Joint Labour Committees
Cases
Burke v. Minister for Labour
[1979] I.R. 354
Henchy J. SC
“The statutory provisions with respect to the constitution, officers and proceedings of a joint labour committee are to be found in the second schedule to the Act of 1946. A committee is to consist of such number of employers’ representatives as the Labour Court thinks fit, an equal number of workers’ representatives, together with an independent chairman and not more than two independent persons. Among the procedural provisions in the schedule is one stating that “a committee shall, save as otherwise provided by this Act, adopt such procedure at its meetings and otherwise, as it may determine to be suitable for the discharge of its functions under this Act.”The breadth of that discretion has been much relied on by the Committee to justify their course of conduct in the making of the order. I shall return to this point presently.
The initiative for the making of an employment regulation order is set in motion when a committee submit their proposals to the Labour Court: s. 42. When the Labour Court receives the proposals, it may, if it thinks fit, refer the proposals back to the committee with such observations thereon as the Labour Court thinks proper. In that case, the committee shall reconsider the proposals having regard to such observations and may, if they think fit, re-submit the proposals to the Labour Court either without amendment or with such amendments as they think fit having regard to those observations: s. 43, sub-s. 1(a). If the Labour Court does not so refer the proposals back to the committee or, having so referred them, the committee re-submit them to the Labour Court with or without amendment, the Labour Court shall publish a notice setting out the proposals and stating that representations may be made within 21 days: s. 43, sub-s. 1 (b). If representations are made within the 21 days, the committee shall consider them and may, if they think fit, re-submit the proposals with or without amendment to the Labour Court: s. 43, sub-s. 1 (c). Where the notice is published and either no representations are made or the committee re-submit the proposals, the Labour Court may, as it thinks fit, either make an order giving effect to the proposals as from such date (subsequent to the date of the order) as the Labour Court thinks proper and specifies in the order, or refuse to make an order: s. 43, sub-s. 1 (d).
When an order is made fixing a statutory minimum remuneration, an employer must pay at least that remuneration: s. 44, sub-s. 1 (a). If an employer fails to do so, he shall be guilty of an offence and shall be liable on summary conviction thereof to a fine not exceeding £50: s. 45, sub-s. 1. Furthermore, on conviction, the employer may be ordered by the court to pay the worker the difference between the statutory minimum remuneration and the remuneration actually paid: s. 45, sub-s. 2. Remuneration, for the purpose of the relevant statutory provisions, is to be construed as the amount obtained or to be obtained in cash clear of all deductions in respect of any matter whatsoever, except for deductions lawfully made under any enactment: s. 47, sub-s. 1. However, that is subject to the proviso that, subject to any enactment for the time being in force, the order may authorise specified benefits or advantages to be reckoned as payment of remuneration in lieu of payment in cash and the order shall define the monetary value of such benefit or advantage: s. 47, sub-s. 2. The order of 1978 defined, as did its forerunners, the monetary value of the benefit of board and lodging, or of board only.
It will be seen, therefore, that the power to make a minimum-remuneration order is a delegated power of a most fundamental, permissive and far-reaching kind. By the above provisions of the Act of 1946 Parliament, without reserving to itself a power of supervision or a power of revocation or cancellation (which would apply if the order had to be laid on the table of either House before it could have statutory effect) has vested in a joint labour committee and the Labour Court the conjoint power to fix minimum rates of remuneration so that non-payment thereof will render employers liable to conviction and fine and (in the case of conviction) to being made compellable by court order to pay the amount fixed by the order of the Labour Court. Not alone is this power given irrevocably and without parliamentary, or even ministerial, control, but once such an order is made (no matter how erroneous, ill-judged or unfair it may be) a joint labour committee is debarred from submitting proposals for revoking or amending it until it has been in force for at least six months. While the parent statute may be amended or repealed at any time, the order, whose authors are not even the direct delegates of Parliament, must stand irrevocably in force for well over six months.
In the present case the order is not challenged on constitutional grounds. What is contended is that the manner of its making has tainted it with invalidity.
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As I have earlier observed, the delegated power that was vested in the Committee was of the most extensive nature. It enabled the Committee to formulate the proposals for an order fixing minimum rates of remuneration. All the Labour Court could do was to refer the proposals back to the Committee with observations. The Labour Court is given no power of initiation or amendment. It could but make or refuse to make the order. Essentially, therefore, the order-making body was the Committee. Apart from the skeletal provisions in the second schedule to the Act of 1946 as to its constitution, officers and proceedings, the Act of 1946 is silent as to how a committee are to carry out their functions in making orders.
Where Parliament has delegated functions of that nature, it is to be necessarily inferred as part of the legislative intention1 that the body which makes the orders will exercise its functions, not only with constitutional propriety and due regard to natural justice, but also within the framework of the terms and objects of the relevant Act and with basic fairness, reasonableness and good faith. The absoluteness of the delegation is susceptible of unjust and tyrannous abuse unless its operation is thus confined; so it is entirely proper to ascribe to the Oireachtas (being the Parliament of a State which is constitutionally bound to protect, by its laws, its citizens from unjust attack) an intention that the delegated functions must be exercised within those limitations.
Here the Committee undertook the task of making a statutory instrument fixing minimum rates of remuneration for certain workers in the hotel industry. The representatives of employers in the hotel industry, as members of the Committee, wished the Committee to give consideration, before such an order was made, to the actual cost to employers of board and lodging supplied to workers. That was an eminently reasonable proposal. It was not possible to assess a fair and reasonable figure for minimum remuneration until a fair and reasonable assessment was made of the gross value of cash remuneration plus board and lodging. By the self-denying restraint by which the Committee debarred themselves from looking at the data necessary to determine the true cost to the employer of board and lodging, the Committee left themselves open to the charge that the consequent minimum-remuneration order may be unjust and unfair.
