Gerald Nash (Louth, Labour) | Oireachtas source

I move amendment No. 20:

In page 30, after line 23, to insert the following:“Making of establishment orders

40. The Act of 1946 is amended by the substitution of the following section for section 39:

“39. (1) Where the Court has held, in pursuance of section 38 of this Act, an inquiry into an application for an establishment order, the Court may, subject to section 37 of this Act, if it is satisfied that to do so would promote harmonious industrial relations between workers and employers and assist in the avoidance of industrial unrest, make a recommendation to the Minister in either the terms of the draft establishment order prepared in accordance with section 38 or with such modifications of those terms as it considers necessary.

(2) Where the Court makes a recommendation under subsection (1), it shall forward a copy of the recommendation to the Minister.

(3) As soon as practicable after receipt of a copy of a recommendation under subsection (2), the Minister shall, where he or she is satisfied that subsection (1) has been complied with, and where he or she considers it appropriate to do so, make an order in the terms of the recommendation.

(4) Where the Minister is not satisfied that subsection (1) has been complied with, or where he or she considers that it is not appropriate to make an order in the terms of the recommendation, he or she shall—

(a) refuse to make an order in the terms of the recommendation, and

(b) notify the Court in writing of his or her decision and the reasons for the decision.

(5) An order under subsection (3) may contain such incidental, supplementary and consequential provisions as the Minister considers necessary or expedient for the purposes of the order including, where the order abolishes a joint labour committee pursuant to a recommendation of the Court, the revocation of an employment regulation order made pursuant to proposals made by the joint labour committee concerned.

(6) Every order under subsection (3) shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either such House within the next 21 days on which that House has sat after the order is laid before it, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.”.”.

Amendments Nos. 20 and 21 provide for necessary amendments to the Industrial Relations Act 1946 to address a potential weakness in the provisions dealing with the establishment of new joint labour committees, JLCs, under section 39, and their variation or cancellation under section 40. Sections 39 and 40 of the Industrial Relations Act 1946 provide for the making of orders by the Labour Court for the establishment of new JLCs or of orders providing for their revocation and variation.

However, section 41A of the Industrial Relations Act 1946, inserted by section 11 of the Industrial Relations (Amendment) Act 2012, amended certain sections of the 1946 Act and provided that reviews of each 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. These amendments were informed by the decision in the High Court ruling in the John Grace Fried Chicken constitutional challenge. Section 41A sets down the specific criteria to which the Labour Court is required to have regard when carrying out the independent review.

The outcome of such a review informs the Labour Court as to whether any JLC should be abolished, maintained in its current form, amalgamated with another JLC or have its establishment order amended. The Labour Court then makes recommendations to the Minister and, if satisfied that the correct procedures have been followed and the Minister considers it appropriate to do so, he or she will make an order in the terms of the recommendation.

There is no doubt but that having two distinct legal avenues with regard to establishment orders is, at best, confusing and, at worst, raises the question as to whether a future JLC established or broadened in scope under sections 39 and 40 of the Industrial Relations Act 1946 would be reasonably sound if challenged.

Accordingly, this amendment to the 1946 Act addresses this anomaly. It provides for amendments to sections 39 and 40 of the Act to provide that, instead of the Labour Court making an order establishing a JLC or revoking or varying an establishment order, it will submit a recommendation to the Minister on the issue, who, if satisfied that the provisions of the Act have been complied with by the court and he or she considers it appropriate to do so, will make an order in terms of the recommendation. If the Minister is not satisfied, or does not consider it appropriate to do so, he or she will refuse to make the order and inform the court in writing of the decision and reasons therefor.

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