THE JOINT labour committee (JLC) system will have to be substantially revamped following the High Court judgment that sections of the 1946 Act setting them up are invalid.
Orders made under this system cannot now be enforced and cases against employers facing prosecution for breaching them will have to be dropped.
For years lawyers working in the area of employment law have been saying there is an “infirmity” in the 1946 Industrial Relations Act. As Mr Justice Kevin Feeney noted, this was already identified by the Supreme Court in 1980, when Mr Justice Séamus Henchy noted that the Labour Court could fix minimum rates of pay without any supervision from parliament or the executive.
The Supreme Court was not asked to rule on the constitutionality of the 1946 Act in the 1980 case and therefore did not, but its statement has been waiting in the bushes, inviting a constitutional challenge, since.
The nub of the problem with the 1946 Act is that it provides for JLCs to make orders on wages, but it contains no principles to guide them in doing so, and they act without any supervision from the executive or parliament.
Yet infringement of those orders is a criminal offence, making the employer liable to conviction and a fine and to payment of compensation to the worker. So, a committee with delegated powers can make an order the breaking of which is a criminal offence, with no democratic accountability.
As Mr Justice Feeney says in his judgment, a body with delegated powers is expected to act “reasonably”, meaning its orders and decisions should be rational,following clear principles.
However, he found the employment regulation order challenged in this case was arbitrary, in that certain rates were set for one geographical area when significantly different rates and conditions applied in an adjoining area without any identifiable basis for such discrimination. The legislation permitted the making of arbitrary and unreasonable orders.
Therefore, any other order made by another JLC under the same legislative provisions is equally vulnerable to challenge.
The last government appears to have anticipated such a ruling, as the 2009 Industrial Relations (Amendment) Bill, which got as far as second stage in the Dáil, contained provisions that would have cured the “infirmity” identified by Mr Justice Feeney.
It provided for principles to inform JLCs when making orders, including legitimate interests of workers, legitimate interests of employers and the prevailing economic situation in the industry and the State. It may well be that this Government will take it out, dust it down and present it again to the Oireachtas.