THOUSANDS OWED IN unpaid wages, up to 20-hour work days and forging of mandatory employment records are some of the serious allegations migrant workers have made to the WRC about the Irish fishing industry.
This is in spite of the Atypical Working Scheme – established in 2016 in response to reports of exploitation in the fishing sector. Its aim was to create and protect the employment rights of non-European Economic Area workers.
The scheme applies to specific fishing boats over 15 metres in length – currently just over 170 vessels or 9% of the Irish fishing fleet.
Since its establishment, it is evident from Workplace Relations Commission (WRC) case decisions that migrant fishers’ rights were repeatedly breached by vessel owners.
Our analysis of WRC cases taken by migrant fishers against vessel owners over the past number of years found that fishers’ were involved in a range of manual work. This physical labour involved carrying out any boat repair, throwing out, emptying and recasting nets, cleaning fish and being on watch.
These jobs were consistently repeated throughout the day for up to 20 hours, with little time for breaks, or adequate rest.
One fisher provided photos to the WRC showing his ‘rest breaks’. The adjudicator officer wrote these showed “him lying on the deck of an alleyway on the vessel in his full protective clothing”.
As they were out at sea for days, and sometimes weeks at a time, fishers reported that they had no leeway to object to gruelling conditions, or breaches of their employment rights.
Long working days are common complaints in WRC cases. In a decision from November 2021, WRC adjudication officer Eugene Hanly wrote that a fishing trawler owner’s representative stated “that they did not maintain records of hours of work”.
The fisher claimed that he worked an average of 17 hours a day while at sea and 8 hours a day while on shore, with the WRC officer finding “he exceeded 72 hours per week” and was subsequently awarded over €15,000.
Hanly also noted that the industry is “subject to some very challenging weather conditions and the safety of fishermen is of paramount importance”.
“I find it essential that fishermen are protected against working excessive hours which may cause them to make errors in their work, which could negatively impact on their safety and that of their colleagues.”
Underpayments can add up with breaches having the potential to result in large monetary awards.
In a recent WRC case against Richard Brannigan, three fishers – Khaled Elagamy, Mohamed Shokr Ghonim and Salem Elfeky – alleged that between them, they are owed about €140,000.
There was an initial hearing of the case in June but it was adjourned. The adjudicating officer agreed an adjournment on the request of the fishers’ representative – Michael O’Brien of the International Transport Worker’s Federation (ITF). This was due to Elagamy being in Egypt as his toddler was “gravely sick” and a request for time to review documents sent to him three working days before the hearing.
In the subsequent hearing in September, as reported by The Irish Times, the fishers claimed to have worked up to 17 hours a day and be owed thousands in unpaid wages. Brannigan, who is the owner of Skerries-based trawler Nausicaa, denies any breaches of employment law and maintains that all three of the men were properly paid.
One of the fishers, Elagamy, also claimed that his employer told him to sign a blank time sheet. A solicitor for Brannigan submitted that the blank time sheet indicated that there was no fishing during the period in question.
The hearing of the case was adjourned once more, at the request of O’Brien, to allow for the production of time sheets by Brannigan’s solicitor that his side did not have in their possession at the hearing. As yet, no date has been set to hear the rest of this case.
On occasions where an employee speaks up against their employer, they run the risk of losing their job, which in some cases can impact a fisher’s visa status.
In one case in 2017, a non-EEA fisher claimed that he undertook three trips with his employer, but was only paid for two. Though the fishing company claimed the fisher was a “share fisherman” – which are generally self-employed workers who get paid a percentage of the catch, they were unable to cite evidence to confirm this, according to the adjudicator’s decision.
When he contacted his employer about a €3,461 shortfall in earnings, the worker stated that “he was told his employment was being terminated and he would not be paid anything for the third fishing trip”. In the case the fishing company said that he “was not unfairly dismissed”, as claimed and contested that “he did not attend for work”.
The WRC concluded that “the worker was either dismissed for querying payments that were due to him or for not attending for work”, which he didn’t do as he hadn’t received the payment for the third trip. He was awarded €2,000 in compensation for unfair dismissal by the WRC.
In part of a more recent case of unfair dismissal against Rockabill Seafood Limited, Lisa Kelly claimed that its owner, Bill (William) Price, threatened to terminate her employment after she discovered that an undocumented worker from Egypt on the ship. This was one of a number of times that she claimed he threatened to terminate her employment.