It is no answer to that charge to say that the Committee were following the practice adopted previously before such orders were made. Two wrongs do not make a right; but in this case there was the difference that the Committee were specifically and repeatedly asked to receive and have regard to evidence as to the cost of the benefits which the workers were getting in the form of board and lodging. Nor is it a good answer to say that, if the Committee had taken into account the true, rather than the estimated, cost of board and lodging, the figures fixed as minimum rates of remuneration would not have been materially affected. As the Committee did not hear such evidence, it is impossible to say what effect such evidence would have had on them. Even if such evidence would have made no difference, the Committee, by rejecting it unheard and unconsidered, left themselves open to the imputation of bias, unfairness and prejudice. Such accusations, if made, would be unmerited; the members of the Committee were, no doubt, all acting in good faith and to the best of their abilities.
However, the fact is that the Committee, in formulating the proposals for the order of 1978, were acting as an unelected body, functioning behind closed doors, to produce a statutory order fixing minimum rates of remuneration; and that order could not be varied for at least six months, and non-compliance with it could lead to criminal responsibility and civil compellability. Elementary fairness required that the employers as well as the employees, both of whom were represented on the Committee, should have been allowed to present and to see consideration given to material which was crucially relevant to the question of minimum rates of remuneration.
By failing to receive and consider that evidence, the Committee failed to keep within the confines of their statutory terms of reference as those must necessarily be inferred. In other words, the order of 1978 was made in excess of jurisdiction to that extent.
I would allow the plaintiffs’ appeal and declare that the Employment Regulation Order (Hotels Joint Labour Committee), 1978, was and is void in so far as it purported to substitute new minimum rates of remuneration payable to hotel workers in receipt of board, or in receipt of board and lodging, and to revoke that part of the order of 1977 which dealt with minimum rates of remuneration payable to hotel workers in receipt of board, or in receipt of board and lodging.”
John Grace Fried Chicken Ltd & Ors -v- Catering JLC & Ors
[2011] IEHC 277
Judgment by: Feeney J.
BETWEEN
26. The defendants contend that the 1946 Act and the 1990 Act contain sufficient principles and policies and it is for this Court to consider whether or not the matters pleaded and identified by the defendants can be identified as principles and policies and if some or all of them can be so identified whether such principles and policies are sufficient to satisfy the requirements of Article 15.2.1. The matters relied upon by the defendants at (i) and (iii) of paragraph 11 of their defence, namely, the importance of promoting harmonious relations between workers and employers and the desirability of preventing and/or settling trade disputes are matters set out in the long title to the Industrial Relations Act 1946. The Court accepts that when endeavouring to ascertain whether principles or policies have been identified within legislation that it is both appropriate and necessary to have regard to the entire statute and not just the sections challenged within a particular case. The full terms of a statute require to be considered to ascertain whether or not any principles or policies have been identified within the Act. Whilst it is correct that the long title of the 1946 Act refers to the importance of promoting harmonious relations between workers and employers and the desirability of preventing and/or settling trade disputes, those matters are not mentioned or referred to in Part IV of the Act which is the part where ss. 42, 43 and 45 are set out. Whilst in the long title the regulations of terms and conditions is expressed to be for the “purpose” of promoting harmonious relations, there is no reference to that matter or to the desirability of preventing and/or settling trade disputes in Part IV of the 1946 Act. Consideration of the entire Industrial Relations Act 1946 and the context of its various parts and sections identifies that the reference in the long title to the importance of promoting harmonious relations between workers and employers and the desirability of preventing and/or settling trade disputes relates to Part VI of the 1946 Act which deals with trade disputes. It is that section of the Act which gives to the Labour Court the power to investigate trade disputes and make recommendations and provides for the appointment of a conciliation officer to mediate in trade disputes. It is also the case that none of the paragraphs in (i) to (iii) inclusive could properly be regarded as principles or policies. Particularly, they provide no principles or policies in relation to the basis upon which wages or remuneration are to be fixed or terms or conditions of employment established are fixed. The matter being dealt with in Part IV of the Act is the creation of a scheme and the identification of procedures leading to orders fixing the rate of remuneration and conditions of employment for employees. The fundamental power delegated is the entitlement to make binding orders and these paragraphs do not in any way deal with how or on what basis such power is to be exercised. There is no indication how such power is to be exercised. The items pleaded at paragraph 11(i) and (iii) are objectives and provide no indication as to how such objectives are to be achieved. The item identified at (ii) is again taken from the long title to the 1946 Act and relates to the machinery and not to any principles or policies to apply in determining the rate of remuneration or the conditions of employment of an employee. The item pleaded at paragraph 11(ii) identifies the desirability of having machinery but it is not any guidance or direction as to how such machinery is to operate. It is not a statement of an objective by reference to which that process can be measured. This matter is not and cannot be read as identifying a principle or policy.
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32. In conclusion, the Court has viewed the legislation in issue in its context and has had regard to the entire statute. In recognising that the principles and policies test is a flexible test, the Court has considered the question as to whether the scheme and provisions in issue herein could be viewed as a delegation of power or a transfer of power. Whilst it is possible to identify certain objectives in the legislation, when one considers its full terms and context, there is no indication, direction, statement of policy or identification of principles or policies present to indicate how the objective identified in the legislation is to be achieved. The far reaching nature of the delegation within the 1946 Act was identified by Henchy J. in Burke v. Minister for Labour and the absoluteness of the delegation which he identified remains unaltered. Since that judgment which was given in December 1978, the 1946 Act has been amended and a universal statutory minimum wage has been enacted by the National Minimum Wage Act 2000. The 1990 Act did not address the concerns obvious from the judgment of Henchy J. in Burke v.Minister for Labour. The enactment of the National Minimum Wage Act 2000 and the identification of principles and policies which were to inform the Minister in making an order for a national minimum hourly rate of pay as set down in s. 11 of that Act did not result in any amendment to the 1946 Act and the principles and policies contained in the 2000 Act were not extended to the 1946 Act. This was the situation notwithstanding the identification of real concerns concerning the scope and extent of the delegation in the 1946 Act apparent from the judgment of Henchy J.
