Small to medium-sized employers providing electrical contracting services were “thrown under the bus” as a result of a ministerial order setting minimum pay and conditions for their sector, the Supreme Court has been told.
Helen Callanan SC, for the National Electrical Contractors Ireland (NECI), said the playing field resulting from the 2019 Sectoral Employment Order (SEO) is anti-competitive and “unsustainable” for consumers for reasons including members of the NECI are smaller and do not have the call out rates commanded by larger employers in the sector.
The NECI could not have anticipated being “thrown under” the bus for what the State now maintains is a need for “social solidarity” in line with EU law, she said.
Law 'defective'
The 2015 law under which the SEO was made is “defective” and unconstitutional for reasons including its effect is a legally binding instrument, created without adequate Oireachtas supervision, with “hugely serious” consequences for employers in particular, she argued.
The structure of the Act gives private parties ownership of the entire electrical contractors sector and those parties thus have "unconscionable" influence and control over the rights of NECI members and others to contract and run their businesses as they see fit, she said.
The disputed SEO governs hours of work, rates of pay, overtime rates and pension issues and the kernel of the loss to the employer is an infringement of property rights, including the right to contract, she said.
The Oireachtas “parachute” over all of this is insufficient and there are “no brakes”.
Ministerial powers
The law also means the disputed SEO cannot be looked at by a Minister for three years after enactment, the Labour Court can examine it only “off its own bat” and parties bound by it, and who opposed it, “can never touch it”, counsel said.
She was making submissions opposing the State’s appeal aimed at overturning a High Court finding that the Minister of State for Business Enterprise and Innovation acted outside his powers in June 2019 in purporting to make the SEO for electricians.
Members of the National Electrical Contractors of Ireland (NECI) challenged that SEO in proceedings against the Labour Court, the Minister for Business, Enterprise and Innovation, Ireland and the Attorney General.
Mr Justice Simons set aside the SEO after finding the parent legislation governing such orders, Chapter 3 of the Industrial Relations (Amendment) Act 2015, is invalid by reference to Article 15.2.1 of the Constitution, which provides the “sole and exclusive” power of making laws for the State is vested in the Oireachtas.
Oireachtas power
He found the impugned legislation trespassed upon the exclusive law-making power of the Oireachtas as it delegated legislative authority on important matters of policy to the Minister, and indirectly to the Labour Court, without defined boundaries.
The 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 were delegated to the Labour Court.
The appeal continues on Wednesday.
