Joint Labour Committees

Background

Prior to independence, the Trade Board legislation provided for the establishment of trade boards, which set mandatory terms of employment in certain sectors.  The sectors concerned were generally those without unionisation in which relatively low pay levels prevailed.

The Industrial Relations, Act 1946 substituted the system of Joint Labour Committees, which are empowered to set the mandatory minimum employment wage and terms and conditions of employment, for particular sectors.  The Committees comprise independent members appointed by the Minister, which are representative of employers and employees in the sector.


Establishment

On the application of the Minister, a trade union, organisation of workers or employers, the Labour Court may initiate consultations and call an inquiry with a view to establishing a Joint Labour Committee.

If there is substantial agreement between workers and employers in the sector concerned, if the existing machinery for regulating pay and employment conditions is inadequate or likely to cease to be adequate and it is expedient, having regard to the existing rate of pay and conditions, a Joint Labour Committee may be established.


Proposing Terms

The Joint Labour Committee proposes minimum terms and conditions of employment to the Labour Court. The proposals are published, and representations may be made.  The court determines the minimum terms and conditions. It may act only, on the basis of the proposals made.  It may reject proposals and request the Committee to reconsider the matter.

Fair procedures must be followed by the Committee in making its recommendations.  Both employers and employees must be allowed to make submissions, and the JLC must take them into account. They may, for example, make submissions relating to the costs and practical difficulties of compliance.  Because JLCs have been vested with power (subject to confirmation to fix minimum pay rates), subject to sanctions for breach, they must act with due process.

The ERO is made by the Minister.  Following adoption of the proposals by the Labour Court, it is forwarded to the Minister who shall, where he is satisfied, make an order giving effect to them.  Where the Minister refuses to make an order, he must advise the Labour Court in writing of the grounds for refusal.


Fixing Terms

The minimum terms and conditions are set out in a Joint Labour Committee order, which is usually published annually, as a statutory instrument.  They are incorporated into the employment contract of employees within the sector.  It is an offence for an employer to pay rates, below the minimum prescribed. There is a limited exception for employees, who are suffering from an infirmity or physical incapacity.

There are provisions requiring that employees be informed of their statutory entitlements, where an ERO or REA applies.  The terms of the ERO it must be incorporated in the written terms of employment, to be furnished at the commencement of employment. Prompt rectification of incomplete or incorrectly stated terms may be required by an inspector.


Joint Labour Committees

Annual orders are made in sectors where there are Joint Labour Committees, setting out the terms of employment. There are JLC employment regulation orders in the following areas;

  • retail grocery and allied trades;
  • agricultural workers;
  • law clerks;
  • hotel, brush and brooms;
  • catering;
  • contract cleaning;
  • hairdressing,
  • handkerchief, and household piece good;
  • provender milling;
  • security;
  • shirt making;
  • tailoring;
  • women’s clothing and millinery.

JLC Order

Each regulation is different.  The matters which are provided for, vary from order to order.  There may be provision for trade union representatives, procedures and substantive rights.  Specific grievance and disciplinary procedures may be provided for.  There may be provisions relevant only to the particular type of business.

Provisions may be made in relation to qualification levels and vocational training. There may provision for apprenticeships and vocational stage of employment. There may be provision for registration of employees and apprentices.

An employment regulation order will define its scope.  Certain categories of employees may be included or excluded. The regulation generally defines particular classes of employee within the sector. It may deal with various grades in respect of particular job types.


Remuneration I

The orders fix the rate of remuneration and the conditions of employment.  The rates fixed, are usually in excess of the national minimum wage. Particular rates of pay may be applicable to particular classes of employees, with reference to their age, positions, role and responsibility.

A JLC may make proposals to fix minimum hourly rates of remuneration. It may set not more than two higher hourly rates of remuneration based on the length of service with the employer concerned.

The JLC may make proposals for fixing minimum hourly rates of payment, and not more than two higher hourly rates of payment, fixed on the basis of the length of service in the sector concerned for all or any such workers.

The relationship between adult wage rates that may be proposed by JLC and sub-minimum rates under EROs are to reflect the same percentages as the minimum hourly rate of remuneration under the National Minimum Wages Act bears to that for persons aged under 18, first-time entrants and persons undergoing training.


Remuneration II

The definition of remuneration includes

• pay for time-off or in lieu of public holidays;

• compensation for working on Sundays;

• pay in lieu of notice;

• payment referable to a worker’s redundancy

Overtime rates may be specified, as may premiums for unsociable hours. Holiday breaks may be stipulated in addition to the statutory minimum. There may be provision for sick pay scheme. It may specify working hours, which may be the statutory position as modified.


2011 Changes

In a case in 2011, the Industrial Relation Act procedures in relation to the operation of Joint Labour Committees was found unconstitutional.  The procedure whereby the Joint Labour Committee itself, rather than the Labour Court, made the requisite decision, was found to be constitutionally flawed.  The power of the JLC to fix terms of employment was an impermissible delegation of the power to make laws.

