High Court of Ireland Decisions

1. This Judicial Review arises in the following circumstances. On the 24th of September, 1990 the Labour Court registered an agreement headed “Electrical Contracting Industry Employment Agreement made between the Electrical Contractors Association and the Association of Electrical Contractors (Ireland) under Section 27 of the Industrial Relations Act 1946 (the 1946 Act)” the Agreement qualified as an employment agreement as defined by Section 25 of the 1946 Act being “an agreement relating to the remuneration or conditions of employment of workers of any class type or group made between a trade union of workers and an employer or trade union of employers.” The rest of the definition does not apply.

2. Among the consequences of an employment agreement being registered under Section 30 are:-

3. A further consequence of registration is that under Section 51 of the Industrial Relations Act 1990 an employer to whom a registered employment agreement applies, must keep records to show the agreement is complied with and keep those records for three years. It is an offence to fail to comply and an employer is liable on summary conviction to a fine not exceeding £500.

4. It is open to any person to apply under Section 33(1) of the 1946 Act to the Labour Court for a decision on any question as to the interpretation of a registered employment agreement or its application to any person. The agreement registered on the 24th of September, 1990 replaced a registered agreement registered on the 9th of January, 1989 which was cancelled on the 24th of February, 1990 because it did not have a variation clause. The new 1990 agreement preserves the definition of "scope" in the 1989 agreement. Under the heading “scope” in the 1990 agreement it is provided “This agreement will apply to all electricians who are employed in the general electrical contracting industry and to their employers and to all electrical contractors engaged in the industry. An electrical contractor is defined as the proprietor of a business whose main activity is the performance of electrical work on a contract or a sub contract basis for any third party."

5. Electrical work is defined technically at length as one might expect. Lastly it is provided “This agreement will not apply to employers in state and semi state companies who are engaged in similar activities and are covered by other agreements. Neither will it apply to electricians and apprentices employed directly by manufacturing companies for the maintenance of those companies plants.”

6. It then sets out the standards as follows:-

7. The Applicant, Serco Services Ireland Limited, is a limited liability company whose business is facilities management described by Mr. Foran, the Managing Director, as the task management of a wide range of technical and support services within a single contract. The services provided to clients include a combination of:-

8. Catering, cleaning, courier services, estate management, ground maintenance, health and safety services, hospital support services, landscape design, mechanical and electrical maintenance, porterage services, reception services, quality assurance services, quantity surveying, reprographic services and security services. It is a wholly owned subsidiary of Serco International SV which Mr. Foran says is the leading task management contractor of engineering and support services to governments and industry worldwide. The Applicant employs 216 people in Ireland and Northern Ireland of various disciplines. It employs 34 electricians on a full time basis who operate mainly from a fixed customer location. Between 8 and 10 are engaged on maintenance work on traffic signals on foot of a traffic signals maintenance contract with Dublin Corporation. Three electricians are engaged in the GPO under contract with An Post. It has a facilities management contract with IBM for the management of its facility at Blanchardstown under which 110 employees are engaged, 21 of whom are electricians. The percentage of the Applicant's turnover derived from electrical work is between 15% and 20%. It is registered with RECI (Register of Electrical Contractors of Ireland) as an associate because it was a requirement of the ESB in respect of electrical work carried out under the contract for maintenance of traffic signals for Dublin Corporation. Mr. Foran says the Applicant is not an electrical contractor nor is it engaged in the general electrical contracting industry.

9. Following its establishment in Ireland under a different name the Applicant, following discussions with the electrical trade union (now TEEU, the first notice party) reached an agreement on the 20th of July, 1989 concerning recognition and procedures. This post-dated the 1989 registered employment agreement. The union was recognised under the Applicant's agreement as the exclusive representative with respect to conditions of employment for employees in Appendix A (i.e. senior technicians and technicians). These are all electricians. The agreement (pages 3 to 12) is concerned with procedures including disciplinary procedures and facilities for trade union representation. The duration of the agreement is until altered or terminated by mutual agreement or three months notice from either party. Appendix B sets out the main terms and conditions of employment. These cover standard working hours, annual salary, overtime rates, after hour calls, call out, public holidays, annual holidays, life insurance, absence from work, sick pay and driving licence.

10. It provides a different type of terms and conditions of employment compared to the Registered Employment Agreement.

11. Mr. Lawless of TEEU wrote to Mr. Foran on the 26th of July, 1997 to say certain employees of the Applicant doing electrical work were not members of his union. He said that since the Applicant was engaged in electrical contracting by definition he was legally bound by the NJIC (National Joint Industrial Council) Agreement i.e. the 1990 Registered Agreement. He called on him to observe clause 1.2 of their own agreement with the Applicant (i.e. the agreement of the 20th of July, 1989).

