Work permit bill swerves need to amend primary law

A 2018 Government review concluded that Ireland’s employment-permit system provided a robust framework to supplement skills and labour needs in Ireland, writes Declan Groarke of Lewis Silkin Ireland.

However, the Department of Enterprise, Trade and Employment, which published the report on the Review of Economic Migration Policy, also noted that current employment-permit legislation was inflexible in its operation.

Last year, the Irish Government published the Employment Permits Bill 2022, aimed at consolidating existing legislation and making the existing employment-permit system more responsive to Ireland’s evolving labour market.  

The bill proposes a number of changes to the system, including:

• Consolidating legislation,
• Creating a new type of employment permit for seasonal workers, (a seasonal employment permit), designed to facilitate non-EEA nationals’ employment in seasonally recurrent employment. This isn’t defined by the bill and is likely to be defined in regulations based on specific industry requirements, and
• Permitting the granting of a contract-for-services employment permit to a sub-contractor (these permits can only currently be granted to the main contractor).

Modernisation

In addition to these changes, the bill also aims to modernise the existing employment-permit system by moving its operational aspects to regulations. 

This will facilitate easier changes, as opposed to having to amend primary legislation continuously as the labour market evolves.

The benefit of having the operational aspects of the system contained in regulations can already be shown by how quickly the minister can amend the critical-skills occupations list, the ineligible list of occupations for employment permits, and the quotas for some occupations experiencing labour shortages.

The bill also proposes to give the minister the power to specify conditions relating to the grant of an employment permit.

Regulation limits

However, these regulations are limited to the grant of a general employment permit and seasonal employment permit, so it will be interesting to see if they are extended to other employment-permit types.

These conditions may include accommodation, training, or expenses to be provided to the employment permit-holder.

Interestingly, the minister will also have the power to make regulations setting conditions requiring an increase in the skills, knowledge, qualifications or experience of employees, other than the employment permit-holder.

This is driven by the overriding immigration policy that vacancies in Ireland should first be offered to Irish and EEA nationals.

This is because the  primary purpose of the employment-permit system is to service skills and labour shortages in Ireland.

Upskilling

Therefore, if conditions can be attached to the grant of an employment permit that requires the upskilling and training of non-employment-permit-holders, this may decrease future reliance on the employment-permit system, as more highly-skilled Irish and EEA candidates enter the labour market.

This bill also proposes to revise the current Labour Market Needs Test, which must be satisfied prior to applying for a general employment permit, contract-for-service employment, and, by extension, the seasonable employment permit as proposed by the bill.

The bill removes the requirement of advertising the vacancy in a national newspaper – only requiring the advertisement to be published on two online platforms, one of which is EURES (JobsIreland.ie).

The operational details of the Labour Market Needs Test will be set by regulations covering what must be contained in the advertisement, and how long the advertisement must be published for (save that the advertisement on EURES/JobsIreland.ie must be published for a minimum of 14 days, whereas the current period is 28 days). 

Not all issues addressed

While some may welcome the shortened advertising period, the saving of additional costs associated with advertising the vacancy in a national newspaper, or the potential change in information to be contained in the advertisement, these revisions don’t address all of the issues with the Labour Market Needs Test.

Employers in Ireland are facing an ongoing challenge of attracting talent and filling vacancies quickly.

They often look beyond the EEA for talent, and also look to under-graduates and post-graduates who are not yet qualified and who may be non-EEA nationals, thus requiring an employment permit to continue working in Ireland.

Therefore, getting an employment permit quickly for a candidate may be one of a number of factors in ensuring any offer of employment is accepted. 

Frustrated employers

For those candidates who are only eligible for a general employment permit, employers are often left frustrated when they learn that they need to satisfy the Labour Market Needs Test before they can apply for the employment permit for the candidate who has been offered the position.

By that stage, the employer may have already advertised the vacancy on their own careers portal and/or an external website, separate to EURES/JobsIreland.ie, and are left wondering why they need to advertise a vacancy again when the ideal candidate has already been found.

It is also frustrating for the candidate, who may need to wait to start employment with their new employer having completed several rounds of interviews.

As a time-saving measure, other jurisdictions, such as the Home Office in Britain, have abolished the need to satisfy similar labour-market needs tests for many employment visas. 

It might be welcomed if the Irish Government followed suit.

50% threshold

If it does, it could consider amending its 50:50 rule and increasing the figure for Irish and EEA hires above the 50% threshold for larger employers.

This would decrease the number of non-EEA nationals larger employers could employ, and would ensure that the overriding immigration policy – that vacancies in Ireland should first be offered to Irish and EEA nationals – is maintained.

The bill also proposes to introduce automatic salary indexation for occupations, with the salary threshold for an employment permit differing, depending on the occupation on offer, and based on a salary index.

It is interesting that the bill is allowing for automatic indexation of salary thresholds for specific occupations, as this would seem rather inflexible.

Comparatively, Britain’s Home Office uses salary indexation, in addition to a general salary threshold, when setting salary thresholds for visas as part of its points-based immigration system.

Salary index

This bill seeks to create a similar salary index for Ireland’s employment-permit system, using data obtained from the Central Statistics Office.

However, this may still require some oversight, as it is possible that the salary index could be lower than the national minimum wage for certain occupations.