News & Media

John Grace and the QSFA win High Court Constitutional Challenge to Joint Labour Committees

On the 7th July 2011 the QSFA won their High Court case against the Catering Joint Labour Committee, the Labour Court and the State. Mr. Justice Feeney found in the QSFA’s favour declaring the system which allows Joint Labour Committees (“JLCs”) and the Labour Court to make Employment Regulation Orders (“EROs”) as unconstitutional.

There were essentially two strands to our High Court challenge and we succeeded on both points. We were represented by MG Ryan & Co. Solicitors in Galway.

Firstly the High Court found in our favour declaring the relevant provisions of the 1946 and 1990 Industrial Relations Acts unconstitutional as they delegate “excessive” law making powers concerning pay and conditions to the JLCs and the Labour Court without setting out any “principles or policies” as to how the JLCs and the Labour Court are to use those powers.

The Court found these bodies were entirely “at large” in relation to what matters to take into account in fixing legally binding wage rates and conditions of employment. The Court accepted our legal arguments that there were no principles, standards or factors in the legislation to guide the JLCs or the Labour Court as to how they should operate and what matters they should take into consideration when making EROs. The Acts were entirely silent in this regard leaving these bodies an “unfettered discretion”.

The Court stated the power given to these bodies to make such minimum rates of pay was a delegated power of a “most fundamental, permissive and far reaching kind”. In this instance the Court concluded the delegated power was excessive and amounted to a transfer of power.

The deciding Judge noted that an employer who fails to comply with a wage rate or condition contained in an ERO faces criminal sanctions. In such circumstances he found such rates and conditions must be determined based on principles and policies laid down by the Oireachtas and not as determined a delegated body such as the Labour Court, acting in the absence of stated principles and policies.

Secondly we successfully argued that the ERO made on the 12th May 2008 which fixed minimum rates of pay and conditions for workers outside of the Dublin and Dun Laoghaire interfered with our constitutional property rights in an “unjust and disproportionate” manner. The Court was satisfied that such interference was unlawful and the Court consequently declared the 2008 ERO invalid.

Having heard our evidence and legal submissions the Court agreed that the pay rates and conditions of employment contained in the 2008 ERO had been determined in an “arbitrary and unfair manner”. It noted that the ERO set different rates for different geographical areas, without there being any identifiable basis for such discrimination. The Court found the Catering JLC and the Labour Court had acted unreasonably in setting such rates and conditions in this manner.

In recent years the National Rights Employment Authority (NERA) has brought criminal prosecutions against QSFA members and many other employers for alleged breaches of the 2008 ERO. They also sought arrears of pay for up to three years which placed many employers under severe financial pressure and stress. With the assistance of our legal advisors we managed to get these prosecutions adjourned pending the outcome of the case. The Court has now declared the law which allows NERA enforce EROs, prosecute employers and seek wage arrears  unconstitutional and therefore unlawful. Our legal advisors have confirmed that EROs made under this system can no longer be enforced by NERA and any NERA prosecutions or proposed prosecutions against employers for alleged breaches of an ERO can not proceed.

The success of the QSFA in this constitutional challenge means that the JLC system has no longer any power to regulate terms or conditions of employment in the catering sector. JLCs also operate in respect of approximately 14 different sectors, including the retail, pub and hotel trades.

The QSFA welcomes the decision which will allow for increased flexibility between employers and employees. Member companies can now hire employees and offer rates and conditions of employment which are not restricted by these EROs. We are satisfied that this decision will pave the way for increased stability for businesses and will lead to a more competitive labour market.

QSFA Chairman: John Grace
Quick Service Food Alliance
37 Cook Street
Cork
Email: info@qsfa.ie

QSFA Legal Advisors: MG Ryan & Co Solicitors
Abbeygate House
34-36 Upper Abbeygate Street
Galway
Email: Ruth Mc Donagh at rmcdonagh@mgryan.com