12. Mr. Foran replied on the 29th of July, 1997 saying he would welcome the opportunity to meet and discuss the contents in more detail. He went on to deal with the Serco/TEEU Agreement.

13. The next letter from Mr. Lawless is dated the 19th of January, 1999 referring to rates of pay under the contracts of employment in traffic signals and maintenance and said it was clear they were less than the NJIC rates. He said as far as they were concerned the company (Serco Services Ireland Limited) was bound by the NJIC agreement.

14. Mr. Foran claims the agreement never applied to the Applicant as it was not engaged in the “general electrical contracting industry”. The Applicant was not an electrical contractor as defined in the 1990 Agreement. The Applicant was never the owner of a business whose main activity was the performance of electrical work on a contract or sub- contract basis for any third party.

15. Mr. Lawless then asked at a public hearing in the Labour Court on the 16th of February, 1999 to have the second paragraph of the “scope” section amended to avoid misinterpretation.

16. Notification of the application for variation of the agreement was printed in the national papers and Iris Oifigiuil on Friday the 21st of May, 2000. The notice is headed “Industrial Relations Act 1946 to 1990 Electrical Contracting Industry.

17. Application for variation of registered employment agreement.

18. The Labour Court hereby gives notice that it has received an application for the variation of the above registered employment agreement relating to workers employed by companies operating in the electrical contracting industry. The application seeks to extend the scope of the agreement. Details may be obtained from the Registered Agreements Section, The Labour Court at the address stated below. The Court will sit at its offices, Tom Johnson House, Addington Road, Dublin 4 on Friday the 18th of June, 1999 at 10 a.m. to consider the application and will hear any persons appearing to the Court to be interested and desiring to be heard.

19. Attention is called to the fact that if the Court makes an Order varying the agreement the employer of any worker to whom the agreement relates will be bound to grant that worker wages and conditions of employment not less favoured than those specified in the agreement whether or not such employer or worker is a party to the agreement.

20. Signed the Labour Court and its address and dated the 21st of May, 1999." There is a further note concerning where enquiries should be directed.

21. The application prepared by the Registered Agreement Section for the Court hearing on the 18th of June, 1999 recites the application to have the second paragraph of the Scope section amended to avoid misinterpretation. The two wordings are set out. It is recited that the three signatory parties (TEEU and the two employer unions) agree that the amended text would more clearly express the intent of the paragraph. It is stated that the agreement was examined by the registered agreement Section in consultation with the Registrar and appeared to be in order. It recites that notification of the application for variation was printed on the 21st of May, 1999 and no representations were received to date (i.e. 15th of June, 1999) by Marion O’Connell of the Registered Agreement Section.

22. A note of the hearing at the Labour Court records that at the hearing on Friday the 18th of June, 1999 to vary the scope of the registered employment agreement the union side explained that at the previous hearing held on the 16th of February, 1999 to vary the rates of pay, they had sought also to amend the agreement to remove any possible ambiguity that existed in the scope of the agreement. The Court decided at the time that another hearing was required and this was arranged for the 18th of June, 1999. Notification of the hearing was published in the daily papers but no objections were received. It was agreed by the Court to vary the Scope as in the schedule attached. A list of attendees was also attached and this is signed by Marion O’Connell on the 12th of August, 1999.

23. Notice of the making of the Order was published on the 29th of June, 1999. It states

24. The amendment substituted for the second paragraph in the scope section of the 1999 Registered Agreement reads as follows

25. Following the amendment of the scope section Mr. Lawless presented Mr. Foran with the amended registered agreement with effect from the 13th of July, 1999 at a meeting held on the 1st of October, 1999. He told him he was bound by the terms of the agreement. Mr. Foran said he explained at a further meeting on the 2nd of November, 1999 why the registered agreement was completely inappropriate for the business carried on by the Applicant.

26. After further correspondence the Applicant received a letter from the Labour Court dated the 28th of January, 2000 saying a complaint had been made under Section 32 that the Applicant refused to implement the terms of the agreement and claimed not to be bound by it. The Applicant was given four weeks to submit evidence that it was either an employer to whom the agreement did not apply or that it had implemented the terms of the agreement. After correspondence in which the Applicant sought confirmation that the Labour Court would not proceed with the complaint, the Labour Court ultimately wrote on the 22nd of March, 2000 to say the Court would allot a hearing date for the complaint. Evidence could be given by both parties as to whether or not the Applicant was covered by the terms of the agreement. The Court would then issue its determination.

27. The Applicant applied for Judicial Review on the 3rd of April, 2000 seeking the following relief in summary:-

28. The Applicant’s case is:-

29. The Labour Court did not choose to engage in the Court proceedings. The second notice party did not take part. And the third notice party (the employers union) supported the first notice party, the TEEU.

