Resolution Machinery
Cases
EMBANKMENT PLASTICS LIMITED v A WORKER
GLENPATRICK WATERCOOLERS LTD v A WORKER
Ryanair Ltd v Philip Flynn and v Dan J. McAuley
High Court
24 March 2000
[2000] 11 E.L.R. 161
JR Kearns J
KEARNS J
delivered his judgment on 24 March 2000 saying: For the first time in its sixty year history, an industrial dispute resulted in the closure of Dublin Airport on the evening of Saturday, 7 March 1998. The closure and events leading up to it caused massive disruption to airline passengers and airport-based companies who suffered major inconvenience until 8 March 1998 when the dispute was, at least pro tem , resolved.
The closure resulted from the sudden deterioration of an ongoing industrial dispute between the Services Industrial Professional Technical Union (SIPTU) and Ryanair Ltd, the applicant herein, concerning pay and conditions of employment of Ryanair employees engaged as ground-handling agents (GHA’s).
On 3 December 1997 SIPTU, on behalf of its members in Ryanair, had written to the applicant seeking agreement on the following issues:
1. A substantial increase in pay, including payment for unsocial hours.
2. Introduction of a proper staff grading structure.
3. Application of overtime rates in line with industry standards.
4. Introduction of effective health and safety procedures.
5. Acceptance by Ryanair of the rights of SIPTU to represent and negotiate on behalf of our members in your employ.
By letter dated 11 December 1997, Ryanair replied to SIPTU stating:
Ryanair has repeatedly affirmed to our people that for so long as they continued to deal directly with the company,
• our rates of pay will be better than equivalent union rates of our competitors
• the level of pay increases will be higher than negotiated by SIPTU and our competitors
• the non-pay benefits, including the opportunity to participate in share option schemes will be more favourable.
In a Ryanair ground handling staff information notice dated 12 December 1997, the Director of Group Operations stated: *165
Ryanair’s GHA’s now enjoy better pay and rosters than your equivalent opposite numbers in either Aer Lingus or Servisair. We have given you a commitment that for so long as you deal direct with us we will keep you ahead of these union rates and your pay increases will be better. We delivered on that promise in May and we will continue to do so.
What you don’t need is SIPTU — the Aer Lingus union — using our people to create bad PR for Ryanair or disrupting our operation. Don’t be misled — each of you is now doing better than your equivalent SIPTU members in Aer Lingus or Servisair — and you can ensure that this will continue to be the case by dealing directly with Ryanair.
• In dealing direct we will ensure that your pay stays ahead of union rates in our competitors.
• The level of increases will be higher than those negotiated between SIPTU and our competitors.
• Non-pay benefits, including the opportunity to participate in share option schemes will be more favourable.
The factual accuracy of these assertions was not accepted by SIPTU who in correspondence set out its own comparisons and computations, the accuracy of which in turn was not accepted by the applicant.
On 7 January 1998 Ryanair wrote to SIPTU stating:
Ryanair’s GHA’s, as a result of negotiating directly with us, enjoy the best of all worlds:
1. They earn more money, have more time off, and better benefits than their equivalent opposite numbers in Aer Lingus or Servisair.
Thereafter the dispute escalated with reported incidents of verbal abuse and intimidation, notably at the head office building of the applicant at the end of February, picketing at the entrances to the airport and even protests in the vicinity of aircraft at Dublin Airport itself. A situation of virtual chaos obtained at the airport on 7 March 1998.
Against this background, the Tanaiste and Minister for Enterprise Trade and Employment ordered an Enquiry under section 38(2) of the Industrial Relations Act 1990 into the escalating industrial dispute.
Section 38(2) of the Industrial Relations Act 1990 provides:
Where the Minister is of the opinion that a trade dispute is a dispute of special importance, he may request the Commission or the Court or *166 another person or body to conduct an enquiry into the dispute and to furnish a report to him on the findings.
The remit of the Enquiry under section 38(2) of the said Act, as stated in the letters of appointment of Philip Flynn and Dan J. McAuley, the respondents herein, dated 8 March 1998 was:
to conduct an enquiry into the escalating dispute at Dublin Airport and furnish a report to the Tanaiste.
Intensive efforts on the part of the enquiry commenced immediately, leading to proposals for the resumption of normal operations at Dublin Airport which happily bore fruit. Settlement terms for the dispute were drawn up on 8 March as follows:
1. All forms of industrial action at Dublin Airport will be called off this evening on the advice of SIPTU and the trade unions.
2. The 39 baggage handlers will work normally and not engage in any industrial or disruptive activity. Any breach of this will be reported to the Enquiry Team. The 39 baggage handlers will resume normal work when new rosters are issued for the week commencing Monday, 16 March. In the meantime, and with immediate effect, they will receive normal pay.
3. There will be no victimisation by either side and any breach of this shall be reported to the Enquiry Team.
4. Ryanair and SIPTU will engage in separate discussions with the Enquiry Team commencing Monday, 9 March.
5. These provisions shall remain in force until the Enquiry Team report to the Tanaiste.
The Enquiry identified three principal issues which needed to be addressed, namely:
(a) To identify the main differences, if any, between the pay and conditions of employment of Ryanair employees engaged in ground handling duties, and employees of other airport based companies engaged in broadly comparable duties.
(b) The desire of some employees in Ryanair to be professionally represented by a trade union; and
(c) The escalation of the dispute between SIPTU and Ryanair which resulted in severe disruption to the operation of Dublin Airport and ultimately the closure of the airport.
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For the purposes of its work, the Enquiry appointed the Irish Productivity Centre (IPC), the Notice Party herein, to undertake a study of the pay and conditions of employment of Ryanair employees engaged in ground handling duties and employees of three airport based companies engaged in broadly comparable duties.
The Enquiry invited SIPTU, representing its members in Ryanair, and Ryanair management to meet separately with the Enquiry and to make submissions on the issue of trade union representation and other matters. At the request of Ryanair management, the Enquiry held meetings with 16 employee groups working in the company.
The Enquiry invited submissions from a number of companies based at Dublin Airport and held extensive meetings with all interested parties, including SIPTU and the applicant herein. At many, if not all, of the meetings attended by Ryanair, the applicant had the benefit of legal representation. The applicant made submissions, as did SIPTU and the other parties listed at Appendix IV of the Report of Enquiry which was published in July 1998.
At an early stage of the work at the Enquiry, Ryanair management sought an assurance that the Enquiry would not become involved in a conciliation or mediation type function.
On 13 March, the applicant’s solicitors sought an assurance that the Enquiry would:
… not act ultra vires the limited powers conferred by section 38(2) which bestows on the Enquiry the function of a collator of facts as opposed to a body exercising dispute resolution functions.
On the same day, the Enquiry replied to the applicant’s solicitors stating:
We confirm that it never has been nor is it our intention to use the Enquiry as a form of conciliation or mediation.
The IPC, which is an expert body, prepared its Report into conditions and terms of employment for the applicant’s baggage handlers and completed same in June 1998.
Having studied the IPC Report, the Enquiry noted that there were significant differences and variations in the composition of the remuneration package of baggage handlers in the companies surveyed (which were Servisair, Aer Lingus and British Midland). The Enquiry noted that the companies surveyed acted independently of each other in determining the pay and conditions of employment of baggage handlers and had different operational demands and working methods. It was felt, therefore, not to be surprising that both the rates of pay and the composition of remuneration packages should *168 vary between these companies. The comparability issue was regarded as important because Ryanair management and SIPTU had entered into a major and public controversy over it.
The Report of the Enquiry states at p. 23:
Ryanair contends that it treats its employees better than other companies, SIPTU argues that pay and conditions in Ryanair are inferior to those in comparable companies, and in particular, that average earnings of GHA’s in Ryanair are lower than those in Servisair. Ryanair management claim that the appropriate comparison is with Servisair only but others, with equal force, say that as Ryanair is an airline which engages in baggage handling as one part of its overall operations and as Servisair is not an airline, the appropriate comparison should be with Ryanair’s principal airline competitor.
3.22 The interpretation of the information depends mainly on the specific components of remuneration included in and excluded from the various packages and on the importance which is attached to overtime work compared with the benefits of working standard hours. There are also difficulties in comparing levels of ‘basic’ pay. ‘Basic’ pay is usually regarded as the rate which an employee earns for standard working hours and the rate which is used for the purpose of calculating overtime, shift pay, pensions etc. In Ryanair certain allowances such as the tug allowance and the attendance/productivity bonus are not included in basic pay for these purposes. But it would be wrong to disregard them in any comparability exercise because they are significantelements in the overall remuneration package. The same may be said of Ryanair bonus shares. These are of real value to employees.
The Report went on to criticise both the applicant and SIPTU for creating a situation which led to very considerable confusion among GHA’s and SIPTU members who took strike action. It found that statements made by the applicant on pay comparators were not consistent. It further noted that, since the end of the dispute, the applicant had repeatedly stated that the only comparator is Servisair. However, as Ryanair has given a ‘commitment’ on pay and benefits to its employees it should have, at all times, made cleat the precise terms of that ‘commitment’.
The Report continues at p. 24:
3.25. In response to Ryanair’s statement that its GHA’s ‘enjoy better pay’ than their equivalent opposite numbers in Aer Lingus or Servisair, *169 SIPTU quoted statistics of average earnings in Servisair based on information it obtained in the course of calculating compensation in a number of cases under the unfair dismissals legislation. These figures of average earnings contained a significant overtime pay element overtime is a feature of work at Servisair whereas overtime in Ryanair is unusual. The earnings figures used by SIPTU contributed to confusion among GHA’s, and SIPTU as well as Ryanair management cannot avoid sharing the blame for this situation.
3.26 It is the view of the Enquiry that these claims and counterclaims may not have resulted in a strike, if the parties had met to discuss the issues or if the Labour Court had secured the co-operation of both parties to an investigation of the matter.
