McGowan and Others v Labour Court and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hedigan |
| Judgment Date | 30 June 2010 |
| Neutral Citation | [2010] IEHC 501 |
| Court | High Court |
| Date | 30 June 2010 |
[2010] IEHC 501
THE HIGH COURT
BETWEEN
AND
AND
AND
AND
AND
INDUSTRIAL RELATIONS ACT 1946 S27
MCGOWAN & ORS v LABOUR COURT & ORS UNREP HEDIGAN HIGH 30.6.2010 2010 IEHC 501
INDUSTRIAL RELATIONS ACT 1946 PART III
INDUSTRIAL RELATIONS ACT 1946 S25
INDUSTRIAL RELATIONS ACT 1946 S26
INDUSTRIAL RELATIONS ACT 1946 S27
INDUSTRIAL RELATIONS ACT 1946 S28
INDUSTRIAL RELATIONS ACT 1946 S29
INDUSTRIAL RELATIONS ACT 1946 S32
INDUSTRIAL RELATIONS ACT 1946 S27(3)
INDUSTRIAL RELATIONS ACT 1946 S27(4)
INDUSTRIAL RELATIONS ACT 1946 S27(5)
INDUSTRIAL RELATIONS ACT 1946 S27(1)
RSC O.84 R21(1)
SOLAN v DPP 1989 ILRM 491
DE R ÓISTE v MIN FOR DEFENCE 2001 1 IR 190
O'DONNELL v DUN LAOGHAIRE CORPORATION 1991 ILRM 301
HENRY DENNY & SON (IRELAND) LTD v MIN FOR SOCIAL WELFARE 1998 1 IR 34
ASHFORD CASTLE v SIPTU 2007 4 IR 70
CALOR TEORANTA v MCCARTHY UNREP CLARKE 19.3.2009 2009/8/1772 2009 IEHC 139
MEADOWS v MIN FOR JUSTICE UNREP KEARNS 21.1.2010 2010 IESC 3
THE STATE (KEEGAN) v STARDUST VICTIMS' COMPENSATION TRIBUNAL 1986 IR 642
LAVAL UN PARTNERI LTD v SVENSKA BYGGNADSARBETAREFORBUNDET & ORS C-341/2005 2008 IRLR 160
EEC DIR 1996/71
EEC DIR 1996/71 ART 3(1)
EEC DIR 1996/71 PARA 1(C)
EEC DIR 1996/71 ART 3(8)
PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT 2001 S 20(3)
INDUSTRIAL RELATIONS ACT 1946 S29(2)
EMPLOYMENT LAW
Industrial relations
Registered employment agreement - Cancellation - Refusal - Electrical contracting industry - Employment conditions - Alleged invalidity of agreement - Alleged unconstitutionality - Rates of pay highly punitive - Statutory framework - Delay - Whether good reasons justifying extension of time - Onus on applicants - Knowledge of agreement - Public advertisement of agreement - Refusal of application for cancellation - Body with specialist expertise - Whether decision to refuse cancellation irrational - Whether identifiable error of law - Inclusion of subcontractors - Whether substantial change in circumstances of trade or business - Meaning of substantial change - Whether Labour Court adopted incorrect test - Test of undesirability - Whether objective bias - Absence of leave in respect of claim regarding bias - Waiver of objection to tribunal - Assessment of evidence - Whether evidence to support maintenance of agreement - Weight to be assigned to witnesses - Consequences of cancellation - Whether agreement made by parties not representative of industry - Solan v Director of Public Prosecutions [1989] ILRM 491; De Róiste v Minister for Defence [2001] 1 IR 190; O'Donnell v Dun Laoghaire Corporation [1991] ILRM 301; Henry Denny & Son Ltd v Minister for Social Welfare [1998] 1 IR 34; Ashford Castle v SIPTU [2006] IEHC 201, [2007] 4 IR 70; Calor Teoranta v McCarthy [2009] IEHC 139, (Unrep, Clarke J, 19/3/2009); Meadows v Minister for Justice, Equality and Law Reform [2010] IESC 3, [2010] 2 IR 701; State (Keegan) v Stardust Victims' Compensation Tribunal [1986] IR 642; O'Keeffe v An Bord Pleanála [1993] 1 IR 39; Laval un Partneri Ltd v Svenska Byggnadsarbetaeförbundet (Case C-341/05) [2008] IRLR 160 considered - Industrial Relations Act 1946 (No 26), ss 25 - 29 - Rules of the Superior Courts 1986 (SI 15/1986), O 84 r 21 - Application dismissed (2008/686JR - Hedigan J - 30/6/2010) [2010] IEHC 501
McGowan v Labour Court
Judgment of Mr. Justice Hedigan delivered on the 30th day of June 2010.