30. The notice party TEEU submitted :-

31. The first thing I have to decide is whether to exercise my discretion under Section 33(3) of the 1946 Act. This provides:-

32. In this case the Labour Court has not sought to take any part in the proceedings and has left it to the Applicant and the notice parties to argue the issues involved. In fact only the TEEU has made the running supported by the Affidavit sworn on behalf of the third notice party.

33. In those circumstances I do not consider it proper to refer to the Labour Court for interpretation of the two registered agreements or its application to the Applicant. I consider that it is proper for this Court to interpret the two agreements the 1990 and the variation of June 1999. The documents must be interpreted according to the ordinary meaning of the words.

34. The first question is whether there is a difference in meaning between the two versions (1990 and 1999) which cannot be described as mere clarification.

35. The first difference in the addition of “charge hands, foremen and apprentices” after “electricians”. I have no problem in accepting this as a clarification as all these additional categories were mentioned in the 1990 agreement and provision was made for them.

36. The next difference is changing the phrase which qualifies electricians from “who are engaged in the general electrical contracting industry” to “who are engaged in electrical contracting work” which is defined in the next paragraph as “the performance of electrical work on a contractual or sub contractual basis for any third party”.

37. In my view an electrician who is described as performing electrical work on a contractual or sub contractual basis for a third party is in a much wider category of worker than an electrician who is engaged in the general electrical contracting industry. If the description of worker is changed and widened then the class of employers is also widened.

38. The next change was to delete after “all electrical contractors” the phrase “engaged in the industry” as well as the sentence defining an electrical contractor as the proprietor of a business whose main activity is the performance of electrical work on a contract or sub contract basis for any third party. Instead the second paragraph provides “In the case of a business which supplies electrical work on a contractual or sub contractual basis but where this is not the main activity of that business, the terms of this agreement shall apply to the appropriate personnel involved in the electrical work of that business.

39. The effect of these changes is to include all electrical contractors whether engaged in the industry or not and regardless of whether the main activity of their business was the supply of electrical work or not. Therefore it widened the category of employer to include electrical contractors who were not engaged in the general electrical contracting industry but who supplied electrical work on a contractual basis to a third party and it included electrical contractors whose main activity was not the supply of electrical work on a contract basis for a third party, who had previous being excluded by definition.

40. Therefore in my opinion the variation widened the scope of the agreement to include workers who were not previously included, thereby widening the category of employers, and it widened the category of employers, thereby including workers who were not previously included.

41. This was contrary to the express provision in Section 28 which gives the Court jurisdiction to vary the application of a registered agreement in its application to any worker or workers to whom it applies. This is not an error of law within jurisdiction. It goes to the root of its jurisdiction. It also means Section 17 does not apply. This Section precludes appeals on matters within jurisdiction. However as it is not a decision in exercise of a jurisdiction conferred by the Act this Section does not apply (see Brannigan -v- Keady 1959 I.R. 283).

42. I cannot view the Order varying the agreement as including by implication an interpretation by the Labour Court under Section 33 as to the meaning of the agreement. There is nothing to show the Court exercised this jurisdiction.

43. The next question is whether the Applicant was outside the 1990 registered agreement. In my view it was

44. In support of the view that the 1990 agreement did not apply, there was no allegation by the union that the 1990 agreement applied until 1997 but nothing came of this. Mr. Lawless for TEEU made another claim in January 1999. He did not choose to have the intrepretation of the 1990 agreement clarified and whether the agreement as drafted in 1990 applied to the Applicant, decided by the Labour Court under Section 33. So in spite of the very severe consequences for the Applicant with regard to enforcement if the agreement applied, the TEEU, who had an exclusivity agreement with the Applicant made no effort to enforce it.

45. A reading of the two agreements, the registered one of 1990 and the Applicants one with TEEU of 1989, shows that the type of work arrangements and workers remuneration and working conditions are radically different to those pertaining to the Applicant’s employees.

46. With regard to natural and constitutional justice and fair procedures I cannot help feeling that a certain amount of confusion crept in because the Section which was being amended was headed “scope”. If the variation had genuinely being a restatement of the categories of workers without any enlargement I do not think it would have been a fatal flaw to describe the variation as amending the scope meaning the Section marked scope rather than actually widening the scope of the agreement.

47. Since the Labour Court acted ultra vires I do not feel it necessary to go into detail about the adequacy of the notice or the failure to apply natural or constitutional justice and fair procedures. The question of whether the Labour Court should have considered the provisions under Section 27 when exercising its jurisdiction under Section 28 does not arise.