The Industrial Relations Act did not prescribe sufficient principles and policies for the making of the employment regulation orders, by delegated legislation.  A further criticised effect of the older legislation was that some employees in substantially similar sectors and roles, including those in competition with each other, might be regulated while others may not.

The 2011 Act inserts a new provision in the Industrial Relations Act to establish the principles and policies to which a JLC must have regard in formulating proposals to submit an employment regulation order to the Labour Court.  The policies and principles guide the formulation by JLCs of proposals on remuneration and conditions of employment, regulate the JLO’s decision-making process and the making of the ERO.


ERO Factors I

The statutory policies and procedures to which the JLC must have regard are

  • the class of employers and employees likely to be affected including the financial and commercial interests of employers in the sector;
  • the desirability of agreeing and maintaining efficient and sustainable work practices appropriate to the sector;
  • the desirability of agreeing and maintaining a fair and sustainable minimum remuneration appropriate to the sector;
  • the desirability of maintaining harmonious industrial relations;
  • the levels of employment and unemployment in the sector;
  • the general level of wages in comparable sectors, including those outside the State which is in competition with them, and the general level of wages in such comparable sectors in the other jurisdictions;
  • any national wage agreement; and
  • the hourly wage specified in the National Minimum Wage Act.

ERO Factors II

In formulating the remuneration and condition of employment provisions in Employment Regulation Orders, the JLC must have regard to the following;

  • the legitimate interests of employers and employees, including legitimate financial and commercial interests of employers;
  • the desirability of agreeing and maintaining efficient and sustainable work practices appropriate to the sector;
  • the desirability of agreeing and maintaining fair and sustainable rates of remuneration appropriate to the sector;
  • the desirability of maintaining harmonious industrial relations;
  • the desirability of maintaining competitiveness, levels of employment and unemployment;
  • general wages in comparable sectors including, where enterprises in the sector are in competition with enterprises outside the State, the general level of wages in such comparable sectors in other relevant jurisdictions;
  • current minimum wages; and
  • the terms of the national agreement in force.

LC Recommendation

The chairman of a JLC is to facilitate the parties’ representatives in seeking agreement. Where no efforts are likely to advance resolution, the matters are referred to the Labour Court. The chairman is responsible for facilitating the parties represented on the JLC in reaching an agreement. in the event of exercising a casting vote.  Where no further efforts are likely to advance the resolution, the outstanding matters may be referred to the Labour Court.

The Labour Court may make recommendations in a reference where the JLC has failed to reach agreement on proposals. It must have regard to

  • the representations by the parties;
  • relevant codes of practice;
  • the economic and commercial circumstances of the employment;
  • the rates of remuneration and conditions of employment of workers in similar employment sectors;
  • the merits of the dispute and the terms on which it should be settled

If an agreement is not reached within a JLC following consideration of the Labour Court recommendation, it votes on the issues.  If there is a tie, the JLC chairman has a casting vote. The JLC committee’s chairman is to have regard to relevant Labour Court recommendations in the event of exercising a casting vote


JLC Reviews

The Labour Court shall at five-year intervals conduct a review of all establishment orders for Joint Labour Committees. Following such review, the Labour Court may recommend that the JLC be abolished, amalgamated with another, disestablished or amended.

Guidelines are set out for the Labour Court in carrying out the periodic review.  In particular, it is to have regard to

  • the outcome of the annual review of the JLC by the Workplace Relations Commission;
  • the class of workers to which it applies;
  • the extent to which they have been affected by changes in the trade or business to which the JLC applies;
  • the experience of enforcement of the EROs in the sector;
  • the experience of any adjustments made to them;
  • the impact of the ERO on unemployment levels, especially at entry level;
  • whether the fixing of statutory minimum remuneration and statutory conditions by the JLC has been prejudicial to the exercise of collective bargaining;
  • whether in the case of a JLC that represent employers and employees in a particular region, the continuation of such regional representation is justified.

Following the recommendations, the Minister may, if satisfied, make an order in terms of the recommendations.

Where an ERO has been in force for less than six months, there is a simplified procedure for revoking or amending it, where it contains an error, or exceptional circumstances exist which warrant its revocation or amendment.


Enforcement

Breach of the legislation was an offence.   If an employer was guilty of a breach, he could be ordered to pay the difference between the remuneration due and the remuneration paid, and/ or such compensation as may be fair and reasonable in relation to non-salary breaches.

This order, which could be made by the District Court in the criminal proceedings, was without prejudice to any other civil claim the employer may have.  The relevant provision was found unconstitutional. There is now a modern enforcement mechanism.

A complaint about non-enforcement may be brought before the Labour Court. An employee or an employee’s trade union may make a complaint to the Workplace Relations Commission in relation to contravention of an ERO.