3.27 The Report prepared by the IPC does not support the contention of Ryanair management made in its letter of 7 January, prior to the commencement of the dispute, that:
Ryanair’s GHA’s, as result of negotiating directly with us, enjoy the best of all worlds.
and that:
They earn more money, have more time off, and better benefits than their equivalent opposite numbers in Aer Lingus or Servisair.
At para. 7.27, the Enquiry in relation to this contention, made an identical conclusion.
The Enquiry Report deals with a significant number of issues. Chapter 1 addresses the restoration of normal working at Dublin Airport. Chapter 2 addresses the views and attitudes of employees of Ryanair. Chapter 3 addresses the pay and conditions of employment of Ryanair employees engaged in ground handling duties. Chapter 4 addresses the issue of trade union recognition. Chapter 5 deals with the experiences and views of third parties affected by the industrial dispute at the airport. Chapter 6 deals with complaints of alleged victimisation and Chapter 7 sets out a summary and conclusions.
Reverting finally to the introduction, the authors of the Report stress that a ‘non-legalistic’ approach was followed in securing information and the views and opinions of many persons involved in the dispute or affected by it. It held 41 meetings with various groups and interests and received a considerable amount of documentation. They continue: *170
The information provided and views expressed in the Report are offered in good faith but no warranty is given as to its accuracy or completeness and those responsible for carrying out the Enquiry accept no responsibility for an error, mis-statement or omission. In the immediate aftermath of a serious and highly charged industrial dispute, and in the time available to undertake the assignment, it is simply not practical to cover fully each and every aspect brought to our attention. The crucial issue for the Enquiry is to identify measures to avoid a recurrence of the events of 6–8 March at Dublin Airport.
The legal proceedings
On 27 July 1998, Geoghegan J, upon ex parte application made to the Court, gave the applicant leave to apply for:
(a) A declaration that the Report prepared by the first and second named respondents for the Minister for Enterprise Trade and Employment pursuant to section 38(2) of the Industrial Relations Act 1990 in July 1998 (the Report) and/or in particular paragraphs 3.20 to 3.27 and 7.27 thereof is ultra vires in that there are manifest errors in the said paragraphs.
(b) A declaration that the first and second named respondents failed to apply the rules of natural and constitutional justice in the preparation and finalisation of the Report and/or in particular paragraphs 3.20 to 3.27 and 7.27 thereof.
(c) Certiorari quashing the Report and/or paragraphs 3.20 to 3.27 and 7.27 of the Report.
The grounds upon which relief to seek judicial review was sought were those set forth at paragraph (c) of the statement of grounds, including the following:
(iii) One of the primary issues which gave rise to the dispute between Ryanair and SIPTU was that of the pay and conditions of Ryanair Ground Handling Agents (‘Ryanair GHAs’) (‘the pay issue’). In particular, it way at all times claimed by SIPTU that Ryanair GHA’s were paid less than their counterparts with Servisair or Aer Lingus. This was hotly disputed by Ryanair.
(iv) Purporting to comply with its obligations under section 38(2), the Enquiry commissioned the Irish Productivity Centre (‘IPC’) as agents to undertake a study of pay and conditions of Ryanair GHA’s and Team Leaders in Ryanair. Wrongfully, and in breach of duty, the Enquiry instructed or permitted the IPC to include in its study a comparison with pay of ground handling staff with British Midland Airways (BM). *171 At no time was the pay of BM ground handling staff an issue between SIPTU and Ryanair when comparing the pay levels of Ryanair GHA’s.
(v) Information compiled by the IPC and conclusions drawn from that information were included by the respondent in their Report at paragraphs 3.21 to 3.27. The Enquiry conclusions are set out at paragraph 3.20. The views of the Enquiry based on the IPC information [are] set out at 7.27. In particular, the Enquiry concluded that the IPC Report did not support the claim made by Ryanair that Ryanair GHA’s earn more money, had more time off and enjoyed better benefits than their equivalent opposite numbers in Aer Lingus or Servisair.
(vi) The information set out at paragraphs 3.20 to 3,27 and 7.27 contains manifest errors and inconsistencies. It is inadequately reasoned.
Consequently, the conclusions drawn both by the IPC and the Enquiry, being erroneous, arbitrary, unreasonable and irrational, are ultra vires.
(vii) Further, the Enquiry and/or the IPC breached the rules of natural and constitutional justice in the preparation of the report in failing (having been called on to do so):
(a) to afford Ryanair the opportunity to make submissions on the conclusions drawn on the pay issue;
(b) to provide the reasons for the conclusions come to on the pay issue.
(c) to amend the manifest errors and discrepancies contained in the Report on the pay issues subsequent to same having been brought to their attention;
(d) to disclose to the applicant details of the study conducted by the IPC.
By his order of the same date Geoghegan J joined IPC as a notice party.
By its notice of opposition delivered 11 December 1998, the respondents asserted the following:
(1) The respondents acted lawfully and within the scope of their authority in the exercise of their jurisdiction pursuant to the Industrial Relations Act 1990, and in particular section 38(2) thereof in that they conducted a comprehensive enquiry into a trade dispute affecting the public interest and furnished a report thereon containing their findings in accordance with a request from the Minister for Enterprise Trade and Employment.
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(2) There is no justiciable element arising in the applicant’s application herein such as would entitle the applicant to relief by way of judicial review and in particular no remedy by way of judicial review lies in respect of the powers exercised by the respondents pursuant to section 38(2) of the Industrial Relations Act 1990, in that:
(i) the findings by the respondents do not impose obligations on the applicant;
(ii) the respondents were not exercising a coercive jurisdiction or invading any legal right of the applicant.
(3) The compilation of the respondents’ Report of Enquiry into the industrial dispute at Dublin Airport derived from a comprehensive investigation on their part into a trade dispute affecting the public interest. The respondents were not acting judicially (or required to act judicially) in the context of the Enquiry and subsequent Report; rather the respondents’ task was exclusively administrative since their function was not to determine rights or impose liabilities.
(4) Without prejudice to the contention at paragraph 3 aforesaid, the compilation of the respondents’ Report of Enquiry into the said industrial dispute at Dublin Airport complied fully with the dictates of natural and constitutional justice.
(5) The respondents deny that their Report is ultra vires as contended for or at all. The respondents reject the contention of the applicant that the Report and in particular paragraphs 3.20 to 3.27 and 7.27 contain errors or manifest errors or inconsistencies as asserted or at all. If the said Report contains errors or inconsistencies as contended for, which is denied, then the same does not enable the applicant to challenge the said Report by way of judicial review.
(6) The Respondents deny that their Report is inadequately reasoned as contended for or at all. If the Report is inadequately reasoned, which is denied, this does not lend itself to challenge by judicial review.
(7) The respondents deny that their Report or the conclusions therein are erroneous, arbitrary, unreasonable or irrational as contended or at all.
(8) Without prejudice to the generality of the foregoing, if the said Report contains errors (which is denied) then *173
(i) The concept of error on the face of the record has no application in the circumstances.
(ii) such alleged errors (which are denied) do not ipso facto entitle the applicant to challenge the said Report whether by way of judicial review or otherwise since such alleged errors (which are denied) were made within jurisdiction.
The remaining grounds of opposition are somewhat argumentative, but include an assertion that British Midland was a valid comparator for the purposes of the work conducted by the Irish Productivity Centre having regard to the fact that the applicant had given a commitment to its GHA’s in January 1998 that it would pay them a rate of remuneration in excess of that applicable to British Midlands, Aer Lingus or Servisair GH personnel. It is further asserted that the respondents considered all aspects of the applicant’s submissions including, inter alia, the value of the applicant’s tug allowances, flotation bonus and all other benefits paid to its GHA’s and concluded that the applicant’s GHA’s were paid less than their comparators. It is further asserted that it was open to the applicant to refer any findings or adverse findings in the Report to the Labour Relations Commission or the Labour Court in accordance with the provisions of the Industrial Relations Acts 1946–1990 and it is submitted that the failure on the part of the applicant so to do is a further ground for refusing relief.
A statement of opposition was also lodged by the notice party which denied that its Report to the respondents contained the errors alleged by the applicant or any errors. It further denies that the conclusions drawn by IPC in its Report are erroneous, arbitrary or unreasonable or irrational or ultra vires for the reasons alleged or at all. It further denies that it was obliged to comply with rules of natural or constitutional justice, but insofar as it may be argued that such considerations arise, any such requirements were fully met.
In particular, it asserts that Ryanair participated in the study undertaken by the notice party and failed at any stage to complain about the procedures and methodology adopted by the centre in undertaking the study and preparing its Report.
Preliminary matters
The application is grounded upon three voluminous affidavits sworn by Michael O’Leary, chief executive of the applicant company to which are filed in reply equally lengthy affidavits from the first named respondent, and Mr Michael Hannon, a consultant employed by the IPC.
It is clear from a perusal of these affidavits that there is virtually a complete conflict of evidence as to the facts, particularly in relation to the primary *174 area of contention, namely, the pay issue and the comparative studies undertaken in relation thereto.
Whilst all of the applicant’s complaints are vigorously denied, it is perhaps appropriate to identify the main areas of complaint.
Firstly, the present application does not seek to quash the entire Report, but is confined entirely to the first issue identified by the Enquiry at para. 1.11 of its Report, being that which relates to the pay and conditions of employment of Ryanair employees when compared with employees of other airport based companies engaged in broadly comparable duties.
In comparing earnings, the applicant alleges that the IPC failed to compare like with like. It is claimed that the IPC compared Servisair 1998 pay figures with Ryanair 1997 pay figures. The IPC took into account a pay increase dated 1 January 1998 to Servisair but omitted to include a Ryanair pay increase introduced in May 1998 which was retrospectively effective to 1 April 1998.
