Benedict McGowan and Others v Labour Court and Others

• Jurisdiction: Ireland
• Judge: O'Donnell J.
• Judgment Date: 09 May 2013
• Neutral Citation: [2013] IESC 21
• Court: Supreme Court
• Docket Number: [S.C. No. 310 of 2010]
• Date: 09 May 2013

McGowan & Ors v Labour Court & Ors

Between:

Benedict McGowan, Kieran Marshall, Padraig Brady, Brian Kelly, Donal Phelan, David McCarthy, Jimmy Lee, Camlin Electric Limited, and Cavanty Electrical Limited

Applicants

And

The Labour Court, Ireland and The Attorney General

Respondents

And

The Technical Engineering and Electrical Union and The Association of Electrical Contractors (Ireland), the Electrical Contractors Association and The National Electrical Contractors of Ireland

Notice Parties

[2013] IESC 21

Denham C.J.

Murray J.

Fennelly J.

O'Donnell J.

Clarke J.

310/10

THE SUPREME COURT

Constitutional law - Employment law - Labour Court - Delegated legislation - Limited powers - Appeal - Powers of Supreme Court - Industrial Relations Act 1946

Facts: The appellants were electrical contractors and affected by an employment agreement registered by the Labour Court. The Industrial Relations Act 1946 contained provisions where by the Labour Court could establish Joint Labour Committee which could make submissions to the Labour Court resulting in the making of an Employment Regulation. The Court considered the nature of Part III in circumstances where in general collective agreements are not legally enforceable. The Supreme Court considered whether the appellants were permitted to raise the constitutionality of Part III of the Act of 1946 in respect of Article 15.2.1 of the Constitution and whether the Supreme Court could determine the issue in circumstances where the Court below did not expressly determine the question.

Held by O" Donnell J. (Denham CJ, Murray, Fennelly & Clarke JJ concurring) that the appeal would be allowed and the Court would make a declaration that the provision of Part III of the Act of 1946 were invalid having regard to the provisions of Article 15.2.1. No guidance or instruction was given to the Labour Court as to matters of representativity or restriction on employment or inefficiency or costly methods of work. The process permitted was far from merely one of filling in gaps. The Oireachtas did not retain any capacity for review either. The limited and essentially negative limitations therein were inadequate.

INDUSTRIAL RELATIONS ACT 1946 PART III

INDUSTRIAL RELATIONS ACT 1946 PART IV

INDUSTRIAL RELATIONS ACT 1946 S27

INDUSTRIAL RELATIONS ACT 1946 S30(1)

BURKE v MIN FOR LABOUR 1979 IR 354

CITYVIEW PRESS LTD v CHOMHAIRLE OILIUNA & ORS 1980 IR 381

JOHN GRACE FRIED CHICKEN LTD & ORS v CATERING JOINT LABOUR COMMITTEE & ORS 2011 3 IR 211 2011 1 ILRM 392 2011/28/7579 2011 IEHC 277

A (A) v MEDICAL COUNCIL & AG 2003 4 IR 302 2004 1 ILRM 372 2003/1/49

DUNNES STORES (IRL) CO & HEFFERNAN v RYAN & MIN FOR ENTERPRISE 2002 2 IR 60 2002 /8/1713 2002 IESC 7

CONSTITUTION ART 15.2.1

CONSTITUTION OF THE IRISH FREE STATE ART 12

MORGAN THE SEPARATION OF POWERS IN THE IRISH CONSTITUTION 1997 261

HOGAN THE ORIGINS OF THE IRISH CONSTITUTION 1928-1941 2012 335-339

LAURENTIU v MIN FOR JUSTICE 1999 4 IR 26 2000 1 ILRM 1 1999/15/4552

PIGS MARKETING BOARD v DONNELLY (DUBLIN) LTD 1939 IR 413

INDUSTRIAL TRAINING ACT 1967 S21

CASEY CONSTITUTIONAL LAW IN IRELAND 3ED 2000 255

INDUSTRIAL TRAINING ACT 1967 S21(3)

INDUSTRIAL TRAINING ACT 1967 S21(4)

INDUSTRIAL TRAINING ACT 1967 S21(6)

INDUSTRIAL TRAINING ACT 1967 S27

INDUSTRIAL TRAINING ACT 1967 S27(3)

INDUSTRIAL TRAINING ACT 1967 S28

INDUSTRIAL TRAINING ACT 1967 S29(2)

INDUSTRIAL TRAINING ACT 1967 S30

CONSTITUTION ART 15

1 Judgment of the Court delivered on the 9th of May, 2013 by O'Donnell J.

2 Judgment of the court delivered by O'Donnell J.

3 1 It is possible, although not without some difficulty, to detect in these proceedings an important point of constitutional law concerning the Industrial Relations Act 1946 (hereinafter the " Industrial Relations Act", the "Act" or the "1946 Act"), albeit almost entirely obscured in a thicket of procedural complication and confusion.

