Sectoral Regulation

Labour Court Examination.

Where the Labour Court is satisfied that a trade union or organisation of employees, which is substantially representative of workers or employers of a type or group, or in a particular economic sector, that union or body may request the Labour Court to examine the remuneration (including sick pay, pension and financial matters), terms and conditions of employment of that type or group.

The Labour Court must be satisfied that the trade union or representatives are substantially representative of workers in the sector. It must take account of the numbers employed in the sector and the numbers represented by the trade union or employers’ organisation concerned.

The Labour Court must be satisfied that it is normal and desirable practice or that it is expedient, to have separate terms and conditions relating to remuneration, sick pay schemes or pension schemes in respect of workers of the particular class, type or group in the economic sector concerned. If must be satisfied that any recommendation is likely to promote harmonious relations in the sector.

Prior to undertaking an examination, the Court shall publish in such manner as, in the opinion of the Court, is best calculated to bring the request to the notice of all interested persons concerned, notice of its intention to undertake an examination.

The notice shall invite representations to be made to the Court from any interested parties not later than 28 days after the date of the notice.  Not earlier than 28 days after the date of the notice the Court may hear all parties appearing to the Court to be interested and desiring to be heard.


Labour Court Recommendation

The recommendation shall—

  • specify the class, type or group of workers and the economic sector in relation to which the recommendation shall apply,
  • be accompanied by a report on the circumstances surrounding the making of the recommendation, including confirmation that the Court has had regard to the matters set out above and
  • be made not later than 6 weeks after the hearing.

The Court shall not make a recommendation unless it is satisfied that to do so—

  • would promote harmonious relations between workers and employers and assist in the avoidance of industrial unrest in the economic sector concerned, and
  • is reasonably necessary to promote and preserve high standards of training and qualification, and ensure fair and sustainable rates of remuneration, in the economic sector concerned.

A recommendation shall include procedures that shall apply in relation to the resolution of a dispute concerning the terms of a sectoral employment order. A recommendation may provide for the amendment or cancellation of a recommendation previously made under this section and confirmed by the Minister by a sectoral employment order.


Criteria

The legislation provides guidance and principles which are to be taken into account by the Labour Court in deciding whether to make a recommendation to the Minister.  This includes a requirement to take account of

  • the potential impact on levels of employment and unemployment in the identified economic sector concerned;
  • the terms of any relevant national agreement relating to pay and conditions for the time being in existence;
  • the potential impact on competitiveness in the economic sector concerned;
  • the general level of remuneration in other economic sectors in which workers of the same class, type or group are employed;
  • that the sectoral employment order shall be binding on all workers and employers in the economic sector concerned.
  • that recommendation would promote harmonious relations, promote and preserve high standards of training and qualification and ensure fair and sustainable rates of remuneration in the sector.

Remuneration

The court’s recommendation may provide for a minimum hourly rate of pay, in excess of the national minimum wage. It may provide not more than two hourly rates of basic pay based on length of service in the sector or enterprise or the attainment of recognised standards or skills in the sector. It may provide minimum rates of pay in respect of young workers lower than that of experienced adult workers on a basis equivalent to that in the National Minimum Wage Act.

The recommendation may provide a minimum rate of remuneration for apprentices. It may provide for pay in excess of basic pay in respect of shift work, piece work, overtime and unsocial hours worked or travelling time. It may provide minimum rates of contributions by employers and employees to a pension scheme. The recommendation is to include procedures to apply in the event of a dispute in relation to matters arising under the order.


Remuneration Elements

In particular, a recommendation may provide for all or any of the following in respect of the workers of the class, type or group in the economic sector concerned:

  • a minimum hourly rate of basic pay that is greater than the minimum hourly rate of pay under the National Minimum Wage Act;
  • not more than 2 higher hourly rates of basic pay based on length of service in the economic sector concerned, or the attainment of recognised standards or skills;
  • minimum hourly rates of basic pay for persons who have not attained the age of 18 years, enter employment for the first time after attaining the age of 18 years, having entered into employment before attaining the age of 18 years, continue in employment on attaining that age, or have attained the age of 18 years and, during normal working hours, undergo a course of study or training prescribed by regulations for the category of worker concerned;
  • minimum hourly rates of basic pay for apprentices;
  • any pay in excess of basic pay in respect of shift work, piece work, overtime, unsocial hours worked, hours worked on a Sunday, or travelling time (when working away from base);
  • the requirements of a pension scheme, including a minimum daily rate of contribution to the scheme by a worker and an employer; and
  • the requirements of a sick pay scheme.

