Mullally v The Labour Court

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 20 October 2016
• Neutral Citation: [2016] IECA 291
• Docket Number: No. 2015, 379,[2014 No. 314 JR] [C.A. No.379 of 2015]
• Court: Court of Appeal (Ireland)
• Date: 20 October 2016

[2016] IECA 291

THE COURT OF APPEAL

Hogan J.

Ryan P.

Irvine J.

Hogan J.

No. 2015, 379

CHANELLE MULLALLY, ALAN POWER, NOEL BURNS, RICHARD DOYLE

AND

THE PSYCHIATRIC NURSES ASSOCATION

APPELLANTS

- AND –

THE LABOUR COURT

RESPONDENT

- AND –

WATERFORD COUNTY COUNCIL

NOTICE PARTY

Trade – Judicial review – Recognition – Appellants seeking judicial review of a recommendation of the respondent – Whether the recommendation of the respondent gives rise to justiciable rights or issues such as would permit the appellants to seek judicial review of that decision

Facts: The first four appellants, Ms Mullally, Mr Power, Mr Burns and Mr Doyle, were retained fire fighters employed by the Waterford County Council. The Council had some 530 employees, of whom 76 were retained fire fighters. Of that figure, 80% were members of the registered trade union, the Psychiatric Nurses Association (the PNA), the fifth appellant, and, of its branch, the Irish Fire and Emergency Service Association (IFESA). The Council recognised five different unions representing its employees for negotiation purposes, but it did not recognise the PNA or IFESA. On the 22nd 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 11th of June 2013 stating that as IFESA is not recognised nationally for negotiation purposes, the Council could not accord it the appropriate recognition. On the 27th September 2013, the appellants 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. A hearing concerning this issue took place before the Labour Court on the 4th March 2014. The Labour Court did not recommend concession of the appellants’ claim. The appellants appealed to the High Court contending that the conclusions reached by the Labour Court were not factually sustainable and were tainted by reason of the fact that irrelevant considerations had been taken into account. It was also submitted that the Labour Court had failed to give any adequate reasons for its decision. On 12th June 2015, the High Court (Noonan J) decided that it had no jurisdiction in judicial review proceedings to review a recommendation in respect of a trade dispute made by the Labour Court under s. 68(1) of the Industrial Relations Act 1946. The appellants appealed to the Court of Appeal against that decision.

Held by Hogan J that if the decision of the Labour Court was not simply a recommendation, but had binding legal consequences, then, of course, the result of this case so far as the jurisdictional issue of justiciability is concerned would be quite different. As this, however, was not the case, Hogan J entirely agreed with the conclusion of Noonan J that the recommendation of the Labour Court pursuant to s. 20(1) of the 1969 Act “has no strictly legal effect but rather relies upon the moral authority of the expert statutory body from which it emanates.” Hogan J held that it also could not be said that such a recommendation creates any form of res judicata or any other form of binding resolution. Hogan J held that the recommendation of the Labour Court does not give rise to justiciable rights or issues such as would permit the appellants to seek judicial review of that decision.

Hogan J held that he would dismiss the appeal.

Appeal dismissed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 20th day of October 2016

1 This is an appeal from a decision of the High Court (Noonan J.) delivered on 12th June 2015. The essence of the decision of Noonan J. was that the High Court had no jurisdiction in judicial review proceedings to review a recommendation in respect of a trade dispute made by the Labour Court under s. 68(1) of the Industrial Relations Act 1946 (‘the 1946 Act’) (as substituted by s. 19 of the Industrial Relations Act 1969): see Mullally v. Labour Court [2015] IEHC 351. The issue arises in the following way.

2 The first four applicants are retained fire fighters employed by the Waterford County Council (‘the Council’). The Council has some 530 employees, of whom 76 are retained fire fighters. Of that figure, 61, or 80%, are members of the registered trade union, the Psychiatric Nurses Association (‘the PNA’) (which is the fifth-named applicant in these proceedings) 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 it does not recognise the PNA or IFESA. The PNA is a registered trade union with a negotiation licence, but it is not a member of the Irish Congress of Trade Unions.

3 On the 22nd 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 11th of June 2013 stating that as IFESA is not recognised nationally for negotiation purposes, the Council could not accord it the appropriate recognition.

4 On the 27th 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. In order, however, to understand the legal issues at issue in these proceedings, it is necessary first to set out relevant provisions of the Industrial Relations Acts.

The Industrial Relations Acts

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

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

‘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 A hearing concerning this issue took place before the Labour Court on the 4th 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 The Labour Court then issued its recommendation on the 14th of March 2014 in a formal three page document. This document summarises the background and the party's respective arguments in a concise form. The Labour Court'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...