Naisiunta Leictreach Contraitheoir Eireann v The Labour

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 31 July 2020
• Neutral Citation: [2020] IEHC 342
• Docket Number: 2019 No. 280 J.R.
• Court: High Court
• Date: 31 July 2020

BETWEEN

NÁISIÚNTA LEICTREACH CONTRAITHEOIR EIREANN CUIDEACHTA FAOI THEORAINN RATHAIOCHTA

APPLICANT

AND

THE LABOUR COURT THE MINISTER FOR BUSINESS ENTERPRISE AND INNOVATION IRELAND THE ATTORNEY GENERAL

RESPONDENTS

[2020] IEHC 342

Garrett Simons J.

2019 No. 280 J.R.

THE HIGH COURT

JUDICIAL REVIEW

Form of orders – Stay – Costs – Ruling required from the High Court in respect of the form of orders – Whether a stay should be imposed on the High Court orders pending an intended appeal to the Supreme Court

Facts: The High Court found that a statutory instrument, which purported to regulate the remuneration of electricians working in the construction industry, had not been validly made. The statutory instrument had been promulgated by the Minister of State at the Department of Business, Enterprise and Innovation, Mr Breen, T.D., on 4 June 2019. It was entitled the Sectoral Employment Order (Electrical Contracting Sector) 2019 (S.I. No. 251 of 2019). The principal judgment was delivered on 23 June 2020 ([2020] IEHC 303). The parties were then allowed a number of weeks within which to file written submissions in respect of the form of orders. The applicant, Náisiúnta Leictreach Contraitheoir Eireann, filed its initial submissions on 15 July 2020. The State respondents, the Labour Court, the Minister for Business Enterprise and Innovation, Ireland and the Attorney General, filed their submissions on 23 July 2020. Thereafter, the applicant filed short replying submissions on 27 July 2020. Both parties indicated that they did not require an oral hearing, and that the court should rule upon the form of orders on “the papers”, i.e. on the basis of the submissions filed. The written submissions filed on behalf of the parties present three issues in respect of which a ruling was required from the court, as follows. The first issue to be considered was the nature and extent of the substantive orders to be made in consequence of the principal judgment. The second issue was whether a stay should be imposed on the High Court orders pending an intended appeal to the Supreme Court. The third and final issue was the appropriate costs order to be made.

Held by Simons J that a stay would be placed on the reliefs related to the High Court’s finding that Chapter 3 of the Industrial Relations (Amendment) Act 2015 is invalid having regard to the provisions of Article 15.2.1° of the Constitution. Simons J held that this stay is to remain in force until the determination of the intended appeal (or any further order of the appellate court). Simons J held that the court order setting aside S.I. No. 251 of 2019 would be effective immediately. Simons J held that the applicant was entitled to an order for costs in its favour; the costs were to be measured on the basis of the six-day hearing before the High Court in June 2020. Simons J refused the application on the part of the State respondents that the costs should be discounted to reflect time spent on a specified, unsuccessful argument in circumstances where the time spent on this argument did not add materially to the length of the hearing.

Simons J held that the form of order would be as follows: (i) a declaration that the provision made for sectoral employment orders under Chapter 3 of the 2015 Act is invalid having regard to the provisions of Article 15.2.1° of the Constitution, such declaration to stand suspended until the determination of this issue on appeal or until such further order may be made by an appellate court; (ii) a declaration that S.I. No. 251 of 2019 is invalid as a consequence of the declaration of invalidity in respect of the provisions of Chapter 3 of the parent act, i.e. the 2015 Act, such declaration to stand suspended until the determination of this issue on appeal or until such further order may be made by an appellate court; (iii) a declaration that the Minister acted without jurisdiction in purporting to make S.I. No. 251 of 2019; (iv) an order of certiorari quashing S.I. No. 251 of 2019 on the grounds that it was made ultra vires the 2015 Act and in breach of fair procedures; (v) an order directing that the respondents do pay the applicant’s legal costs (to include reserved costs and the costs of three sets of written legal submissions) – the legal costs are to be adjudicated, i.e. measured, by the Office of the Legal Costs Adjudicator in default of agreement between the parties and a stay is placed on the execution of the costs order pending the determination of the intended appeal; (vi) the stay on the execution of the costs orders applies equally to the costs order made by the High Court (Meenan J) on 9 October 2019 in respect of the applicant’s application for an interlocutory injunction.

