Minister for Labour v Costello

JurisdictionIreland
JudgeO'Hanlon J.,
Judgment Date24 August 1988
Neutral Citation1988 WJSC-HC 2679
Docket Number230 SS/1988,[230 SS/1988]
CourtHigh Court
Date24 August 1988

1988 WJSC-HC 2679

THE HIGH COURT

230 SS/1988
MIN LABOUR v. COSTELLO
BETWEEN/
THE MINISTER FOR LABOUR
COMPLAINANT

AND

SEAMUS COSTELLO
DEFENDANT

Citations:

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52

INDUSTRIAL RELATIONS ACT 1946 S45

EMPLOYMENT REGULATION ORDER (CATERING JOINT LABOUR COMMITTEE) 1986 SI 44/1986

INDUSTRIAL RELATIONS ACT 1946 S45(3)

INDUSTRIAL RELATIONS ACT 1946 S49(1)

INDUSTRIAL RELATIONS ACT 1946 S45(2)

INDUSTRIAL RELATIONS ACT 1946 S45(4)

CONSTITUTION ART 34.3.2

SHEERIN, STATE V KENNEDY 1966 IR 379

FOYLE FISHERIES COMMISSION V FRED GALLEN 1960 IJ 35

AG, PEOPLE V MCGLYNN 1967 IR 232

Synopsis:

EMPLOYMENT

Terms

Remuneration - Minimum rate - Statutory obligation - Breach - Offence committed by employer - Penalty - Statute - Interpretation - Validity of enactment - Power of District Justice to state Case containing question relating to validity of enactment - The defendant was charged in the District Court with the offence of failure to pay a female employee of the defendant on 19/7/86 remuneration which was not less than the statutory minimum remuneration, contrary to the Order of 1986 and to the provisions of s. 45, sub-s. 1, of the Act of 1946 - The District Justice was satisfied by the evidence that the defendant had committed the said offence but was uncertain on the course to pursue having regard to the provisions of that section and the arguments submitted by the defendant - Section 45, sub-s. 1, of the Act of 1946 provides:- "If an employer fails to pay to a worker (being a worker to whom an employment regulation order, which fixes remuneration, applies) remuneration not less than the statutory minimum remuneration, the employer shall be guilty of an offence under this subsection and shall be liable on summary conviction thereof to a fine not exceeding fifty pounds" - Sub- section 2 of s. 45 states that, where an employer has been found guilty of an offence under sub-s. 1 of the section, the court by which the emoployer has been convicted may order the employer to pay to the worker "such sum as is found by the said court to represent the difference between the statutory minimum remuneration and the remuneration actually paid" - In addition, the provisions of sub-s. 4 of s. 45 enable notice of an intention to avail of paragraph (a) of that sub-section to be served on a defendant with the summons or complaint charging an offence under sub-s. 1 of section 45 - Paragraph (a) of sub-s. 4 provides that, where an employer is found guilty of a offence contrary to sub-s. 1 and such notice has been served on him, evidence may be given of any like contravention by the employer in respect of any period during the three years immediately preceding the date of the offence - Paragraph (b) of sub-s. 4 provides that, on proof of such further contravention during the three year period, the court which convicts the employer for an offence under sub-s. 1 may order the employer to pay to the worker "such sum as is found by the said court to represent the difference between the amount which ought to have been paid during that period to the worker by way of remuneration, if the worker were paid remuneration in accordance with the statutory minimum remuneration, and the amount actually so paid" - At the hearing of the charge under sub-s. 1 of s. 45, evidence was adduced that the defendant had underpaid the said employee during the period from 18/3/81 to 19/7/86 and the District Justice calculated that, in respect of that period, the employee should have been paid a further sum of #8,874 by the defendant - Counsel for the defendant submitted that the court lacked jurisdiction to order payment to the employee of the sum of #8,874 since, in that event, the combined penalties under s. 45 of the Act would remove the offence under sub-s. 1 from the category of a minor offence triable summarily pursuant to Article 38.2 of the Constitution; he submitted that s. 45, sub-ss. 2 and 4, of the Act were invalid having regard to the provisions of the Constitution - The District Justice stated a Case, pursuant to s. 52 of the Act of 1961 and sought the opinion of the High Court on the proper course to be pursued in the District Court - Held, in reply to the question so posed, that the power conferred by sub-s. 2 of s. 45 to order payment of money to a worker is restricted to the amount of the underpayment proved in respect of the date of the offence under sub-s. 1 of section 45 - Held that the power conferred under sub-s. 4 of s.45 to order payment of money to a worker cannot be exercised where no notice has been served, pursuant to that sub- section, on the person convicted of an offence contrary to sub-s. 1 of section 45 - Held that it was not shown that such notice had been served on the defendant - Held that the provisions of s. 45 relating to conditions of employment do not apply to the failure of an employer to pay his worker the statutory minimum wage since the section contains express provisions relating to such failure - Held that it was not open to the defendant to raise in the District Court an issue of the validity of a law having regard to the provisions of the Constitution, contrary to the provisions of Article 34.3.2 thereof - Held that such issue should not be raised by a District Justice by means of a Case Stated: ~Foyle Fisheries Commission v. Gallen~ [1960] Ir. Jur. Rep. 35 and ~The People (Attorney General) v. McGlynn~ [1967] I.R. 232 considered - Employment Regulation Order (Catering Joint Labour Committee), 1986 (S.I. No 44) -Industrial Relations Act, 1946, s. 45 - Courts (Supplemental Provisions) Act, 1961, s. 52 - Constitution of Ireland, 1937, Articles 34, 38 - (1988/230 SS - O'Hanlon J. - 24/8/88) - [1988] I.R. 235 - [1989] ILRM 485

