Willie O'Dea (Limerick City, Fianna Fail)

I tabled a similar amendment on ERAs, amendment No. 22.

To add to what has been said, one of the reasons the JLC system was struck down by the High Court in John Grace Fried Chicken Ltd & Ors v. Catering JLC & Ors was that the committee was acting on its own without proper supervision and there was no set of principles to govern the decisions the committee had to make. We have set out the principles - that part is okay. I suggested, in a Bill I produced last year, that there should be general oversight by the Minister and by both Houses of the Oireachtas in that at least the ERA should be laid before both Houses of the Oireachtas and if nobody objected with 21 days, it should proceed to take effect.

What I had in mind here is general oversight by the Minister, not giving carte blanche to the Minister. There are many criteria about which the Labour Court must be satisfied before it recommends the adoption of either an REA or an ERA. That is set out. The Labour Court is the expert in this area. It is dealing with this on a constant basis. They know their business.

Nevertheless, the first part of the section provides that the Minister must be satisfied that the Labour Court has done all of these things and considered all of these matters properly, and that is fine. That gives a strict supervisory power to the Minister.

If someone objects to a proposed employment regulation order or registered employment agreement on the basis that the Labour Court acted wrongfully or failed to carry out a certain procedure or take proper account of certain matters, it can be brought to the attention of the Minister or Department that the Minister is entitled to send the proposal to the Labour Court. The Minister need only state that he or she concurs with the objection and will not accept the decision until the court acts properly in the matter. This provision is fine and adequately meets the requirements of the court case. However, the Bill also provides two further grounds on which the Minister may reject a proposal from the Labour Court for an ERO or REA. First, the Minister must be satisfied that subsections (1) to (5), inclusive, have been complied with. This means he or she is obliged to reject a proposal if he or she is not satisfied the court has done its business properly, both in terms of procedure and in respect of the matters it must take into account. The second ground on which the Minister may reject the application is where he or she considers that it is not appropriate to confirm the application. This provision gives carte blanche or total power to the Minister to decide at any stage that, notwithstanding that the Labour Court has acted properly and the workers in question need protection, it is not appropriate to accept the proposal.

The employment regulation orders must be regularly reviewed. The same criteria allowing the Minister to reject a proposal apply in respect of submissions to renew an ERO. This means the Minister may refuse to renew an order if he or she considers that proper procedures have not been followed or the Labour Court did not act in the manner prescribed. However, he or she may also decide to terminate the ERO forthwith on the basis that he or she considers it appropriate to do so. A fig leaf has been provided to the extent that the Minister must, when refusing a proposal on the basis that he or she considers it appropriate to do so, provide the Labour Court with his or her reasons for doing so. The text does not elaborate on the level of detail that must be provided in giving such reasons. This calls to mind the constant refrain one hears from the Director of Public Prosecutions when giving reasons for the failure to initiate prosecutions, namely, that the evidence available was not sufficient to secure a conviction. One of the provisions of the famous Stalinist constitution of 1934, which afforded citizens all sorts of rights on paper, was to require that military tribunals had to state reasons for executing people. The tribunals subsequently gave the same reason for every execution, namely, that the executed person was guilty. A secret trial lasting for all of half an hour would be held, after which the person would be taken outside and shot in the back of the head, and the reason given would be that he or she was guilty.

This legislation gives this and any future Minister carte blanche to terminate at will a registered employment agreement or, more seriously, an employment regulation order simply because he or she considers it appropriate to do so. This is not what was envisaged when the Duffy Walsh review group suggested changes to the position obtaining at that time because it was conscious of legal difficulties with it. As any fair reading of the High Court decision would show, this provision is not necessary. It is appropriate and probably necessary to grant a general supervisory power to the Minister to cure the constitutional defect in the legislation. However, for the Minister to include in the legislation an excuse to exercise absolute power to refuse to accept an ERO on a whim is not one but several steps too far. This provision is unacceptable and removes from workers at the lower end of the pay scale who are not unionised or properly represented the entire protection which has been in place since 1946. It will hang like the sword of Damocles over all future EROs and, for that matter, the entire employment regulation system, which can be terminated at will by a Minister taking a decision not to proceed with an order because he does not believe it is appropriate.

See this speech in context