It is alleged a similar error occurred when the IPC compared Ryanair entry level GHA pay with Servisair IS(II) grade pay. In fact, it is suggested, the proper comparators were:
• Ryanair Year 1 — Servisair seasonal/temporary grade.
• Ryanair Year 2 — Servisair IS(I) grade
• Ryanair Years 3–5 — Servisair IS(I1) (promotional) grade
It is also suggested that the Enquiry failed to consider the issue of ‘equivalent opposite number’ not only in terms of grades but in terms of years of service.
It is further argued that Servisair is the proper comparator, because it is the only real alternative to the self-handling which Ryanair carries out. British Midland was wrongly considered, because it was at no stage mentioned in the exchanges between SIPTU and Ryanair and therefore ought not to have been taken into account.
It is also argued that the applicant’s annual leave is better than Servisair and better than Aer Lingus at year 5.
In relation to benefits, it is suggested the IPC excluded travel benefits, airline discounts, flotation bonus and share option/thank you bonus despite the fact that ‘other payments, bonuses/benefits’ were included in the IPC’s terms of reference.
The respondents and IPC vigorously dispute all these assertions, arguing that all relevant material and considerations were taken into account and that no errors of any sort were made.
The controversy between the respective parties extends over hundreds of affidavit and exhibit pages. On the applicant’s side, the allegations are unsupported by any objective expert evidence, although the Court readily acknowl *175 edges Mr O’Leary’s considerable experience in the airline business. By contrast, both Mr Flynn and Mr McAuley have deposed in affidavits sworn on the 7 March 2000 that they have spent their entire working life in industrial relations and related work. Mr McAuley has been involved in negotiating National Wage Agreements and from 1991 to 1994 was Chairman of the Labour Relations Commission. In 1998 he was appointed a fellow of the then National College of Industrial Relations. Mr Flynn was President of the Irish Congress of Trade Unions between 1992–1996 and between 1996–1998 he was a Rights Commissioner appointed under the Industrial Relations Act 1969. The IPC for its part is a highly expert body whose credentials to carry out the sort of study which it performed in the instant case is not questioned in any way.
The applicant’s case is entirely one of ‘mistake of fact’. There is no claim or suggestion that the respondents or notice party misapplied any legal principle or exceeded their remit or statutory function. There is no suggestion of bias, either subjective or objective. There is no suggestion, in short, that in the manner in which they went about their work, either the respondents or the notice party did anything wrong.
The applicant itself accepted and indeed insisted that it was no part of the function of the Enquiry to make any decision or to impose any consequential duties or obligations by way of dispute resolution or mediation.
This being so, it would appear that two issues are required to be addressed.
The first issue is to determine whether the contentions and material placed before the Court in this case give rise to any justiciable issue.
Secondly, and regardless of the answer to the first question, in what circumstances should the Court intervene by way of judicial review where ‘mistake of fact’ is alleged, particularly when those facts fall within the province of expert bodies.
In the instant case, a further consideration arises in relation to the second issue. This is not a case where there are agreed facts of a straightforward nature. There is a dispute of a major degree in relation to the primary issue, namely the pay issue, not only with regard to fact, but also with regard to methodology and the appropriate inferences to be drawn from such facts as may be established.
Given that the applicant’s contention is that the Enquiry drew conclusions which were erroneous to such a degree as to be ‘irrational’ or, in the alternative, drew conclusions which were unsupported by evidence, it is clear that this Court, on one view of its obligations, would be obliged to find the facts itself. Without establishing facts, it is impossible for the Court to form any sort of opinion as to the extent and magnitude of any supposed error or irrationality.
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As the present application is susceptible to a resolution by a negative finding in relation to the first issue, the Court determined that it would deal with the issue of justiciability in the first instance and receive submissions as to the circumstances generally in which ‘mistake of fact’ could warrant intervention via judicial review, but expressly ruled out undertaking any minute analysis of the facts with a view to making its own findings in that regard. To undertake such a task, the Court would have required to hear expert testimony from witnesses on both sides and possibly set aside a number of days, if not weeks, for the taking of evidence on matters of methodology, fact and interpretation.
These difficulties additionally go to discretion to which I shall later return when considering if the High Court should lightly intervene in matters pertaining to industrial relations unless it is absolutely necessary to do so.
Submissions of the applicant
Mr Shipsey SC argues that the central issue is the extent to which the activities of the Enquiry, acting on foot of section 38(2), are of such a public nature as to be susceptible to the process of judicial review. This, he submitted, is the sole criterion to be applied and is that which was applied by Murphy J in Geoghegan v. The Institute of Chartered Accountants in Ireland [1995] 3 IR 86. In that case, Murphy J endorsed what he held to be (at p. 102) ‘the best attempt to define or explain judicial review’, as undertaken by Lord Parker CJ in R. v. Criminal Injuries Compensation Board, ex parte Lain [1967] 2 QB 864, where (at p. 882) he set out as follows:
The position as I see it is that the exact limits of the ancient remedy by way of certiorari have never been and ought not to be specifically defined. They have varied from time to time being extended to meet changing conditions. At one time the writ only went to an inferior court. Later its ambit was extended to statutory tribunals determining a lis inter partes. Later again it extended to cases where there was no lis in the strict sense of the word but where immediate or subsequent rights of a citizen were affected. The only constant limits throughout were that it was performing a public duty. Private or domestic tribunals have always been outside the scope of certiorari …. We have as it seems to me reached the position when the ambit of certiorari can be said to cover every case in which a body of persons of a public as opposed to a purely private or domestic character has to determine matters affecting subjects provided always that it has a duty to act judicially.
There can be no doubt as to the ‘public nature’ of the Enquiry’s work. In regard to the other conditions, it is accepted certiorari will only lie to quash *177 something which is a determination or a decision, as distinct from a ‘mere report’. The word ‘report’ is not conclusive. The question is whether some issue is being determined to some person’s prejudice.
In the instant case, the applicant contends that the following rights are infringed by the adverse findings contained in the Report:
A. The applicant’s right not to recognise a union.
B. The threat of industrial action which may follow on from the Report if certain errors are not rectified.
C. The credibility of the applicant company vis-a-vis its own staff.
D. The right of the applicant company to negotiate with its own staff may be prejudiced.
E. The applicant’s public reputation is damaged by the Report in its present form.
F. The applicant may as a result of errors contained in the Report become susceptible to further action by the Minister to make requirements of the applicant to do certain things on foot of the findings contained therein.
It is not necessary that such rights be legally enforceable, because as pointed out by Diplock LJ in R. v. Criminal Injuries Compensation Board, ex parte Lain [1967) 2 QB 864 at p. 884:
It is plain on the authorities that the tribunal need not be one whose determinations give rise directly to any legally enforceable right or liability. Its determination may be subject to certiorari notwithstanding that it is merely one step in a process which may have the result of altering the legal rights or liabilities of a person to whom it relates. It is not even essential that the determination must have that result, for there may be some subsequent condition to be satisfied before the determination can have any effect upon such legal rights or liabilities.
Insofar as any requirement to act judicially is concerned, this is simply the automatic consequence of the power to determine questions affecting rights of citizens. O’Byrne J in The State (Crowley) v. The Irish Land Commission [1951] IR 250 (at p. 265) endorsed previous case law to the effect that:
[T]he term ‘judicial’ does not necessarily mean acts of a Judge or legal tribunal sitting for the determination of matters of law, but for the purpose of this question a judicial act seems to be an act done by competent authority, upon consideration of facts and circumstances, and imposing liability or affecting the rights of others.
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In relation to ‘mistake of fact’, while generally it is accepted there is no jurisdiction to quash a decision because of an alleged factual error, it is nonetheless the case that where factual errors occur such as to render the decision irrational, then judicial review will lie.
In The State (Keegan) v. Stardust Victims Compensation Tribunal [1986] IR 642, Henchy J set out the ambit of the Irish test of unreasonableness at p. 638 as follows:
[T]he test of unreasonableness or irrationality in judicial review lies in considering whether the impugned decision plainly and unambiguously flies in the face of fundamental reason and common sense. If it does, then the decision-maker should be held to have acted ultra vires, for the necessarily implied constitutional limitation of jurisdiction in all decision-making which affects rights or duties requires, inter alia, that the decision-maker must not flagrantly reject or disregard fundamental reason or common sense in reaching his decision.
The applicant contends that in the instant case errors meeting that requirement are to be found in the Report. Alternatively, and particularly with regard to the findings of the Enquiry in relation to the time off and benefits, the findings of the Enquiry, were found on the basis of no evidence or in the alternative were wrong. The errors, he submits, were so serious as to go to jurisdiction.
Alternatively, there is authority for arguing in favour of a developing doctrine for Court intervention even where non-jurisdictional errors of fact arise. He relied upon the following passage from Wade & Forsyth, ‘Administrative Law’, 1994 Ed at p. 311:
The rules about non-jurisdictional errors of fact appear to be in the course of radical development much like that which has already taken place in the case of errors of law. It seems probable that the court will review findings both for want of evidence and for error of material act, without attempting to fit the new rules into the context of the earlier law. That would be another extension of judicial review, and quite in keeping with present judicial philosophy.
Where findings are based on no satisfactory evidence, the Court is also disposed to intervene. This, it is submitted, is well recognised in Irish law. On this topic Wade states at p. 312:
‘No evidence’ does not mean only a total dearth of evidence. It extends *179 to any case where the evidence, taken as a whole, is not reasonably capable of supporting the finding; or where, in other words, no tribunal could reasonably reach that conclusion on that evidence. This ‘no evidence’ principle clearly has something in common with the principle that nerverse or unreasonable action is unauthorised and ultra vires.