4 2 The appellants are, or at least are alleged to be, electrical contractors and as such, affected by an employment agreement registered by the Labour Court on the 24 ^th of September 1990 pursuant to the provisions of Part III of the Industrial Relations Act 1946 setting out certain terms and conditions of employment of electricians within the construction sector. The operation, effectiveness and validity of that Registered Employment Agreement (hereafter "REA") has been sought to be challenged in multiple proceedings which have led, by a circuitous route, to this appeal.

5 3 It is necessary to explain in some detail the legal operation of Registered Employment Agreements in general, and indeed the wider operation of the Industrial Relations Act 1946, before it is possible to commence the analysis of the constitutional issue raised in these proceedings.

6 4 The 1946 Act contained two mechanisms under which a general sectoral agreement made in respect of terms and conditions of employment in a specified industry or sector of an industry may become legally enforceable both in civil and criminal law. Although this case concerns the provisions of Part III, it is also necessary to have regard to the provisions of Part IV which have been the subject of the case law relied on in this appeal.

7 5 Part IV of the Industrial Relations Act (ss. 34-58) permitted the Labour Court to establish Joint Labour Committees ("JLCs") either where there was substantial agreement among groups representing employers and employees, or where it was considered that the existing mechanism for the regulation of remuneration and other conditions made it expedient to establish such a body. A JLC could then make a submission to the Labour Court which, if accepted by the Labour Court, would result in the making of an Employment Regulation Order ("ERO") giving effect to the proposals of the JLC. The effect of such an ERO was to make its provisions concerning remuneration and conditions of employment part of the contract of employment between an employer and an employee within the sector (whether represented in the JLC or not) and failure to comply with such terms was not only enforceable in civil law, but also gave rise to a criminal offence punishable by a fine. Provision was also made for an inspectorate to assist in the enforcement of the provision.

8 6 The provisions of Part IV of the Act can be traced back to the Board of Trades Act 1909 which was part of the reforming labour legislation introduced at that time in response to the growing power of the trades unions. JLCs tended to be utilised in industries with a transient work force and often lower paid employees, and where traditional collective bargaining could not take hold. The perceived benefit of a JLC was that it provided a structure for a form of collective bargaining in such industries which might not otherwise arise naturally because of the structure of the industry and the nature of the workforce.

Part III of the Industrial Relations Act 1946

9 7 The provisions of Part III of the Act of 1946 have similarities of structure to those of Part IV. However it appears that Part III is unique to the Irish code of industrial relations and cannot be traced back to any pre-existing body of legislation. Under Part III an employment agreement, defined as an agreement regulating remuneration and conditions of employment of work and made between trade unions and an employer or a group of employers or at a meeting of the registered Joint Industrial Council, may on the application of the parties thereto, be registered by the Labour Court. On any such application the Labour Court is obliged to register the agreement if it is satisfied that the conditions of six subparagraphs of s.27 of the Act have been complied with. It will be necessary to return to this section in some detail later in this judgment. Once registered, an REA, like an ERO under Part IV, becomes incorporated in the contract between the employer and employee and is enforceable by criminal prosecution. The agreement may be varied by application brought by the parties to the original agreement, and may be cancelled by the court either on a joint application of the parties, or if the Labour Court is satisfied that there has been substantial change in the trade or business. But most significantly for present purposes, an REA like an ERO applies not just to the parties thereto and those they represent, but to every worker and employer in the sector, whether or not they were a party at the original agreement, or represented in the conclusion of the agreement, or even in existence at the time it was made. Thus, s.30(1) of the Act provides:

"A registered employment agreement shall, so long as it continues to be registered, apply, for the purposes of this section, to every worker of the class, type or group to which it is expressed to apply, and his employer, notwithstanding that such worker or employer is not a party to the agreement or would not, apart from this subsection, be bound thereby."

10 8 The provisions of Part III appear somewhat anomalous today. In general collective agreements are considered not to be legally enforceable either by the parties thereto, or the persons represented by the parties to any such agreement. Indeed in general the fact that collective agreements exist outside a precise legal framework and are not enforceable by either the civil or criminal law, is normally seen as a desirable feature in industrial relations. Furthermore, since 1946 there has been considerable further development of statutory regulation of employment but it has been away from private sectoral agreements and towards legislation having general effect imposing obligations such as setting minimum terms and conditions of employment in employment. But the...