Thursday, 12 July 2012
Industrial Relations (Amendment)(No. 3) Bill 2011: Committee Stage
Richard Bruton (Minister, Department of Jobs, Enterprise and Innovation; Dublin North Central, Fine Gael)
I ask the Senator to look again at what is happening. The structure being put in place by the new construction is that the JLCs consider an issue and then come forward with a set of recommendations, which then go to the Labour Court for adoption. The Labour Court adopts them. It is the Minister who makes the order. The court made it very clear that when a Minister is making such an order it cannot be just by way of a rubber stamp, there has to be a genuine element of democratic oversight of this process so that the Minister has this unfettered consideration of the proposals as adopted by the Labour Court and can reject them or otherwise and then brings that order to the Houses for adoption. The Oireachtas has the right within 21 days to reject it. The court was very clear in its judgment; it referred to the fact there was neither ministerial nor Oireachtas oversight. We are inserting that necessary ministerial oversight link in the chain to make this robust. It is clear that this cannot just be a question of rubber-stamping, it must be a genuine capacity of the Minister, representing the Government, bringing an order to the Oireachtas which, in turn, has genuine capacity to consider it. That element is important to reconstitute a constitutionally sound system.
I refer to the parallel of the High Court making a judgment and the Minister overturning it. What is happening here is the Labour Court is adopting a set of proposals put together by a joint labour committee and bringing them forward to the Minister, having vetted the way it was done, for the Minister to make an order. I am not setting up all this elaborate machinery to try to pull the mat from under it. That is not my intention but I have very strong legal advice from the Attorney General that to make this robust and prevent it from being pulled apart, we must proceed in this sequence.
The drafting, which I agree on the face of it seems to give the Minister unfettered discretion, is done in this manner because we must reconstitute a proper system of democratic oversight. I refer the Senator to the High Court judgment in which Mr. Justice Feeney recalled an earlier Supreme Court case where the matter of delegated legislation had been addressed in Burke v. the Minister for Labour. He cited the observations made in the Supreme Court by Mr. Justice Henchy in 1979 who identified the absoluteness of the delegation within the 1946 Act.
In his High Court ruling last year, Mr. Justice Feeney contrasted the failure to amend the provisions of the Act of 1946, notwithstanding the concerns raised by Mr. Justice Henchy more than 30 years ago in the Supreme Court about the untrammelled powers given to JLCs, with the provisions that had been incorporated in the National Minimum Wage Act 2000. Under that Act, the Labour Court's role is subject to guidance to the principles and policies that must apply to the determination of the minimum hourly rate. The Act also specifically empowered the Minister to accept, vary or reject the recommendations made by the Labour Court. In varying the power or rejecting any such recommendation by the Labour Court on the fixing of an hourly minimum wage, the Minister must make a statement to the Oireachtas setting out the reasons for same. If I were to reject the work of the Labour Court, I must set out my reasons in writing to the Labour Court.
The judgment referred to above and the rationale used and adopted regarding the national minimum wage necessitate this link in the chain to make the process robust from legal challenge. The purpose here is to ensure these protections for vulnerable workers are not struck down in future; it is not to create any untrammelled power for the Minister. I categorically assure the House there was no question of caving in to any lobby in this respect. This is necessitated by the design of a robust system by the legal adviser to the Government.