Chanelle Mullally and Others v Labour Court and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 09 June 2015
• Neutral Citation: [2015] IEHC 351
• Court: High Court
• Date: 09 June 2015

[2015] IEHC 351

THE HIGH COURT

[No. 314 JR/2014]

Chanelle Mullally & Ors. v Labour Court & Anor.

JUDICIAL REVIEW

BETWEEN

CHANELLE MULLALLY, ALAN POWER, NOEL BURNS, RICHARD DOYLE AND THE PSCHIATRIC NURSES ASSOCIATION (IRISH FIRE AND EMERGENCY SERVICES ASSOCATION)

APPLICANTS

AND

THE LABOUR COURT

RESPONDENT

AND WATERFORD COUNTY COUNCIL

NOTICE PARTY

Employment – Industrial Relations Act 1968 – S. 67 of Industrial Relations Act 1946 – Jurisdiction of Labour Courts – Whether decisions rendered by the Labour Courts legally binding

Facts: Following the recommendation by the respondent that the employer of the first four applicants had no obligation to negotiate with the trade union chosen by the said applicants rather than the ones authorized by the employer, the applicants now came to the Court for an order by way of certiorari against the said recommendation.

Mr. Justice Noonan refused to grant the order of certiorari against the respondent. The Court held that the recommendation of the respondent at best could be viewed as a solution to redress the grievance regarding trade disputes. The Court observed that the s. 67 of the Industrial Relations Act 1946 makes it mandatory for the Labour Court to adjudicate upon industrial disputes but it does not provide any mechanisms for failure to comply its decisions. The Court observed that in determination of the industrial disputes the Labour Courts have the powers of a Court of Law such as issuance of summons for calling upon witnesses and imposition of fine but its recommendations could not be held to impose liabilities or affect rights.

Introduction

1 1. In these proceedings, the applicants seek the following reliefs:

1 An order of certiorari of the decision of the respondent dated the 14 ^th of March, 2014.

2 A declaration by way of judicial review that the respondent failed to comply with the provisions of s. 20(1) of the Industrial Relations Act 1969 and s. 68 of the Industrial Relations Act 1946, by failing to properly or at all investigate the trade dispute and/or comply with its obligations thereunder.

3 An order remitting the complaint made by the applicants to be determined by a different division of the respondent.

4 A declaration that the manner in which the respondent purported to investigate the applicants' complaints and conducted the oral hearing failed to comply with constitutional rights to fair procedures and/or under the European Convention on Human Rights, and in particular Articles 6 and 11 thereof (and as a consequence if necessary a declaration that the respondent failed to comply with its obligations under the ECHR Act, 2003.)

5 A declaration by way of judicial review that the respondent's decision of the 14 ^th of March, 2014 was ultra vires, invalid and/or void.

Background

2 2. The first four applicants are retained fire fighters employed by the notice party ("the Council"). The Council has some 530 employees of which 76 are retained fire fighters. Of that 76, 61, or 80%, are members of the fourth applicant ("the PNA") and of its branch, the Irish Fire and Emergency Service Association ("IFESA"). The Council currently recognises five different unions representing its employees for negotiation purposes but does not recognise the PNA or IFESA. The PNA is a registered trade union with a negotiation licence, but is not a member of the Irish Congress of Trade Unions.

3 3. On the 22 ^nd of May, 2013, the general secretary of the PNA wrote to the county manager of the Council requesting recognition of IFESA for negotiation purposes. The Council responded by letter of the 11 ^th of June, 2013 stating that as IFESA is not recognised nationally for negotiation purposes, the Council could not give recognition.

4 4. On the 27 ^th of September, 2013, the applicants formally requested the respondent ("the Labour Court") to investigate the trade dispute pursuant to its powers under s. 20(1) of the Industrial Relations Act 1969.

Relevant Legislation

5 5. Section 20 (1) of the Industrial Relations Act 1969 provides as follows:

2 "20.-(1) Where the workers concerned in a trade dispute or their trade union or trade unions request or requests [the Labour Court] to investigate the dispute and undertake or undertakes before the investigation to accept the recommendation of the Court under section 68 of the [Industrial Relations Act 1946] in relation thereto then, notwithstanding anything contained in the Principal Act or in this Act, the Court shall investigate the dispute and shall make a recommendation under the said section 68 in relation thereto."

