Ashford Castle Ltd v Services Industrial Professional Technical Union

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 21 June 2006
• Neutral Citation: [2006] IEHC 201
• Court: High Court
• Docket Number: [2005 No. 56 SP]
• Date: 21 June 2006

ASHFORD CASTLE LTD v SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION (SIPTU)

IN THE MATTER OF THE INDUSTRIAL RELATIONS (AMENDMENT) ACT 2001

BETWEEN

ASHFORD CASTLE LIMITED

PLAINTIFF

AND

SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION

DEFENDANT

[2006] IEHC 201

[No. 56 SP/2005]

THE HIGH COURT

EMPLOYMENT

Labour Court

Appeal - Rates of pay - Comparators - Whether Labour Court erred in law - Whether correct criteria used by Labour Court - ESB v Minister for Social, Community and Family Affairs [2006] IEHC 59 (Unrep, Gilligan J, 26/2/2006) considered; Bates v Model Bakery Ltd [1993] 1 IR 359 applied - Industrial Relations (Amendment) Act 2001 (No 11), ss 2, 5, 6, 9, 10 and 11 - Industrial Relations (Miscellaneous Provisions) Act 2004 (No 4), s 2 - Appeal dismissed (2005/56SP - Clarke J -21/6/2006) [2006] IEHC 201 Ashford Castle Ltd v SIPTU

This case concerned an appeal on a point of law brought by the plaintiff against a binding determination of the Labour Court, made under section 6 of the 2001 Act relating to the minimum rates of pay for a number of employees, who worked for the plaintiff and who's interests were represented by the defendant herein.

Held by Clarke J. in dismissing the appeal:

1. That a very high degree of deference was required to be applied to decisions of the Labour Court, which involved the exercise of an expertise, which the court did not possess.

2. That in all the circumstances of the case, the determination of the Labour Court was not unreasonable and consequently should not be overturned.

Reporter: L.O'S.

INDUSTRIAL RELATIONS (AMDT) ACT 2001 S6

INDUSTRIAL RELATIONS (AMDT) ACT 2001 S11

INDUSTRIAL RELATIONS (AMDT) ACT 2001 S2

INDUSTRIAL RELATIONS (AMDT) ACT 2001 S2(1)

INDUSTRIAL RELATIONS (MISCELLANEOUS PROCISIONS) ACT 2004 S2

INDUSTRIAL RELATIONS (AMDT) ACT 2001 S9

INDUSTRIAL RELATIONS (AMDT) ACT 2001 S9(C)

INDUSTRIAL RELATIONS (AMDT) ACT 2001 S10

INDUSTRIAL RELATIONS (MISCELLANEOUS PROVISIONS) ACT 2004 S4

INDUSTRIAL RELATIONS (AMDT) ACT 2001 S6(2)

INDUSTRIAL RELATIONS (AMDT) ACT 2001 S2(1)(D)

INDUSTRIAL RELATIONS (AMDT) ACT 2001 S5(1)

INDUSTRIAL RELATIONS (AMDT) ACT 2001 S6(3)(B)

INDUSTRIAL RELATIONS (AMDT) ACT 2001 S9(C)(II)

HENRY DENNY & SONS (IRL) LTD v MIN FOR SOCIAL WELFARE 1998 1 IR 34

ORANGE COMMUNICATIONS LTD v DIRECTOR OF TELECOMMUNICATIONS REGULATION & METEOR MOBILE COMMUNICATIONS LTD 2000 4 IR 159

SOUTHAN v DIRECTOR OF INVESTIGATION & RESEARCH 1997 1 FCR 748

ESB v MIN SOCIAL UNREP GILLIGAN 21.2.2006

FAULKNER v MIN INDUSTRY UNREP MURPHY 25.6.1993 1993/11/3511

BRIDES v MIN AGRICULTURE 1998 4 IR 250

MARA v HUMMINGBIRD LTD 1982 ILRM 421

BATES v MODEL BAKERY 1993 1 IR 359

1 JUDGMENT of Mr. Justice Clarke delivered 21st June, 2006 .

1. Introduction

2 2 1.1 The defendant ("SIPTU") represents a significant number of employees who work at Cong, Co. Mayo for the plaintiff ("Ashford Castle") in the five star hotel of the same name. Ashford Castle does not negotiate collectively with its employees but instead determines pay on an individual basis by agreement with each member of staff. Over a number of years grievances have been expressed by staff in relation to terms and conditions, which grievances which were ultimately referred to the Labour Court.

3 3 1.2 It will be necessary to set out the statutory regime within which the Labour Court considered the matter in due course. However in simple terms the court, in accordance with that statutory regime, made a non-binding recommendation on 22nd July, 2004. That recommendation was followed by a binding determination (No. DIR 051) dated 14th January, 2005. That determination was made under s. 6 of the Industrial Relations (Amendment) Act 2001 ("the Act") and therefore is, by virtue of s. 11 of the Act, open to an appeal to this court by either party "on a point of law".

