JLC Review
Section 41A of Industrial Relations Act 1946 (inserted by Section 11 of the Industrial Relations (Amendment) Act 2012) provides that reviews of each Joint Labour Committee (JLC) will be carried out by the Labour Court, as soon as practicable after the commencement of the Act, and at least once every five years thereafter.
In its review the Labour Court considered whether any JLC should be abolished, maintained in its current form, amalgamated with another JLC or have its establishment order amended. In this context, the Labour Court appointed Ms. Janet Hughes to assist. The Labour Court submitted its report to the Minister during 2013.
The Industrial Relations (Amendment) Act, 2012
The main provisions of the legislation in relation to JLCs are as follows.
1. It allows companies to derogate from the terms of Employment Regulations Orders in cases of financial difficulty, while ensuring the protection of employees and avoiding distortion of competition.
2. It permits Joint Labour Committees (JLCs) to set a basic adult rate and two supplementary minimum rates. This will substantially reduce the number of rates while acknowledging the freedom of JLCs to establish two higher rates based on length of service in the sector or enterprise concerned as well as the standards and skills recognised for the sector concerned. Sub-minimum rates expressed as fixed percentages of the adult basic rate will apply, as in the case of the National Minimum Wage, to employees aged under 18 years, first time job entrants, and employees undergoing training. All other rates of pay will be agreed at firm level.
3. A comprehensive review of the scope of each individual JLC must be undertaken by the Labour Court after the commencement of the Act to ensure that the range of establishments to which they apply remains appropriate, with consequent changes to their Establishment Orders if necessary. These reviews will be undertaken every five years in the future.
4. Criteria to be observed in the making of any EROs agreed by JLCs will take the form of specific principles and policies (having regard to the decision of the High Court in John Grace Fried Chicken Ltd and others v. The Catering Joint Labour Committee, The Labour Court, Ireland and the Attorney General, delivered on 7th July 2011)
These must include:
(a) The legitimate interests of employers and workers likely to be affected by the proposals, including:
-the legitimate financial and commercial interests of the employers in the sector in question,
-the desirability of agreeing and maintaining efficient and sustainable work practices appropriate to the sector in question
-the desirability of agreeing and maintaining fair and sustainable minimum rates of remuneration appropriate to the sector in question
-the desirability of maintaining harmonious industrial relations,
-the desirability of maintaining competitiveness, and
-the levels of employment and unemployment in the sector in question
(b) The general level of wages in comparable sectors, including, where appropriate, a fair and reasonable assessment of wages in such comparable sectors in other relevant jurisdictions.
(c) The current national minimum hourly rate of pay, under the National Minimum Wage Act 2000 and the appropriateness of fixing a higher statutory minimum hourly rate of pay.
(d) The terms of any relevant national agreement (if any) in force.
5. It removes the provision for a Sunday Premium from the scope of EROs while preserving workers entitlements under Section 14 of the Organisation of Working Time Act, 1997. (The Minister has asked the Labour Relations Commission to devise a Code of Practice on Sunday Working).
6. Provides for Ministerial and Oireachtas roles in the making of EROs.
Outside of the legislation, the Minister has initiated the following additional reforms:
- Reduced the number of JLCs by three (Provender Milling, Clothing and Aerated Waters and Bottling).
- Standardising benefits in the nature of pay – including overtime and the conditions under which it becomes payable – across all sectors covered by JLCs by means of a statutory Code of Practice; the consultation and drafting process in this regard is currently underway under the aegis of the Labour Relations Commission.
- The Labour Relations Commission is involved in a similar exercise with regard to arranging for the preparation of a new statutory Code of Practice on Sunday Working to provide guidance to employers, employees and their representatives in sectors covered by Employment Regulation Orders, on arrangements that may be put in place to comply with the options specified at section 14 of the Organisation of Working Time Act, 1997. The Rights Commissioners and/or the Labour Court will have regard to this Code in making decisions.
Supreme Court: McGowan Judgment
In the judgment delivered on 9 May last in McGowan and others v The Labour Court, Ireland and the Attorney General, the Supreme Court held that Part III of the Industrial Relations Act 1946 was invalid having regard to Article 15.2.1 of the Constitution.
That Article provides, in effect, that the exclusive power to make laws is vested in the Oireachtas. The Supreme Court took the view that Registered Employment Agreements are instruments having the status of laws made by private individuals subject only to a limited power of veto by a subordinate body. While the Constitution allows for the limited delegation of law making functions, the provisions of the 1946 Act went beyond what is permissible under the Constitution.
In the context of the JLC Review, any proposed extension of the scope of any JLC under existing legislation would take place by way of a Labour Court Order – an action that would be constitutionally questionable in light of McGowan.
ENDS