In support of this emerging doctrine, Mr Shipsey cited a decision of the Court of Appeal in New Zealand — Daganayasi v. Minister of Immigration [1980] 2 NZLR 130, where the mistake of fact was invoked as one of the grounds to quash the Minister’s decision to deport the appellant from New Zealand. The Minister had instructed a referee to ascertain certain medical facts. A misleading and inadequate report furnished to the Minister meant that he made a mistake of fact in his statement that he had obtained the best and most up-to-date medical advice available.
The Court reviewed a number of English authorities, including Secretary of State for Employment v. ASLEF [1972] 2 QB 455, Laker Airways Ltd v. Department of Trade [1977] QB 643 and also Secretary of State for Education and Science v. Tameside Metropolitan Borough Council [1977] AC 1014 in which Scarman LJ stated at 1030:
Secondly, I do not accept that the scope of judicial review is limited quite to the extent suggested by Mr Bingham. I would add a further situation to those specified by him: misunderstanding or ignorance of an established and relevant fact. Let me give two examples. The fact may be either physical, something which existed or occurred or did not, or it may be mental, an opinion. Suppose that, contrary to the minister’s belief, it was the fact that there was in the area of the local education authority adequate school accommodation for the pupils to be educated, and the minister acted under the section believing that there was not. If it were plainly established that the minister was mistaken, I do not think that he could substantiate the lawfulness of his direction under this section. Now, more closely to the facts of this case, take a matter of expert professional opinion. Suppose that, contrary to the understanding of the minister, there does in fact exist a respectable body of professional or expert opinion to the effect that the selection procedures for school entry proposed are adequate and acceptable. If that body of opinion be proved to exist, and if that body of opinion proves to be available both to the local education authority and to the minister, then again I would have thought it quite impossible for the minister to invoke his powers under section 68.
*180
Mr Shipsey accepted, however, that the Court as a whole found in favour of the appellant on the ground of procedural unfairness on a non disclosure issue and that two members of the Court of three judges expressly declined to offer a view on ‘mistake of fact’ stating that ‘the law on this important issue is as yet in a far from settled state’.
Mr Shipsey submitted that it is a fundamental tenet of the principles of fair procedures that a person concerned by a determination likely to affect it be informed or be given notice of the details of the decision and be afforded an opportunity to reply. The failure on the part of either the IPC, the Enquiry or the Department to allow Ryanair to make submissions in relation to paras. 3.27 and 7.27 of the Report breaches these principles of fair procedures.
Submissions on behalf of the respondents and notice party
It is submitted by Mr Gleeson SC and Mr O’Donnell SC on behalf of the respondents and notice party that the application discloses no justiciable controversy, that there are no legal rights involved and no decision affecting any matters of legal right, or on matters which might influence the exercise of legal rights. There was no dispute resolution, no imposition of penalty or obligations and no legal consequences to the work which was carried out.
The only statutory power in this case was exercised by the Minister. The respondents exercised no statutory powers. It is almost certain the Minister could have requested any practitioner in industrial relations matters to make a factual report without any statutory authority. The respondents, however, have no statutory powers of any kind, and specifically no powers of compulsion, no powers of summoning witnesses, seeking documents or insisting upon cooperation. What they furnished to the Minister was a ‘mere report’.
Both the respondents and notice party placed heavy reliance upon the decision of Kelly J in Flood v. An Garda Síochána Complaints Board [1997] 3 I.R. 321 and the passage therein (at p. 336) where Kelly J considered the necessary ingredients to premise a challenge to a decision and cited with approval the following extracts from the judgment of Henchy J in The State (Gleeson) v. Minister for Defence [1976] IR 280 at p. 295:
The necessary implementation of express or necessarily implied constitutional guarantees means that decisive acts and procedures may be impugned for a wide variety of reasons depending on the circumstances of the case …
Henchy J continued:
When, as in this case, a person brings proceedings in which he seeks to *181 have condemned as invalid a decision or a decisive process on the grounds that it is incompatible with the Constitution, it is necessary for him to plead and prove, first, the application in the circumstances of the case of a specified constitutional right, either express or implied; secondly, that the decision or decisive process in question has infringed that right; and, thirdly, that he stands aggrieved by that infringement.
In Flood v. An Garda Síochána Complaints Board [1997] 3 IR 321 Kelly J held that the formation of an opinion by the respondent under the legislation in question was not a ‘decision or decisive process’ which required the importation of the procedures contended for by the applicant in order to be compatible with the Constitution. He found that the legislation at issue did not affect the applicant’s existing constitutional or legal rights nor were those rights affected by the formation of an opinion by the respondent under the legislation at issue.
The rights for which Mr Shipsey contends are not in fact legal rights at all, nor do they influence the exercise of legal rights.
With regard to ‘mistake of fact’ it is submitted that the applicant is, in fact, seeking to have the Court rewrite the Report, or act as a Court of Appeal from its findings.
There is no dispute with the applicant insofar as he states that the standard of unreasonableness or irrationality is that outlined in The State (Keegan) v. Stardust Victims’ Compensation Tribunal [1986] IR 642 and O’Keeffe v. An Bord Pleanála [1993] 1 IR 39.
The applicant must prove that the decision ‘plainly and unambiguously flies in the face of fundamental reason and common-sense’. As Finlay CJ stated in O’Keeffe v. An Bord Pleanála [1993] 1 IR 39, at p. 71, by way of alternative formulation of the high standard:
[T]he circumstances under which the court can intervene on the basis of irrationality with the decision-maker involved in an administrative function are limited and rare.
Finlay CJ continued:
The Court cannot interfere with the decision of an administrative decision-making authority merely on the grounds that: (a) it is satisfied that on the facts as found it would have raised different inferences and conclusions, or (b) it is satisfied that the case against the decision made by the authority was much stronger than the case for it.
*182
Mr Gleeson submits that this decision has been relied upon repeatedly over the years and specifically in the following cases: Malahide Community Council Ltd v. Fingal County Council [1997] 3 IR 383; Garda Representative Association v. Ireland [1994] 1 ILRM 81; O’Reilly v. O’Sullivan, unreported, Supreme Court, 26 February 1998; Carton v. Dublin Corporation [1993] ILRM 467; Littondale Ltd v. Wicklow County Council [1996] 2 ILRM 519; Truloc v. McMenamin [1994] 1 ILRM 151; Ryan v. Compensation Tribunal [1997] 1 ILRM 194; MV Toledo: ACT Shipping Ltd v. Minister for the Marine [1995] 3 IR 406; Stokes v. O’Donnell [1996] 2 ILRM 538.
As stated by Finlay CJ in O’Keeffe v. An Bord Pleanála [1993] 1 IR 39 at p. 72:
I am satisfied that in order for an applicant for judicial review to satisfy a court that the decision-making authority has acted irrationally in the sense which I have outlined above so that the court can intervene and quash its decision, it is necessary that the applicant should establish to the satisfaction of the court that the decision-making authority had before it no relevant material which would support its decision.
Another formulation of the principle was that elaborated by Lord Green in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223 where at p. 230 he stated:
It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere …; but to prove a case of that kind would require something overwhelming …
The other well-known formulation is that of Lord Brightman in Chief Constable of the North Wales Police v. Evans [1982] 1 WLR 1155, where he stated at pp. 1173–1174 as follows:
Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power …. Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made.
It is a fundamental rule of administrative law that bodies entrusted with executive tasks are entitled to err within jurisdiction without having the High *183 Court act as a Court of Appeal. Accordingly, the Court can only intervene where an error has as its consequence the making of an order which the tribunal had no jurisdiction to make or the decision is wholly grounded on an erroneous view of the law.
The Enquiry was perfectly entitled to rely on the IPC Report as they were reputable consultants. The Enquiry’s responsibility was (a) to hire reputable consultants and (b) to ensure there was no manifest absurdity in the work product of those consultants.
Insofar as the IPC is concerned, it is one of the leading consultancy agents in the State, offering advice and practical assistance to businesses and other organisations in resolving issues, including management problems. It is an expert body and its expertise is not contested by Ryanair in these proceedings. The IPC strenuously rejects allegations that its Report contains errors.
It is further submitted that it would be inappropriate for the Court to involve itself in the exercise which it is invited to perform by Ryanair which would involve the Court reviewing in great detail the complex study undertaken by the IPC into pay comparisons among ground handling agents in Dublin Airport. Such a course would in effect convert the Court into a part-time Court of industrial relations acting, in effect, as external examiners to experts uniquely qualified to make judgments in complex and delicate matters. If any errors occurred in the instant case, which is vigorously denied, any such errors were within jurisdiction and there is no jurisprudence in Ireland to warrant Court intervention by way of judicial review to rectify errors made within jurisdiction.
It is further submitted that the Court should be extremely reluctant to interfere with the work of specialist bodies.
As stated by Finlay CJ in O’Keeffe v. An Bord Pleanála [1993] 1 IR 39 at p. 71:
Under the provisions of the Planning Acts the legislature has unequivocally and firmly placed questions of planning, questions of the balance between development and the environment and the proper convenience and amenities of an area within the jurisdiction of the planning authorities and the Board which are expected to have special skill, competence and experience in planning questions. The court is not vested with that jurisdiction nor is it expected to, nor can it, exercise discretion with regard to planning matters.
Similar views were expressed by Hamilton J in Henry Denny & Sons (Ireland) Ltd v. The Minister for Social Welfare [1998] 1 IR 34 at p. 37: *184
[I] believe it would be desirable to take this opportunity of expressing the view that the courts should be slow to interfere with decisions of expert administrative tribunals. Where conclusions are based upon an identifiable error of law or an unsustainable finding of fact by a tribunal such conclusions must be corrected. Otherwise it should be recognised that tribunals which have been given statutory tasks to perform and exercise their functions, as is now usually the case, with a high degree of expertise and provide coherent and balanced judgments on the evidence and arguments heard by them it should not be necessary for the courts to review their decisions by way of appeal or judicial review.
