The High Court has ruled that the law enabling sectoral employment orders gives the Labour Court and Minister too broad a role in setting employment terms, and is invalid under the Constitution. The court also found that the process behind a 2019 order for the electrical contracting sector did not comply with the governing legislation.
Mr Justice Garrett Simons delivered judgment electronically on 23 June 2020 in judicial review proceedings brought by Náisiúnta Leictreach Contraitheoir Eireann, a company representing electrical contractors. The challenged order set minimum pay and requirements for pension and sick pay schemes across the sector.
The court found that the Labour Court’s report to the Minister did not show that it had assessed whether an order was reasonably necessary to secure fair and sustainable pay. Nor did it fairly summarise or engage with objections raised during consultation, including concerns about the order’s impact on smaller contractors, the boundaries of the sector and competition. The Minister received neither the interested parties’ written submissions nor an adequate account of them, the judgment said, and should have refused to make the order.
The judgment also found that the order’s description of the covered sector did not adequately address whether state and semi-state workers were included. It further held invalid the provision tying pension contribution rates to changes made by trustees of the Construction Workers Pension Scheme. That arrangement would allow a third party to change rates without the statutory process for amending the order.
Separately, the judge held that Chapter 3 of the Industrial Relations (Amendment) Act 2015 lacked sufficient principles and policies to guide decisions with significant effects on employers, workers and consumers. The statutory objectives, including “fair and sustainable” remuneration, were too imprecise to constrain the policy choices delegated to the Labour Court and Minister. Parliamentary approval of a draft order did not cure the constitutional defect.
The court rejected the challenge to the “substantially representative” threshold, holding that it concerns the number of workers represented and that interested parties can contest whether the threshold is met during the process. It did not consider an argument about the constitutionality of enforcement procedures because that issue had not been pleaded.
The judgment set out a proposed form of order: a declaration that Chapter 3 is invalid under Article 15.2.1° of the Constitution and an order of certiorari setting aside the Sectoral Employment Order (Electrical Contracting Sector) 2019, S.I. No. 251 of 2019. The parties were asked to correspond on the formal wording and legal costs, with written submissions due within 21 days if they could not agree. The source does not state the later formal order or any costs decision.