33. This is a case where the delegated power is excessive. Such a delegation would be lawful if the Act delegating the power had either in 1946 or by subsequent amendment provided policies or principles to guide, inform and direct the Labour Court or the Joint Labour Committees established under the 1946 Act. If that had occurred then those expert bodies could have used their expertise and knowledge to fill in the details, on an ongoing basis, based upon principles or policies identifying standards, goals, factors and purposes laid down by statute. As that did not occur, the delegation in issue in this case amounts to a transfer of power. The legislation in issue in this case permits not even the executive to be at large but the Labour Court and permits that body to make laws.
34. Having carefully perused the entire 1946 Act (and the 1990 Act insofar as it is relevant) and paying full regard to its context and the technical difficulties of investigating, considering and ascertaining wage rates and conditions of employment on an ongoing basis, the Court has been unable to find any matters which could properly be described as policy or principle within the terms of the Act directing or informing the delegated body. The matters identified by the defendants as a specification of principles and policies cannot properly be regarded as policies or principles and are in no way directed to informing the delegated body as to how that body is to carry out its functions or what that body is to take into account in carrying out the fundamental task of fixing wage rates and conditions of employment. Where the consequences are an ERO which is to place an obligation on an employer to apply particular wage rates and conditions of employment which can be enforced by criminal sanction, those rates and conditions must be determined and based upon principles and policies laid down by the Oireachtas and not as determined by a delegated body acting in the absence of stated principles and policies.
35. It is possible to discern within the legislation in issue the objectives sought to be achieved but it is not the objectives which are required to make a delegation lawful but the identification of principles and policies. The legislation is silent as to how the delegated body is to carry out its functions in making orders.
36. In this case, the defendants contended in submissions to the court that what the plaintiffs were seeking to do was to require the Oireachtas to specify in advance a minimum remuneration and terms and conditions should be determined on an ongoing basis, within a specific sector, following discussions by representative groups and a supervision of an expert body. It was claimed that the approach argued for by the plaintiffs would defeat the whole aim of the Oireachtas in establishing flexible participatory and sector specific machinery. This Court in its judgment is not seeking to require that there be legislation specifying in advance how wages and conditions of employment should be determined but rather ascertaining if a policy or principle can be identified for the delegated body as to how such matters are to be determined. In the absence of such principles and policies, delegation is a breach of Article 15.2.1 and results in a situation where the insufficiency of legislative articulation of any policy and principle for determining wage rates and conditions offends the provisions of Article 15.2.1.
37. In paragraph 8 of the defence it is pleaded;
“In the alternative, if the exercise of the statutory powers of the first and second named defendants does constitute an interference with the property rights of the plaintiffs (which is denied), it is now that any such interference is unjust or disproportionate. To the extent that the exercise of the first and second named defendants’ statutory powers does constitute an interference with the property rights of the plaintiffs (which is denied), any such interference constitutes a permissible regulation of the property rights of the plaintiffs in accordance with the provisions of the Constitution of Ireland, the principles of social justice and the exigencies of the common good.”
Central to the defendants’ plea in relation to property rights, as set out at paragraph 8 of the defence, was reliance by the defendants on the provisions of Article 43(2) of the Constitution. That provision provides:
“The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath, and inherit property.”
The core issue for consideration by the Court in considering the plaintiffs’ property rights challenge is the contention by the plaintiffs that there is an interference with such rights due to the fact that the challenged legislation and the ERO made thereunder requires the first and second named plaintiffs, as a condition of legally carrying on their business, to pay wage rates and apply conditions of employment to their employees which it is claimed have been determined in an arbitrary and illegal manner. As set out in this judgment, this Court is satisfied that the plaintiffs have established that such pay rates and conditions of employment have in effect been determined in an arbitrary and unfair manner. The legislation upon which the Joint Labour Committee operates is silent as to how that Committee is to carry out its functions in making orders. That situation was identified by Henchy J. in the Burke case in 1978 and remained the position up to the date when S.I. 142 of 2008 was introduced. As this Court is satisfied that that Statutory Instrument was made in the absence of any principles or policies and was in effect therefore arbitrary or subjective, such order cannot be enforced where the consequences of the failure to comply with such order can include criminal prosecution. Absent a court order declaring the ERO (S.I. 142 of 2008) an unlawful and disproportionate interference with the property rights of the first and second named plaintiffs, the first named plaintiff would remain at risk of criminal prosecution in respect of an arbitrary and illegal statutory provision. In those circumstances this Court is satisfied that it is not open to the defendants, on the facts of this case, to contend that the provisions contained in the ERO do not constitute an interference with the property rights of the first two plaintiffs nor is it open to the defendants to contend that such interference is not unjust or disproportionate.
38. Insofar as the defendants contend in paragraph 8 of their defence that if there is an interference in the plaintiffs’ property rights that such interference is permissible within the provisions of the Constitution of Ireland, this Court is satisfied that the defendants cannot rely on Article 43 of the Constitution. The defendants have not contended that Article 43 of the Constitution provides “principles and policies”. By their plea, in paragraph 8 of the defence, the defendants are endeavouring to introduce, what in reality amounts to, a claim that principles and policies under the 1946 and 1990 Acts should be established or introduced by reference to the provisions of the Constitution. This Court is satisfied that there is no basis for such claim. The statutory position is that a Joint Labour Committee cannot be established unless the provisions of the 1946 Act are satisfied. Establishment orders made by the Labour Court are based upon and confirm that particular conditions have been satisfied for the making of an establishment order. The facts of this case are that the Labour Court did not decide that having regard to the rates of pay or conditions of employment prevailing in the relevant sector that it was expedient that a Joint Labour Committee should be established as the conditions recorded in the Instrument establishing the first defendant were those set out in s. 37(B)(ii) of the 1946 Act, which deals with the absence of effective machinery to regulate wages and conditions and not with actual rates or conditions.
