Where are the Law-and-Order Parties When You Need Them?

I was taken aback when the recent ‘crime’ figures were produced and not a peep was heard from the ultimate ‘law and order’ party, Fine Gael. They do pride themselves as the nation’s alpha crime fighters: prisoners paying for their B&B, boot camps, the open-season-on-Travellers’ Homeowners Bill, ending prison remission, electronically tagging innocent people, drunk tanks in hospitals and most recently, Charles Flanagan’s ‘pay for English in the courts’ proposal. If you’re a criminal, don’t mess with this party. So, when a new agency produced a report showing large scale breaches of the law, I immediately went on to the party’s website to read their get-tough response. What did they say? More enforcers? Harsher prison sentences? Confiscation of assets? They said nothing, nada, not a word, not a whisper (particularly odd given that the relevant spokesperson - Leo Varadkar TD - is not publicity shy).But maybe that’s understandable. For the crime figures related to violations by employers and the victims were mere workers.

Fine Gael don’t do economic crimes.

The National Employment Rights Authority (NERA) recently published their first quarterly summary of enforcement activity. Their remit is to ensure that employees’ rights are protected in the workplace. The NERA was established as a result of the agreed Towards 2016 national wage deal. It was a difficult birth, the negotiations being held up for months over employers’ objections to such a body and greater resources for monitoring the employment code. That this body had to emerge out of wage negotiations was, in itself, wholly objectionable. Shouldn’t the Government be enforcing the law in the workplace regardless of wage negotiations? It’s tantamount to a housing estate, plagued by crime, having to negotiate with the Government to be protected rather than, as citizens, expecting it as a right.

Regardless of how the authority was born, it is in place, still under-resourced (they hope to have 90 inspectors soon, which would put it just above the number of dog wardens in the state), but going about it's work. And what they are finding is nothing short of incredible.

In six of the eight named sectors where workplace inspections were carried out, more than 50% resulted in breaches. Not surprisingly, the contract cleaning sector led the league – more than 2/3 of inspections discovered a breach.

A major part of the investigation work by the NERA is to recover arrears that are owed to employees – whether as part of violations of the minimum wage law, organization of working time, payment of wages regulations, etc. So what was the average arrears per each breach detected?

Unfortunately we don’t have the number of arrears recipients, so it is difficult to say just how much employees were, on average, being done out by miscreant employers but clearly it was costly enough for enterprises in the Hotel, Construction, Agriculture and Contract Cleaning sectors.

Needless to say, these are sectors where employees are particularly vulnerable. Given the high turnover of staff and the high proportion of part-time working, these employees don’t have the protection of trade unions. It is likely that in many of these low-skilled sectors, employees would not be informed of their rights or, in the case of non-nationals, have the language or cultural skills to demand them. If people feel they are getting short-changed, they are more likely to leave the job and take up work elsewhere, rather than stand up and fight the employer.

The NERA urges us not to read too much into these figures.

It should be noted the figures given for the percentage of breaches detected are based on the number of inspections carried out. So a very high figure for percentage of breaches detected can result from a small number of inspections, from targeted campaigns or from inspections in response to a particular complaint and therefore would not necessarily be representative of a high rate of non-compliance within a sector.

Maybe it is doubtful if 58% of all hotels in the state are guilty of breaking the law. But we will have to await a more detailed analysis of these figures that will hopefully appear in an Annual Report before we can pass a general judgment. However, it should be noted that while the objection that a small number of inspections in a particular sector might skewer the percentages is valid, the sector with the largest number of inspections – construction, with 416 inspections – suffered from a 56% failure rate, well above the average.

So where was Fine Gael? Where were the demands for more inspectors, more resources, more powers, and more penalties for the law breakers? After all, workers are being robbed.  We're dealing with theft, plain and simple.  But maybe, in the Fine Gael world of crime-fighting, some lawbreakers are more equal than others. And, of course, we heard not a peep from IBEC and ISME either. Now, you might think that is to be expected; surely they wouldn’t have a go at their own constituency and even their own members. But their silence and their previous attempts to block the establishment of the NERA with the necessary resources is actually doing their members severe harm. Consider these two points:

• Employers who consistently violate the law and, in so doing, ‘save’ themselves money - whether its through cash to the employees or avoiding the necessary investment into safety and health practices - are giving themselves an unfair competitive advantage over law-abiding employers. Shouldn’t the law be protecting the latter rather than the former? Shouldn’t employer organizations be calling for such protection?
• A major cause of staff turnover is the conduct of managers/owners towards their employees (a Small Firms Association report suggested that over 300,000 leave their jobs for another, the majority of whom leave because of working conditions and relationships, not money). This turnover represents a considerable cost to employers – in particular, recruitment and training costs. Such high costs impede a company’s competitiveness. Given the focus on our competitiveness, surely this should merit some attention (maybe the National Competitiveness Council will assess the cost of ‘crooked’ employers to the economy in their next report).