Making Order

The court may make recommendations to the Minister for a proposed sectoral employment order.  A request may not be considered where the Minister has made an employment order in relation to that sector within the previous 12 months unless there are exceptional and compelling reasons. The Minister is to consider the recommendations. Unless he is not satisfied that the required process has been complied with, the Minister is to make an order.

The order is to be laid before the Oireachtas. If an order has not been amended or revoked within three years, the Minister may request the Labour Court to undertake a review of its terms and conditions.

The sectoral employment order shall apply to all workers in the sector, irrespective of whether the worker or his employer were party to the request to the Labour Court.  The terms of the sectoral employment order are incorporated into the contract of employment.

There are anti-penalisation/victimisation provisions, which seek to protect employees who invoke their rights under the legislation.

There is a provision by which an employer who is facing financial difficulties may apply to the Labour Court for a temporary derogation from the requirement to pay the remuneration specified by the order.


Review of Sectoral Employment Orders

The Minister may request the Court to review the terms of a sectoral employment order. The Minister shall not make a request

  • until at least 3 years after the date of a sectoral employment order in relation to which the request relates, or
  • where a sectoral employment order has been amended, at least 3 years after the date on which the order was amended.

Where the Minister makes a request for a review, the Court shall examine the terms and conditions of the class, type or group of workers in the economic sector concerned as if the request were a request for the making of an order for the first time.


Contracts Modified

A sectoral employment order shall apply, to every worker of the class, type or group in the economic sector to which it is expressed to apply, and his or her employer, notwithstanding that such worker or employer was not a party to a request for its making, or would not, otherwise be bound by the order.

If a contract between a worker of a class, type or group to which a sectoral employment order applies and his or her employer provides for the payment of remuneration at a rate less than the rate provided by such order and applicable to such worker, the contract shall, in respect of any period during which the order applies, have effect as if the order rate were substituted for the contract rate.

If a contract between a worker of a class, type or group to which a sectoral employment order applies and his or her employer provides for conditions in relation to a pension scheme or a sick pay scheme (in this subsection referred to as the “contract conditions”) less favourable than the conditions (in this subsection referred to as the “order conditions”) fixed by the order and applicable to such worker, the contract shall, in respect of any period during which the order applies, have effect as if the order conditions were substituted for the contract conditions.


No Penalisation

An employer shall not penalise or threaten penalisation of a worker for   invoking any right conferred on him under legislation or making a complaint to the Workplace Relations Commission or giving notice of his or her intention to do so.

“Penalisation” means any act or omission by an employer or a person acting on behalf of an employer that affects a worker to his or her detriment with respect to any term or condition of his or her employment.


Exemption

The Court may   exempt an employer from the obligation to pay the remuneration otherwise payable by the employer to a worker or workers in accordance with a sectoral employment order. An exemption shall remain in force for such period, being not less than 3 months and not more than 24 months from the date on which the exemption is granted, as is specified in the exemption.

The Court shall not grant an exemption to an employer if the employer has been granted an exemption in respect of the same worker or workers within the previous 5 years. Where an exemption has been granted for a period of less than 24 months, an employer or employer’s representative with the employer’s consent may, prior to the date on which the exemption is due to expire, apply to the Court to extend the period of the exemption for an additional period.

Where an application is made, the Court shall not extend the period of the exemption for more than 24 months from the date on which the exemption was granted.  Where the period of the exemption has been extended by the Court, the Court shall not further extend the period.