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39. The evidence which this Court heard established that terms and conditions of employment provided for under the ERO system of orders could result in businesses immediately adjacent to one another being required to adhere to significantly different statutory obligations. These included extra and different rates of pay for Sunday and night work. There was not any reasonable uniformity of terms which would be required by justice. The Court also heard evidence that the rates of remuneration and conditions of employment determined by the ERO in issue were in excess of those laid down by the Oireachtas in statute by the National Minimum Wage Act 2000 where principles and policies giving rise to such rates of remuneration and conditions of employment are identified. On the facts of this case no such principles and policies were identified in the ERO or in the 1946 or 1990 Acts which would enable persons affected by the ERO to ascertain the principles and policies or supervisory measures which resulted in different rates from those established under the 2000 Act, where principles and policies are identified.
A body which has delegated to it a power of subordinate legislation must exercise that power within the limitations which are expressed or necessarily implied in the provisions providing for such delegation. One implication which arises in the circumstances of such delegation is that the power to make subordinate legislation should be exercised reasonably. On the facts before this Court that is not what has occurred. The ERO which was made introduced fixing wage rates and conditions of employment and was made in an arbitrary manner in that certain rates were set out for a geographical area when significantly different and more restrictive rates and conditions of employment applied in an immediate adjoining area without there being any identifiable basis for such discrimination. In the light of the above, this Court is satisfied that the plaintiffs have established that the ERO made on the 12th May, 2008 (S.I. 142 of 2008) unlawfully interferes with the first two plaintiffs’ property rights under Article 40.3 of the Constitution.
40. On the basis of the findings made by this Court, the plaintiffs are entitled to a declaration that the provisions of ss. 42, 43 and 45 of the 1946 Act and s. 48 of the 1990 Act are invalid having regard to the provisions of Article 15.2.1 of the Constitution of Ireland and also the declaration sought that the ERO is invalid. The Court will hear the parties in relation to the terms of such declarations. The court will also hear the parties in relation to the procedure to be followed in relation to outstanding matters for consideration by the court including the issue of the damages, if any, to which the plaintiffs might be entitled.”
Minister for Labour v. Costello
[1988] I.R.235
O’Hanlon J.
“This is a consultative case stated by the district justice for the District Court Area of Loughrea (District No. 8) pursuant to s. 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, section 45.
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 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 s. 45, sub-s. 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 s. 45, sub-s. 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 s. 49, sub-s. 1 of the said Act.
The case stated is primarily concerned with the course which should be taken in relation to the charge under s. 45, sub-s. 1, of the Act, i.e., the failure to pay not less than the statutory minimum wage to the said Phyllis Fallon, as the learned district justice was clearly satisfied on the evidence that a contravention of s. 45, sub-s. 1, as charged in the summons, had actually taken place.
No problem arises concerning the primary penalty provided for by the Act, as s. 45, sub-s. 1, provides that the employer, if convicted of an offence under that subsection, shall be liable on summary conviction to a fine not exceeding fifty pounds.
At the hearing of this charge, however, evidence was given that the said Phyllis Fallon had worked as a waitress at the defendant’s restaurant from the 18th March, 1981, until the 19th July, 1986, and also as to the remuneration paid to her during that period, which appears at all relevant times to have been less than the statutory minimum wage applicable from time to time. The district justice computed the amount of the underpayment over the entire period to be £8,874, and the prosecutor applied to him to order payment of this amount by the defendant to the said Phyllis Fallon, in addition to the imposition of whatever penalty might be imposed under the provisions of s. 45, sub-section 1.
Being in doubt as to his jurisdiction to order payment of this sum by the defendant to the said Phyllis Fallon, the district justice has adjourned his decision on this point while awaiting the guidance of the High Court as to the powers exercisable by him in the matter.
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Two misapprehensions could easily arise on first reading of these different provisions, and it appears to me that they may have arisen in the present case and may have given rise to some of the difficulties with which the learned District Justice was faced. In the first place, sub-s. 2 and sub-s. 4 may appear to cover the same ground, whereas in my opinion they do not. In the second place, as payment of wages is one of the normal conditions of employment, the sub-sections which refer to failure on the part of the employer to comply with statutory conditions of employment may be considered to have application to the situation where he fails to pay the statutory minimum wage, whereas – again, in my opinion – this is not a correct construction of the section, taken as a whole.
When a charge is brought of failure to pay the statutory minimum wage, the employer is entitled to know the date or time when the offence is alleged to have been committed, and he was given this information by the particulars of the offence contained in the summons in the present case. Reading s. 45 of the Act in its entirety, I am of opinion that sub-s. 2 refers back to the charge brought under sub-s. 1 and the power given to the court to order the person found guilty of an offence to pay to the worker the shortfall between the amount actually paid and the statutory minimum wage refers only to the payment of wages made on the date when the alleged offence was committed.
Secondly, I am of opinion that the sub-sections referring to a failure on the part of the employer to comply with statutory conditions of employment mean the statutory conditions of employment other than the condition requiring payment of the minimum wage. These conditions of employment are dealt with in Part III of the Employment Regulation Order (Catering Joint Labour Committee), 1986, separately from the question of remuneration and are concerned with such matters as normal working hours, entitlement to holidays and other conditions of employment.
