In a landmark decision Mr. Justice Kevin Feeney ruled that the Joint Labour Committees’ (JLC) system of setting minimum pay and conditions by way of Employment Regulation Orders (EROs) is unconstitutional as of the 7th July 2011. EROs were statutory instruments for setting minimum pay and conditions (including overtime rates and premium rates for night/weekend work) in certain sectors (security, catering, cleaning, hotels, hairdressing, supermarkets etc…). The government now has the huge task of overhauling the Joint Labour Committees (JLC) so that they are modernised to reflect the changing environment and business requirements whilst falling in line with relevant legislation.
One of the most fundamental aspects of this ruling is the fact that employers are no longer obliged to comply with any EROs when offering terms and conditions to new employees as of the 7th July 2011. The pay and conditions of employees who start work after 7 July 2011 are governed by existing statutory legislation such as the Organisation of Working Time Act 1997 and Minimum Notice and Terms of Employment Act 1973 to 2005 to name just a few.
While there is a much needed overhaul of the JLC/ERO system, the SII (Security Institute of Ireland) has sought to propose and arrange a temporary Registered Employment Agreement (REA). For the most part, the temporary REA would have the same terms and conditions as the previous Security ERO but would differ on pay from the 07th July 2011.
The security industry has been divided on the issue of a temporary REA. The vast majority believe it enables a sense of stability and assuredness until the JLC system makes its return. They essentially want to retain the status quo with existing working agreements, with existing terms in relation to pay and conditions remaining in place. These established security companies in Ireland will have had employees working for them for a number of years. As these employees were in receipt of ERO terms pre-July 2011 then their employers must continue to honour the terms of the ERO given they make up the employees terms and conditions which cannot be unilaterally changed by either party.
On the other hand, the agreement has been subject to 26 separate objections in respect of the new Security REA. It is understood that a date in April for a public hearing to discuss the matter is under consideration.
A new addition to the REA (certainly for the contract cleaning sector) is the necessity to establish a Joint Industrial Council (JIC) as well as a disputes procedure. The disputes procedure is similar to the one agreed last year for a new REA at the overhead powerline contracting sector. It ensures any issues not resolved locally are referred to the LRC or Rights Commissioner and from there to the Labour Court. No employees can take industrial action until after the rejection of a Labour Court recommendation and then only after 14 days’ written notice is given to the employer by the union. Alternatively, if a dispute arises within an enterprise, the dispute may be referred to the JIC for binding arbitration with the agreement of the parties. There are 14 members on the contract cleaning JIC, as well as a chairperson, seven from the employers and seven from SIPTU. 20 of the 26 objectors have also written to both the Labour Court and the Chief State Solicitor, saying that if the Labour Court registers the proposed security REA, they will mount a High Court challenge to its registration, on the basis that new legislation is on the way and that several other court challenges to the old legislation are pending still.
The contract cleaning REA consists of the same pay and working conditions that have been in place as a result of the old ERO. One of the only differences in the contract cleaning REA is the clarification to cover the cleaning of ‘apartment buildings’ as well as the old definition which covered the “interior of offices, shops, hospitals, factories, stores and other similar establishment’s. Exterior structural cleaning was always excluded and remains so.
Conclusion
So while the Government continue to push ahead with the Industrial Relations Amendment Bill 2011, it is clear that the fallout from the High Court case in July 2011 continues to take place. The Bill has completed Second Stage in the Dáil and is currently awaiting Committee Stage. It is easy to sit on the fence and see the pros and cons of having registered agreements in place governing pay and conditions for an entire sector, however, for those employers caught up in the middle of such changing times for such registered agreement, it is even easier to sympathise with them. Hopefully, in the coming months we will have some assurances with regard to collective agreements and where employers and employees will stand going forward. All we can do is hope that the many submissions on the topic are being adhered to and taken on board to prevent such circumstances occurring again in the future. The legislation should be in place to protect both employees and employers, but only time will tell…