In Faulkner v. The Minister for Industry & Commerce (unreported, Supreme Court, 10 December 1996), O’Flaherty J stated at p. 9:
We do no service to the public in general or to particular individuals, if we subject every decision of every administrative tribunal to minute anatysis.
Further support for that proposition can be found in the reasoning of Barr J in ACD Shipping (PTE) Ltd v. Minister for the Marine [1995] 3 IR 406 at p. 431:
The judgments of the Supreme Court in Stardust and O’Keeffe make clear that the courts should be loath to interfere on judicial review with intra vires administrative decisions on the merits, particularly where the decision-maker is acting within his own area of professional expertise. A court should interfere only if it is established that the decision flies in the face of reason and common sense.
Mr O’Donnell submits that it is clear, as stated by the IPC, that the comparisons made by the IPC between the conditions of employment of Ryanair ground handling agents and ground handling agents employed by other companies in Dublin Airport was a ‘highly complex’ exercise and that it was necessary for the IPC to make ‘judgments … as to where equitable comparisons lie’. The Court should not substitute its judgment for that of the IPC.
It is submitted that numerous authorities in recent years in Ireland increasingly support what might be termed the doctrine of ‘curial deference’ for decisions of specialist administrative bodies.
On discretionary grounds alone, it is further suggested that the Court should not intervene because this is an industrial relations issue with its own sensitive mechanisms for resolution. It is not an adversarial issue.
*185
Insofar as the Court feels compelled to consider factual material, the application must fail on the basis of the inadequacy of the evidence. No expertise is claimed, or established, by Mr O’Leary or the other deponents on behalf of the applicant.
Finally, the applicant has complained that it ought to have been notified and given an opportunity to address any adverse conclusion which the Report might contain. However, this cannot be correct given that Ryanair met with IPC on a number of occasions and were afforded the opportunity of commenting on information contained in the IPC Report concerning Ryanair. At all times, it is submitted, the Enquiry Team and the IPC acted fairly and gave the applicant a reasonable opportunity of commenting on relevant material. No greater duty was owed to the applicant in all the circumstances.
Conclusions
I am satisfied in the instant case that the matter raised before this Court is not justiciable because there is no decision susceptible to being quashed in the sense that no legal rights of the applicant are affected by what is a mere fact-finding Report. The Enquiry Team had an extremely limited function as was expressly recognised by the applicant’s solicitor by letter dated 13 March 1998. At the applicant’s own insistence, the Enquiry could not attempt mediation or dispute resolution. It could not impose duties, penalties, liabilities or consequences of any sort.
Accordingly, it seems to me the application fails both because there is ‘no decision’ and secondly, even if there was, ‘no legal right of the applicant was thereby affected’.
My conclusion would be in no way different even If I were to adopt the views expressed by Diplock CJ in R. v. Criminal Injuries Compensation Board, ex parte Lain [1967] 2 QB 864 where he expressed at p. 884 recognition for legal rights which would be sufficiently comprehensive to include ‘merely one step in a process which may have the result of altering the legal rights or liabilities of a person to whom it relates’.
Insofar as the supposed rights contended for by Mr Shipsey are concerned, the only possible legitimate concern would be the imposition of some adverse requirement on the applicant by the Minister on foot of the findings contained in the Report. However, any such connection is entirely speculative. It can in no sense be described as a probable consequence or ‘next step’.
I do accept that the word ‘report’ is not conclusive if, of course, some decision is nonetheless made which imposes duties or liabilities.
However, it must also be stated that there can be decisions with adverse implications for the person affected thereby which nonetheless fall short of infringing their legal rights. In Murtagh v. Board of Management of St Emer’s *186 National School [1991] 1 IR 482, the Supreme Court found that a three day suspension of a pupil from a national school was an ordinary application of disciplinary procedures inherent in the school authorities which did not involve an adjudication or determination of rights and liabilities and therefore the remedy of certiorari did not lie.
Hederman J stated (at p. 488):
Judicial review is a legal remedy available on application to the High Court, when any body or tribunal having legal authority to determine rights or impose liabilities and having a duty to act judicially in accordance with the law and the Constitution acts in excess of legal authority or contrary to its duty.
A three day suspension of a pupil from a national school either by the principal or by the board of management of that school is not a matter for judicial review. It is not an adjudication on or determination of any rights, or the imposing of any liability. It is simply the application of ordinary disciplinary procedures inherent in the school authorities and granted to them by the parents who have entrusted the pupil to the school.
It follows from the foregoing that there are, quite apart from the public law dimension (which was not an issue in Murtagh), two other requirements which must be fulfilled before the Court can intervene by way of judicial review, namely, there must be a decision, act or determination and it must affect some legally enforceable right of the applicant. If the right is not a ‘legally enforceable right’, it must be a right so close to it as to be a probable, if not inevitable, next step that some legal right will, in fact, be infringed. While the Enquiry were under no obligation, it seems to me, to act judicially, I am nonetheless satisfied that both the respondents and notice party were completely fair in the manner in which they discharged their remit in the sense that they met with all relevant parties, they provided the main protagonists with the opportunity to provide commentary upon material collated by them and invited and received submissions from all such parties. I do not accept they had any further obligation, for the reasons outlined above, to provide an opportunity to the applicant to address any possible adverse findings which the ultimate Report might contain.
For these reasons, I would dismiss the application.
Mistake of fact — limits to judicial review
It seems clear that the cases where the Court can intervene by way of judicial *187 review to correct errors of fact must be extremely rare.
The Court can only intervene to quash the decision of an administrative body or tribunal on grounds of unreasonableness or irrationality if it exhibits the characteristics identified by Henchy J in The State (Keegan) v. Stardust Victims Compensation Tribunal [1986] IR 642.
The authorities opened to this Court by the respondents and notice party overwhelmingly support the proposition that such bodies be allowed to get on with their work without undue interference.
As was pointed out by Morris P recently in Bailey v. Flood Tribunal unreported, High Court, Morris P, 6 March 2000:
The function of the High Court on an application for judicial review is limited to determining whether or not the impugned decision was legal, not whether or not it was correct. The freedom to exercise a discretion necessarily entails the freedom to set it wrong; this does not make the decision unlawful. Consideration of the alternative position can only confirm this view. The effective administration of a tribunal of inquiry would be impossible if it were compelled at every turn to justify its actions to the High Court.
Mr O’Donnell has urged upon the Court that the concept of ‘curial deference’ should be brought to bear on cases where the Court is asked to review the work of specialist bodies and tribunals which have all the expertise needed for the proper discharge of their functions.
The appropriateness of exercising judicial restraint in relation to the decisions of expert administrative tribunals has, as the cases cited by Mr Gleeson show, been recognised in a significant number of cases in Ireland, so that there is nothing novel or new in the application of the principle in judicial review, Even where appeals from, rather than judicial review of, decisions of such tribunals take place, the Court, in my view, should be extremely reluctant to substitute its view for that of a specialist body and that was the view taken by this Court in M&J Gleeson & Co. v. The Competition Authority [1999] 1 ILRM 401, and by Macken J in Orange Communications Ltd v. Director of Telecommunications [1999] 2 ILRM 81.
There is no body of jurisprudence in this jurisdiction which suggests that it would be desirable for the Courts to interfere where errors within jurisdiction are made. Indeed, the author cited by Mr Shipsey in support of such a supposed new doctrine also states:
It must also be remembered that the courts have a long-standing dislike of investigating questions of fact in judicial review proceedings, *188 even though the facilities for doing so have been improved (Wade & Forsyth’s ‘Administrative Law’ (1994 Ed, p. 311).
It seems clear to me on the authorities that a very high threshold must be met, at least in this jurisdiction, before the Court can or should intervene.
The limits of the remedy of judicial review were cogently addressed by Murphy J in Devlin v. Minister for Arts, Culture and the Gaeltacht [1999] 1 ILRM 462 when he said at p. 474:
Judicial review is a valuable legal process. Over a number of years it has been invoked to correct some misunderstandings and occasional abuses in the exercise of statutory powers. The manner in which those powers must be exercised has been stated and restated by the courts in many cases a number of which were referred to in the judgment of the learned trial judge. The requirement that statutory powers (among others), even those expressed to be absolute, must be exercised in accordance with the requirements of natural and constitutional justice is well known and generally understood. Likewise it must be widely appreciated that the only function of the courts in relation to the exercise of such powers is to review the procedures in which they are exercised. In the absence of express statutory provision the courts do not have an appellate role by which they can reverse or review the actual decision taken. In these circumstances it may be expected that the need to invoke the remedy of judicial review in relation to public officials will diminish significantly. Certainly it would be regrettable if this procedure, which has achieved so much good, was to be invoked unnecessarily or in such a way as to delay or defeat the proper exercise of administrative powers. Public officials may not be permitted to exercise their powers improperly; neither should they be impeded from exercising them properly.
Finally, in The State (Abenglen Properties) v. Corporation of Dublin [1989] IR 381, O’Higgins CJ stated at p, 392:
It [ i.e. certiorari ] is not available to correct errors or to review decisions or to make the High Court a court of appeal from the decisions complained of. In addition it remains a discretionary remedy.
Assuming the threshold laid down in Keegan and O’Keeffe is met, no particular difficulty will arise on an application to Court where the facts are simple or straightforward or even agreed. However, very considerable difficulties *189 can and do arise when the dispute is in a specialised area and the facts themselves are in dispute and the subject matter of claim and counterclaim. In the instant case not merely are the facts in dispute, but differences of opinion exist as to the appropriate methodology for establishing the facts and as to the inferences to be drawn therefrom. When, as suggested by the Enquiry Report, the issue of pay comparability caused staff both in Ryanair and members of SIPTU considerable confusion, that is of itself a reason suggesting the Court should be slow to enter the arena of fact finding. When that confusion is added to by the claims and counter claims of those who profess superior knowledge and insight into the situation, it strongly suggests that the Court should not engage in fact finding where mistake of fact is alleged unless it is absolutely necessary to do so. When placed in such a situation, it is my view that the Court should first determine whether or not the application is capable of being resolved on discrete and separate grounds as its first task.
