Electric.ie July/ August 2020

ELECTRIC.IE • The Magazine & Website for the Irish Electrical Industry • 15 Industry News The only other option being – pay the price and go out of business. Mr Justice Simons’ judgment indicated it was a condition precedent to the Minister’s jurisdiction to make an SEO that he was satisfied the Labour Court had complied with the requirements of Chapter 3 of the Industrial Relations (Amendment) Act 2015. The Minister erred in law in concluding, on the basis of a report and recommendation submitted to him, that the Labour Court had complied with those provisions. The report accompanied a recommendation in April 2019 to the Minister by the Labour Court that the SEO be issued. The judge said the report formed the cornerstone of the Minister’s subsequent assessment of whether the Labour Court had complied with the provisions of the 2015 Act (Chapter 3). The report was deficient because it failed to record “even the conclusions of the Labour Court on crucial matters, still less does the report state a rationale for those conclusions”. The report also failed to set out a fair and accurate summary of the submissions made by interested parties who opposed the making of a SEO and did not engage with the issues raised in those submissions, he said. The striking down of Chapter 3 of the 2015 Act means that all SEOs shall cease to exist. At present there are three SEOs currently in being which govern the construction, mechanical engineering (plumbing) and electrical sectors which effectively cover all areas of the construction industry. Mr. Justice Simons’ decision stated, “In brief, the parent legislation does not contain sufficient principles and policies to guide the very broad discretion conferred upon the Minister (and, indirectly, upon the Labour Court).” The judgment is extremely significant M r Justice Garett Simons in the High Court on Tuesday 23rd June 2020, struck down Chapter 3 of the Industrial Relations (Amendment) Act 2015 as being unconstitutional and furthermore, struck down the Sectoral Employment Order (Electrical Contracting Sector) 2019 which allowed the Minister for Business, Enterprise and Innovation, in conjunction with the Labour Court, to set mandatory minimumwage rates, pension contribution rates and sick pay rates in the electrical contracting industry. These proceedings follow from the interlocutory injunction granted in August 2019 by Mr Justice Meenan which stayed obligations in respect of pension contributions under the Electrical SEO. This case was the longest running constitutional challenge conducted electronically and remotely - as a consequence of Covid19. NECI were represented by an excellent legal team of Helen Callanan SC and David O’Brien BL, instructed by Harry Carpendale of H.G. Carpendale & Co. NECI claims were denied by the Labour Court, the Minister, Ireland and the Attorney General. Helen Callanan said that part of the Industrial Relations (Amendment) Act of 2015 replaced the “old registered employment agreements” with sectoral employment orders. “This is a very dangerous situation for employers and employees and little did we know that the country would be in the middle of a shutdown and these employers cannot reduce wages”, she said. It must be noted that other industries, including law and business, have lowered remuneration in order to address today’s climate of uncertainty. Counsel said that an employer who does not comply with the SEO and fails to pay their employees to the standards outlined in it, can be jailed for up to six months following enforcement proceedings which will be taken in the district court. NECI challenges Labour Court Recommendations as it allows the renegotiation of existing employment conditions of all employers and workers within the construction, plumbing and electrical contracting sectors to which sectoral employment orders once applied. The NECI’s motivation has always been that any process leading to the setting of mandatory terms and conditions of employment in the electrical contracting industry is conducted in an open, transparent, and fair manner and that the voices of small and medium-sized electrical contractors are considered. The NECI has also wanted to ensure that electricians employed by its members have an option as to the pension scheme, if any, they wish to become members of. NECI CEO John Smith said: “This was the third attempt to achieve an SEO for the Electrical Contracting Sector since 2016. We feel vindicated that our concerns have finally been heard and we received answers. In my opinion the Labour Court has let everyone down by not doing their job properly. It is a good result for the small/ medium size contractors throughout Ireland who now have the flexibility to adjust to whatever the economy brings.” The State will now consider the Judgement and will have 28 days to appeal this decision from perfection of the order. Check out WWW.NECI.IE for further updates John Smith, CEO of NECI