In response to this claim Price insisted that he didn’t deal with the boats at all but did recall a conversation he had with Kelly about an Egyptian man who was working on the boats.
In addition to other claims, Kelly stated that instead of Price letting her know that he intended her to take over Enterprise Fishing Ltd company account, he had shouted at her and intimidated her in front of other staff.
In response, Price said that Kelly was asked to take on the account for a British Boat – which he was the only director of. When she came to talk to him about concerns in relation to the boat, he stated that the conversation was professional and he did not get annoyed or shout at Kelly.
Kelly’s complaint of unfair dismissal ultimately failed on a number of grounds including the large gap in time between the incidents complained of and the raising of the grievance.
Issues with paperwork including timesheets and pay slips featured in a number of WRC decisions.
This features in a Labour Court appeal by Mohammed Abbasy in April 2022 who claimed he was underpaid for his work on the vessel Hannah J. This is owned by Galley Marine Enterprises Limited based in Kinsale Co Cork.
Adrian Bendon, director and shareholder in the company, provided payslips allegedly showing that the correct payments had been made to Abbassy. However, on cross-examination, he admitted to these being “false and created after the fact”.
Bendon was also shown a fishing log for 10th May 2016, wherein three hauls were completed and 1,122kg of prawns and fish were caught and processed. The timesheet for Abbasy on that date, claimed that he had rested for 23 of 24 hours. Employer Bendon agreed that this “could not be correct”.
The Labour Court found that he had been underpaid by €6,139.65 and awarded compensation in this amount. It also awarded compensation of over €3,000 for the breaches of payment for annual leave and public holidays.
Other fishers making claims through the WRC also reported inaccurate records.
In a 2017 case, Egyptian fisher Ahmed Elganagy claimed was in hospital on work leave in August 2016 after sustaining a workplace injury but records submitted by his employer, Galopin Trawlers Limited, recorded him as working.
Both parties in this case were initially not named in the adjudication decision as it was before April 2021, but were subsequently named this year in a Labour Court appeal.
In the WRC case, the fisher claimed that records were not signed by him showing different signatures and other instances where there was no signature.
The fishing company in this case claimed that no breach with regard to maintaining records had occurred. In relation to this, the adjudicator Gerry Rooney concluded that he did not find the records of time worked by the fisher, and upon which his pay and annual leave were calculated, were credible.
In addition, Elganagy claimed that when at sea “the only rest break of six hours or more he would get were times when the vessel was on passage to and from the fishing grounds”. His employer denied the claim that the fisher was not able to take his appropriate rest breaks.
Though compensation was awarded for some of the complaints, including over €2,600 in relation to annual leave, the adjudicating officer said he was “precluded from making any finding” with regard to the Elganagy’s rest breaks.
The decision stated people engaged in sea fishing were exempt from Part II of the Organisation of Working Time Act which relates to minimum rest periods. This was appealed by Elganagy to the Labour Court in a case heard earlier this year, but the original decision was upheld.
Over the past number of years, fishers took cases to the WRC for breaches including not getting adequate rest breaks, not receiving payment for annual leave or public holidays and being underpaid.
However, fishers such as Ahmed Elganagy – and a small number of other workers such as trainee doctors – are not covered by Part II of the Organisation of Working Time Act 1997. This means that the WRC does not have jurisdiction to say whether there has been a breach in terms of rest periods in the case of these workers.
For fishers, this is due to an ongoing issue with the transposition of legislation, as reported by The Journal last year. Both SIPTU and the International Transport Workers’ Federation (ITF) are lobbying for the government to address this.
The only recourse for fishers for these breaches is prosecution by the Marine Survey Office (MSO), which does not lead to any compensation for the migrant fishers.
Since the inception of the AWS for fishers, the WRC has made 45 referrals to the MSO “in relation to potential contraventions of hours of rest/working time regulations”, according to a department spokesperson.
Rectifying this was part of a mediation agreement with the International Transport Workers’ Federation (ITF) in 2019, with Minister Damien English stating in a recent response to a parliamentary question that it “will be progressed as soon as is practicable in new legislation as part of a package we are working on”.
Our team obtained records from the Department of Transport (DoT) and DETE from 2019 onwards on this issue. From these, it is clear that discussions have been going back and forth every few months since 2019. However, it was not obvious from the records – which date up to September 2022 – if the government has finalised the required changes.
