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Ireland breaches European human rights laws on workers rights January 30, 2013

Posted by Tomboktu in Employment Rights, Human Rights, Workers Rights.
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Ireland has been found to be in breach of eight European requirements on employment rights (pdf here). A total of 11 breaches of the Revised European Social Charter were itemised by the Council of Europe in legal findings published on Tuesday (29 January). The Charter is a sister human rights treaty to the European Convention on Human Rights (pdf).

The findings were made by the European Committee of Social Rights, an independent legal body set up to judge state’s conformity with the Charter.

In addition to finding that Ireland is breaching European human rights law, the Council of Europe watchdog indicates that it doubts that the State is properly implementing its legal duty to strive for full employment, and echoes an OECD report that Ireland’s performance on assisting people with job searches in ineffective. The Committee took note of the OECD’s findings that a quarter of people eligible for help from FÁS were never referred to it and that Irish spending on labour market policies relies on job creation schemes that have been judged to be ineffective. However, the Committee decided to defer coming to a legal finding of compliance or breach until the Government provides more information.

The Employment Equality Act was found to to be incompatible with the human rights standard because the maximum compensation that can be awarded is not sufficiently dissuasive and may not be enough to make good the loss a person suffers. The law was changed in 2011 to raise the amount to €40,000. Only the provisions on gender discrimination, where the upper limit does not apply, are found to meet the standard required.

Most of the shortcomings highlighted in the legal report concern the rights of non-EU workers. Ireland has been found to discriminate illegally against those workers in relation to their access to vocatonal training, their access to vocational guidance, the length of their residency requirements for access to higher education, and their access to further or continuing education.

Fees levied by Ireland for work permits were found to be excessive. At the time the Committee assessed the situation, they ranged from €500 to €2,250 (in the case of a person renewing a permit for five years).

A rule requiring both Irish and non-Irish people to be resident in a local authority area for a year before they are eligible for a maintenance grant for vocational training was also found to be a breach of the European Social Charter.

Ireland was also found that the rights of all newly employed workers — both Irish and non-Irish — is breached because they are not protected under the Unfair Dismissal Acts in their first full year in any employment. “The Committee considers that one year period of exclusion is manifestly unreasonable”, the report says. It also finds that excluding workers who have reached the normal retiring age from the protection of the Unfair Dismissals Act goes beyond what is permitted in European human rights law.

The European Committee of Social Rights also finds that employment rights of army officers is breached. Officers may not seek early termination of their commission unless they repay to the state at least part of the cost of their education and training, and the decision to grant early retirement is left to the discretion of the Minister of Defence. The human rights watchdog find that this could lead to a period of service which would be too long to be compatible with the freedom to choose and leave an occupation.

The Committee found Ireland to be in conformity with six provisions, and deferred reaching a conclusion in the case of six other provisions because the Government had not provided enough information to enable the Committee to assess if the State is meeting its obligations.

The findings were made in the annual reporting procedure under the Revised European Social Charter. A quarter of the 31 articles of the Charter are examined each year, in thematic clusters. The next report will examine Ireland’s situation in relation to health, social security and social protection.

Ireland ratified the Charter thirteen years ago. Unlike the European Convention on Human Rights, the European Social Charter does not provide individual redress, but collective complaints from trade unions, employers’ bodies and European NGOs can be heard by the European Committee of Social Rights.

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Comments»

1. doctorfive - January 30, 2013

Cheers for this.

Have any of the bigger (or actual news) outlets picked this up?

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Tomboktu - January 30, 2013

Not that I have seen. However, the Council of Europe’s press release on the release is unimaginably dull:

“The Council of Europe published its report on the implementation of the European Social Charter by its member States

Strasbourg, 29.01.2013 – The Conclusions of the European Committee of Social Rights for 2012 are public.

It is now possible to consult Conclusions 2012 and Conclusions XX-1 (2012) by State Party.

These conclusions contain the assessments of the European Committee of Social Rights on the implementation of the Charter with regard to employment, vocational training and equal opportunities.The Committee adopted a total of 622 conclusions in respect of 42 countries including 155 findings of violations of the Charter.

Hungary did not send a report on the implementation of the Charter, consequently the Committee did not adopt any conclusion in its respect.”

Unless you are a Hungarian journalist, there is nothing in that to catch your eye.

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2. que - January 30, 2013

recetnly saw how a shed load of CEOs rowed in behind Cameron’s Brexit referendum saying if the Brits left the EU then things would be grand.

Having read that post above can you imagine how “flexible” and “competitive” they could make the UK. Aint hard figuring out how either.

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doctorfive - January 30, 2013

David Malone was saying as much recently and made the point that

I think Cameron’s speech was not greeted with howls of anger and cries of ‘perfidious Albion’ because many of those European leaders would be most interested to have the UK spearhead a questioning and re-writing of some of those remaining social market aspects of Europe. I think the discussions will not be about if such a re-writing should be allowed for the UK but how it could be fed into Europe’s own discourse in such a way that it can be applied more widely.

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WorldbyStorm - January 30, 2013

And on foot of both your comments here’s the key line in Tomboktu’s post:

“Unlike the European Convention on Human Rights, the European Social Charter does not provide individual redress, but collective complaints from trade unions, employers’ bodies and European NGOs can be heard by the European Committee of Social Rights.”

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Tomboktu - January 30, 2013

Actually, collective complaints can be a really useful mechanism and I would love to see them introduced into our legal system.

Our model of an individual enforcement means that the right individual has to know they have a right, has to know that their situation or experience is a breach of their rights or know how to find out, has to have the ability to take a case or to find a body like the FLAC or the Human Rights Commission who can take your case, and has to have the willingness to go throught the process (and possibly take a risk with costs if you lose). The collective complaints system allows organisations to take a case on the basis that there is a breach rights of a group of people.

The real problem with the Social Charter rights in both Ireland and Britain is that they are not part of our domestic legal set of rights and Irish or British judges are not bound by those laws. That is not the case in other countries. For example, in the Netherlands, when the country ratifies an international human rights treaty, Dutch courts must apply the rights contained in it.

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WorldbyStorm - January 30, 2013

Ah, that’s a good point.

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Tomboktu - January 30, 2013

The Council of Europe and the EU are two different bodies. The CoE has 47 member states, the EU only 27.

On the situation of the UK and the Social Charter, it has not ratified the Revised European Social Charter, but has ratified the original charter. For the set of right examined this year, their record is as follows:

10 conclusions of conformity
3 conclusions of non-conformity

Ireland’s record is 6 conclusions of conformity and 8 conclusions of non-conformity, and 6 deferred conclusions. Even allowing for the size of the set being different, it is clear Ireland is not doing as well as UK.

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