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Cite as: [2004] IEHC 42
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Noonan Services Ltd. & Ors v. Labour Court [2004] IEHC 42 (25 February 2004)
RECORD NUMBER 2003 957 JR
BETWEEN
APPLICANTS
RESPONDENT
NOTICE PARTY
JUDGMENT of Mr. Justice Kearns delivered the 25th day of February, 2004.
These judicial review proceedings are brought by the applicants to challenge the legality of two employment regulations orders dated 28th July, 2003, which were made by the Labour Court pursuant to s. 48 of the Industrial Relations Act, 1990 and which provide for minimum rates of remuneration and conditions of employment for workers employed in the contract cleaning sector.
'Contract cleaning' in this context means the cleaning of premises by companies engaged in whole or in part in the provision of cleaning and janitorial services in establishments such as hospitals, offices, shops, factories, stores or similar establishments on a contract basis.
While two orders were made by the Labour Court on 28th July 2003, one of which related to operations in Dublin and the other which related to the remainder of the country, the same points of legal challenge arise in relation to both orders.
The essence of the applicants case is that, insofar as part V of the employment regulation orders (EROs) provides that overtime should be paid to part-time workers after completion of their 'contract hours' if these are less than 39 hours (being the normal hours worked by full-time workers), the said orders discriminate against full-time workers in an unreasonable, oppressive and arbitrary manner.
By order dated 19th December 2003, this court granted leave to the applicants to bring judicial review proceedings seeking a variety of reliefs which, however, have now been netted down at this hearing to the following:-
(a) a declaration that part V of the employment regulation order dated 28th July 2003 purporting to regulate the conditions of employment relating to overtime of workers in the terms made was ultra vires the respondent on the grounds of unreasonableness and is thus invalid and of no effect.
(b) a declaration that part V of the employment regulation order dated 28th July 2003, insofar as it purports to provide that overtime should be paid after 'contract hours' if these are less than 39 hours discriminates against full-time workers on the grounds of gender contrary to the provisions of the Employment Equality Act, 1998.
(c) a declaration that the decision of the respondent to make employment regulation orders giving effect to certain re-submitted proposals was, in the absence of an oral hearing sought by the applicants, in breach of the principles of natural and/or constitutional justice and/or fair procedures and was in consequence ultra vires the respondent, invalid and of no effect.
(d) a declaration that the terminology of Part V of the employment regulation order which contains certain provisions in relation to payment of overtime at weekends is so uncertain and vague as to warrant a declaration of invalidity having regard to the fact that non compliance with the terms of the order could give rise to a criminal prosecution.
The respondent and notice party contest the applicants entitlement to all or any of the reliefs sought and, in particular, argue that the application should fail on grounds of the delay in seeking relief from the court.
Statutory background
Section 35 of the Industrial Relations Act, 1946 authorised the Labour Court to establish joint labour committees, either on the application of a trade union or any organisation representative of a group of employers.
Section 42 (1) of the Industrial Relations Act, 1946 provides:-
" a joint labour committee may submit to the Court proposals for fixing the minimum rates of remuneration to be paid either generally or for any particular work to all or any of the workers in relation to whom the committee operates, and such proposals may provide for a minimum weekly remuneration for all or any of such workers."
Section 48 of the Industrial Relations Act, 1990 sets out provisions for proposals for the making of employment regulation orders as follows:
"(1) Where a joint labour committee has formulated proposals for an employment regulation order, the committee shall publish a notice stating-
(a) the place where copies of the proposals may be obtained;
(b) that representations with respect to the proposals may be made to the committee within the period of twenty one days after the date of such publication
(2) The joint labour committee, having considered any representations made to it in accordance with subsection (1), may submit to the Court such proposals as it thinks proper for an employment regulation order
(3) When proposals for an employment regulation order are submitted to the Court, the chairman of the committee shall submit a report to the Court on the circumstances surrounding their adoption.
(4) The Court may, as it thinks proper, by order give effect to the proposals from such date (subsequent to the date of the order) as the Court specifies in the order.
(5)(a) Where the Court is not satisfied that it should make an order giving effect to the proposals it may submit to the committee amended proposals which it is willing to accept.