When Noteworthy asked what legislation was being progressed and when it would be enacted, a spokesperson said that the Department of Enterprise, Trade and Employment “has agreed to put the matter before the Oireachtas once a suitable legislative proposal was available”.
The ITF plans to take the State to court to change these laws, as reported by the Business Post last year, with O’Brien telling us that preparation for this case is being finalised.
However, this issue has impacted the awards received by fishers in recent months.
Jose Pame Salandron, a Filipino fisher, was awarded over €13,500 in a decision against Ivan Wilde Limited in 2020 for underpayment of wages, outstanding annual leave, public holidays as well as breaches in rest periods and hours worked.
However, between an appeal by Ivan Wilde Limited heard by the Labour Court over the summer and follow-ups by the Court in September, all of the decisions of the original WRC adjudication officer that related to rest period and excessive hours worked were either set aside or overturned.
This was because they were not covered by Part Two of the Organisation of Working Time Act. The Labour Court appeal of Ahmed Elganagy’s case was referenced by the court when making this determination. This resulted in €9,000 of the €13,500 total award being withdrawn, leaving Salandron with €4,500.
This also impacted the most recent decision in relation to fishers issued by the WRC – dated last Wednesday – a case between Egyptian worker Habib Kannis and OF Fishing Ltd.
In this, Kannis claimed he had working days of between 18 and 20 hours and was underpaid by over €37,000 for his work on fishing vessels Verlaine and Ocean Harvestor II.
He also alleged unfair dismissal. He claimed following “a back injury arising from overwork” which “forced him to take extended holidays and recuperation back in Egypt”, when he returned to Ireland “his enquiries about resuming work were rebuffed”, according to the adjudication decision.
Kannis was initially employed as a share fisher – paid a proportion of the catch – though he stated he should have been enrolled into Atypical Working Scheme.
He entered into a contract of service with OF Fishing Ltd under the terms of this scheme in April 2018. It was submitted that by the fisher’s representative that until his contract expired in April 2021, his employer an obligation to pay him at least 39 hours at minimum wage under this scheme.
No representative of OF Fishing Ltd attended the hearing, though a report by The Irish Times at the time of the hearing stated that the fisher’s former employer wrote to the WRC denying claims of unfair dismissal saying that Kannis had resigned, and rejecting the suggestion that its crews worked such hours.
Though Kannis was awarded over €6,100 for unfair dismissal and €350 for breach of holiday pay entitlements, citing the Labour Court appeal of Elganagy’s case, the adjudicating officer said she had “no jurisdiction to deal” with rest breaks or excessive hours under the Organisation of Working Time Act.
As of February of this year, the WRC stated that eight adjudication officer decisions have been issued to date in relation to the Atypical Working Scheme (AWS) for fishers. This includes the majority of cases detailed above.
And more cases will come up before WRC adjudicators in the coming months, according to ITF’s O’Brien.
The AWS permission is different to a general working permit in that it must be renewed by the Minister for Justice on a yearly basis.
A general working permit also, after five years, entitles you to apply for a Stamp 4 visa. These allow people to work or set up their own business without being tied to a specific employer. Holders can also apply for their families to join them here in Ireland.
However, fishers are an exception to this rule and are not entitled to a Stamp 4, no matter how long they live in Ireland or how many work permission renewals they obtain.
A recent review of the AWS for non-EEA fishers recommended that the scheme be replaced by a general working permit. It also calls for those currently availing of the scheme to be allowed apply for a Stamp 4 permission after two years or shorter.
Following this, the Department of Justice announced last month that it would “close for new online applications” at the end of the year to “provide for the transition from the AWS system to the Employment Permit system”.
However, a number of judicial reviews against the Minister of Justice are listed in the High Court this month. These cases are being taken on behalf of AWS permission holders, migrant fishers here for a number of years and now looking to obtain a Stamp 4 permission. Some have since become undocumented.
Noteworthy asked the Department of Justice (DOJ) about these judicial reviews but a spokesperson stated that the DOJ “is not in a position to discuss the circumstances of any individual legal cases, including cases where matters are still before the Courts”.
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By Louise Lawless for Noteworthy, with reporting by Maria Delaney
This article is part of our HANDS ON DECK investigative series which investigated exploitation in the Irish fishing industry.
This investigation was supported by Journalismfund.eu’s grant programme as part of a cross-border project with Geela Garcia in the Philippines.
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