I so decided because, having read the affidavits and exhibits in the case, I am satisfied that I could not find the facts with any degree of certainty on the material before me. I believe I would require the assistance of expert oral testimony before facts might be established with sufficient clarity to enable the Court to determine whether manifestly unreasonable or irrational errors of fact had occurred.
Such difficulties, if nothing else, go to discretion. Further, as a matter of discretion, I must have regard to the fact that this entire complaint falls within the realm of an ongoing industrial dispute. It cannot, in my view, be wise or prudent for this Court to effectively intervene and make findings of fact against such a background. While one of Mr Shipsey’s complaints on behalf of the applicant is that the Report, if uncorrected, might premise some further claim by SIPTU against his clients, what of the corollary? If the High Court were to intervene and make its own findings of fact (an exercise for which it has no special expertise or competence) then such findings in time might well become part and parcel of the dispute and might indeed serve to aggravate it further. This discretionary consideration seems to me overwhelming, quite apart from the other legal issues to which I have referred.
For these reasons, I have not conducted a minute analysis of comparative pay structures with a view to ascertaining the facts in relation to this primary issue as so identified by Mr Shipsey in his submission.
Mr Shipsey argued, however, that whatever difficulties may exist in relation to the ascertainment of facts in relation to the pay issue, no such comparable difficulty exists in relation to time off and benefits, in respect of which he alleges there was no proper evidence or material to justify the findings made by the Enquiry.
Mr Gleeson and Mr O’Donnell submit that once one aspect of the asser *190 tion by Ryanair cannot be established, then the essential findings of the Report must be correct. In other words, if the applicant cannot discharge the onus of establishing its contention in relation to the pay issue, then the Report of the Enquiry in relation to the Ryanair statement of 7 January 1998 must stand.
I have come to the conclusion that, as the pay issue has to be seen as the main element of factual controversy to which the issues of time off and benefits are incidental and subsidiary, and having regard to the present inability to make findings in relation to that main issue, it would make no sense for the Court to express a view in isolation on the subsidiary issues which are so inextricably linked and interwoven with the main pay issue.
Mullally & Ors -v- The Labour Court & Anor
[2016] IECA 291
(19 October 2016)
JUDGMENT of Mr. Justice Gerard Hogan delivered on the 20th day of October 2016
1. This is an appeal from a decision of the High Court (Noonan J.) delivered on 12th June 2015. The essence of the decision of Noonan J. was that the High Court had no jurisdiction in judicial review proceedings to review a recommendation in respect of a trade dispute made by the Labour Court under s. 68(1) of the Industrial Relations Act 1946 (“the 1946 Act”) (as substituted by s. 19 of the Industrial Relations Act 1969): see Mullally v. Labour Court [2015] IEHC 351. The issue arises in the following way.
2. The first four applicants are retained fire fighters employed by the Waterford County Council (“the Council”). The Council has some 530 employees, of whom 76 are retained fire fighters. Of that figure, 61, or 80%, are members of the registered trade union, the Psychiatric Nurses Association (“the PNA”) (which is the fifth-named applicant in these proceedings) and, of its branch, the Irish Fire and Emergency Service Association (“IFESA”). The Council currently recognises five different unions representing its employees for negotiation purposes, but it does not recognise the PNA or IFESA. The PNA is a registered trade union with a negotiation licence, but it is not a member of the Irish Congress of Trade Unions.
3. On the 22nd of May 2013, the general secretary of the PNA wrote to the County Manager of the Council requesting recognition of IFESA for negotiation purposes. The Council responded by letter of the 11th of June 2013 stating that as IFESA is not recognised nationally for negotiation purposes, the Council could not accord it the appropriate recognition.
4. On the 27th September 2013, the applicants formally requested the respondent (“the Labour Court”) to investigate the trade dispute pursuant to its powers under s. 20(1) of the Industrial Relations Act 1969. In order, however, to understand the legal issues at issue in these proceedings, it is necessary first to set out relevant provisions of the Industrial Relations Acts.
The Industrial Relations Acts
5. Section 20(1) of the Industrial Relations Act 1969 (“the 1969 Act”) provides as follows:-
“Where the workers concerned in a trade dispute or their trade union or trade unions request or requests [the Labour Court] to investigate the dispute and undertake or undertakes before the investigation to accept the recommendation of the Court under section 68 of the [Industrial Relations Act 1946] in relation thereto then, notwithstanding anything contained in the Principal Act or in this Act, the Court shall investigate the dispute and shall make a recommendation under the said section 68 in relation thereto.”
6. Section 68(1) of the 1946 Act (as substituted by s. 19 of the 1969 Act), provides as follows:-
“68(1) The Court, having investigated a trade dispute, may make a recommendation setting forth its opinion on the merits of the dispute and the terms on which it should be settled.”
The Hearing Before the Labour Court
7. A hearing concerning this issue took place before the Labour Court on the 4th March 2014. The applicants were represented by solicitors and senior counsel. The Council was represented by Mr. Don Culliton, acting Assistant Chief Executive of the Local Government Management Agency. Both sides made oral and written submissions.
8. The Labour Court then issued its recommendation on the 14th of March 2014 in a formal three page document. This document summarises the background and the party’s respective arguments in a concise form. The Labour Court’s recommendation was as follows:
“RECOMMENDATION:
Unlike all other cases in which the Court has recommended that a trade union be recognised for industrial relations purposes, the employer in this case has in place well established arrangements for the conduct of collective bargaining with authorised trade unions. The applicants in this case are, in effect, a breakaway group who are seeking to establish negotiating rights with the employer through the convenience of another trade union that has no recognised involvement in negotiations with local authorities.
While the applicants have an acknowledged right to be members of whatever organisation they choose, the exercise of that right cannot, in the circumstances of the present case, imply a concomitant obligation on the employer to negotiate with their chosen organisation. In the Court’s opinion, recognition of this group would have a highly undesirable destabilising effect on the established negotiating arrangements currently in place. It would also greatly impair the orderly conduct of industrial relations within the local authority sector. On that account, it would be irresponsible for the [County] Council to accede to the applicants’ request for recognition.
For these reasons the Court does not recommend concession of the worker’s claim.”
9. The applicant contended that the conclusions reached by the Labour Court were not factually sustainable and were tainted by reason of the fact that irrelevant considerations had been taken into account. It was also submitted that the Labour Court had failed to give any adequate reasons for its decision.
10. Although the Labour Court has not participated in the proceedings, counsel on behalf of the Council submitted that the recommendation of the Labour Court was not justiciable as it did not constitute a determination of any rights or obligations and that, accordingly, judicial review did not lie. As the High Court agreed with the Council’s submission that the recommendation emanating from the Labour Court consisted of a non-justiciable controversy which was not amenable to judicial review, the question of justiciability is presented on this appeal as a jurisdictional issue which the applicants must surmount before the individual legal merits of that dispute can be examined.
Whether the recommendation of the Labour Court is amenable to judicial review
11. The Labour Court may be said to have been granted two fundamental roles by the corpus of industrial relation legislation which started with the Industrial Relations Act 1946 right up to the more recently enacted Workplace Relations Act 2015. The first of these roles is to make a binding adjudication (subject to an appeal) in relation to issues of employment law and entitlements. In such cases the Court is engaged qua administrative tribunal in resolving questions of fundamental legal entitlements in respect of discrete aspects of employment law ranging from redundancy payments to unfair dismissal. In such cases a right of appeal is provided by law: see, e.g., s. 46 of the Workplace Relations Act 2015 which provides for a right of appeal on a point of law to the High Court in respect of certain determinations of the Labour Court.
12. The second role is quite a different one and it effectively requires the Court to act as a form of independent arbiter in matters of industrial relations policy. In this sphere its task is confined simply to making recommendations which do not bind the parties. The present appeal concerns the second of these roles.
13. In any evaluation of the role of the Labour Court in making a recommendation of this kind, it must be recalled that its fundamental role in matters of this nature is to act as something in the nature of an industrial relations mediator whose task it is to advance the cause of industrial peace by making recommendations to the parties. Nor is the Court when performing this function engaged in the process of making an evaluation of the rights of the parties gauged by reference to purely legal standards: the Court when discharging this role will often – quite properly – make recommendations based on purely practical and pragmatic considerations.
14. The nature of this jurisdiction was examined by me as a judge of the High Court in MacDonnacha v. Minister for Education and Skills [2013] IEHC 226. In that case the two applicants were Chief Executive Officers of Vocational Educational Committees and, as such, were in receipt of certain allowances. These allowances were paid to CEOs for administering the operation of the school transport system. The Minister decided in 2010 to transfer the administration of the school transport system to the transport providers and to abolish these allowances. This constituted a significant pay reduction for CEOs and gave rise to a trade dispute between the CEOs and the Minister which was referred to the Labour Relations Commission and, ultimately, to the Labour Court pursuant to s. 26(1) of the Industrial Relations Act 1990, which gave the Court a jurisdiction to investigate the trade dispute similar to that contained in s. 20(1) of the 1969 Act.
15. The Labour Court issued a recommendation in which it stated that the elimination of the allowances was justified in the circumstances and it further recommended that the offer of the Department of Education to compensate the CEOs be accepted. One of the issues considered by the High Court was whether this recommendation created a res judicata which would have had the effect of precluding the applicants from applying to the Court for relief in relation to the issue of the withdrawal of these allowances.