(b) The committee may, if it thinks fit, re-submit the amended proposals, with or without modifications, to the Court
(c) The Court may, as it thinks proper, make an order giving effect to the proposals as so re-submitted from such date (subsequent to the date of the order) as the Court thinks proper and specifies in the order or refuse to make an order."
Consequent upon the making of an Employment Regulation Order, under
s. 48 of the 1990 Act, s. 44 of the Industrial Relations Act, 1946 provides for the adaptation of contracts of service as follows-
"(1) The employer of a worker to whom an employment regulation order applies, shall
(a) in case the order fixes remuneration, pay to such worker remuneration not less than the statutory minimum remuneration
(b) in case the order fixes conditions of employment, grant to such worker conditions of employment not less favourable than the statutory conditions of employment
(2) If a contract between a worker (being a worker to whom an employment regulation order, which fixes remuneration, applies) and his employer provides for the payment of less remuneration than the statutory minimum remuneration, the contract shall have effect as if the statutory minimum remuneration were substituted for the less remuneration."
Section 45 then provides:-
"(1) If an employer fails to pay to a worker (being a worker to whom an employment regulation order, which fixes remuneration, applies) remuneration not less than the statutory minimum remuneration, the employer shall be guilty of an offence under this subsection and shall be liable on summary conviction thereof to a fine not exceeding fifty pounds."
Section 49 of the Industrial Relations Act, 1990 provides that an inspector may institute on behalf of a worker civil proceedings for the enforcement of any right of action of the worker against his employer in respect of the failure of the employer to comply with an employment regulation order. This power is not one in derogation of any right of the worker to institute civil proceedings on his own behalf.
While these are the provisions of the Industrial Relations Acts which arise for consideration in the present proceedings, the applicants also contend that certain provisions of the Employment Equality Act, 1998 have been breached.
Section 6 of the Employment Equality Act, 1998 provides that:-
"Discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as "the discriminatory grounds"), one person is treated less favourably than another is, has been or would be treated.
(2) As between any 2 persons, the discriminatory grounds (and the description of those grounds for the purposes of this Act) are -
(a) that one is a woman and that the other is a man (in this Act referred to as "the gender ground")".
Section 8 of the Act provides:-
"(1) In relation to-
(a) access to employment
(b) conditions of employment
(c) training or experience for or in relation to employment
(d) promotion or re-grading, or
(e) classification of posts,
an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.
(6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or a prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one
(a) the same terms of employment (other than remuneration and pension rights)
(b) the same working conditions, and
(c) the same treatment in relation to overtime, shift work, short-time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,
as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different."
Section 9 of the Employment Equality Act, 1998 provides:-
"(1) In a case where
(a) an agreement or order to which this section applies contains a provision in which differences in rates of remuneration are based on any of the discriminatory grounds, and
(b) in relation to a person to whom the agreement or order relates, that provision conflicts with an equal remuneration term in that person's contract of employment,
then, subject to subsection (4) that provision shall be null and void."
This section applies to both collective agreements and employment regulation orders made within the meaning of the Industrial Relations Act, 1946.
In the instant case, the applicants contend that the vast preponderance of part- time workers are female, whereas the vast majority of those in full-time employment are men. To provide that part-time workers will achieve the same overtime rates having worked only 'contract hours' in contra distinction to the normal 39 hour week worked by a full-time worker has the result or effect, it is contended, that the EROs discriminate unfairly against full-time male workers in the contract cleaning sector.
Part III of the Employment Equality Act, 1998 contains specific provisions as to equality between women and men. Section 18 provides, by way of illustration of subsequent sections, that "A" and "B" represent two persons of opposite sex so that where "A" is a woman, "B" is a man, and vice versa.
Section 19 of the Act then provides:-
"(1) It shall be a term of the contract under which A is employed that, subject to this Act, A shall at any time be entitled to the same rate of remuneration for the work which A is employed to do as B who, at that or any other relevant time, is employed to do like work by the same or an associated employer.
