Working Towards Equality: The Right of Migrant Workers to Equality with Nationals in Employment Law in Ireland

Research output: ThesisMaster's Thesis

Abstract

The exploitation of migrant workers exists in all sectors and stages of employmentin Ireland. The thesis determines that this is largely due to the variety of legalobstacles facing migrant workers during recruitment, employment and inaccessing justice. Other factors, such as the general vulnerability of migrantworkers arising from a language barrier, lack of knowledge of rights and socialisolation, also contribute to the levels of exploitation. While these latter factorsplay a significant role in the exploitation of migrant workers, this thesis willexamine the more tangible obstacles that exist within the legal realm as these arecapable of being removed through the reform of legal processes.Throughout the thesis, the issue of corporate mobility, the corporate quest forprofit and the needs of corporations to retain their competitiveness are all factorsthat are considered in seeking legal solutions to the obstacles faced by migrantworkers in Ireland. The thesis attempts to balance these interests against theinterests of migrant workers in seeking equality with Irish nationals throughoutthe employment process.Section I - Recruitment for EmploymentThe first Section of the thesis examines the recruitment of migrant workers inIreland and the processes by which migrant workers can arrive for work inIreland. Chapter 1 provides a general introduction to recruitment methods and2Working Towards Equalityidentifies the recruitment agency as the most popular and problematic ofrecruitment methods. Chapter 2 details the international and national history of theregulation of recruitment agencies and reveals the first legal obstacle faced bymigrant workers, namely, that recruitment agencies no longer operate throughfixed establishments that are easy to regulate and monitor. Provision must now bemade for developments in technology and the effects of globalisation on therecruitment industry. Chapter 3 examines the more specific regulations that couldbe adopted to protect migrant workers from the actions of those recruitmentagencies that maintain a role in the lives of migrant workers once in the State andin employment.Section II – Avoiding Legal DutiesSection II identifies the potential obstacles that can occur during the employmentrelationship. Chapter 4 takes as a specific example the situation that arose in IrishFerries in November 2005 and the concept of the flag of convenience as anavoidance tool used by corporations to cut costs and reduce the protection ofmigrant workers. This case study demonstrates very effectively the effect ofcorporate mobility and the corporate quest for profit on the most vulnerable ofmigrant workers. Chapter 5 challenges the theory that the elimination of suchavoidance schemes is inconsistent with the protection of competition andexamines both the reaction of the State and the future role of trade unions in theaftermath of the Irish Ferries case. Chapter 6 presents a shared response to thephenomenon of the flag of convenience specifically. It looks at the responsibleparties involved in the employment of migrant workers on shipping vessels,3Working Towards Equalityincluding the state of beneficial ownership, the flag state, the port state and themarket state. At the current stage of international law there is no agreed point ofresponsibility and this has hampered the protection of migrant workers. Theshared responsibility of all these stakeholders is considered vital in protecting theinterests of migrant workers.Section III – Access to JusticeThis Section looks at the obstacles faced by migrant workers when they seekaccess to justice for employment disputes in Ireland. Chapter 7 examines thepreliminary requirements that have to be met by migrant workers and finds thatthese requirements often exclude some of the most vulnerable migrant workersfrom seeking justice. In particular, the Chapter looks at the situation of irregular1migrant workers in Ireland and challenges the view that such workers should nothave access to any services in Ireland, including access to employment disputeresolution procedures. Chapter 8 looks at the structure of the employment disputeresolution process and argues that the current complex system is an obstacle toaccessing justice in Ireland. Finally, in Chapter 9, the lack of availability ofremedies under the current system for migrant workers is examined, and the roleof delay in the employment dispute resolution process analysed. Methods ofalleviating delay within the current system are put forward.1 Also referred to as “illegal” or “undocumented” migrant workers.4Working Towards EqualityConclusionMigrant workers are experiencing exploitation in Ireland and this thesis concludesthat this is due in part to the obstacles that are currently operating under theemployment system in Ireland. The obstacles that operate during recruitment,employment and in accessing justice are preventing migrant workers fromachieving equality in employment law with Irish nationals. Until a more equitableemployment process is developed, migrant workers will continue to face thedangers of exploitation that the GAMA and Irish Ferries situations presented inIreland.

Bibliographical metadata

Original languageEnglish
Awarding Institution
  • University College - Cork
Place of PublicationCork, Ireland
Publisher
  • University College Cork
Publication statusPublished - 21 Mar 2009