John Grace Fried Chicken Ltd and Others v Catering Joint Labour Committee and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Feeney
• Judgment Date: 07 July 2011
• Neutral Citation: [2011] IEHC 277
• Court: High Court
• Docket Number: [2008 No. 10663 P]
• Date: 07 July 2011

John Grace Fried Chicken Ltd & Ors v Catering Joint Labour Committee & Ors

BETWEEN

JOHN GRACE FRIED CHICKEN LIMITED, JOHN GRACE AND QUICK SERVICE FOOD ALLIANCE LIMITED

PLAINTIFFS

AND

THE CATERING JOINT LABOUR COMMITTEE, THE LABOUR COURT, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

[2011] IEHC 277

[No. 10663 P/2008]

THE HIGH COURT

CONSTITUTION

Delegated legislation

Statute - Statutory Instrument - Validity - Oireachtas - Exclusive function - Principles and policies test - Labour Court - Joint labour committees - Statute delegating power of fixing minimum rates of remuneration and conditions of employment - Employment regulation order - Discretion - Whether sufficient principles and policies prescribed to govern exercise of law making power -Whether impermissible exercise of legislative function - Whether power exercised reasonably - Cityview Press v An Chomhairle Oiliúna [1980] IR 381, Maher v Minister for Agriculture [2001] 2 IR 139 and Brennan v Attorney General [1984] ILRM 355 considered - Industrial Relations Act 1946 (No 26), ss 42, 43 and 45 - Industrial Relations Act 1990 (No 19), s 48 - Employment Regulation Order Joint Labour Committee (for Areas Other Than the Areas Known, Until 1st January, 1994, As the County Borough of Dublin and the Borough of Dun Laoghaire) 2008 (SI 142/2008) - Constitution of Ireland, 1937, Articles 15.2.1 and 40.3 - Declarations granted (2008/10663P - Feeney J - 7/7/2011) [2011] IEHC 277

John Grave Fried Chicken Ltd v Catering Joint Labour Committee

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS FIRST PROTOCOL

INDUSTRIAL RELATIONS ACT 1946 PART 4

INDUSTRIAL RELATIONS ACT 1946 S35

INDUSTRIAL RELATIONS ACT 1946 S36

INDUSTRIAL RELATIONS ACT 1946 S37

INDUSTRIAL RELATIONS ACT 1946 S39

INDUSTRIAL RELATIONS ACT 1946 S38

INDUSTRIAL RELATIONS ACT 1946 S39(2)

INDUSTRIAL RELATIONS ACT 1946 S42

INDUSTRIAL RELATIONS ACT 1946 S42(3)

INDUSTRIAL RELATIONS ACT 1990 S48

INDUSTRIAL RELATIONS ACT 1946 S43

INDUSTRIAL RELATIONS ACT 1946 S17

CATERING JOINT LABOUR COMMITTEE ESTABLISHMENT ORDER 1977 SI 225/1977

CATERING JOINT LABOUR COMMITTEE ESTABLISHMENT (AMDT) ORDER 1992 SI 236/1992

INDUSTRIAL RELATIONS ACT 1946 S45

CONSTITUTION ART 15.2.1

INDUSTRIAL RELATIONS ACT 1946 S45(2)

EMPLOYMENT REGULATION ORDER CATERING JOINT LABOUR COMMITTEE (FOR AREAS OTHER THAN THE AREAS KNOWN, UNTIL 1ST JANUARY, 1994, AS THE COUNTY BOROUGH OF DUBLIN AND THE BOROUGH OF DUN LAOGHAIRE) 2008 SI 142/2008

CONSTITUTION ART 28.2

CONSTITUTION ART 34.1

KENNEDY v LAW SOCIETY OF IRELAND 2002 2 IR 458

CONSTITUTION ART 15.2

HOGAN & WHYTE JM KELLY: THE IRISH CONSTITUTION 4ED 2003 P 234

CITYVIEW PRESS CO LTD v ANCO 1980 IR 381

INDUSTRIAL TRAINING ACT 1967 S21

BURKE v MIN FOR LABOUR 1979 IR 354

COOKE v WALSH 1984 IR 710

HARVEY v MIN FOR SOCIAL WELFARE 1990 2 IR 232

MCDAID v SHEEHY 1991 1 IR 1

LAURENTIU v MIN FOR JUSTICE 1994 4 IR 26

EUROPEAN COMMUNITIES (MILK QUOTA) REGS 2000 SI 94/2000

MAHER v MIN FOR AGRICULTURE 2001 1 IR 139

LEONTJAVN v DPP 2001 1 IR 591

BUPA IRELAND LTD & BUPA INSURANCE LTD v HEALTH INSURANCE AUTHORITY & ORS UNREP MCKECHNIE 23.11.2006 2006/8/1383 2006 IEHC 431

INDUSTRIAL RELATIONS ACT 1946 PART 6

INDUSTRIAL RELATIONS ACT 1946 S37(B)

ALIENS ACT 1935 S5(1)

CONSTITUTION ART 43(2)

CONSTITUTION ART 43

INDUSTRIAL RELATIONS ACT 1946 S37(B)(II)