Procedure

An employer or employer’s representative with the employer’s consent may, in the manner and form approved by the Court, apply to the Court for an exemption. The application shall be accompanied by—

  • a current tax clearance certificate in respect of the employer concerned, and
  • such information, particulars and documentation as the Court may reasonably require for the purpose of determining whether an exemption should be granted, in particular, such information in relation to the employer, his or her business and the potential impact of an exemption, as the Court may direct.

In considering whether to grant an exemption, the Court shall have regard to the following:

  • whether, if an exemption was granted, it would have an adverse effect on employment levels and distort competition in the economic sector concerned to the detriment of employers not party to the application, who are also subject to the sectoral employment order concerned;
  • the long-term sustainability of the employer’s business were such an exemption to be granted; and
  • any other matters the Court considers relevant.

Basis for Exemption

On receiving an application, the Court shall convene a hearing of parties to the application and the workers or their representatives and shall give its decision on the application in writing to the parties.  The Court shall not grant an exemption unless it is satisfied that where the employer makes an application, he or she has entered into an agreement with—

  • the majority of the workers,
  • the representative of the majority of the workers, or
  • a trade union representing the majority of the workers,

in respect of whom the exemption is sought, whereby the workers, the representative of the workers or the trade union, consents to the employer making the application, and to abide by any decision on the application that the Court may make, and the employer’s business is experiencing severe financial difficulties.


Exemption without Consent

Where the Court is not satisfied that the majority of the workers or their representative consents to an application, the Court may grant an exemption, provided the Court is satisfied that—

  • the employer has informed the workers concerned of the financial difficulties of the business and has attempted to come to an agreement with the workers, their representative or trade union in relation to a reduction of the remuneration provided by the sectoral employment order,
  • the employer is unable to maintain the terms of the sectoral employment order, and
  • were the employer compelled to comply with the terms of the sectoral employment order concerned there would be a substantial risk that a significant number of the workers concerned would be laid off or made redundant or the sustainability of the employer’s business would be significantly adversely affected.

Terms of Exemption

An exemption shall specify:

  • the names and employment positions occupied by the workers to whom the exemption applies;
  • the duration of the exemption; and
  • the remuneration to be paid to the worker or workers during the period of the exemption and the worker or workers shall be entitled to be paid not less than that remuneration for the duration of the exemption.

The exemption under shall not specify an hourly rate of pay than the National Minimum Wage.

Where during the period of an exemption section a new worker replaces a worker to whom the exemption relates, the employer may pay the new worker the remuneration specified by the Court in respect of the former worker and shall, as soon as practicable, notify the Court in writing of the employment of the new worker.

Where a contract between an employer and a worker specified in an exemption provides for the payment of remuneration at a rate higher than that provided by such exemption, the contract shall, in respect of any period during which the exemption is in force, have effect as if the remuneration provided for by such exemption and applicable to such worker were substituted for the remuneration provided for by the contract.


References and Sources

Primary References

Employment Law Supplement Meenan Ch7 2016

Other Irish Books

Employment Law Forde & Byrne 2009

Principles of Irish Employment Law         Daly & Doherty   2010

Acts

Industrial Relations (Amendment) Act 2015 (No. 32)

Periodicals and Reports

Employment Law Yearbook (annual) Arthur Cox

Employment Law Reports

Irish Employment Law Journal

Employment Law Review

Legislative Guides

Dismissal & Redundancy Consolidated Legislation   Barrett, G   2007

Irish Employment legislation (Looseleaf) Kerr  1999-

Employment Rights Legislation (IEL offprint)   Kerr  2006

Shorter Guides

Employment Law Nutshell    Donovan, D         2016

Employees: Know Your Rights       Eardly        2008

Essentials of Irish Labour Law       Faulkner    2013

Websites

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

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

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

UK Texts

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

Labour Law, Deakin and Morris 5th Ed. 2012

Employment Law, Smith and Wood 13th Ed 2017

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

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

Labour Law Collins H, Ewing K D and McColgan  2012

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

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

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

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

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

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

UK Practitioner Services

Tolley’s Employment Handbook 2017 Mrs Justice Slade 2017

Butterworths Employment Law Handbook 2017 Peter Wallington 2017

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

UK Periodicals and Reports

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

Industrial Relations Law Reports

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