High Court Strikes Down Sectoral Employment Orders and Chapter 3 Industrial Relations (Amendment) Act 2015 is Unconstitutional

The legislation, which confers on the Minister the right to make a sectoral employment order, has been held to be invalid by the High Court.

This finding arose in a case brought by the National Electrical Contractors of Ireland against the Labour Court and others (Náisiúnta Leictreach Contraitheoir Eireann -v- The Labour Court, The Minister for Business Enterprise and Innovation, Ireland, the Attorney General [2020] IEHC 303) which challenged a sectoral employment order made by the Minister.

The legislation which purported to give the power to the Minister is contained in Chapter 3 of the Industrial Relations (Amendment) Act 2015.

This act made it a condition precedent that the Labour Court must firstly have complied with the requirements of Chapter 3 of the Act.

The High Court held that the Minister erred in so finding because the report submitted to the Minister by the Labour Court was deficient on a number of heads, including:

  1. The report failed to record the conclusions of the Labour Court on important matters
  2. The report failed to set out a fair and accurate summary of the submissions made by interested parties who were against the making of the sectoral employment order.

The National Electrical Contractors of Ireland had made submissions concerning various matters prior to the making of the sectoral employment order. The High Court held that the Labour Court had failed to engage with them in the statutory report.

Mr Justice Simons held that the Minister should have refused to make the sectoral employment order as a consequence of the deficient report. The Minister acted “ultra vires”, therefore.

Even though the Court did not have to concern itself with the constitutionality of the legislation per se the parties in this judicial review agreed that the Court could go ahead and do so to resolve the issue one way or the other.

The Court held that the offending legislation, Industrial Relations (Amendment) Act 2015 did not contain sufficient policies and principles to guide the Minister in exercising discretion regarding such employment orders.

The Court noted that the making of such orders had important ramifications from the perspective of i) promoting fair competition and ii) ensuring appropriate terms and conditions for workers.

Mr Justice Simons held that the making of these significant policy decisions were “abdicated” to the Minister and involved the “standard-less delegation of law making to the Minister”.  This is unconstitutional by reference to article 15.2.1 of Bunreacht na hEireann which states:

° The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.

The High Court held, accordingly, that Chapter 3 of the Industrial  Relations  (Amendment)  Act  2015 is invalid and is to be struck down. It follows that the Sectoral Employment Order (Electrical Contracting Sector) 2019 (SI 251 of 2019) is invalid and must fall with the parent legislation.

It follows that all other sectoral employment orders (construction and mechanical engineering) are also invalid.

Read the full decision in Náisiúnta Leictreach Contraitheoir Eireann -v- The Labour Court & ors [2020] IEHC 303.

Read [2020] IEHC 342