16. In my judgment in MacDonnacha I held that the Labour Court recommendation did not serve to create a res judicata, precisely because what was at issue was a non-binding recommendation:
“35. Here it may also be noted that the Labour Court assumed jurisdiction under s. 26(1) of the Industrial Relations Act 1990 (albeit in the context of the dispute resolution procedures envisaged by the CPA [Croke Park Agreement]) and that it merely issued a recommendation. The whole purpose of the Labour Court’s functions in matters of this nature is to advance a solution to industrial relations disputes. Although the Court’s functions are sometimes clothed in the language of law (e.g., the very use of the term “Court”) and while it employs legal principles when adjudicating on matters relating to legal rights, (such as, for example, cases involving the rights of part-time workers or employees on fixed term contracts), in the present context it is really acting as a form of industrial relations mediator. When adjudicating on matters relating to the [Croke Park Agreement], therefore, the Labour Court is accordingly not deciding legal rights or employing exclusively legal concepts to resolve such disputes. On the contrary, when issuing recommendations in this context the Court will often – perfectly properly – adopt a purely pragmatic and practical approach to such questions. Its role in such cases is to resolve disputes and to maintain industrial peace and the criteria which underpin its recommendations are not strictly legal ones.
36. In summary, therefore, the recommendation of the Labour Court at most amounts to a binding resolution of any such dispute for industrial relations purposes. While the decision to terminate the [allowance] was one which was (probably) taken outside of the strict confines of the CPA, it cannot be said that the use of the CPA dispute resolution procedures (such as, in this instance, the reference to the Labour Court) rendered the outcome binding or final for legal purposes. This is not only because the Court’s jurisdiction under s. 26(1) of the Industrial Relations Act 1990 is not invested with that quality of legal finality, but also because for all the reasons set out in Holland v. Athlone Institute of Technology [2011] IEHC 414 the CPA itself does not create – and was not intended to create – legally justiciable rights.
37. It follows, therefore, that the Labour Court recommendation does not create res judicata nor does it preclude the applicants from applying to this Court for declarations as to the legality of the withdrawal of the TLOA allowance…”
17. In my judgment, this reasoning applies, mutatis mutandis, to the circumstances of the present dispute. The Labour Court was not purporting to determine or otherwise adjudicate upon the legal rights of the parties: it was, at most, expressing a view as to how a particular issue of industrial relations relating to union recognition might be resolved.
18. The authorities bear out the submission of the Council that decision-making of a purely advisory or admonitory kind is generally regarded as non-justiciable in nature. This was fundamentally the reason why I concluded as a judge of the High Court in Holland v. Athlone Institute of Technology [2011] IEHC 414 that the Labour Court’s recommendations concerning the Croke Park Agreement were non-justiciable in nature.
19. This general point was also well made in a different context by the Supreme Court in Riordan v. An Taoiseach [2000] IESC 35. In that case the Supreme Court had been asked to declare unlawful a recommendation made by the Government to the European Investment Bank that a particular candidate be appointed to a position with that organisation. As Keane C.J. observed:
“The need for such restraint is clearly even greater where, as here, the High Court was invited to declare unlawful a recommendation, having no effect in law, conveyed by the executive to another body. The Government collectively or individual ministers may, over a huge area of activity, indicate their wishes or preferences to other persons or bodies and it would be a remarkable and novel step for a court to take it upon itself to declare political decisions of this nature unlawful.”
20. It is true that, as counsel for the applicants, Mr. McGarry S.C., forcefully argued, the modern law on judicial review often looks beyond the rather formalistic question of simply examining whether the legal rights of individual have been affected. The present case is nevertheless wholly different to cases such as Maguire v. Ardagh [2002] 1 IR 385 or de Búrca v. Wicklow County Council [2009] IEHC 54. In marked contrast to those cases there is no attempt in the present case to adjudicate upon contentious and disputed facts in a way which reflects might well adversely upon the constitutional right to a good name of any of the parties. To repeat: the Labour Court’s decision represents in truth no more than a recommendation from an expert body which has considerable practical industrial relations experience.
The language of s. 20(1) of the 1969 Act: “undertake…to accept the recommendation”
21. In arriving at this conclusion I have not overlooked a point so strongly emphasised by Mr. McGarry S.C. for the applicants, namely, that s. 20(1) of the 1969 Act requires that the workers or trade unions concerned “undertake before the investigation to accept the recommendation” and that this undertaking forms the very basis of the Labour Court’s jurisdiction to make a recommendation.
22. One is obliged to agree that the wording of this section is unusual and, some might think, unsatisfactory. It seems curious that the Oireachtas would insist that one side only to an industrial relations issue would agree to be bound in advance when what ultimately issues from the Labour Court is simply a recommendation which does not bind the other relevant party. If a particular recommendation were to be rejected by the employers’ side, it would be striking – and, frankly, somewhat meaningless – if this recommendation were still to bind the workers and the trade unions who had invoked the jurisdiction of the Labour Court in the first place.
23. In these circumstances, I am driven to the conclusion that the reference in s. 20(1) of the 1969 Act to the employees and trade unions agreeing to be bound is simply a legal mechanism which enables the Court to assume jurisdiction to issue a recommendation, but beyond that such undertakings have no further lasting or enduring quality. The critical point, however, from a consideration of the legislation as a whole is that what issues from the Court is not, in fact, a binding determination, but is simply a recommendation which, by definition, cannot have the legally enforceable characteristics of a binding decision, the ostensible language of s. 20(1) regarding prior undertakings by the trade union and employees notwithstanding.
Conclusions
24. All of this is to say that if the decision of the Labour Court was not simply a recommendation, but had binding legal consequences, then, of course, the result of this case so far as the jurisdictional issue of justiciability is concerned would be quite different. As this, however, is not the case, I entirely agree with the conclusion of Noonan J. that the recommendation of the Labour Court pursuant to s. 20(1) of the 1969 Act “has no strictly legal effect but rather relies upon the moral authority of the expert statutory body from which it emanates.” Nor can it be said that such a recommendation creates any form of res judicata or any other form of binding resolution.
25. It follows, therefore, that the recommendation of the Labour Court does not give rise to justiciable rights or issues such as would permit the applicants to seek judicial review of that decision.
26. It is, accordingly, for these reasons that I would dismiss this appeal.
Mullally & Ors -v- The Labour Court & Anor
[2016] IECA 291 (19 October 2016)
JUDGMENT of Mr. Justice Gerard Hogan delivered on the 20th day of October 2016
1. This is an appeal from a decision of the High Court (Noonan J.) delivered on 12th June 2015. The essence of the decision of Noonan J. was that the High Court had no jurisdiction in judicial review proceedings to review a recommendation in respect of a trade dispute made by the Labour Court under s. 68(1) of the Industrial Relations Act 1946 (“the 1946 Act”) (as substituted by s. 19 of the Industrial Relations Act 1969): see Mullally v. Labour Court [2015] IEHC 351. The issue arises in the following way.
2. The first four applicants are retained fire fighters employed by the Waterford County Council (“the Council”). The Council has some 530 employees, of whom 76 are retained fire fighters. Of that figure, 61, or 80%, are members of the registered trade union, the Psychiatric Nurses Association (“the PNA”) (which is the fifth-named applicant in these proceedings) and, of its branch, the Irish Fire and Emergency Service Association (“IFESA”). The Council currently recognises five different unions representing its employees for negotiation purposes, but it does not recognise the PNA or IFESA. The PNA is a registered trade union with a negotiation licence, but it is not a member of the Irish Congress of Trade Unions.
3. On the 22nd of May 2013, the general secretary of the PNA wrote to the County Manager of the Council requesting recognition of IFESA for negotiation purposes. The Council responded by letter of the 11th of June 2013 stating that as IFESA is not recognised nationally for negotiation purposes, the Council could not accord it the appropriate recognition.
4. On the 27th September 2013, the applicants formally requested the respondent (“the Labour Court”) to investigate the trade dispute pursuant to its powers under s. 20(1) of the Industrial Relations Act 1969. In order, however, to understand the legal issues at issue in these proceedings, it is necessary first to set out relevant provisions of the Industrial Relations Acts.
The Industrial Relations Acts
5. Section 20(1) of the Industrial Relations Act 1969 (“the 1969 Act”) provides as follows:-
“Where the workers concerned in a trade dispute or their trade union or trade unions request or requests [the Labour Court] to investigate the dispute and undertake or undertakes before the investigation to accept the recommendation of the Court under section 68 of the [Industrial Relations Act 1946] in relation thereto then, notwithstanding anything contained in the Principal Act or in this Act, the Court shall investigate the dispute and shall make a recommendation under the said section 68 in relation thereto.”
6. Section 68(1) of the 1946 Act (as substituted by s. 19 of the 1969 Act), provides as follows:-
“68(1) The Court, having investigated a trade dispute, may make a recommendation setting forth its opinion on the merits of the dispute and the terms on which it should be settled.”
The Hearing Before the Labour Court
7. A hearing concerning this issue took place before the Labour Court on the 4th March 2014. The applicants were represented by solicitors and senior counsel. The Council was represented by Mr. Don Culliton, acting Assistant Chief Executive of the Local Government Management Agency. Both sides made oral and written submissions.
8. The Labour Court then issued its recommendation on the 14th of March 2014 in a formal three page document. This document summarises the background and the party’s respective arguments in a concise form. The Labour Court’s recommendation was as follows:
“RECOMMENDATION:
Unlike all other cases in which the Court has recommended that a trade union be recognised for industrial relations purposes, the employer in this case has in place well established arrangements for the conduct of collective bargaining with authorised trade unions. The applicants in this case are, in effect, a breakaway group who are seeking to establish negotiating rights with the employer through the convenience of another trade union that has no recognised involvement in negotiations with local authorities.
