Ireland

Migrant fishermen who received Brexit scrappage compensation still entitled to redundancy, WRC rules

Tribunal heard that if fishermen won right to redundancy, State could face a ‘slew of cases’

The men are due a combined €42,000 following the ruling. Photograph: Nick Bradshaw/The Irish Times
The men are due a combined €42,000 following the ruling. Photograph: Nick Bradshaw/The Irish Times
Stephen Bourke
Tue Mar 19 2024 - 15:05

Payments to fishermen left out of work under the State’s Brexit scrappage scheme do not replace their statutory redundancy entitlements, the Workplace Relations Commission (WRC) has ruled.

The tribunal had been told that if the seven migrant fishermen who brought the case before the WRC were successful, the State could face “a slew of cases” from Irish and EU fishermen.

The trawler operator, which got €2 million from the taxpayer when it scrapped two vessels but claimed it didn’t have to pay the complainants their statutory redundancy when they were left out of work as a result, must now pay them a combined €42,000.

Lawyers for Millbay Fishing Company Ltd had insisted it would be “unfair” to give the men the severance pay on top of compensation of €1,000 for every year they were at sea on the vessels under the terms of a post-Brexit decommissioning scheme aimed at shrinking the Irish fishing fleet.

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In claims under the Redundancy Payments Act 1967, the workers’ trade union representative, Michael O’Brien of the International Transport Workers’ Federation, said the statutory redundancy sums being sought were “chicken feed” compared to the €2 million paid out to the vessel owner by the public under the Brexit Voluntary Permanent Cessation Scheme.

The claims were upheld in decisions published on Tuesday by the WRC.

The seven fishermen, all from Ghana, are Benjamin Abban, Francis Effah, Francis Egyir, Vincent Kabu, Sampson Koomson, Gordon Kojo Monkah and Kwesi Prempah. All seven had worked aboard the St Clair and the St Rose trawlers for the Millbay Fishing Co Ltd.

The men were employed under the terms of the Atypical Work Permit Scheme, which permitted the Irish fishing industry to hire workers from outside the European Economic Area without creating a path to residency rights in Ireland. They were employees of the vessel owner, rather than contractors taking a share of the catch, the tribunal heard.

Millbay received €2,005,885 for decommissioning the St Clair and the St Rose under the Brexit Voluntary Cessation Scheme operated by Bord Iascaigh Mhara in 2022, the trade union submitted. The seven workers got €1,000 each for every year they worked at sea on the scrapped vessels under the terms of the scheme, the tribunal heard.

The trade union submitted that a letter signed by the crewmen when they received the scrappage scheme payments on September 21st, 2022 “clearly conflated the crew compensation arising from the [scheme] with the entitlements of the crew for statutory redundancy”.

The legal submission added that when Mr O’Brien, the trade union’s representative, phoned the owner of the firm asking about statutory redundancy payments for its members, he was “met with obscenities” and that a later email “went unanswered”.

In a legal submission by the seafarers’ union, the seven workers claimed they were owed sums ranging from €3,443.50 to €8,856 upon termination based on their length of service, with €42,550 being the total value of the redundancy payments being sought.

Liam O’Flaherty, for the vessel owner, said his client did not “get to keep those millions” as the common experience is that owners had large mortgages and other liabilities to pay out once they ceased trading.

Counsel also relied on the Seafood Taskforce Report, issued by BIM in October 2021, which he said stated that the compensation for crew members under the decommissioning scheme “would essentially be a redundancy payment”.

He said it was envisaged by the report that such payments would be “in lieu of redundancy, not in addition to redundancy payments”.

He said the position argued by the seven would put other predominantly Irish or EU fishermen at a disadvantage as most of them are paid by sharing in the profits of the catch rather than through employment contracts. Non-EU citizens could not avail of the share fisherman scheme, he said.

Mr O’Flaherty said Irish and EU fishermen are not entitled to a “second bite of the cherry” and if the seven were successful, he said, “we could face a slew of cases” where Irish and EU fishermen will say they were discriminated against because they received only one payment “based on their nationality”.

The ITF submitted an answer given by the Minister for Enterprise, Trade and Employment to a parliamentary question in January 2023 which had asked about the scrappage scheme and the old work permit scheme.

The minister’s response was: “Irish employment rights legislation applies to all workers – national and non-national – on board Irish registered ships.”

After outlining the terms of the Redundancy Payments Act, the minister added: “By law, it is the employer’s responsibility to pay statutory redundancy to eligible employees.”

In his decisions on the seven cases, adjudicator Jim Dolan noted the trawler owner’s argument that it would be “unfair” to make two payments to fishermen on the atypical work permit scheme and just one to those fishermen who were paid on the basis of a share of the catch.

However, he said there was “no reference anywhere” in the guidelines for the Brexit scrappage scheme indicating that payments to workers were to replace redundancy entitlements.

Mr Dolan found the seven redundancy complaints were well-founded and ordered the company to pay each of the workers statutory redundancy.