(4) Where a term of a contract or a criterion applied to employees (including A and B)
(a) applies to all the employees of a particular employer or to a particular class of such employees (including A and B),
(b) is such that the remuneration of those employees who fulfil the term of criterion is different from that of those who do not,
(c) is such that the proportion of employees who are disadvantaged by the term or criterion is substantially higher in the case of those of the same sex as A than in the case of those with the same sex as B, and
(d) cannot be justified by objective factors unrelated to A's sex,
then, for the purpose of subsection (1), A and B shall each be treated as fulfilling, or, as the case may be, as not fulfilling the term or criterion, whichever results in the higher remuneration.
(5) Subject to subsection (4), nothing in this Part shall prevent an employer from paying, on grounds other than the gender ground, different rates of remuneration to different employees."
Section 22 of the same Act provides:-
"(1) Where a provision (whether in the nature of a requirement, practice or otherwise) which relates to any of the matters specified in paragraphs (a) to (e) of section 8(1) or to membership of a regulatory body
(a) applies to both A and B,
(b) is such that the proportion of persons who are disadvantaged by the provision is substantially higher in the case of those in the same sex as A than in the case of those in the same sex as B, and
(c) cannot be justified by objective factors unrelated to A's sex,
then, for the purpose of this Act, A's employer or, as the case may be, the regulatory body shall be regarded as discriminating against A on the gender ground contrary to section 8 or, as the case may require, section 13."
Finally, because it relates to a step which occurred in the instant proceedings, it is appropriate also to include a reference to s. 86 of the Employment Equality Act, 1998 which provides for the reference of collective agreements to the Director of the Authority for his consideration as to the question of the possible nullity of a provision of an agreement. Section 86 provides:-
"(1) If the Authority or a person who is affected by a collective agreement claims that a provision of that agreement is null and void by virtue of section 9, the Authority or that person may refer the question of that agreement to the Director and in this section the Authority or the person making such a reference is referred to as 'the complainant'.
(2) for the purposes of this section (and section 87)
(a) the expression 'collective agreement' shall be taken to include an order or agreement falling within paragraph (b) or (c) of section 9(3),
(b) a person is affected by a collective agreement if that person is an employee whose remuneration or whose conditions of employment are, in whole or in part, governed by the agreement (or any part of it), and
(c) 'the respondents' means the parties to the agreement, other than (where relevant) the complainant".
Background facts
The affidavit of Aidan Grogan, Industrial Relations Executive with the Irish Business and Employers Confederation (IBEC), recites that some 18,000 workers are covered by the two joint labour committees acting on behalf of contract cleaning workers in Dublin and the rest of the country. The notice party is the trade union which represents contract cleaning operatives and the four worker representatives on the Joint Labour Committee are the officials of the union. The union represents approximately 40% of the workers covered by the two committees. The particular joint labour committee for the Dublin area was established in 1984 and a similar committee was established for the rest of the country in 1999. The committees consist of an equal number of employer and worker representatives and an independent chairman. Their function is to make proposals to the Labour Court for fixing the minimum rates of remuneration and for regulating the conditions of employment for all or any of the workers in relation to whom the committees operate. Where a committee has formulated such proposals, it is obliged by s.48 of the Industrial Relations Act, 1990 to publish a notice inviting representations and then to consider such representations before submitting the proposals to the Labour Court. When such proposals are confirmed by the Labour Court they become statutory minimum remunerations and statutory conditions of employment. Failure by an employer to pay the statutory minimum remuneration or to comply with the statutory conditions of employment exposes the employer to criminal sanctions and to civil action at the suit of the workers in question.
Historically, no provision for overtime work had existed in respect of contract cleaning workers. It had however been the subject of discussion in the committees over a lengthy period without agreement being reached.
