Demande directe (CEACR) - adoptée 2019, publiée 109ème session CIT (2021)

Convention (n° 29) sur le travail forcé, 1930 - Irlande (Ratification: 1931)
Protocole de 2014 relatif à la convention sur le travail forcé, 1930 - Irlande (Ratification: 2019)

The Committee notes the observations of the International Transport Workers’ Federation (ITF), received on 4 September 2018.

Articles 1(1), 2(1) and 25 of the Convention. 1. Vulnerability of migrant workers in the fishing sector to practices of forced labour and trafficking. The Committee notes that the ITF points in its observations to cases of migrant fishers who have been at risk of trafficking and abusive practices and conditions that amount to the exaction of forced labour since the introduction of the Atypical Migrant Workers Scheme for the Non-European Economic Area Crew (the AWS). The ITF alleges that the Scheme’s major feature is linking permit holders to a specific employer. After the permit is granted, the fisher’s permit is only valid if it is supported by a specific employer. While there is provision allowing change of employer, the process and the conditions for making such a change are very difficult in practice. According to the ITF, this situation creates a relationship in which the fisher is dependent on the employer; as well as an environment in which trafficking and forced labour can take place and prevents the fishers from terminating their employment relationship in the event of abuse. The Committee further notes that according to the ITF, migrant fishers have reported working manifestly excessive hours with little opportunity to rest, being paid below the minimum wage, and being threatened with dismissal and suffering physical abuse. In this regard, the ITF refers to the report published in 2017 by the Migrant Rights Centre Ireland (MRCI) according to which over 65 per cent of migrant fishers in Ireland worked more than 100 hours a week for which they were paid, on average, less than €3 per hour. The report also found that one in four migrant workers had experienced physical and/or verbal abuse.

The Committee notes the Government’s reply in its report that the main features of the AWS include a written contract of employment for a duration of 12 months which must be in place between the employer and employee and certified by a practising solicitor. Employers/shipowners must comply with the requirements under European Union (EU) and national law such as terms of employment, national minimum wage, hours of work etc. Moreover, a copy of this contract must be lodged with the Central Depository for Sea-Fishing Boats. At least 50 per cent of the members of the crew must be nationals of any of the member States of the EU, as this ensures that the non-EEA employees have a comparator with the workplace to help safeguard their rights. An employee employed under the AWS can move from one employer to another provided that the new employer is also registered under the AWS. The Government further states that the AWS has only been in operation for 2.5 years and in that time, a significant amount of work has been undertaken to put in place the necessary framework to provide a mechanism for these fishers to secure valid employment and a comprehensive monitoring and enforcement structure. Closing the scheme would leave these vulnerable workers with no process for resolving their employment and immigration issues nor with a means of ensuring that their employment rights are protected.

The Committee notes with interest the Government’s recent information that following recent mediation between a number of Government Departments and the ITF on the scheme for employment of non-EEA fishers in parts of the Irish sea-fishing fleet, a settlement agreement has now been reached and signed by all parties. The major points of the agreement include: (i) the obligation to provide the employment contract to the non-EEA fishers in their native language, as well as in English; (ii) the possibility for non-EEA fishers to transfer employment without the existing or previous employer’s consent; and (iii) the obligation of the Department of Justice and Equality to follow-up on cases of fishers who have left their employment, for any reason, before the end of their 12-month contract. A letter has to be issued to the fishers requesting for details within 28 days on their new employment contract.

Moreover, the Committee notes that the AWS was launched in 2016 to facilitate the employment of non-EEA workers. Under this regulatory framework, a non-EEA worker has to sign a short-term employment contract for a duration of 12 months with the normal entitlements to annual leave, maternity leave, and payslips. The Terms of Employment (Information) Acts 1994 (updated to October 2015) require that employees with a fixed-term contract get written notice of the expiry date of their contract. Under section 6 of the Minimum Notice and Terms of Employment Acts 1973 to 2001, both employers and employees are entitled to at least one-week notice of termination of the employment contract. The Acts do not affect the right of an employer or employee to terminate a contract of employment with due notice due to the misconduct of the other party (section 8).

Furthermore, the Committee notes that the AWS establishes a regulatory framework for the employment of migrant workers in the fishing sector in Ireland, including the possibility for the worker to terminate his/her employment relationship under the new scheme for employment of non-EEA fishers without the existing or previous employer’s consent.

While noting the positive steps taken regarding the issue under examination, the Committee requests the Government to provide further information on the application in practice of the AWS, including information on the number of migrant fishers who have changed employer and whose work permits have been transferred to a new employer.