The fact is that high levels of law breaking are bad for the good employers and bad for the economy’s competitiveness.

Oh, and yes, it’s not really great for the victimized workers. But, hey, they don’t rank high up the entrepreneurial agenda. Maybe that’s why there was so little, if any (I certainly couldn’t find any), political reaction to the report’s findings. Maybe we should rename Fine Gael as the ‘some-law, some-order’ party.

But at least in one small corner there are a group of men and women starting to change all that, if only slightly – over at the NERA. More powers? Yes. More resources? Yes. Name and shame? Yes.

The Left should get behind this ‘get-tough-on-crime’ agenda. There’s a lot of workers out there who will thank them.  And law-abiding businesses, too.

Comments

[Neil Ward]

Great to have the blog back after the Christmas break!

Love the idea of the left becoming the economic equivalent of law-and-order parties!

[Keith Martin]

Interesting to find out what punishments are meted out...
I remember a PQ going down to Micheál Martin about prosecutions under minimum wage rules. Turned out that not a single person had actually been prosecuted for not paying the minimum wage. Quite a few people had been caught, but the penalty was that they had to pay the money owed to the employees. No interest, no fines, no court appearance.
So, if you're an employer, the maximum cost to you of being caught is to pay what you should have paid. The benefit of cheating is that you can save money if you're willing to. So, do a cost/benefit analysis and you'll be compelled to pay your staff the least you possibly can, and damn the consequences (which will be no worse than paying them what they're due).

[James Doorley]

Well NERA is indeed progress. I remember ten years ago following up on the protection of young workers in employment act, this is the legislation that is supposed to limit the hours children and young people under 16 work. DETE told us that there was no problem, they had come across no infringements of the law...we only discovered later that they has 12 inspectors, all based in Dublin who worked 9-5. Its no wonder they didn't come across any problems!!!

[Michael]

Thanks, Neil. Good to be back. So many right-wing economic myths to expose, so little net space.

Good point, Keith. The NERA says a total of 98 cases were referred to the Chief State Solicitor’s Office for prosecution during the year. Over the year, 61 cases were concluded. A large number resulted in successful convictions and the imposition of a fine. Doesn't say how many in total nor does it say for what infractions. On the specific issue of minimum wages, there were 1,939 inspections carried out with a 10% breach detection rate. That's 194 or so cases with arrears recovered of €122,000. Of course, we don't if the breaches relate to single individuals or a number in a workplace. But if as you point out, the only penalty is to pay back what is owed to (stolen from) the employee it really doesn't incentivise 'law-abiding'. Similar to the burglar who, if caught, merely has to return the DVD with no interest, no fine, no court appearance.

You raise another good point, James. Some time ago a trade unionist (I think it was TEEU but I can't be sure) complained that inspectors contacted employers prior to an inspection which, of course, can defeat the purpose of an inspection. It's not just the powers the inspectors have, backed up by appropriate sanctions; its not just the number of inspectors; it's also about the protocols of inspection - whether that be site, records, payroll, data, etc.

I'm sure 'Leo of the Fine Gael' is taking this all in and waiting to time his intervention in the most effective way possible.

[Fboij]

Yesterday was the first opportunity for the opposition to raise this with the Minister. Suprisingly they did, FG had a question on the enforcement of employment law and if there were sufficent deterents, whilst Sinn Féin had one in on the workings of NERA in promoting knowledge of employee rights.

[Michael]

Thanks for pointing that out, Fboij. Though it appears that it was Sinn Fein that put the question down, Leo only got involved in the supplementary follow-up. Still, fair play (maybe he reads my blog).

Here's the link for everyone to read:

http://debates.oireachtas.ie/DDebate.aspx?F=DAL20080207.xml&Node=H9-6#H9-6

[SerialComplainer]

The irony behind the high showing of the hotel industry in the 'breach' statistics is the case taken in the High Court last week which attempted to free that industry from the restrictions on minimum wages and working conditions imposed through the Joint Labour Committee system.