If I am correct in construing the provisions of s. 45 of the Act in this manner, then it means that the only scope for an award of back money to the employee in the course of the present prosecution (other than an award of the differential between the amount paid to her on the 19th July, 1986, and the amount which should have been paid to her on that date in compliance with the relevant Employment Regulation Order) lay in the application of the provisions of s. 45, sub-s. 4 of the Act. This sub-section could not be invoked unless there was served with the summons notice of intention to avail of paragraph (a) of that sub-section. The case stated does not suggest that such notice was served with the summons, nor does any copy of such notice accompany the copies of the summonses which have been made available for the hearing of the case stated. It would appear that reliance was placed at the hearing before the District Court on the provisions of s. 45, sub-s. 3, which – as already indicated – do not, in my opinion, have any application to the circumstances of the present case.
It was submitted on behalf of the defendant before the District Court that back payment of any differential between wages paid and wages which should have been paid could be ordered, on a strict interpretation of s. 45 of the Act, without regard to any time limit whatever, whereas a six-year limitation period would apply in the normal civil action based on a contract of employment. Construing the section in the manner already outlined above, however, this situation would not arise. The only award which could be made under sub-s. 2 would be such amount as was referable to specific offences, which – if not to be barred by lapse of time – would have to be committed within the period prescribed for the bringing of summary charges. The alternative procedure available under sub-s. 4 of the section would enable arrears to be awarded but only in respect of a period of three years immediately preceding the date of the offence.
It appears to me that the findings already made in the course of this judgment may suffice for the purpose of enabling the District Justice to reach a final determination on the outstanding issue in the case. If they are not sufficient then the matter could be referred back to the High Court for further consideration, but in such event some additional information would be required as to the particular sub-section of s. 45 relied on by the complainant and the grounds for relying on same.
It appears from the case stated that the defendant contended in the District Court that the statutory provisions in question, if permitting the District Court to order payment of a sum of the magnitude claimed, took the offence out of the category of a “minor offence” and were repugnant to the Constitution in purporting to confer jurisdiction on the District Court to impose such a penalty in criminal proceedings.
This matter was again canvassed in the course of the hearing of the case stated in the High Court. In my opinion it was not open to the defendant to rely on this plea in the hearing before the District Court having regard to the specific provisions of Article 34, s. 3, sub-s. 2 of the Constitution which provides that no such question (i.e., as to the validity of any law having regard to the provisions of the Constitution) shall be raised (whether by pleading, argument or otherwise) in any court established under the Constitution other than the High Court or the Supreme Court. The provisions sought to be challenged form part of an Act of the Oireachtas enacted subsequent to the enactment of the Constitution of 1937 and are within the meaning of the expression “any law,” as construed by the Supreme Court in The State (Sheerin) v. Kennedy [1966] I.R. 379.
Furthermore, I am of opinion that it is not permissible to raise the issue of constitutionality by way of case stated from the District Court having regard to the decision of the former Supreme Court in Foyle Fisheries Commission v. Gallen [1960] Ir. Jur. Rep. 35. The District Justice must proceed on the assumption that powers conferred on him by Act of the Oireachtas, enacted subsequent to the enactment of the Constitution of 1937, may be lawfully exercised by him unless and until the statute has been successfully impugned in proceedings appropriate for that purpose. I have had regard to the judgment of the Supreme Court in The People (Attorney General) v. McGlynn [1967] I.R. 232 but do not consider that it alters the situation. I propose to return the case stated to the learned district justice without replying to the specific questions raised by him, but with the benefit of the views expressed above as to the manner in which s. 45 of the Industrial Relations Act, 1946, should be construed and applied by him in the circumstances of the present case.”
Busy Bee Bagels v NERA
DEC092
BACKGROUND:
2. The issue before the Court concerns the applicability of the Catering Industry Joint Labour Committee to the Company and the Catering Industry Employment Regulation Orders toits employees. The Company is one of 6 food outlets located in a shopping centre food court. In the food Court seating and tables are provided by the shopping centre. Following an inspection of the premises, the National Employment Rights Authority found that the Company was not a take-away and was covered under the scope of the Catering Industry Joint Labour Committee and the Catering Industry Employment Regulation Order. The Company argues that it is a take-away and that no food or drink is consumed on its premises.
The Company requested that the Labour Court under Section 57(1) of the Industrial Relations Act, 1946 make a Decision on the matter.
DECISION:
Introduction
This matter came before the Court by way of an application by Busy Bee Bagels Limited t/a “The Bagel Bar”, (the Applicant) for a decision on whether the Catering Industry Joint Labour Committee (for areas other than those known prior to 1994 as the County Boroughs of Dublin and Dun Laoghaire) (JLC) operates as respect its premises at Mahon Point, Cork with respect to the employer and as to whether certain Catering Industry Employment Regulation Orders (ERO) apply to its employees. The application was made pursuant to Section 57(1) of the Industrial Relations Act 1946.
The application arose against the background of an assertion by an Official of the National Employment Rights Authority (NERA) that the premises operated by the Applicant in the Mahon Point Food Court, Mahon Point Shopping Centre, Cork comes within the scope of the JLC and the ERO. In these circumstances the Court invited NERA to appear before it and make submissions as alegitimus contradictorin the proceedings.
The Catering Industry JLC
The application was made by letter from the Applicant dated 10th February, 2009, and relates to the Catering Industry JLC (for areas other than those known prior to 1994 as the County Boroughs of Dublin and Dun Laoghaire) in respect to catering establishments. The ERO defines its scope at Clause 1 as follows: –
“Workers to whom this Order applies
This Order shall apply to workers employed in a catering establishment (for areas other than those known prior to 1994 as the County Boroughs of Dublin and Dun Laoghaire) who are engaged on any of the following work, that is to say:-
(a) the preparation of food or drink;
(b) the service of food or drink;
(c) work incidental to (a) or (b) and performed at any store or warehouse or similar place in the catering establishment.”
The ERO defines a “catering establishment” as follows: –
(a) “Catering Establishment” means a premises in respect of which a publican’s licence (spirit retailers on-licence) under the Licensing Acts,1833 to 1995, is held and which serves hot food for consumption on the premises, and a premises or part of a premises primarily used for supplying for reward to any persons, not for the time being resident on the premises, food or food and drink for consumption on the premises, including fish and chip shops and ice cream parlours, but excluding
(i) premises registered in the register of hotels, under the
provisions of the Tourist Traffic Acts, 1939 – 2003.