2. Identification and assistance to victims. The Committee notes that the ITF alleges that 15 fishers who held permits to work in Ireland have been identified by the Garda National Protective Services Bureau as potential victims of trafficking in persons. A further six fishers who did not hold permits have also been officially identified as potential victims. In this regard, the Government indicates that the national police (An Garda Síochána) is investigating these allegations and other complaints made by the ITF. Once the investigations into the allegations made by the fishers have been concluded, a file will be referred to the Director of Public Prosecutions who in turn will assess whether there is a sufficient case to prosecute for the alleged breaches.

The ITF also asserts that there is a poor practice on the part of government agencies in identifying victims of forced labour and trafficking; a lack of assistance; as well as lack of information and access to legal advice available to victims and fear of reprisals due to the work permit being tied to an employer under the Scheme. Furthermore, the redress system available through the Workplace Relations Commission (WRC) is totally inadequate as it is designed to service people in regular employment situations who are resident in Ireland. It also can take several months for a case to be dealt with which encourages delinquent employers to “play the system”. To date, not one employer has engaged meaningfully with the WRC.

The Committee notes the Government’s indication that it has undertaken many awareness-raising campaigns in the fishing industry, including: (i) the distribution of a WRC leaflet on the Atypical Scheme and employment rights for workers on fishing vessels; (ii) the publication of the WRC’s Employment Law in Arabic, Mandarin, Hindi and Filipino, the primary language of non-EEA crews; as well as (iii) the establishment of a WRC contact helpline for fishing vessel owners and crews (telephone: [phone]).

The Committee recalls that the particular nature of the work of migrant fisher workers, due in part to their isolated situation at sea, requires taking proactive measures to facilitate the identification of victims of trafficking working under forced labour conditions. While taking due note of the various awareness-raising measures taken by the Government, the Committee requests it to continue to provide information on the measures taken to ensure that, under the AWS, victims or potential victims of trafficking for the purpose of labour exploitation in the fishing industry are swiftly identified and referred to the appropriate protection services. The Committee also requests the Government to provide information on the number of persons benefiting from these services.

3. Law enforcement measures and adequate penalties. In its allegations, the ITF underlines the absence of any agency or department responsible for monitoring the implementation of the AWS. According to the ITF, while inspecting fishing vessels has uncovered multiple breaches of the Scheme, and the details of breaches were forwarded to the relevant authorities, no action was ever taken. The ITF alleges that multiple failures have emerged in terms of prosecuting perpetrators. Only three prosecutions were initiated in 2017 despite 117 investigations into suspected trafficking incidents. In relation to forced labour, three individuals were prosecuted in 2017. Among other things, the Government has failed to strengthen its law enforcement mechanisms, including measures to enforce anti-trafficking laws against those who target migrant fishers, as well as to ensure that sufficiently effective penalties are applied to individuals who subject these workers to conditions of forced labour.

In its reply, the Government states that, from April 2016 to July 2018, some 310 port inspections of whitefish vessels were undertaken by WRC inspectors. Some 169 of the 186 whitefish vessels that came within the scope of the scheme in that period were inspected. There are currently some 172 vessels which come within the scope of the AWS. Eleven WRC inspectors and a regional manager have undergone a three-day Safety at Sea Survival training delivered by the Irish Sea Fisheries Board so as to enable them to undertake fisheries inspections. To date, some 210 contraventions have been detected by the WRC across the 169 vessels inspected. The breakdown by contravention type is as follows: 29 per cent of contraventions relate to records; 20 per cent of contraventions relate to leave, bank holiday and Sunday entitlements; 15 per cent of contraventions relate to illegal workers; and 12 per cent of contraventions concern failures to issue payslips. The Committee requests the Government to continue to provide information on the results of the inspections conducted by the Workplace Relations Commission (WRC), indicating the number and nature of violations detected and the penalties imposed.

4. Trafficking in persons. The Committee notes that the Government has adopted a legal and institutional framework to combat trafficking in persons, including: (i) the adoption of the Criminal Law (Human Trafficking) (Amendment) Act 2013 that has broadened the scope of the definition of “exploitation” to include forcing a person to engage in criminal activities and aligned the definition of “forced labour” with Convention No. 29; (ii) a person guilty of an offence of forced labour or trafficking in persons shall be liable upon conviction to imprisonment for life or a lesser term; (iii) the establishment of the Department of Justice and Equality’s Anti-Human Trafficking Unit (AHTU) that has the lead on all policy issues on human trafficking in Ireland and works in close collaboration with other Irish government agencies, including the Garda National Protective Services Bureau (Police), the Health Services Executive, the Office of the Director of Public Prosecutions, the Legal Aid Board and the Irish Naturalisation and Immigration Service; and (iv) the adoption of the second national action plan against trafficking 2016–19. The Committee welcomes these measures and requests the Government to provide information on the steps taken to implement the 2016 national action plan against trafficking and the results achieved. Please also indicate whether the national action plan has been renewed and to report on it.