4 4 1.3 The proceedings which I have to decide are, therefore, an appeal on a point of law by Ashford Castle against the determination of the Labour Court. It should also be noted that while the issues which were originally canvassed before the Labour Court related to a range of aspects of the terms and conditions of the employees concerned, the only matter remaining at issue at this stage concerns rates of pay.

2. The Statutory Scheme

5 2 2.1 The statutory framework within which the determination of the Labour Court was made is both recent and involves, at least in some respects, a significant new jurisdiction. It, therefore, is appropriate to commence by analysing that statutory scheme.

6 3 2.2 The first relevant provision is s. 2 of the Act which governs the circumstances in which the other provisions of the Act arise. Section 2(1) of the Act, as amended by s. 2 of the Industrial Relations (Miscellaneous Provisions) Act 2004 ("the 2004 Act"), provides as follows:-

"Notwithstanding anything contained in the Industrial Relations Act, 1946 to 1990, at the request of a trade union or expected body, the Court may investigate a trade dispute where the Court is satisfied that —"

7 (a) it is not the practice of the employer to engage in collective bargaining or negotiations in respect of the grade, group or category or workers, who are party to the trade dispute and the internal dispute resolution procedures (if any) normally used by the parties concerned have failed to resolve the dispute,

8 (b) either,

9 (i) the employer has failed to observe —

10 (I) a provision of the Code of Practice on Voluntary Dispute Resolution under section 42 of the Industrial Relations Act 1990 specifying the time for the doing of any thing (or such a provision of any code of practice amending or replacing that code), or

11 (II) any agreement by the parties extending that period of time,

12 or

13 (ii) the dispute having referred to the Commission for resolution in accordance with the provisions of the such code, no further efforts on the part of the Commission will, in the opinion of the Commission, advance the resolution of the dispute and the Court has received a report from the Commission to that effect,

14 (c) the trade union or the expected body or the employees, as the case may be, have not acted in a manner which, in the opinion of the Court, has frustrated the employer in observing a provision of such code of practice, and

15 (d) the trade union or the expected body or the employees, as the case may be, have not had recourse to industrial action after the dispute in question was referred to the Commission in accordance with the provisions of such code of practice."

16 For the purposes of the Act the "Court" is the Labour Court.

17 2 2.3 Thereafter s. 5 of the Act empowers the Labour Court, having investigated a trade dispute under s. 2, to make a recommendation:-

"... giving its opinion on the matter and, where appropriate, its view as to the action that should be taken having regard to terms and conditions of employment, and to dispute resolution and disciplinary procedures, in the employment concerned".

18 3 2.4 Where a recommendation under s. 5 does not resolve the dispute, s. 6 of the Act provides:-

19 2 "(1) Where in the opinion of the Court, a dispute that is the subject of a recommendation under Section 5 has not been resolved, the Court may, at the request of a trade union or excepted body and following a review of all relevant matters, make a determination.

20 (2) A determination under subsection (1) may have regard to terms and conditions of employment, and to dispute resolution and disciplinary procedures, in the employment concerned but shall not provide for arrangements for collective bargaining.

21 (3) A determination under subsection (1) shall be in the same terms as a recommendation under section 5 except where —

22 (a) the court has agreed a variation with the parties, or

23 (b) the court has decided that the recommendation concerned or a part of that recommendation was grounded on sound or incomplete information".

24 4 2.5 It should also be noted that s. 9 of the Act provides for a review of a determination on the application of either party. Section 9 provides for the vacation of the determination in circumstances where the dispute as originally referred has been resolved or its affirmation where, in the opinion of the court, the dispute has not been resolved.

25 Section 9(c) provides that the court may:-

"vary the terms of the determination and the order giving effect to the determination where —

(i) the court agrees such variation with the parties, or

(ii) the court is satisfied that the determination or a part of the determination was grounded on unsound or incomplete information".

26 2 2.6 Finally s. 10, as amended by s. 4 of the 2004 Act, provides as follows:-

27 2 "(1) Where an employer fails to comply with the terms of a determination under section 6 within the period specified in the determination for those terms to be complied with (or, if no such period is so specified, as soon as may be after the determination is communicated to the parties) a trade union or expected body may make an application under this section to the Circuit Court for an order under subsection (2).

28 (2) On application being made to it in that behalf, the Circuit Court, shall, without hearing the employer or any evidence (other than in relation to the matters referred to in subsection (1) make an order directing the employer to carry out the determination in accordance with its terms."

29 3 2.7 It will, therefore, be seen that the section introduces a new and important measure into the industrial relations legislation in this jurisdiction. It provides for a mechanism whereby determinations of the Labour Court as to pay and conditions can, in certain circumstances, become legally enforceable. Therefore, ultimately, the Circuit...