(ii) premises licensed under the Licensing Acts, 1833 – 1995
and having not less than 10 apartments normally available
for the sleeping accommodation of travellers.
The JLC was established by Establishment Orders made by this Court pursuant to section 36 of the Industrial Relations Act 1946. The Order is contained in S.I. No. 225 of 1977. The Order is expressed to apply to a “Catering Establishment” which is defined as: –
“…a premises or part of a premises primarily used for supplying for reward to any persons, not for the time being resident on the premises, food or food and drink, for consumption on the premises, including fish and chip shops and ice cream parlours”
The Facts
The issue in contention is whether the premises “The Bagel Bar”, operated by the Applicant in the Mahon Point Food Court, Mahon Point Shopping Centre, Cork is a catering establishments within the meaning ascribed to that term by the Establishment Order and the ERO. The Applicant contends that it is not a “catering establishment” for the purposes of the ERO, as no food or drink is consumed on the business premises. NERA contended that in no sense of the word could the business be considered as a “take away” premises.
Position of the parties
It is the Applicants case that the business operates a take away tea/coffee/bagel outlet located within the Mahon Point Shopping Centre. No food or drink is consumed on the business premises, trade is entirely take away, the product is provided in a brown paper bag to be consumed elsewhere. In support of its view the Applicant provided business plans for its outlet in the Shopping Centre, showing where the business begins and ends. He also provided a copy of the Shopping Centre Unit specification document, stating that the business has no responsibility/liability for any area outside of it.
NERA submitted that the business unit “The Bagel Bar” is one of six food outlets engaged in the sale of food and drink located in the Foodcourt on the 1st floor of Mahon Point Shopping Centre. Adjacent to the outlets, seating and tables are located for use by customers of the food and drink outlets. The seating and tables are provided by the Shopping Centre, as are trays for use by customers availing themselves of the services of the Foodcourt outlets. Cleaning, janitorial and refuse services for the general seating area are provided by the Shopping Centre and the workers engaged in those duties are employees of the Centre. It submitted that customers’ orders from “The Bagel Bar” are prepared, placed on trays and carried by the customer to the adjacent seating area for consumption. On occasions customers’ orders are delivered by the Applicant’s employees to the seating area.
NERA further submitted that there can be no dispute about the user of the premises in question; it is used primarily [if not exclusively] for supplying, for reward, food and drink to non-residents. However, what is in dispute is whether the applicant’s employees are employed at a catering establishment within the meaning ascribed to that term by the ERO
NERA submitted that when the respective Catering JLC’s were first established, Food Halls with multiple food outlets sharing common seating areas in large shopping centres were not a feature in this jurisdiction. Therefore, NERA submitted that as legislation has to be prospective and take account of new developments the Court must take a purposive approach rather than a merely literal interpretation of the legislation to test its applicability or otherwise to these developments.
The Issue forConsideration
The definition of a catering establishment contained in the ERO applies to a premises or part of a premises primarily used for the supply of food or drink on the premises. In the instant case the net issue for determination is whether the outlet, or part thereof, isprimarilyused for the aforesaid purpose.
It is submitted by NERA that the seating area of the Foodcourt in the Shopping Centre is part of the premises in which the business at issue is located and comes within the statutory definition.
Conclusions
It appears to the Court that the ERO was intended to apply to restaurants, caf?s and similar establishments in which patrons are provided with food and drink for consumption on the premises. When the Establishment order was promulgated in 1977 facilities such as Foodcourts of the type in issue were largely unknown. It is, however settled law that a legislative provision must be given an updated meaning. This is now expressly provided for by section 6 of The Interpretation Act 2005, which provides: –
6.—In construing a provision of any Act or statutory instrument, a court may make allowances for any changes in the law, social conditions, technology, the meaning of words used in that Act or statutory instrument and other relevant matters, which have occurred since the date of the passing of that Act or the making of that statutory instrument, but only in so far as its text, purpose and context permit.
A Foodcourt is clearly a facility the purpose of which is to provide patrons with food and drink for consumption on the premises. In that respect it is a facility analogous to a restaurant or caf? all be it in a less formal setting. The Foodcourt is in a premises that comprises the shopping centre. It is a part of the premises, which is primarily used for the supply of food or drink on the premises. The outlet which is the subject matter of this application is located in that part of the premises and is leased to the applicant by the owners of the shopping centre for use in conjunction with the purpose for which the Foodcourt is intended. Those employed in the outlet are engaged in the supply of food and drink for consumption within the Foodcourt. In that regard it is noteworthy that the ERO does not provide that in order to come within its terms the employees must be wholly or mainly engaged in the supply of food or drink for consumption on the premises. It is sufficient that they be engaged in the specified activity and employed in a catering establishment.
The Court is satisfied that the Foodcourt is a catering establishment with the statutory meaning of that term. The Court is further satisfied that the outlet which is the subject of this application is an integral part of the Foodcourt in its purpose and user. It follows that those employed in the outlet who are engaged in activity within the ambit of the ERO are covered by the terms of the ERO.
Decision
For all of the foregoing reasons the Court is satisfied that the JLC to which this application relates operates as respect the Applicant herein. The Court is further satisfied that EROs also apply to the Applicant.”
Butlers Chocolates Limited v NERA
DEC091
SUBJECT:
1. An application by Butlers Chocolates Limited (the Applicant) for a decision on whether a Joint Labour Committee (JLC) operates as respect certain of its premises and as to whether certain Employment Regulation Orders (ERO) apply to certain of its employees.
