Tackling Vulnerability to Labour Exploitation through Regulation: The Case of Migrant Fishermen in Ireland

Abstract

In November 2015, the Guardian newspaper reported severe and widespread abuse of migrant workers within the Irish fishing industry.1 The patterns of exploitation identified by the team of journalists mirror findings across other jurisdictions and sectors relating to the labour conditions of migrant workers.2 They included workers being confined to vessels unless given permission to go on land; receiving no proper rest days; and being paid less than half the Irish minimum wage.3 The Guardian reports led to intense media coverage and pressure on the Irish Government, prompting the immediate formation of a Task Force and ultimately the adoption of an ‘Atypical Working Scheme for non-EEA crew in the Fishing Fleet’4 which sought to formalise and regularise the workers’ immigration and employment status. This is not a legislative measure as such: in the Irish system, atypical working schemes are administrative measures emanating from the Irish Naturalisation and Immigration Service (within the Department of Justice and Equality). Atypical working schemes provide for permits for ‘atypical, short term employment’ not governed by the Employment Permits Acts 2003–20145 and thus constitute a form of regulatory regime for temporary labour migration. Ancillary reforms included the clarification of enforcement powers of the labour inspectorate to facilitate inspection of fishing vessels and the adoption of an inter-agency Memorandum of Understanding between the key enforcement bodies to streamline the effective enforcement of health and safety, marine and employment regulations in the sector. This package of measures constitutes an attempt to address the vulnerability to labour exploitation of a group of migrant workers primarily through the medium of ordinary employment and immigration regulation, as opposed to a criminal justice approach akin to that adopted in the UK in the Modern Slavery Act 2015, for example.6 This article examines the Atypical Scheme as a potential model of good practice for the use of regulation to counteract vulnerability to labour exploitation of migrant workers. More broadly, it considers the dual role of the law in this domain. The legal and institutional framework plays a significant role in creating vulnerability to labour exploitation. Paradoxically, however, legal tools also have the potential to counteract or address this vulnerability. On the question of the appropriate legal tools to counteract vulnerability to labour exploitation among migrant workers, Zou has concluded that neither the international human rights framework nor the trafficking/‘modern slavery’ discourse, adequately responds to the complex realities of migrants’ work relations on a continuum of exploitation.7 This article is based on the premise that a focus on protective labour law regulation and enforcement is more likely to respond to these realities. As the analysis here reveals, the devil is in the detail: industry-appropriate regulation; effective enforcement; and evidence-based policy development are essential to ensure that legal reforms which appear progressive on paper have a real impact on the protection of workers’ rights.