A meeting of the committee was convened on 1st April, 2003, at which the worker representatives proposed that overtime rates should be paid after 39 hours Monday to Friday or after contracted hours if these were less. Various rates were proposed, including rates for Saturday overtime and Sunday work, and by notice dated 15th April, 2003, the proposals were published seeking representations. By letter dated 28th April, 2003, representations were submitted on behalf of the employer representatives on the committee and on 9th May, 2003, the employer representatives drew the committee's attention to the alleged discriminatory aspect of the proposals as between different part-time workers and between part-time and full-time workers. The hypothetical case was put forward of a part-time employee whose hours of work each week were 20. If he or she were to work 21 hours and if he or she were to receive a supplement for the 21st hour it would mean that the worker in question would be receiving more overall pay for those 21 hours than a full-time employee would earn for those same hours. The proposals were submitted to the respondent together with a report from the chairperson of the Joint Labour Committee. By letter dated 13th May, 2003, addressed to the chairman of the Labour Court, Mr. Grogan objected to the draft proposals expressing the concern that the employer objections and amendments had not been given appropriate consideration and again referring to the discriminatory aspects of the proposal and requesting that their proposals be referred back to the committee in their entirety.
A hearing of the Labour Court was convened for 16th June, 2003, at which submissions on behalf of the employers were made in an effort to persuade the court to vary the proposals along the lines previously suggested by IBEC. It was submitted, inter alia, that the proposals were in contravention of EU law.
On 19th June, 2003, Mr. Grogan wrote to the Labour Court pointing out that their approach could be seen as discriminatory against men and thus illegal under the Employment Equality Act, 1998.
However, by letter dated 23rd June, 2003, and addressed to the chairperson of the committee, the Labour Court indicated that it would make an order giving effect to the proposals provided that they were modified to provide that the proposed overtime rates would be phased in with effect from 1st January, 2004, and the 1st July,. 2004.
A meeting of the committee was held to consider the Labour Court's letter of 23rd June and it was decided to re-submit the proposals as modified by the Labour Court. By letter dated 10th July, 2003, IBEC requested that an oral hearing take place of the Labour Court in relation to the request that the court confirm the re-submitted proposals. It had been intended that the employers would be legally represented at any such hearing. However, by letter dated 18th July, 2003, the court refused to provide an oral hearing and indicated that the court would be making an order giving effect to the re-submitted proposals in the near future. On one view of the facts therefore the time for bringing judicial review proceedings, an option then already under consideration by the applicants, may be seen as commencing on this date.
By this letter, the court pointed out that s. 86 of the employment equality act, 1998 provided a mechanism by which a person who is affected by an employment regulation order could pursue a claim that any provision of such an order is null and void on gender grounds having regard to s. 9 of the 1998 Act.
Thereafter, the applicants wrote to the office of the Director of Equality Investigations challenging the legality of the EROs under s. 9 of the 1998 Act and requesting that the application be dealt with as a matter of serious urgency. However, no reply was received to this letter until 15th October, 2003, and ultimately on the 15th January, 2004, the Director declined jurisdiction on the basis that s. 86 provided a mechanism for employees only (and not employers or an employers' body) to seek a ruling as to possible nullity of an ERO for contravention of the Act.
Mr. Grogan in his affidavit further deposes that 25% of the 18,000 workforce are full-time with the remainder being part-time, with working hours each week varying between 10 hours and 20 hours. The majority of part-timers are female whereas the majority of the full-time workers are males. He exhibits a survey analysis carried out by IBEC which shows that of full-time employees, nearly 14% are male as against 8% female. With regard to part-time workers, some 64% of the total workforce is female, where as part-time male workers constitute only 15%. Mr. Grogan contends that the EROs contain provisions with regard to overtime which provides for differences in rates of remuneration which give rise to discrimination on gender grounds and that such provisions are therefore null and void.
He further contends that the EROs give rise to a real inequality between full-time and part-time workers because for the same number of hours worked, the latter are paid a supplement and the former not. If overtime is payable as soon as the contract hours are exceeded, he contends that this fact will constitute significant unequal treatment conferring an advantage on part-time employees of a significance 'inversely proportionate' to the length of the contractual working hours.
At par. 27 of his affidavit he further contends that the wording of part V of the employment regulation orders is ambiguous in that it is unclear as to whether any time worked in excess of 39 hours per week (or contract hours if less) constitutes overtime regardless of when that excess time is worked and that Saturday or Sunday work does not automatically constitute overtime unless the excess hours are worked on those days. An alternative interpretation however would be that any time worked in excess hours Monday to Friday and any time worked on a Saturday or Sunday automatically constitutes overtime. In circumstances where there are potential criminal sanctions for non compliance, he contends that the employers are entitled to certainty as to their obligations under the order in question.