BRENNAN v AG 1984 ILRM 355

1 Judgment of Mr. Justice Feeney delivered on the 7th day of July, 2011.

2 1. The three plaintiffs in these proceedings seek declarations that certain provisions of the Industrial Relations Act 1946 (the 1946 Act), and the Industrial Relations Act 1990 (the 1990 Act), are invalid having regard to the provisions of the Constitution. The plaintiffs also seek a declaration that the Employment Regulation Order made by the second named defendant on the 12 ^th May, 2008 (S.I. 142 of 2008), fixing the statutory minimum remuneration of workers outside the County Borough of Dublin and Borough of Dun Laoghaire, is unreasonable and constitutes an unlawful and disproportionate interference with the property rights of the first and second named plaintiffs as guaranteed by the Constitution and is invalid and they seek a consequential order of certiorari quashing that Employment Regulation Order. The plaintiffs also seek a declaration pursuant to s. 5 of the European Convention on Human Rights Act 2003, that the provisions of certain sections of the Industrial Relations Act 1946, and a section of the 1946 Act, are incompatible with the State's obligations under the European Convention on Human Rights and, in particular, are in breach of Article 6 and Article 1 of the First Protocol thereof.

3 2. The two Acts in respect of which a declaration is sought by the plaintiffs in this case are the 1946 Act and the 1990 Act. That legislation originates from earlier Acts, namely, the Trade Board Act 1909 and the Trade Board Act 1918. Part IV of the 1946 Act dealt with the regulation by the Labour Court of remuneration and conditions of employment of certain workers. Section 35 of the 1946 Act gave power to the Labour Court to establish Joint Labour Committees. Such a committee was to be established in respect of a class, type or group of workers. The scheme provided for under the Act was that under s. 36 of the 1946 Act, an application for the establishment of a Joint Labour Committee could be made to the Labour Court by the minister or a trade union or any organisation or group of persons claiming to be representative of such workers or such employers. Section 37 identifies the criteria which the Labour Court must apply in determining whether or not to establish a Joint Labour Committee. Section 38 deals with the process of an inquiry into an application for an establishment order requiring consultation and public notification. Having gone through the statutory process laid down in the Act, the Labour Court has the power under s. 39 of making an establishment order either in the terms of a draft prepared in accordance with the provisions of s. 38 or with such modifications as to the terms of the draft as the Court considers necessary. When the Labour Court makes an establishment order it is obliged under s. 39(2) to publish an establishment order in a prescribed manner. Section 42 and subsequent sections of the 1946 Act deal with Employment Regulation Orders (EROs) which can be dealt with by Joint Labour Committees once such committees have been established. Section 42 provides that a Joint Labour Committee may submit to the Labour Court proposals "for fixing the minimum rates of remuneration to be paid either generally or for any particular work to all or any of the workers in relation to whom the committee operates, and such proposals may provide for a minimum weekly remuneration for all or any of such workers". Section 42(3) provides:

"A joint labour committee shall not submit proposals under this section (s. 42) for revoking or amending an employment regulation order unless the order has been in force for at least six months."

4 Section 48 of the 1990 Act alters and amends the procedure to be followed once a Joint Labour Committee has formulated proposals for an ERO. But the statutory scheme remains unaltered in that proposals or amended proposals are submitted by a Joint Labour Committee to the Labour Court and it is the Labour Court pursuant to s. 43 of the 1946 Act which makes an order giving effect to the proposals or amended proposals.

5 Section 43 of the 1946 Act and s. 48 of the 1990 Act sets out the procedure for the making of EROs and also provides that the Labour Court can refer proposals back to a committee and can also make either an order giving effect to the proposals as from such date as the Labour Court thinks proper and specifies in the order or refuse to make an order.

6 3. The statutory scheme provided for in the 1946 and 1990 Acts gives to the Labour Court the power to fix statutory minimum rates of pay and statutory terms and conditions in respect of all or any of the workers in relation to whom a Joint Labour Committee operates. It is therefore the Labour Court which has the power to establish Joint Labour Committees and those committees determine the terms and content of any proposed orders in the form of a proposal and the Labour Court can then confirm the draft proposal which has been prepared by a Joint Labour Committee. The scheme under the Act results in a statutory scheme where the Labour Court has the power to fix statutory minimum rates of pay and conditions of employment without any supervision from the Oireachtas and an order comes into effect when determined by the Labour Court without any referral back to the minister or without any form of supervision by the Oireachtas. Section 17 of the 1946 Act provides:

"No appeal shall lie from the decision of the (Labour) Court on any matter within its jurisdiction to a court of law."

7 4. A Joint Labour Committee entitled the Catering Joint Labour Committee was established by Statutory Instrument No. 225 of 1977 and in 1992 the Labour Court amended the 1977 order by Statutory Instrument No. 236 of 1992 entitled Catering Joint Labour Committee Establishment (Amendment) order 1992. It was the Catering Joint Labour Committee established thereunder which prepared the draft proposals which led to the making of the ERO by the Labour Court on the 12 ^th May, 2008. It is that order which is the subject of challenge within these proceedings and which the plaintiffs seek to quash.

8 5. In these proceedings, the plaintiffs seek as a first relief a declaration that the provisions of ss. 42, 43 and 45 of the 1946 Act and s. 48 of the 1990 Act are invalid, having regard to the provisions of the...