The Supreme Court will give judgment on Friday on the State’s appeal against a far-reaching finding that a law under which minimum pay and conditions are set within the building sector is unconstitutional.
The appeal, heard last February, is aimed at overturning a High Court decision that the Minister of State for Business, Enterprise and Innovation acted outside his powers in June 2019 when making a sectoral employment order (SEO) for electricians.
Members of the Náisiúnta Leictreach Contraitheor Eireann/National Electrical Contractors of Ireland (NECI) challenged the SEO in proceedings against the Labour Court, the Minister for Business, Enterprise and Innovation, Ireland and the Attorney General.
They argued that requiring all employers in their sector to apply the SEO to their employees interfered with competition and was unfair to smaller electrical contractors.
The High Court’s Mr Justice Garrett Simons set aside the SEO after finding the parent legislation governing SEOs – Chapter 3 of the Industrial Relations (Amendment) Act 2015 – is invalid by reference to Article 15.2.1 of the Constitution, which vests “sole and exclusive” power of making laws for the State in the Oireachtas. The legislation trespassed upon the exclusive law-making power of the Oireachtas because it delegated legislative authority on important matters of policy to the Minister, and indirectly to the Labour Court, without defined boundaries, he said.
The 2015 Act permits trade unions and employer groups to request the Labour Court, in certain circumstances, to examine terms and conditions for employees in certain sectors.
The Labour Court then reports to the Minister who can accept or reject its recommendations.
In various findings, Mr Justice Simons said, because the Minister can only either accept or reject the Labour Court’s recommendation, it seemed the Minister cannot examine the relevant sector with the effect broad policy choices had been delegated to the Labour Court.
In urging the Supreme Court to overturn the High Court finding, Attorney General Paul Gallagher argued the 2015 law is “permissible delegated legislation”. The legislature’s policy choices are reflected in the 2015 law which took account of competitiveness and other factors including fair remuneration, he submitted.
Helen Callanan SC, for the NECI, argued the 2015 law is unconstitutional for reasons including its effect is a legally binding instrument, created without adequate Oireachtas supervision, with “hugely serious” consequences for employers in particular.