By way of the illustration of what Mr. Grogan contends are the unreasonable aspects of the EROs, he points to the following:-
(a) Contracted hours may vary from case to case, and, over time, part-time workers may vary the hours which they work. The EROs, he contends, create an incentive for employees to reduce the contracted hours they work in the hope of increasing through overtime the average remuneration per hour wholly at the expense of the employer and without reference to terms of productivity.
(b) The industry is an extremely competitive one and the ability to recover costs from clients either in the short term or longer term is circumscribed.
(c) The contract cleaning industry is highly devolved where work in a particular site for a particular client will ordinarily be carried out by at particular team of employees. Employees frequently cover for each other in relation to days on which an employee is absent, sick or on holidays. Absentee rates in the industry are characteristically very high at about 15%. Where these situations occur, work is redistributed among the employees concerned and the work is readily taken up by the part time employees who thereby make more money without working more hours on a permanent basis. The current arrangements are easy to operate and are beneficial from the point of view of both employer and employee. However, they are likely to be drastically curtailed if the EROs come into force.
(d) Employers will have an obvious incentive to employ only full-time workers if the EROs are upheld. The administrative and management costs incurred by an employer will be significantly increased by the necessity more tightly to deploy labour by part-time employees to control costs. It is submitted that the necessity for a much more tightly regulated direction of how cleaning works are carried on will be unwelcome under the new EROs and onerous for employees and employers alike. The operation of the EROs are also likely to give rise to considerable frictions between workers, not least in disputed transfer of undertaking situations.
No affidavit in response has being filed on behalf of the respondent whose statement of opposition essentially consists of a blanket denial of all the contentions advanced by and on behalf of the applicants. It is contended that the said orders were made properly by the respondent pursuant to s. 48 of the Industrial Relations Act, 1990 and they both give effect to proposals set out in notices of proposals published on 15th April, 2003, as subsequently amended by the respondent pursuant to s. 48(5) of the Industrial Relations Act, 1990 and then re-submitted without further modification by the appropriate joint labour committee. It is further contended that the applicants were afforded every opportunity to make submissions on the re-submitted proposals. Great reliance is, however, placed by the respondent on the failure of the applicants to move promptly for judicial review and it is strongly submitted that delay, particularly in a case of this nature, is fatal to the applicants case.
Mr. Des Courtney, Assistant Branch Secretary of SIPTU, has sworn an affidavit on behalf of the notice party in which he states that 'almost uniquely amongst unionised employments' there is no provision for overtime payment in contract cleaning. It was therefore a longstanding concern when the notice party made its first application to the joint labour committee back in November 2001.
Mr. Courtney then recites his account of the history of the negotiations, including the contentions and submissions about suggested rates of overtime pay, before saying the following at par. 13 of his affidavit:-
"I say and am advised and so believe that the EROs do not give rise to inequality between full-time and part-time workers, but in fact address an inequality which would exist if overtime was paid only to full-time workers who work past the 39 hour week. The hours of part-time work are set by the employer and based on the shorter working week the part-time workers arrange and adjust their lives just as the full-time workers have arranged and adjusted their lives based on the 39 hour week. The fact that a part- time worker is contracted to work only 20 hours a week and in fact may for example work 22 hours, i.e. 2 hours overtime, does not make those two hours of overtime any less inconvenient to the part-time worker than the full-time worker, if a 39 hour week, works 41 hours, i.e. 2 hours overtime."
A further affidavit sworn by Mr. Jack Nash, National Industrial Secretary with the notice party, strongly takes issue with any suggestion that the employers had been deprived of a fair opportunity of arguing their case. Detailed submissions had been received from both sides on all issues raised in the objections and in particular on the manner in which the proceedings of the JLC were conducted at the relevant meetings.