BACKGROUND:
2. The case concerns whether the Company’s retail outlets (with seating) come within the scope of the Joint Labour Committee (JLC) for the Catering Industry and are covered by the Catering Employment Regulation Order (ERO). The Company is primarily a manufacturer of chocolates, ice creams and similar products. It operate two types of outlets – “take-away” and “coffee shops/seated” and it believes that both types are covered by the National Minimum Wage only. Some of the coffee shops do not provide seating but the majority do and NERA believes that it is these outlets that are covered by the EROs and the JLCs.
The Company referred the case to the Labour Court for interpretation under Section 57(1) of the Industrial Relations Act, 1946, on the 27th January, 2009. A Labour Court hearing took place on the 20th August, 2009.
DECISION:
Introduction
This matter came before the Court by way of an application by Butlers Chocolates Ltd (the Applicant) for a decision on whether a Joint Labour Committee (JLC) operates as respect certain of its premises and as to whether certain Employment Regulation Orders (ERO) apply to certain of its employees. The application was made pursuant to Section 57(1) of the Industrial Relations Act 1946.
The application arose against the background of an assertion by an Official of the National Employment Rights Authority (NERA) that certain outlets operated by the Applicant came within the scope of the JLCs and the EROs. In these circumstances the Court invited NERA to appear before it and make submissions as alegitimus contradictorin the proceedings.
The JLCs
The application was made by letter from the Applicant dated 27th January, 2009, and relates to the JLCs for the catering industry. The first such JLC operates in respect to catering establishments in Dublin or Dun Laoghaire. The second JLC operates in respect to all other areas within the State. The EROs in issue are of like geographical application.Both EROs define their scope at Clause 1 as follows: –
“Workers to whom this Order applies
This Order shall apply to workers employed in a catering establishment [in Dublin or D?n Laoghaire / except Dublin and Dun Laoghaire] who are engaged on any of the following work, that is to say:-
(a) the preparation of food or drink;(b) the service of food or drink;(c) work incidental to (a) or (b) and performed at any store or warehouse or similar place in the catering establishment.”
………………..
Conclusions
The ERO is in the nature of secondary legislation. Hence, it appears to the Court, the proper approach in ascertaining the meaning to be ascribed to a word or expression appearing in the ERO is to apply the normal rules of statutory construction.
The expression “part of a premises” is an ordinary English expression which should be given its ordinary or colloquial meaning. It refers to any area within a premises. The areas in which tables and seating are provided within the Applicant’s outlets are undoubtedly a part of the premises in which they are located. It seems perfectly clear that the provision of a seating area in the various outlets is intended to accommodate the consumption on the premises of the food and drink supplied by the Applicant. It follows that the seating areas of these outlets are primarily used for the supply of food and drink for consumption on the premises. Hence they come within the definition of a catering establishment for the purposes of the EROs and the Establishment Orders.
The question then arises as to whether the staff who work in those outlets could be said to be employed in that part of the premises that constitutes a catering establishment. The same staff are involved in the preparationof coffeeandtheservice of food and drink to all customers of the outlets whether they consume the foodand drinkon or off the premises. While the staff clear tables in the seating area they are physically located outside that area during most of their working time.But they are as much employed in the provision of the services which the Applicant providesto customers using that part of the premises in which the seating is located as those who consume their purchases elsewhere. In these circumstances it would be wholly artificial and inconsistent with the smooth working of the system which the JLCs purports to regulate to hold that all of the staff involved in the activities designated byClause 1 of the EROsare not employed in a catering establishment.
It is noteworthy that the statutory definition refers to supplying for reward food and drink toany personsfor consumption on the premises.Hence the number or proportion of persons provided with food and drink for consumption on the premises is not material.What is required is that the workers concerned are employed in the preparation of the food and drink and the service of the food and drink which is consumed on the premises or part of the premises, or work incidental thereto.For the same reason the Court does not accept that the breakdown of sales in the premises overall is a relevant consideration in the instant case.
Decision
For all of the foregoing reasons the court is satisfied that the JLCs to which this application relates operates as respect the Applicant herein. The Court is further satisfied that the EROs also apply to the Applicant.
Irish Security Industry Association v NERA
DEC101
BACKGROUND:
2. The dispute concerns whether the Security Industry Joint Labour Committee (JLC) applied to a particular category of workers, in this case Door Supervisor Personnel (DSP). The ISIA contends that it does not apply.
The ISIA referred its case to the Labour Court on the on the 29th October, 2009, in accordance with Section 57(1) of the Industrial Relations Act, 1946. A Labour Court hearing took place on the 28th January, 2010,
DECISION:
Introduction
This matter came before the Court by way of an application by the Irish Security Industry Association (the Applicant) for a decision on whether the Security Industry Joint Labour Committee (JLC) and the Employment Regulation Orders (ERO) (Security Industry Joint Labour Committee), 2006 [S.I. No. 5000 of 2006] operate as respects workers in the industry known as Door Supervisors. The application was made pursuant to Section 57(1) of the Industrial Relations Act 1946.
Conclusions of the Court
The Court has carefully considered the submissions made by the parties in this application.
The Industrial Relations Act, 1946 empowers the Labour Court to set up Joint Labour Committees whose purpose is to regulate conditions of employment and minimum rates of pay for all workers engaged in the type of activity of which the members of the committee are representative.
The net question before the Court is whether the definition of ‘security operative’ contained in the Establishment Order can properly be construed so as to encompass Door Supervisors.
