In the judgment delivered on 9 May 2013 in the McGowan case, the Supreme Court held that Part III of the Industrial Relations Act 1946 was invalid having regard to Article 15.2.1 of the Constitution. That Article provides, in effect, that the exclusive power to make laws is vested in the Oireachtas. The Supreme Court took the view that REAs were instruments having the status of laws made by private individuals. While the Constitution allows for the limited delegation of law making functions, the provisions of the 1946 Act went beyond what is permissible under the Constitution.
The effect of this decision was to invalidate the registration of employment agreements previously registered under Part III of the 1946 Act. As a result, all such agreements no longer have any application beyond the subscribing parties and are not enforceable in law.
However, existing contractual rights of workers in sectors covered by REAs were unaffected by the ruling. Contractual rights can be altered only by agreement between the parties involved.
The striking down of the REAs means that new employees in these sectors can be hired at a rate agreeable between workers and their employers. This is subject only to the provisions of the National Minimum Wage Act, 2000.
My Department has been working closely with the Attorney General and external Counsel on developing a framework to address the ruling and to provide for a revised legislative framework, which will be fully informed by the Supreme Court judgment and constitutionally robust.
I intend to bring Heads of Bill to Government for approval in the coming weeks.