In a further affidavit, Mr. Grogan deposed that in relation to overtime for part-time workers it was important to stress that in the contract cleaning industry the working week is from Monday to Saturday. The provisions of the EROs could thus be seen not merely as arbitrary and irrational, but capable of giving rise to a very significant increase in labour costs in the industry. A staff member who worked 15 hours at the current rate of 7.54 would receive 113.10. A staff member whose contracted hours are 10 and works 5 hours over time would however as a consequence of the ERO receive 131.95 on the basis of being paid time and a half. The effect therefore would be to increase labour costs by 16%.
In further arguing that the over time terminology in the order was vague and unclear, Mr. Grogan referred to correspondence between Messrs. A & L Goodbody and the Secretary of the Joint Labour Committee (contract cleaning) of the Labour Court seeking clarification of two possible interpretations of part V(i) of the ERO. He submitted that the Labour Court had failed to clarify precisely what was meant and had merely referred the matter back to the Joint Labour Committee who had drafted the overtime provision in question.
In an affidavit sworn on 3rd February 2004, Mr. Courtney further deposed that by virtue of the EROs, the contract cleaning industry was merely being brought in line with best modern practice. In his final affidavit, however, Mr. Grogan takes issue with this assertion, stating that there is no national practice of paying overtime to part- time workers who work over their agreed hours per week. Insofar as there could be said to an established norm, it would be that employers are paid overtime when they either work more hours in the week than the normal full-time working week or more hours in a day than the average full-time day. He contends that what SIPTU sought to bring about through the mechanism of the JLC and what it now seeks to uphold in these proceedings is an unprecedented and unique overtime regime for contract cleaning workers whereby part-time workers are to be paid overtime when they work more than their agreed part-time hours.
Delay
The ex parte application seeking leave to bring judicial review proceedings was only made to this court on the 15th of December, 2003. This was virtually a full 5 months after the making of the two Employment Regulation Orders by the respondent and more than 5 months after the applicants first threatened judicial review proceedings on 10th July, 2003.
This throws into sharp focus the question as to whether or not there has been such delay in this case as to altogether deprive the applicants of the remedy of judicial review.
Order 84, Rule 21(1) of the Rules of the Superior Courts provides:-
"21. (1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose, or six months where the relief sought is certiorari, unless the Court considers that there is good reason for extending the period within which the application shall be made."
It is well established that applications for leave must be made promptly, irrespective of the specific time limits set out in the rule (O'Reilly v. Mackman [1982] 2 A.C. 237 at 280 per Lord Diplock; de Rσiste v. Minister for Defence [2001] 1 IR 190 at 221 per Fennelly J.). In considering the identical wording of the English Rules, the Court of Appeal in R. v. Stratford-on-Avon D.C., ex parte Jackson [1985] 1 W.L.R. 1319 at 1322/3, Ackner L.J.) observed that
"The essential requirement of the rule is that the application must be made 'promptly'. The fact that an application has been made within three months from the date when the grounds for the application first arose does not necessarily mean that it has been made promptly. Thus there can well be cases where a court may have to consider whether or not to extend the time for making the application, even though the application has been made within the three month period."
In de Rσiste v. Minister for Defence, Fennelly J., in stressing that an applicant was bound to apply promptly, stated (at 221):-
"The judicial review time limit is not a limitation period. Prompt pursuit of a remedy is, however, a requirement of the judicial review application."
In Dekra Eireann Teoranta v. The Minister for the Environment and Local Government (Unreported, Supreme Court, 4th April, 2003) Denham J. stated
(at p. 16):-
"Thus, under Order 84, Rule 21(1) a judicial review application must be brought promptly and within a specified number of months. Whilst there is a discretion in the court to extend this time, there is also a discretion to refuse the application even within the months specified in the Rules of the Superior Courts. This is because judicial review is a process which must be brought promptly. If it is not so brought the court may determine that the justice of the case requires that the application be refused."
That particular case concerned a public service contract where the Minister had awarded a contract to one of several tenderers to operate a system for testing private cars in Ireland. It was a case to which Order 84A Rule 4 applied, a rule which specifically requires that the application be made 'at the earliest opportunity'. As was noted by the court, this rule was in accordance with European Union law, that decisions may be reviewed effectively and, in particular, as rapidly as possible. As the court noted:-
"There is a degree of urgency required in applications of this type".
