The High Court has dismissed electrical contractors’ challenge to a Registered Employment Agreement covering the electrical contracting industry, finding that their challenge to its validity was brought far too late and that the Labour Court had not erred in refusing to cancel it.
Mr Justice Hedigan delivered the judgment on 30 June 2010 in three linked proceedings. The agreement was registered by the Labour Court in 1990 and varied 14 times, most recently in May 2007. It sets employment conditions and wages for the industry and is binding on bodies in the sector; breach is a criminal offence.
The applicants argued that the agreement was made by parties that did not represent the industry as a whole and imposed costs that smaller contractors could not afford. They said it made them less able to compete for work and that they had not known it applied to them until comparatively recently. They also challenged the Labour Court’s February 2009 refusal to cancel the agreement.
The judge rejected the challenge to the agreement’s original validity because it was brought 18 or 19 years after registration. He found the applicants had been aware of the agreement since at least the end of 2003, citing evidence of contractors’ queries, legal advice sought by an industry association and enforcement activity. He said no concrete explanation justified the delay.
On the challenge to the Labour Court’s decision, the High Court applied a deferential judicial review standard for a specialist tribunal. It found the Labour Court had relevant material, including expert economic evidence and its own expertise, to support its decision. The judge also rejected arguments that the Labour Court had misinterpreted the EU ruling in Laval, the agreement’s application to subcontractors, or the statutory test for cancelling an agreement after substantial change. He said the agreement’s wording included subcontractors.
A claim of objective bias was outside the court’s jurisdiction because leave had not been granted for it. The judge also said the applicants had waived their objection after declining an offer to have a new tribunal hear the matter.
The court did not decide the constitutional challenge. It held that it was brought outside the judicial review time limit and said the constitutional issues should instead be raised in plenary proceedings if the applicants wished to pursue them. The application was dismissed.