Form of order.

JUDGMENT of Mr. Justice Garrett Simons delivered electronically on 31 July 2020

INTRODUCTION

1 This judgment addresses the form of orders to be made in consequence of this court's finding that a statutory instrument, which purported to regulate the remuneration of electricians working in the construction industry, had not been validly made. The statutory instrument had been promulgated by the Minister of State at the Department of Business. Enterprise and Innovation, Mr Pat Breen, T.D., on 4 June 2019. It is entitled the Sectoral Employment Order (Electrical Contracting Sector) 2019 (S.I. No. 251 of 2019).

2 The principal judgment, Náisiúnta Leictreach Contraitheoir Eireann v. The Labour Court [2020] IEHC 303, was delivered on 23 June 2020 (” the principal judgment”). The parties were then allowed a number of weeks within which to file written submissions in respect of the form of orders. The Applicant filed its initial submissions on 15 July 2020. The State respondents filed their submissions on 23 July 2020. Thereafter, the Applicant filed short replying submissions on 27 July 2020. Both parties indicated that they did not require an oral hearing, and that the court should rule upon the form of orders on “the papers,” i.e. on the basis of the submissions filed.

3 The written submissions filed on behalf of the parties present three issues in respect of which a ruling is required from the court, as follows. The first issue to be considered is the nature and extent of the substantive orders to be made in consequence of the principal judgment. The second issue is whether a stay should be imposed on the High Court orders pending an intended appeal to the Supreme Court. The third and final issue is the appropriate costs order to be made.

4 Each of these issues is addressed, in turn, under separate headings below. Before turning to that task, however, it may be of assistance to identify first the precise basis upon which the case was decided in the principal judgment. This is relevant, in particular, to the question of a stay and to the appropriate costs order to be made.

FINDINGS MADE IN THE PRINCIPAL JUDGMENT

5 The principal judgment held that the statutory instrument regulating the remuneration of electricians working in the construction industry, i.e. the Sectoral Employment Order (Electrical Contracting Sector) 2019, had not been validly made. As appears from the principal judgment, this conclusion entailed two distinct findings. The first, narrower. finding had been that the Minister of State, to whom the powers had been delegated, did not have jurisdiction to promulgate the secondary legislation in circumstances where the Labour Court had not complied with the requirements of Chapter 3 of the Industrial Relations (Amendment) Act 2015. This finding was fact-specific, and peculiar to the particular circumstances leading up to the making of the sectoral employment order in June 2019. There was nothing in this finding which would preclude the making of a subsequent sectoral employment order. The principal judgment had simply identified a number of procedural errors in the process leading up to the making of this specific sectoral employment order. It also identified errors in the content of the order, e.g. in terms of the fixing of the rate of pension contribution, and the definition of the “economic sector” concerned.

6 The second finding was of much broader effect. The court found that the relevant chapter of the parent legislation, which purported to authorise the making of sectoral employment orders, is invalid having regard to the provisions of Article 15.2.1° of the Constitution. The implications of this finding go far beyond the individual sectoral employment order made in June 2019. Were this finding to be upheld on appeal, it would cast doubt on the validity of any sectoral employment order made pursuant to the provisions of Chapter 3 of the Industrial Relations (Amendment) Act 2015. It would also preclude the making of further sectoral employment orders by the Minister for Business Enterprise and Innovation or the Minister of State.

7 Crucially, however, even this second, broader, finding would not preclude the putting in place of primary legislation imposing minimum rates of pay and remuneration in any particular economic sector. Nor would it preclude the regulation of such matters by way of secondary legislation, provided always that the requisite principles and policies were stated in primary legislation. The principal judgment was concerned solely with the identification of which branch of government, i.e. legislative or executive, is entitled to regulate the terms and conditions of employment. This court held that the extensive regulation of the terms and conditions of employment envisaged by Chapter 3 of the Industrial Relations (Amendment) Act 2015 required more by way of the statement of principles and policies than had been provided for under the primary legislation. Put shortly, the principal judgment found that the impugned legislation trespassed upon the exclusive law-making power of the Oireachtas, by leaving significant policy choices over to the delegate, i.e. the...