|Minister for Labour v. Costello|

WORDS AND PHRASES

"Conditions of employment"

- Constituent - Remuneration - Exclusion - Context - Remuneration and conditions of employment treated in same section - Distinct provisions relating to remuneration - Conditions of employment deemed not to refer to remuneration of worker -~See~ Employment, terms - (1988/230 SS - O'Hanlon J. - 24/8/88) - [1988] I.R. 235 - [1989] ILRM 485

|Minister for Labour v. Costello|

STATUTORY INTERPRETATION

General phrase

Constituent - Exclusion - Context - Special provision made for particular item - Remuneration of worker and conditions of his employment treated in same section - Particular treatment of remuneration - Conditions of employment deemed not to include matters of remuneration - ~See~ Employment, terms - (1988/230 SS - O'Hanlon J. - 24/8/88) - [1988] I.R. 235

|Minister for Labour v. Costello|

CASE STATED

District Justice

Power - Absence - Statute - Validity - Impermissible issue - Jurisdiction to determine issue not conferred on District court - ~See~ Employment, terms - (1988/230 SS - 0'Hanlon J. - 24/8/88) - [1988] I.R. 235 - [1989] ILRM 485

|Minister for Labour v. Costello|

1

Judgment delivered by O'Hanlon J., the 24th day of August, 1988.

2

This is a Consultative Case Stated by the District Justice for the District Court Area of Loughrea (District No. 8) pursuant to Sec. 52 of the Courts (Supplemental Provisions) Act, 1961, in which he seeks the opinion of the High Court as to the manner in which he should proceed in dealing with a prosecution brought by the Minister for Labour as Complainant against Seamus Costello as Defendant, under the provisions of the Industrial Relations Act, 1946, Sec. 45.

3

Three Summonses were issued against the Defendant in relation to his employment of a catering worker, Phyllis Fallon, at the Defendant's premises at Church Street, Loughrea, charging him with failing to pay her, on the 19th day of July, 1986, remuneration not less than the statutory minimum contrary to the Employment Regulation Order (Catering Joint Labour Committee) 1986, (S.I. No. 44 of 1986) and to Section 45 (1) of the Industrial Relations Act, 1946; secondly, with failing on the said date to allow the said Phyllis Fallon her full entitlements in regard to holidays, contrary to the said Employment Regulation Order and to Section 45 (3) of the Industrial Relations Act, 1946, and thirdly, with failing on the said date to keep such records as were necessary to show that the provisions of Part IV of the said Act of 1946 were being complied with as respects the said Phyllis Fallon, contrary to Section 49 (1) of the said Act.

4

The Case Stated is primarily concerned with the course which should be taken in relation to the charge under Section 45 (1) of the Act, i.e., the failure to pay not less than the statutory...

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