Migrant Workers and the Limits of the Law

While there are many high-skilled and high-paid migrant workers, in low wage sectors, research points to migrant workers’ vulnerability to exploitation, such as wage theft where they are not paid for work performed. Migrants may have poor language skills, be dependent on their employers for information, and immigration rules can weaken their economic power. Migrant workers can become normalized to poor working conditions and can fear reprisals if they complain. The unionisation rates of migrant workers are generally much lower than native workers. In 2023, the ESRI reported that 13% of non-Irish nationals were union members compared to 33% of Irish nationals.[i]

Unusually a group of Portuguese construction workers in Ireland did collectively pursue their employers for unpaid wages but their actions illustrate the challenges workers face against employers who evade legal responsibilities. In 2007, approximately 180 Portuguese workers worked for a consortium of three Portuguese companies on the Limerick-Nenagh motorway. At the time, there was a Registered Employment Agreement (REA) for the construction sector which set down standardised pay and conditions and workers were provided with contracts that complied with the REA and Irish employment laws. The Portuguese workers were paid a monthly wage inclusive of overtime of approximately €1,200 to €1,500 for working days, evenings, and weekends while they estimated that Irish construction workers earned about €3,500 per month. Some workers claimed they had illegal deductions from pay such as for laundry services never used and non-existent ‘benefits in kind’. Their employers housed them in prefabricated units beside the motorway, which were overcrowded with overflowing sewage and waste, no safe drinking water, a lack of hot water and wastewater travelling back from storage units into showers. Workers claimed that the company had warned them against unionising.

Some of the workers subsequently contacted a translator living in Ireland and a solicitor who would represent them. The solicitor and translator spent 13 years seeking to recoup underpaid wages and illegal deductions through the Irish legal system. There were initial unsuccessful complaints to the former Rights Commissioners under the Payment of Wages Act 1991 because the companies produced records that contested the workers’ claims. Despite the companies and the workers being based in Portugal, the workers’ legal team submitted breach of contract claims against the three companies to the High Court in 2012 initially on behalf of 27 workers and additional workers instituted proceedings in 2013 and 2014. A key strength of the workers’ cases was the outcome of a labour inspectorate investigation, but labour inspectors had no powers to enforce the REA pay rates and could only investigate breaches of working time law. Inspectors concluded that the three companies had produced falsified working time records and that up to 180 Portuguese workers had worked 41 per cent more hours than stated on company documentation, leading to an aggregate underpayment of €3 million. In 2016, the High Court concluded that the companies had “engaged in the systematic and deliberate” under-recording of the workers’ hours, that the workers’ accommodation was “of a deplorable – perhaps even, a dangerous standard”. The Court awarded damages for the breaches of contract in relation to wages, accommodation, laundry services, and illegal deductions, and costs were awarded against the companies. But between 2016 and 2019 the companies lodged 14 appeals, leading the Court of Appeal to conclude that their “conduct has been designed to delay and frustrate (a) the conduct of the cases of [the workers] (b) the payment of any sums due on foot of court orders whether by way of awards of damages or costs orders”.

By 2021, the workers had recovered about €1.5 million in awards and costs from the three companies and approximately €1.5 million was outstanding. The treadmill of appeals by the companies tempered the workers’ legal successes and while the cross-border feature of this case complicated matters, evidence suggests workers can experience significant difficulties retrieving awards from statutory bodies in employment law claims even when employers and workers are in the same country. A considerable weakness of legal actions is that they often occur after the event and therefore do not allow migrant workers to challenge managerial power on a day-to-day basis. For the Portuguese workers, undertaking legal action was not the optimal or preferable mechanism to recouping wages but it was the only option available. The workers had in theory the full protection of employment law, but this did not prevent large-scale wage theft and illustrates how a corporate actor can neutralise or delimit rights.[ii] For reasons such as this, there have been calls internationally to stop a race to the bottom in public procurement. The European Commission President, Ursula von der Leyen, is now pledging to revise the Public Procurement Directives, and the current draft still does not address the needs of workers who are too often badly treated.

A full analysis of the legal dispute is available in O’Sullivan M. and MacMahon, J. (2022) ‘Migrant Workers and Wage Theft: Is Legal Action An Effective Form Of Collective Action?’, Industrial Law Journal, 51(4): 927-954.

[i] ESRI (2023) Wages And Working Conditions Of Non-Irish Nationals In Ireland. Dublin: ESRI.

[ii] McCann, M. (2014) ‘The Unbearable Lightness of Rights: On Sociolegal Inquiry in The Global Era’, Law & Society Review, 48, 245-273.

Dr Michelle O'Sullivan

Dr Michelle O'Sullivan's expertise is primarily on the quality of work and precarious work, with particular attention on public policy.

Chair of the Irish Association for Industrial Relations, Co-Chair of the Work, Employment and Organisation Special Interest Group in the Irish Academy of Management, is a member of the Board of Directors of TASC and the Scientific Council of the Foundation for European Progressive Studies. She was a Board Member of the Workplace Relations Commission from 2015-2021.