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24 June 2020

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Dear Minister Humphreys,


RE: Sectoral Employment Orders


I am sure you share my concern about yesterday’s High Court judgment in the challenge to the sectoral employment order for the electrical contracting sector and to the statutory framework for such orders set out in the Industrial Relations (Amendment) Act 2015.


The striking down of that part of the Act means that two further sectoral employment orders also fall, and that the entitlements of tens of thousands of workers in relation to pay, sick pay and pensions are now in doubt.


The case and the judgment involve very significant matters of public policy and public interest. Given the very serious implications both for these workers and for decent businesses across the State, I am asking for your assurance that the judgment will be appealed and that you will as a matter of urgency be seeking a stay on the High Court order pending the resolution of that appeal.


The judgment has implications not just for SEOs but for other aspects of the machinery for fixing pay and conditions by law. Such machinery has been part of our legal system since 1909. Since that time, we have had, in some form or other, a system to fix by law minimum pay and conditions in certain sectors. The clear purpose has been to improve terms of employment in ‘sweated’ industries, where pay was chronically low and union representation either inadequate or non-existent.


The policy preference has always been for a healthy system of collective bargaining. The statutory alternative provides for bargaining bodies in low wage sectors where the industrial actors do not exist or are inadequately organised. And industry-wide enforcement, to prevent undercutting, has been an essential feature of the legislation.


I hope you share the belief that the State has a continuing role in establishing and maintaining a mechanism for setting pay in sectors which are not currently susceptible to conventional trade union organisation.


However, this is not the first time in recent history that the courts have taken issue with the constitutionality of legislation that seeks to protect low paid workers. The essence of this finding is that all the safeguards which, during my tenure in the Department, we inserted into the 2015 Act so as to bulletproof it against challenge have been ineffective.


The core complaint remains that the Minister and the Labour Court are exercising the legislative power of the State, by making “laws” without being the Oireachtas. According to this judgment, the requirement to put a draft order to a vote by the two Houses separately is not sufficient, because resolutions by both Houses are not an adequate substitute for legislation.


If this approach is upheld by the Supreme Court, then I believe that solutions are available. For example, up until the 1980s, the Dáil and Seanad were still passing what were called Provisional Order Confirmation Acts. A Minister or another body made a provisional order, which did not have effect until it was approved, not by resolutions but by a short two section Bill passed by both Houses.


A return to this procedure might eliminate the constitutional issue. No doubt other solutions will be proposed to you.


Before deciding on the solution, we need to commit ourselves to seeking one. I am convinced that, provided the Government and Oireachtas are committed to the objective of giving statutory effect to sectoral arrangements for pay and conditions, then it will be possible to re-establish this machinery on a constitutionally sound footing. I look forward to your confirmation that you share this objective.



Yours sincerely,

Ged Nash TD