1. The proceedings herein are linked by order of this Court dated the 18 th May, 2009. The applicants are electrical contractors who in various ways, set out in these proceedings, seek to challenge a Registered Employment Agreement ("REA") on grounds of invalidity ab initio and for unconstitutionality. The notice parties are parties to the REA. The applicants further challenge the decision of the Labour Court made on the 26 th February, 2009 refusing to cancel the REA. I propose to consider these three grounds in this judgment.
2 2.1 Pursuant to s. 27 of the Industrial Relations Act 1946, a body which is representative of the interests of employers, in this case the electrical contractors, may register an agreement stipulating certain employment conditions, guidelines and wages in agreement with a body representing the interests of employees. Such a registered employment agreement may be amended from time to time to fall in line with inflation or prevailing economic conditions. The REA in question relates to the electrical contracting industry and was registered by the Labour Court on 24 th September, 1990 and has been varied on fourteen occasions since, most recently on the 11 th May, 2007. The applicants, who are all electrical contractors who engage the services of electricians and are, as such, subject to the provisions of the REA, are what remain of several hundred proposed applicants who oppose the REA. 2.2 An REA, once registered, is binding on all bodies in the electrical industry and breach of its provisions is a criminal offence. Some of the applicants have sought to derogate from the REA in question and, as a result, several are awaiting criminal prosecutions for failure to adhere to the terms, ( Minister for Enterprise, Trade, and Employment v Camlin Electric Limited, 2008/1864 SS) Several applicants took a case to the Labour Court seeking to cancel the agreement claiming, among other things, that the rates of pay under the REA were highly punitive in the current economic climate and that observance of the terms therein would lead to further job losses and uncompetitive conditions. The Labour Court refused to cancel the REA. This application was brought by inter alia the applicants before the Labour Court on the 12 th January, 2009. It continued over eleven days and was the longest ever sitting by the Labour Court. It was completed on the 4 th February, 2009 and the decision was delivered on the 26 th February, 2009. The Labour Court refused to cancel the REA and also declined the wage increase application heard at the same time.
3 2.3 The applicants object to the REA on the basis that it was made by parties who were not representative of the electrical industry taken as a whole. Specifically, they claim that they were not parties to the REA, that it requires pay levels and conditions of work far above those that small contractors like themselves can afford to pay, and that it makes it impossible for them to tender for work because their costs are too high, especially in the current economic difficulties. The applicants claim that they were unaware of the existence of the REA until comparatively recently since it is only recently that it has been enforced against them.
2 3.1 Reference is made herein to the provisions of Part III of the Industrial Relations Act 1946 ("the 1946 Act") headed "Agreements in relation to wages and conditions of employment" and under which REA's may be registered, cancelled and enforced. The relevant sections of Part III of the 1946 Act are as follows:-
"Section 25"
In this Part-
the expression "employment agreement" means an agreement relating to the remuneration or the conditions of employment of workers of any class, type or group made between a trade union of workers and an employer or trade union of employers or made, at a meeting of a registered joint industrial council, between members of the council representative of workers and members of the council representative of employers;
the expression "the register" means the Register of Employment Agreements;
the word "registered", in relation to an employment agreement, means for the time being registered in the register;
the expression "registered employment agreement" means an employment agreement for the time being registered in the register.
Section 26
The Court shall maintain a register to be known as the Register of Employment Agreements."
3 3.2 Sections 27, 28 and 29 of the 1946 Act provide for the registration, variation and cancellation of REA's. Breaches of an REA are governed by s. 32 of the 1946 Act. Sections 27(3), (4) and (5) set out in detail the steps to be taken and the matters to be considered by the Labour Court when processing an application for registration under s. 27(1) and provide:-
2 "(3) Where an application is duly made to the Court to register in the register an employment agreement, the Court shall, subject to the provisions of this section, register the agreement in the register if it is satisfied-
(a) that, in the case of an agreement to which there are two parties only, both parties consent to its registration and, in the case of an agreement to which there are more than two parties, there is substantial agreement amongst the parties representing the interests of workers and employers,...
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