In exercise of its discretion, the Supreme Court also placed on record that a court could take into account prejudice to the public generally or to the parties affected in the particular situation. Delay on the part of an applicant may be regarded as all the more serious when viewed in the context of the nature of the decision being challenged. This is particularly the case where public service contracts are concerned, particularly where they refer to major infrastructural projects where huge expense and inconvenience inevitably may be expected to arise where delay occurs.
This approach does no more than reflect a growing awareness of an overriding necessity to provide for some reasonable cut-off point for legal challenges to decisions and orders which have significant consequences for the public, or significant sections thereof. A recognition of the need for such a requirement is contained in many pieces of modern legislation which provide strict cut-off periods for challenges of this nature, including the Irish Takeover Panel Act, 1997 (seven days), the Illegal Immigrants (Trafficking) Act, 2000 (fourteen days) Compulsory Purchase Orders confirmed by the Minister for the Environment under s. 78(1) of the Housing Act, 1966 (three weeks), decisions of a planning authority or An Bord Pleanala (eight weeks), decisions of the Environmental Protection Agency under the Waste Management Act, 1996 (two months), orders of the Minister for the Environment and Local Government made under s. 49 or s. 51 of the Roads Act 1993 1998 (two months) and decisions of the E.P.A. under the Environmental Protection Agency Act, 1992 to grant or refuse licences (two months). The list is not exhaustive, but seems to me in any event to reflect a desire and awareness on the part of the legislature that legal challenges must be brought and disposed of promptly if certain legislation is to function effectively and, in many instances, comply with Ireland's obligations as a member state of the EU. In short, there must be some end to litigation.
I find it impossible to conceive of any lesser requirement for urgency in the case of an order made by the Labour Court which regulates the condition of employment, including overtime rates, for some 18,000 workers engaged in the contract cleaning sector.
In seeing, as I do, that the issue of delay is fundamental to my decision in this case, I feel I should highlight some pertinent facts in the history of this matter which preceded the making of the orders on 28th July, 2003.
Firstly, the applicants were represented by a professional organisation, IBEC, and had access to legal advice throughout the entire process in which they were engaged. The process had commenced as far back as February, 2002. There had been a meeting of the JLC on 1st April, 2003, the publication of proposals on 15th April, 2003, the making of further representations by the applicants prior to a further meeting of the JLC on 9th May, 2003, where the proposals were discussed, the subsequent consideration of those proposals by the Labour Court together with an opportunity to make submissions, which was availed of by the applicants, a meeting before the respondent on 16th June, 2003, the receipt of a further submission by and on behalf of the applicants on 19th June, 2003, a meeting of the respondent on 23rd June, 2003, a further proposal made by and on behalf of the applicants on 10th July, 2003, all prior to the decision of the Labour Court on the 18th July, 2003 to make the orders in question. This somewhat convoluted recital of events is perhaps a reflection of the tortuous and protracted discussions and negotiations which culminated in the making of the orders on the 28th. However, as and from the time of the decision to finally make the orders, the applicants could have been in no doubt whatsoever but that the same would become operative on the specified date and furthermore would affect many employers and thousands of employees who were not directly involved in this negotiation process. In this context, it is important to note that the notice party represents only 40% of employees working in the contract cleaning sector.
This Court and the Supreme Court declined to grant a stay on the operation of the order when the same was sought by the applicants, on the 19th of December, 2003 in the case of the High Court and in the month of January in the case of the Supreme Court.
That being so, the work practices of all sectors of the industry have been adapted to conform with the orders as and from 1st January, 2004, and it is not difficult to imagine the practical difficulties and frictions which may arise should the court at this late point intervene in what can only be described in essence as being a matter relating principally to the regulation of industrial relations, conditions and pay.
These may all be discretionary considerations, but in this case they are considerations of such strength as to require, at the very least, a full explanation which contains some very good reason for the failure of the applicants to move quickly.