The Establishment Order is a statutory instrument and is in the nature of secondary legislation. Accordingly the order must be construed by the normal cannons of statutory interpretation, many of which are now codified in the Interpretation Act 2005. In considering the meaning to be ascribed to any provision of the Order the Court must have primary regard to the words and expressions used therein and cannot add to or to delete from the text so as to produce what it regards as a fairer result. This approach was explained by Barr J. inPJ v JJ[1992] ILRM 273 as follows: –
“A Court is entitled to interpret legislation so as to resolve any ambiguity or obvious error therein. However where the statute is clear in its terms, the Court has no power to extend its provisions to make good what is perceived to be a significant omission. If the Court took that course it would entail going beyond statutory interpretation and into the realm of lawmaking, a function which under the Constitution is reserved to the Oireachtas”
It is equally well settled that meaning is to be attributed to words by reference to the context in which they appear and not in isolation. It was submitted by NERA that the reference in the definition of security operative to functions involvingthe prevention or detection of intrusion, unauthorised entry or activity, vandalism or trespass on private property either by physical, electronic or mechanical meanscovers Door Supervisors. Particular reliance is placed on the words [prevention of]unauthorised entry or activity, vandalism or trespass on private property.While these words may, in isolation, support that contention, regard must be had to the context in which the words appear.
Reading the definition as a whole it clearly refers to persons employed in a range of general security duties undertaken by workers in the generality of the security industry. Those duties may involve the prevention of unauthorised entry to buildings but are by no means confined to that activity. As the Court understands it Door Supervisors undertake specific duties which are helpfully described in the definition of the terms contained in the Private Security Act 2004, as set out earlier in this Decision. Those duties are qualitatively different to those of security operatives in the generality of the security industry.
It follows that Door Supervisors do not come within the ambit of the definition of security operative contained in the order and such workers are not covered by the Establishment Order nor the ERO in issue.
Decision
For all of the foregoing reasons the Court is satisfied that the JLC to which this application relates does not operate as respect to workers known as Door Supervisors and hence does not operate to the Applicant herein. Accordingly, the Court is further satisfied that EROs do not apply to workers known as Door Supervisors or to the Applicant.
Noonan Services Ltd. & Ors v. Labour Court
[2004] IEHC 42
Mr. Justice Kearns
“The essence of the applicants case is that, insofar as part V of the employment regulation orders (EROs) provides that overtime should be paid to part-time workers after completion of their ‘contract hours’ if these are less than 39 hours (being the normal hours worked by full-time workers), the said orders discriminate against full-time workers in an unreasonable, oppressive and arbitrary manner.
….
In the instant case, the applicants contend that the vast preponderance of part- time workers are female, whereas the vast majority of those in full-time employment are men. To provide that part-time workers will achieve the same overtime rates having worked only ‘contract hours’ in contra distinction to the normal 39 hour week worked by a full-time worker has the result or effect, it is contended, that the EROs discriminate unfairly against full-time male workers in the contract cleaning sector.
Part III of the Employment Equality Act, 1998 contains specific provisions as to equality between women and men. Section 18 provides, by way of illustration of subsequent sections, that “A” and “B” represent two persons of opposite sex so that where “A” is a woman, “B” is a man, and vice versa.
…..The affidavit of Aidan Grogan, Industrial Relations Executive with the Irish Business and Employers Confederation (IBEC), recites that some 18,000 workers are covered by the two joint labour committees acting on behalf of contract cleaning workers in Dublin and the rest of the country. The notice party is the trade union which represents contract cleaning operatives and the four worker representatives on the Joint Labour Committee are the officials of the union. The union represents approximately 40% of the workers covered by the two committees. The particular joint labour committee for the Dublin area was established in 1984 and a similar committee was established for the rest of the country in 1999. The committees consist of an equal number of employer and worker representatives and an independent chairman. Their function is to make proposals to the Labour Court for fixing the minimum rates of remuneration and for regulating the conditions of employment for all or any of the workers in relation to whom the committees operate. Where a committee has formulated such proposals, it is obliged by s.48 of the Industrial Relations Act, 1990 to publish a notice inviting representations and then to consider such representations before submitting the proposals to the Labour Court. When such proposals are confirmed by the Labour Court they become statutory minimum remunerations and statutory conditions of employment. Failure by an employer to pay the statutory minimum remuneration or to comply with the statutory conditions of employment exposes the employer to criminal sanctions and to civil action at the suit of the workers in question.
Historically, no provision for overtime work had existed in respect of contract cleaning workers. It had however been the subject of discussion in the committees over a lengthy period without agreement being reached.
A meeting of the committee was convened on 1st April, 2003, at which the worker representatives proposed that overtime rates should be paid after 39 hours Monday to Friday or after contracted hours if these were less. Various rates were proposed, including rates for Saturday overtime and Sunday work, and by notice dated 15th April, 2003, the proposals were published seeking representations. By letter dated 28th April, 2003, representations were submitted on behalf of the employer representatives on the committee and on 9th May, 2003, the employer representatives drew the committee’s attention to the alleged discriminatory aspect of the proposals as between different part-time workers and between part-time and full-time workers. The hypothetical case was put forward of a part-time employee whose hours of work each week were 20. If he or she were to work 21 hours and if he or she were to receive a supplement for the 21st hour it would mean that the worker in question would be receiving more overall pay for those 21 hours than a full-time employee would earn for those same hours. The proposals were submitted to the respondent together with a report from the chairperson of the Joint Labour Committee. By letter dated 13th May, 2003, addressed to the chairman of the Labour Court, Mr. Grogan objected to the draft proposals expressing the concern that the employer objections and amendments had not been given appropriate consideration and again referring to the discriminatory aspects of the proposal and requesting that their proposals be referred back to the committee in their entirety.
[the judicial review was refused on the basis of delay]
Remaining Matters
In many cases where what might be described as a preliminary issue proves determinative, the court will nonetheless proceed to deal with the remaining issues lest an appellate court take a different view in respect of such preliminary ruling. However, I do not see the instant case as falling into that category given my view that the question of delay is of central importance in this case and not merely an incidental issue. I think it would be unwise to make any other findings against that background. Should, however, the applicants wish to appeal this decision, it is open to them to apply for an early hearing date in the Supreme Court in much the same way as the application brought on their behalf for a stay on the operation of the two employment regulation orders.