By Michelle O’Riordan, Solicitor, Employment and Pensions Unit
On 7th July 2011 the High Court ruled that certain provisions of the Industrial Relations Acts 1946 and 1990 (the “Industrial Relations Acts”) and the Employment Regulation Order (“ERO”) made on 12th May 2008 (SI 142 of 2008), which set certain minimum terms and conditions (including pay) for catering workers outside the County Borough of Dublin and the Borough of Dun Laoghaire, were unconstitutional.
In giving the ruling Mr. Justice Feeney stated: “Where the consequences are an ERO which is to place an obligation on an employer to apply particular wage rates and conditions of employment which can be enforced by criminal sanction, those rates and conditions must be determined and based upon principles and policies laid down by the Oireachtas and not as determined by a delegated body acting in the absence of stated principles and policies.”
He found that no such principles or policies were in place and that the ERO in question was therefore arbitrary and subjective.
However, the practical application of this ruling may be somewhat limited for employers. Where existing employees are engaged on terms and conditions set down by an ERO, their consent should still be obtained to any change to those terms and conditions. The Government has signalled that it does not intend appealing the decision. If that is the case and while there are no interim measures put in place by the Government, there will be more flexibility for employers hiring new employees who will not now be subject to the EROs.
For more information about this ruling and its implications, please contact Michelle O’Riordan of our Employment and Pensions Unit.