On this aspect of the case, Mr. Callanan S.C., on behalf of the applicants, has argued that there was no 'wilful delay' where his clients were concerned, because they were making ongoing efforts to reverse the situation. Furthermore, the Labour Court had itself suggested recourse to the Director of Equality Investigations who, as already noted, ultimately declined jurisdiction on the basis that S. 86 of the 1998 Act was available to an 'employee only'.
I do not accept that this constitutes any sort of legitimate excuse for the applicants. A mistaken apprehension of the law, or reliance on some other procedures to bring about the relief sought could never justify in the case of these applicants a failure to act promptly. This Court also held in Sloan v. An Bord Pleanala (unreported judgment delivered 7th March 2003) that the failure to act promptly because the applicants were hoping that the outcome of other proceedings would yield the desired outcome was fatal to the applicants claim on grounds of delay. In the instant case the applicants did not in the events which transpired await the Director's refusal to adjudicate before moving the leave application, so that that supposed reason for delay is unimpressive.
The applicants had in addition further arguments to advance other than ones relating to alleged gender discrimination. In these proceedings, they seek relief on a variety of other grounds, including the alleged irrationality and unreasonableness of the Labour Court in making orders which the applicants submit discriminate as between full-time and part-time workers. Those 'non-gender' contentions were fully adumbrated and rehearsed at both the joint labour committee and the Labour Court in the period prior to 28th July, 2003. There were clearly identifiable grounds for bringing judicial review proceedings at once thereafter if the applicants were so minded and if such was the advice given to them by their legal advisors. Instead, it appears that all eggs were put in one basket in the form of a reference to the Director of Equality Investigations whose remit, even if he took a different view of his functions under s.86, could never have included all the matters raised by the applicants in these proceedings.
While the factual matrix of any given case may persuade a court to adopt an approach which is more strict or more lenient, the facts of this case overwhelmingly point to the requirement to adopt an extremely strict approach. That requirement is all the greater when multiple other parties are affected, as in the instant case. Even where the interests of only one or two individuals are affected, precedent may be found for applying exacting standards to move expeditiously. In State (Cussen) v. Brennan [1981] I.R. 181 an applicant doctor had applied for a consultant paediatrician post, but had lost out to another candidate. Henchy J. stated, at p. 196:-
"Once the prosecutor had been informed by the letter of 19th October, 1978, that he would not be allowed to undergo the oral Irish test, he must have known that he would not be recommended by the Commissioners for appointment to this office. If he was in any doubt about the matter, it was dispelled when on 25th January, 1979, his solicitors were told formally that Dr. Kearney had been recommended for the appointment. From that date (if not from 19th October, 1978) it behoved the prosecutor to move with dispatch to have the Commissioners' recommendation undone. Yet, it was not until 21st May, 1979 some four months later that he applied for and obtained conditional orders of certiorari and mandamus. In my view that delay is fatal to his case."
In R. v. Herrod [1976] Q.B. 540 Lord Denning M.R. said at p. 557 of the report:-
'If a person comes to the High Court seeking certiorari to quash the decision of the Crown Court or any other inferior tribunal for that matter he should act promptly and before the other party has taken any step on the faith of the decision. Else he may find that the High Court will refuse him a remedy. If he has been guilty of any delay at all, it is for him to get over it and not for the other side.' .
What particular period of inactivity will debar a person from getting an order such as mandamus or certiorari will depend on the circumstances of the case. I have no doubt that in this case it would be unjust to grant either mandamus or certiorari."
It seems to me that all of the foregoing observations apply with even greater force where those affected by the delay in seeking judicial review may be numbered in thousands. I therefore hold that the delay in moving the judicial review application in this case is fatal to the applicants' case.
Remaining Matters
In many cases where what might be described as a preliminary issue proves determinative, the court will nonetheless proceed to deal with the remaining issues lest an appellate court take a different view in respect of such preliminary ruling. However, I do not see the instant case as falling into that category given my view that the question of delay is of central importance in this case and not merely an incidental issue. I think it would be unwise to make any other findings against that background. Should, however, the applicants wish to appeal this decision, it is open to them to apply for an early hearing date in the Supreme Court in much the same way as the application brought on their behalf for a stay on the operation of the two employment regulation orders.