A trawler operator has been ordered to pay a fisherman over €11,500 for failing to pay him the minimum wage - a requirement of the work permit scheme he fell under.
The Workplace Relations Commission made the order against Co Wexford-based R&E Fish Ltd on foot of a complaint by Elamir Elamdkhoum for a breach of the National Minimum Wage Act 2000, on top of smaller amounts for further employment rights breaches.
Mr Elamdkhoum was awarded another week's pay for the employer’s failure to provide a written statement of terms in breach of the Terms of Employment (Information) Act – bringing the total orders against R&E Fish in the case to €12,500.
Michael O'Brien of the International Transport Workers’ Federation, told the employment tribunal that the Department of Justice’s Atypical Working Scheme for Fishers required that his client be paid the minimum wage for 39 hours every week, even if his employer’s vessel was tied up.
"He was required to be paid for every hour worked at an hourly rate not less than the national minimum hourly rate of pay," said Mr O’Brien.
No more than €54.13 per week could be legally deducted for board and lodging, the trade union rep added.
Mr Elamdkhoum said in evidence that he started work on an 24-foot prawn boat operated by R&E Fish in December 2019 and went on the atypical work scheme in October 2020.
He described working 17-hour days on the vessel’s fishing grounds as the crew carried out three or four shots of the net per day and "sometimes more" – with further duties including cooking, cleaning fish, grading prawns and mending nets and some maintenance work.
Mr Elamdkhoum added that rather than being given a form to sign as required by the statutory instrument governing the atypical work permit scheme, he instead signed a letter at the start of each fishing trip.
The complainant also said that an employment contract produced by the respondent in his name was signed by someone other than him – and that he was overseas on another fishing expedition when it was signed.
He said he did not turn up for work on 31 January 2021 but was available for work the following day – when he was told the boat had "extra crew" for a trip and that he would have to "sit this one out".
Following this he looked for a statement of his working hours from his employer, but nothing was forthcoming, he said.
A director of R&E Fish, who was not identified in a decision published this morning, said the vessel Mr Elamdkhoum worked aboard would normally only do three net shots a day if there was "a problem" with one of the first two.
She said it was "not possible" for the complainant to have been working the hours he claimed and that it was "physically impossible" for the vessel to draw its nets up more than four times in a day.
"None of the rest of the crew worked the hours worked by the complainant and therefore it does not add up that he had to work these hours," the witness added.
The company’s solicitor, Ruairí Ó Catháin of maritime law firm Conways Solicitors, put it to Mr Elamdkhoum in cross-examination that he was "overstating the number of net shots per voyage" as the vessel would not have the capacity for all that catch.
The complainant responded that a trawl would bring up anywhere between 30kg and 600kg of catch – and said the vessel had been "caught with extra fish on board" once.
The company director admitted the vessel was found to have breached its quota in November 2020.
In his decision, adjudicating officer Conor Stokes noted that the only direct oral evidence put before him on the hours of work on the vessel was that of the complainant, as the company director had never been out to sea with his former crew.
"The evidence of the complainant, although tested, has effectively not been challenged," he wrote.
He added that Mr Elamdkhoum "sought the appropriate records" from his employer under the National Minimum Wage Act and that these were "not forthcoming".
"I find that this act was contravened," Mr Stokes wrote.
He noted further that Mr Elamdkhoum was "not let go" from the job in February 2021 and that the Department of Justice was not notified of any termination of the contract, which was the firm’s duty under the terms of the Atypical Work Permit scheme.
Mr Stokes wrote that as the employer "cannot prove" Mr Elamdkhoum’s working hours and the employment relationship had persisted, he accepted the trade union’s calculation for €11,540 in pay arrears and made an order for that amount.
Mr Stokes added that the complainant had been left three days short on his holiday entitlements and ordered that he be paid five days’ minimum wage in compensation, or €408, for a breach of the Organisation of Working Time Act.
