In September 2012, the High Court issued a very controversial decision, in the case of Hussein -v- The Labour Court and Mohammah Younis [2012] IEHC 364, which effectively meant that any non-national employee who was not working under a valid employment permit could not take a claim under Irish employment law. This was because employment law only applies to employees and if a non-national did not have a valid work permit then they legally weren’t “employees” as they were working under an illegal contract. Clearly this decision was a cause for concern as undocumented workers could end up being exploited in terms of pay, working hours, etc. and indeed the High Court forwarded their decision to the Department of Jobs, Enterprise, Innovation and Employment to fix the loophole through new legislation. In an important development, the Government has now introduced legislation to address this loophole and also to look at the overall area of employment permits, something which every employer should review. In this article we run through the important developments in the Employment Permits (Amendment) Act 2014 and some Frequently Asked Questions. There are now nine different types of Permits
- Critical Skills - (this was previously referred to as the Green Card): this type of permit has been designed to address critical shortages of skills, which will be identified in Regulations. In order to attract individuals who possess such skills, this permit type allows immediate family reunification and a fast track to residency. In addition, a number of the criteria normally applying to issue of an employment permit will be waived for this category;
- Intra – Company Transfer: to allow for the temporary transfer of employees between affiliated foreign and Irish companies;
- Dependant/Partner/Spousal: to enable the family members of holders of Critical Skills Employment Permits and Researchers, to work in the State;
- General – (this was previously referred to as the Work Permit): issued in cases where a contract for a designated highly skilled occupation has been offered for a duration of less than two years, or for other occupations, apart from those included on a list of ineligible jobs, where a number of other criteria have been met;
- Contract for Service: to allow the employee of a foreign company that has entered a contract with an Irish company to work in the State;
- Internship: to allow students of foreign institutions to work in the State, where that is a key component of the course which they are following;
- Reactivation: for a foreign national who entered the state on a valid Employment Permit but who fell out of the system through no fault of their own;
- Sports and Cultural: to allow individuals with sporting or cultural expertise to work in the State;
- Exchange Agreements: to allow individuals to whom a designated exchange agreement applies to work in the State.
Where can I obtain an Employment Permit application form? There will now be a separate application form for each category of permit, you can download the form on the Department of Jobs, Enterprise and Innovation website. 50:50 Test A permit shall not be granted unless the Minster is satisfied that 50% or more of the workforce is made up of EEA nationals. The 50:50 rule may be waived in exceptional circumstances such as: start up organisation which are applying for Critical Skills, General or Intra –Company Transfer employment permits. This requirement may be waived for organisations that are experiencing skills shortages and therefor have to look outside of the EEA in order to fill that skills gap. Labour Market Needs test Regardless of whether the organisation or the candidate is submitting the permit application, a Labour Needs Test must be carried out. This involves the organisation advertising the vacancy with the DSP Employment Services/EURES website for a minimum of three days prior to submitting a permit application. This is to gather information as to whether there really is a skills shortage for that particular role. Foreign nationals in employment without a Permit As highlighted above, this legislation attempts to address the deficiencies highlighted in the Younis case. In essence, this new legislation will close the loophole preventing undocumented workers from being unable to take claims against their employers. The new legislation means that, providing the non-national worker can prove to the satisfaction of a court that they took reasonable steps to secure a permit, then the worker may take civil action for compensation against their employer for work done or services rendered. The Act also states that the Minister may take a civil action on the non-national’s behalf against the employer for compensation for work done or services rendered as well as responsibility for the legal costs of such action. Notifications to the Minister Importantly, the Minister of Jobs, Enterprise and innovation must now be notified of the change in name of the employer as a result of a transfer of undertaking (TUPE). This is to allow the permit to be re- issued with the correct legal name of the employer. If a holder of the Critical Skills or a General Employment permit is dismissed by reason a redundancy, they must notify the Minister within four weeks of the dismissal. This will allow the candidate to search for another jobs and apply for a new employment permit under the new circumstances. Benefits of the new Legislation According to Minister Bruton, this new legislation is aimed to make Ireland the Internet capital of Europe. There will be a reduction of 58% processing time for employment permits, an increase in the number of skilled graduates available in Ireland, an improvement to the appeals process, a broadening of the highly skilled eligible occupations list, and improved customer service and communications. These measures are hoped to boost the ICT sector, which is a central part of the Governments action plan for Jobs. If any of the above information effects your company or may affect your company, the advice line are always here to help with queries, 24 hours seven days a week on 01- 855 5050