6 6. Section 68 (1) of the Industrial Relations Act 1946, as substituted by s. 19 of the Industrial Relations Act 1969, provides as follows:

2 "68.-(1) The Court, having investigated a trade dispute, may make a recommendation setting forth its opinion on the merits of the dispute and the terms on which it should be settled."

The Hearing Before the Labour Court

7 7. The hearing took place on the 4 ^th of March, 2014. The applicants were represented by solicitors and senior counsel. The Council was represented by Mr. Don Culliton, acting Assistant Chief Executive of the Local Government Management Agency. Both sides made oral and written submissions.

8 8. In its written submission, the Council referred to the judgment of the High Court in Abbot and Whelan v. ITGWU (Unreported, High Court, 2 ^nd December, 1980) to the effect that there is no constitutional right to be represented by a union in the conduct of negotiations with an employer who has no duty to negotiate with any particular citizen or body of citizens. In the grounding affidavit of John Hughes, board member and treasurer of the PNA, Mr. Hughes avers that he attended at the hearing and the Labour Court's Chairman indicated at the outset that this case was irrelevant to the issues before the respondent. He further avers that the Council in its oral submissions suggested that recognition should not be recommended because the other five unions already recognised by the Council would take industrial action if the PNA was recognised.

9 9. In his replying affidavit, Mr, Culliton avers that he has attended well in excess of 150 Labour Court cases and the hearing in this matter was not unusual and was fairly conducted. He disputes the suggestion by Mr. Hughes that the Court's Chairman said the submissions of the applicants in relation to the Abbot case were irrelevant. He says that the Abbot case was discussed before the respondent and therefore was relevant. He avers that the Court did indicate its familiarity with the case law but disputes the suggestion that the parties were told that they should not open case law.

10 10. Mr. Culliton says that he submitted to the Court that if recognition was awarded, it would likely result in an unstable industrial relations environment due to the competing nature and number of unions who would have recognition rights. He avers that it is correct to say that a major part of the Council's submission was that recognition of the PNA is not desirable having regard to the solid and effective industrial relations mechanisms already in place in the public sector.

The Recommendation

11 11. The Labour Court issued its recommendation on the 14 ^th of March, 2014 in a formal three page document. This document summarises the background and the party's respective arguments in concise form. The respondent's recommendation was as follows:

"RECOMMENDATION:"

Unlike all other cases in which the Court has recommended that a trade union be recognised for industrial relations purposes, the employer in this case has in place well established arrangements for the conduct of collective bargaining with authorised trade unions. The applicants in this case are, in effect, a breakaway group who are seeking to establish negotiating rights with the employer through the convenience of another trade union that has no recognised involvement in negotiations with local authorities.

While the applicants have an acknowledged right to be members of whatever organisation they choose, the exercise of that right cannot, in the circumstances of the present case, imply a concomitant obligation on the employer to negotiate with their chosen organisation. In the Court's opinion, recognition of this group would have a highly undesirable destabilising effect on the established negotiating arrangements currently in place. It would also greatly impair the orderly conduct of industrial relations within the local authority sector. On that account, it would be irresponsible for the City (sic) Council to accede to the applicants' request for recognition.

For these reasons the Court does not recommend concession of the worker's claim."

The Applicants' Case

12 12. Mr. McGarry SC on behalf of the applicants submitted that the conclusions arrived at by the Labour Court were unsupported by any evidence but rather appeared to derive from submissions made by the Council. The Court's conclusion was flawed in that it took irrelevant matters into account and failed to take relevant matters into account. The Court further failed to give any, or adequate, reasons for its decision and insofar as reasons were given, these were irrational and/or unreasonable in themselves.

13 13. He contended that the Court had not complied with its duty under s. 68(1) to have regard to the respective merits of each side. It appeared that the Court had only considered the effect of recognition on the Council and given no consideration to the merits of the applicants' case at all. The Abbot case appears to have found its way into the decision despite the fact that the Court had said at the outset it was not relevant. The decision appears to have been based on taking account of the threat of industrial action by other unions, which was wholly unsupported by evidence but...