Undocumented Fishermen

On Monday the Guardian in the UK published a story about the plight of undocumented workers in the Fishing Industry.

The story represented a year long investigation into the practises of owners of fishing vessels in this Country. Many owners were contacted directly by some of the Journalists working the story.

The questions were generic in nature with very few specifics and with plenty of innuendo. The headlines have been dramatic and full of moral outrage. Brendan Howlan announced ‘The issue of people trafficking is one of the most egregious crimes of our times’.

This is completely at a remove from the reality of what is happening on the ground. It goes to the heart of the problem with this ‘news story’. It is not news it has been a reality for as long as Owners have been unable to get sufficient crews. In 2006 plans were drawn up to allow visas to issue for non EEA fishermen to get work visas. Before the scheme could get off the ground the crash of 2008 meant it got shelved in order to encourage local employment.

It has now been announced that there is a task force established to investigate what is happening.

As always with such matters, the headlines, the interviews and the moral indignation will lead to investigations and proscutions.

It is always the way of things in Ireland that the politicans will want to get to the Moral high ground as quickly as possible in order to be able to say to everyone that the proosecutions happened on their watch.

The law is very clear in relation to the standing of Share fishermen. There are four distinct High Court cases (mainly Revenue Commissioner challenges) which confirm that Share Fishermen are self employed and operate under a Contract for Service rather than a contract of service.

Accordingly the relationship with a Share fisherman is not that of employee/employer. It is closer to the relationship of a contractor.

The position is that the Owner has a number of obligations on him or her but they are clear and form a short list.

Firstly, the Owner must account for the Fisherman’s share of the trip. It is clearly in the Owners interest to keep a proper account of this to be able to show that there was nothing underhand going on.

Secondly, the Owner must ensure that they have the Basic Safety Training Course done. This is an offence which has nothing to do with immigration law. It is a separate offence but clearly requires compliance.

Thirdly, (and again not an immigration issue) the Owner must comply with other requirements for the crew such as the Manning hours regulations and the other safety requirements such as muster drills and having the appropriate safety equipment on board the vessel.

The question of compliance with immigration law is not one for an owner to police or engage with. A self employed person not only must take care of this in order to be in this Country to present for employment, but – in precisely the same manner – they must ensure that their tax affairs are in order. This is not an issue either for the owner.

The best defence to any actual accusation are an Owners records. Records of pay, records of hours worked and communications with crew.

Ultimately (despite the headlines), a person is innocent until proven guilty.

Dermot Conway
CONWAYS SOLICITORS
contact Dermot at 0214901000 or dermot@conways.ie