the Redundancy Payments Act.

The representative for the Respondent stated that it would be very unfair to make two payments to those employed under the Atypical Scheme and only one payment to the share fishermen.

A report completed in 2021 – ‘Seafood Task Force Report – Navigating Change’ was referred to.

Section 9.7 of this report was read by the Representative for the Respondent, this section reads as follows:

9.7 Crew costs.

The Task Force felt that it was appropriate that crew, who essentially would be made redundant as a result of the vessel they are employed on being scrapped should be compensated. In this context, Article 17 of the EMFAF allows for payment to crew displaced under certain conditions in that they have worked at sea on board a Union fishing vessel concerned by the permanent cessation for at least 90 days per year during the last two calendar years preceding the year of submission of the application for support. This provides a mechanism to include such payments in any voluntary decommissioning scheme. However, the Task Force notes that the EMFAF also includes a qualification that crew receiving a support are precluded from fishing for five years following the receipt of support. This preclusion is not included in the EU BAR State Aid Guidelines for fisheries and aquaculture. The Task Force acknowledged such a preclusion would exacerbate the current difficulties vessel owners face in recruiting and retaining crew currently. Therefore, the Task Force has recommended that this preclusion be left out of the scheme on the basis it is not specifically included in the EU BAR State Aid Guidelines for fisheries and aquaculture.

Additionally, it is unclear how any payments under a decommissioning scheme would be viewed by the Revenue Commissioners. Fishermen are currently mostly deemed as self-employed with only a small number employed as PAYE workers. Any support received by crew would essentially be a redundancy payment but may not necessarily be classed as such by Revenue and therefore may be liable for tax.

A further complication arises with respect to the status of atypical workers employed under the “Atypical working scheme: non-EEA crew in the Fishing Fleet”. Such crew would be eligible for support provided they met the 90-day conditions in the EMFAF and State Aid Guidelines for fisheries and aquaculture but the obligations on owners employing such crew in the event of decommissioning is unclear.

Therefore, the Task Force in recognising the need to compensate crew impacted by voluntary decommissioning, it has not been able to define the method, level of payment or terms and conditions. This will require further consideration and consultation in formulating the detailed voluntary decommissioning scheme.

9.8 Recommendations of the Task Force.

(Four recommendations were made, two of these measures would impact employees).

The Task Force recommends that the proposed restructuring programme involving the elements detailed including appropriate payments to crew should be developed into a fully costed scheme as a matter of urgency, noting that to avail of BAR funding permanent cessation must be completed by the end of 2022.

The Task Force recommends that a package of tax measures similar to the 2008 permanent cessation scheme is put in place. The Task Force also recommends that the 5-year preclusion for crew re-entering the sector following the receipt of support that is included under the EMFAF should be omitted from the scheme if at all possible.

Payments made to the complainant were made tax free.

The Complainant is seeking a statutory redundancy payment.

In order to qualify for a statutory redundancy payment, an employee must have 104 weeks continuous employment, be an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts and be over the age of 16 years.

In the instant case the Complainant satisfies the criteria outlined above.

At the hearing of the complaint the representative for the Respondent raised the subject of ‘share fishermen’ and the “Brexit Voluntary Permanent Cessation Scheme”. This scheme’s purpose was to “restore the balance between fleet capacity and available quotas following the quota reductions arising from the Trade and Cooperation Agreement (TCA), ensuring the profitability of the fleet.

The scheme aims to support fleet segment impacted by:

·       The reduction in quotas for 2021 to 2026 arising from the Trade and Cooperation Agreement. The Scheme aims to mitigate losses associated with certain stocks included in Annex FISH.1 and FISH.2 of the TCA.

·       Difficulties in accessing UK waters or third country waters due to Brexit.

The scheme will support vessels in the polyvalent and bream trawl segments to permanently cease all fishing activity, thus increasing the quota available for remaining vessels”

A ‘share fisherman’ is deemed to be in a partnership arrangement with the boat owner and not in an employment relationship.

In the 1986 tax case of DPP V Martin Mc Loughlin ([1986] 1 IR 355 Mr Justice Costello considered some indicators of the existence of employment and partnership relationships. He ultimately decided in favour of partnership status for the boat owner and crew members in the specific circumstances of the case for the following reasons:

·       “It is true that the defendant [the owner] exercised a large measure of control over the manner in which each member of the crew performed his work but the right to do so arose as much from the nature of the operations being carried on as from the contractual relationship which existed and is a factor which is consistent both with the existence of a contract of service and an agreement of partnership”.

·       It is also true that the defendant engaged the other members of the crew for each voyage but, again, this is consistent both with an employer / employee relationship and an agreement in the nature of a partnership, this is one in which the defendant agreed to provide the vessel and its equipment for the voyage whilst each crew member agreed to provide his labour and skills.”

·       “The strongest elements of the case in support of the DPP’s submissions are that the proceeds of the sale of the catch were paid directly to the defendant and that he dispersed them even making in some instances payments to members of the crew of what were termed ‘subs’ when no profit was made and the crew bore no losses”.

He continued, “But these factors seem to me to be outweighed by the cumulative effect of three others:

·       Each weekly voyage was a separate venture and no crewmember had a contract which entitled him to take part in any subsequent voyages.

·       When he participated in an expedition, he was not paid any wages but became entitled to a share in the net profits (if any).

·       And, most importantly, although he engaged each crew member the defendant did not himself determine what the rate of remuneration would be; this was determined partly by custom (namely 50% of the profits being allotted to the boat) and partly by agreementbetween the crew themselves in consultation with the defendant”.

He went on to say: “These factors, it seems to me, strongly suggest that the skipper and his crew were partners in a joint venture.”

Whilst the instant case may not be identical to DPP V Martin Mc Loughlin ([1986] 1 IR 355 it does show the significant difference between a ‘share fisherman’ and an employee.

“Brexit Voluntary Permanent Cessation Scheme”.

Bord Iascaigh Mhara have published a Guidelines for Applicants booklet. Section 3.8 of this booklet is entitled Crew Member Details. The following are some extracts from this section:

·       For the purpose of this scheme “crew” means anyone engaging in his / her main occupation on board an operational seagoing vessel.

·       In this section you need to list the crew members who are eligible for compensation i.e. those who have worked at least 90 days at sea per year for each of 2020 and 2021 on the vessel to be decommissioned ……...

There is no reference anywhere in these guidelines that states that these payments are made to replace any redundancy payment entitlement to employees.

I now conclude that the case as presented under section 39 of the Redundancy Payments Act, 1967 is well founded and order the Respondent to pay the statutory redundancy payment to the Complainant within 42 days from the date of this decision.

I now conclude that the case as presented under section 39 of the Redundancy Payments Act, 1967 is well founded and order the Respondent to pay the statutory redundancy payment to the Complainant within 42 days from the date of this decision.

Redundancy Payments Act 1967