While the applicants have an acknowledged right to be members of whatever organisation they choose, the exercise of that right cannot, in the circumstances of the present case, imply a concomitant obligation on the employer to negotiate with their chosen organisation. In the Court’s opinion, recognition of this group would have a highly undesirable destabilising effect on the established negotiating arrangements currently in place. It would also greatly impair the orderly conduct of industrial relations within the local authority sector. On that account, it would be irresponsible for the [County] Council to accede to the applicants’ request for recognition.
For these reasons the Court does not recommend concession of the worker’s claim.”
9. The applicant contended that the conclusions reached by the Labour Court were not factually sustainable and were tainted by reason of the fact that irrelevant considerations had been taken into account. It was also submitted that the Labour Court had failed to give any adequate reasons for its decision.
10. Although the Labour Court has not participated in the proceedings, counsel on behalf of the Council submitted that the recommendation of the Labour Court was not justiciable as it did not constitute a determination of any rights or obligations and that, accordingly, judicial review did not lie. As the High Court agreed with the Council’s submission that the recommendation emanating from the Labour Court consisted of a non-justiciable controversy which was not amenable to judicial review, the question of justiciability is presented on this appeal as a jurisdictional issue which the applicants must surmount before the individual legal merits of that dispute can be examined.
Whether the recommendation of the Labour Court is amenable to judicial review
11. The Labour Court may be said to have been granted two fundamental roles by the corpus of industrial relation legislation which started with the Industrial Relations Act 1946 right up to the more recently enacted Workplace Relations Act 2015. The first of these roles is to make a binding adjudication (subject to an appeal) in relation to issues of employment law and entitlements. In such cases the Court is engaged qua administrative tribunal in resolving questions of fundamental legal entitlements in respect of discrete aspects of employment law ranging from redundancy payments to unfair dismissal. In such cases a right of appeal is provided by law: see, e.g., s. 46 of the Workplace Relations Act 2015 which provides for a right of appeal on a point of law to the High Court in respect of certain determinations of the Labour Court.
12. The second role is quite a different one and it effectively requires the Court to act as a form of independent arbiter in matters of industrial relations policy. In this sphere its task is confined simply to making recommendations which do not bind the parties. The present appeal concerns the second of these roles.
13. In any evaluation of the role of the Labour Court in making a recommendation of this kind, it must be recalled that its fundamental role in matters of this nature is to act as something in the nature of an industrial relations mediator whose task it is to advance the cause of industrial peace by making recommendations to the parties. Nor is the Court when performing this function engaged in the process of making an evaluation of the rights of the parties gauged by reference to purely legal standards: the Court when discharging this role will often – quite properly – make recommendations based on purely practical and pragmatic considerations.
14. The nature of this jurisdiction was examined by me as a judge of the High Court in MacDonnacha v. Minister for Education and Skills [2013] IEHC 226. In that case the two applicants were Chief Executive Officers of Vocational Educational Committees and, as such, were in receipt of certain allowances. These allowances were paid to CEOs for administering the operation of the school transport system. The Minister decided in 2010 to transfer the administration of the school transport system to the transport providers and to abolish these allowances. This constituted a significant pay reduction for CEOs and gave rise to a trade dispute between the CEOs and the Minister which was referred to the Labour Relations Commission and, ultimately, to the Labour Court pursuant to s. 26(1) of the Industrial Relations Act 1990, which gave the Court a jurisdiction to investigate the trade dispute similar to that contained in s. 20(1) of the 1969 Act.
15. The Labour Court issued a recommendation in which it stated that the elimination of the allowances was justified in the circumstances and it further recommended that the offer of the Department of Education to compensate the CEOs be accepted. One of the issues considered by the High Court was whether this recommendation created a res judicata which would have had the effect of precluding the applicants from applying to the Court for relief in relation to the issue of the withdrawal of these allowances.
16. In my judgment in MacDonnacha I held that the Labour Court recommendation did not serve to create a res judicata, precisely because what was at issue was a non-binding recommendation:
“35. Here it may also be noted that the Labour Court assumed jurisdiction under s. 26(1) of the Industrial Relations Act 1990 (albeit in the context of the dispute resolution procedures envisaged by the CPA [Croke Park Agreement]) and that it merely issued a recommendation. The whole purpose of the Labour Court’s functions in matters of this nature is to advance a solution to industrial relations disputes. Although the Court’s functions are sometimes clothed in the language of law (e.g., the very use of the term “Court”) and while it employs legal principles when adjudicating on matters relating to legal rights, (such as, for example, cases involving the rights of part-time workers or employees on fixed term contracts), in the present context it is really acting as a form of industrial relations mediator. When adjudicating on matters relating to the [Croke Park Agreement], therefore, the Labour Court is accordingly not deciding legal rights or employing exclusively legal concepts to resolve such disputes. On the contrary, when issuing recommendations in this context the Court will often – perfectly properly – adopt a purely pragmatic and practical approach to such questions. Its role in such cases is to resolve disputes and to maintain industrial peace and the criteria which underpin its recommendations are not strictly legal ones.
36. In summary, therefore, the recommendation of the Labour Court at most amounts to a binding resolution of any such dispute for industrial relations purposes. While the decision to terminate the [allowance] was one which was (probably) taken outside of the strict confines of the CPA, it cannot be said that the use of the CPA dispute resolution procedures (such as, in this instance, the reference to the Labour Court) rendered the outcome binding or final for legal purposes. This is not only because the Court’s jurisdiction under s. 26(1) of the Industrial Relations Act 1990 is not invested with that quality of legal finality, but also because for all the reasons set out in Holland v. Athlone Institute of Technology [2011] IEHC 414 the CPA itself does not create – and was not intended to create – legally justiciable rights.
37. It follows, therefore, that the Labour Court recommendation does not create res judicata nor does it preclude the applicants from applying to this Court for declarations as to the legality of the withdrawal of the TLOA allowance…”
17. In my judgment, this reasoning applies, mutatis mutandis, to the circumstances of the present dispute. The Labour Court was not purporting to determine or otherwise adjudicate upon the legal rights of the parties: it was, at most, expressing a view as to how a particular issue of industrial relations relating to union recognition might be resolved.
18. The authorities bear out the submission of the Council that decision-making of a purely advisory or admonitory kind is generally regarded as non-justiciable in nature. This was fundamentally the reason why I concluded as a judge of the High Court in Holland v. Athlone Institute of Technology [2011] IEHC 414 that the Labour Court’s recommendations concerning the Croke Park Agreement were non-justiciable in nature.
19. This general point was also well made in a different context by the Supreme Court in Riordan v. An Taoiseach [2000] IESC 35. In that case the Supreme Court had been asked to declare unlawful a recommendation made by the Government to the European Investment Bank that a particular candidate be appointed to a position with that organisation. As Keane C.J. observed:
“The need for such restraint is clearly even greater where, as here, the High Court was invited to declare unlawful a recommendation, having no effect in law, conveyed by the executive to another body. The Government collectively or individual ministers may, over a huge area of activity, indicate their wishes or preferences to other persons or bodies and it would be a remarkable and novel step for a court to take it upon itself to declare political decisions of this nature unlawful.”
20. It is true that, as counsel for the applicants, Mr. McGarry S.C., forcefully argued, the modern law on judicial review often looks beyond the rather formalistic question of simply examining whether the legal rights of individual have been affected. The present case is nevertheless wholly different to cases such as Maguire v. Ardagh [2002] 1 IR 385 or de Búrca v. Wicklow County Council [2009] IEHC 54. In marked contrast to those cases there is no attempt in the present case to adjudicate upon contentious and disputed facts in a way which reflects might well adversely upon the constitutional right to a good name of any of the parties. To repeat: the Labour Court’s decision represents in truth no more than a recommendation from an expert body which has considerable practical industrial relations experience.
The language of s. 20(1) of the 1969 Act: “undertake…to accept the recommendation”
21. In arriving at this conclusion I have not overlooked a point so strongly emphasised by Mr. McGarry S.C. for the applicants, namely, that s. 20(1) of the 1969 Act requires that the workers or trade unions concerned “undertake before the investigation to accept the recommendation” and that this undertaking forms the very basis of the Labour Court’s jurisdiction to make a recommendation.
22. One is obliged to agree that the wording of this section is unusual and, some might think, unsatisfactory. It seems curious that the Oireachtas would insist that one side only to an industrial relations issue would agree to be bound in advance when what ultimately issues from the Labour Court is simply a recommendation which does not bind the other relevant party. If a particular recommendation were to be rejected by the employers’ side, it would be striking – and, frankly, somewhat meaningless – if this recommendation were still to bind the workers and the trade unions who had invoked the jurisdiction of the Labour Court in the first place.
23. In these circumstances, I am driven to the conclusion that the reference in s. 20(1) of the 1969 Act to the employees and trade unions agreeing to be bound is simply a legal mechanism which enables the Court to assume jurisdiction to issue a recommendation, but beyond that such undertakings have no further lasting or enduring quality. The critical point, however, from a consideration of the legislation as a whole is that what issues from the Court is not, in fact, a binding determination, but is simply a recommendation which, by definition, cannot have the legally enforceable characteristics of a binding decision, the ostensible language of s. 20(1) regarding prior undertakings by the trade union and employees notwithstanding.
Conclusions
24. All of this is to say that if the decision of the Labour Court was not simply a recommendation, but had binding legal consequences, then, of course, the result of this case so far as the jurisdictional issue of justiciability is concerned would be quite different. As this, however, is not the case, I entirely agree with the conclusion of Noonan J. that the recommendation of the Labour Court pursuant to s. 20(1) of the 1969 Act “has no strictly legal effect but rather relies upon the moral authority of the expert statutory body from which it emanates.” Nor can it be said that such a recommendation creates any form of res judicata or any other form of binding resolution.
25. It follows, therefore, that the recommendation of the Labour Court does not give rise to justiciable rights or issues such as would permit the applicants to seek judicial review of that decision.
26. It is, accordingly, for these reasons that I would dismiss this appeal.