The WRC investigates the matter and may require the employer to comply and pay compensation.  The complaint must be made within 6 months from the date of the contravention.  The decision of the WRC adjudicator may be appealed to the Labour Court.  This may be done within 6 weeks.  The Labour Court may refer a question of law to the High Court.  The party may appeal to the High Court on a point of law.


WRC Enforcement

An employee or his trade union to make a complaint to The Workplace Relations Commission where an employer has contravened an Employment Regulation Order.  The WRC is to investigate the complaint and decide whether it is well founded.

An award of monies due or compensation may be payable to a worker on foot of a WRC decision or Labour Court decision.  It has a priority on the distribution of assets in insolvency.

It may require the employer to comply with the ERO and to pay compensation to the employee. The complaint must be presented in six months, beginning on the date of contravention, unless exceptional circumstances prevent this from happening,

The Minister may present a complaint to the WRC in circumstances where a breach of the ERO has occurred, and where it is unreasonable to expect the employee to bring a complaint. A complaint may be presented by the Minister. It is treated in the same way as if made by the employee.


Appeal / Enforcement

A party may appeal a decision of a WRC to the Labour Court.  Following a hearing at which evidence may be presented, the court may affirm, vary or annul the decision. The appeal must be made within six weeks of the communication of the decision made by the WRC.

If the WRC decision is not appealed within six weeks, the Labour Court may, without investigation, make a determination. The Court may refer questions of law to the High Court.  Any party may appeal the determination of the Labour Court to the High Court on a point of law.

Where an employer fails to carry out the determination of the Labour Court, an application can be made by the trade union, employee, or the Minister to the Circuit Court in order to enforce the determination.   Where a complaint is made by the Minister, and it would be unreasonable to expect the employee to make the claim, it is treated as a complaint by the employee.

Where an employer fails to carry out a Labour Court determination, it may be enforced by the employee, trade union or Minister and the Circuit Court, without hearing the employer or any evidence in relation to the merits of the complaint.  The court may order the employer to pay the original award with interest.


References and Sources

Primary References

Employment Law  Meenan  2014 Ch. 7

Employment Law Supplement Meenan 2016

Employment Law Regan & Murphy  2009  Ch.18 ( 2nd Ed 2017)

Employment Law in Ireland Cox & Ryan 2009 Ch.2

Other Irish Books

Employment Law Forde & Byrne 2009

Principles of Irish Employment Law Daly & Doherty 2010

Acts

Industrial Relations Act 1946 (No. 26)

Industrial Relations Act 1969 (No. 14)

Industrial Relations Act 1976 (No. 15)

Industrial Relations Act 1990 (No. 19)

Industrial Relations (Amendment) Act 2001 (No. 11)

Industrial Relations (Miscellaneous Provisions) Act 2004 (No. 4)

Industrial Relations (Amendment) Act 2012 (No. 32)

Industrial Relations (Amendment) Act 2015

Periodicals and Reports

Employment Law Yearbook (annual) Arthur Cox

Employment Law Reports

Irish Employment Law Journal

Employment Law Review

Legislative Guides

Dismissal & Redundancy Consolidated Legislation Barrett, G 2007

Irish Employment legislation (Looseleaf) Kerr 1999-

Employment Rights Legislation (IEL offprint) Kerr 2006

Shorter Guides

Employment Law Nutshell Donovan, D 2016

Employees: Know Your Rights Eardly 2008

Essentials of Irish Labour Law Faulkner 2013

Websites

Workplace Relations Commission http://www.lrc.ie/en/

Irish Human Rights and Equality Commission https://www.ihrec.ie/

Health and Safety Authority http://www.hsa.ie/eng/

UK Texts

Textbook on Employment Law, Honeyball, et al. 13th Ed. 2014

Labour Law, Deakin and Morris 5th Ed. 2012

Employment Law, Smith and Wood 13th Ed 2017

Selwyn’s law of Employment Emir A 19 Ed. 2016

Employment law : the essentials. Lewis D Sargeant M and Schwab M 11 Ed.2011

Labour Law Collins H, Ewing K D and McColgan  2012

Industrial relations law reports. (IRLR): Law Section,

Employment law Benny R Jefferson M and Sargent  5th Ed.  2012

Pitt’s Employment Law 10th  Ed. Gwyneth Pitt  2016

CLP Legal Practice Guides: Employment Law 2016 Gillian Phillips, Karen Scott

Cases and Materials on Employment Law 10th  Ed. Richard Painter, Ann E. M. Holmes 2015

Blackstone’s Statutes on Employment Law 2015 – 2016 Richard Kidner

UK Practitioner Services

Tolley’s Employment Handbook 2017 Mrs Justice Slade 2017

Butterworths Employment Law Handbook 2017 Peter Wallington 2017

Blackstone’s Employment Law Practice 2017 Edited by Gavin Mansfield, John Bowers, John Macmillan 2017

UK Periodicals and Reports

The Employment Law Review 8th  Ed.   Erika C. Collins 2017

Industrial Relations Law Reports

Employment Law in Context: Text and Materials 2nd  Ed. David Cabrelli 2016