Tuesday, 14 July 2020

Questions (13)

Louise O'Reilly


13. Deputy Louise O'Reilly asked the Tánaiste and Minister for Business, Enterprise and Innovation if his attention has been drawn to the recent decision of the courts to strike down the sectoral employment order in place for electrical workers; and if he will bring forward legislation to support and reinforce the SEO and strengthen it from further attacks of this nature. [15876/20]

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Oral answers (7 contributions) (Question to Business)

Deputy O'Reilly has 30 seconds to introduce her question.

I am sorry. I had forgotten I had 30 seconds to introduce. Gabhaim buíochas leis an gCathaoirleach Gníomhach. My question is fairly simple. It relates to the decision of the courts to strike down sectoral employment orders. I would be grateful if an Tánaiste would focus specifically on the measures he and his Department intend to take to shore up the rights of workers which, in the view of the ICTU and other organisations, have been undermined and damaged by the court's decision.

I thank Deputy O’Reilly for this important and timely question. I congratulate her on her appointment as Sinn Féin spokesperson for enterprise trade and employment. I look forward to tangling with her for the next two and a half years.

In June, the High Court found that SI 251/2019 was made outside of the powers of the Industrial Relations (Amendment) Act 2015. It was also found that the legislative framework governing the sectoral employment process is unconstitutional. In the judge’s ruling, it is explained that this is because of the manner in which the process is delegated to bodies outside of these Houses and the lack of clear guidance regarding how to balance competing interests in drawing up sectoral employment orders. SI 251/2019 applied to the electrical contracting sector.

As set out in the House on Thursday, 9 July, following a discussion with the Minister of State, Deputy English, and consultation with the Attorney General, it was decided to appeal that judgment. Once the orders which must be completed by the High Court for this ruling to be given legal effect have been perfected, an appeal will be lodged in the Court of Appeal and the Supreme Court at the same time with a view to a leapfrog appeal directly to the Supreme Court. I appraised the Government of this matter at its meeting yesterday.

This is an area of legislation which has proven to be very litigious in the past 15 years, with significant constitutional issues being called into question. The Industrial Relations (Amendment) Act 2015 was major legislation brought through by the last Government which sought to deal with those issues. We must now await the outcome of the appeal to understand where to go next with respect to this issue and before we commit to any further legislation.

The existing terms, conditions and contracts of employees in this sector stand. They cannot be unilaterally changed by employers. The situation is different for new entrants or for those changing employer but the terms, conditions and pay of those with existing contracts with their employers stand and cannot be reduced unilaterally by employers.

That is exactly what was said when the last Fianna Fáil Government cut the minimum wage. We were told the wages of people in employment would be protected but they were not. I have absolutely no faith that, in the absence of sectoral employment orders, employers will act in the manner the Tánaiste very kindly suggested they might. I am very pleased to see that the Government will appeal the ruling but, in the meantime, there is an urgent need to protect the tens of thousands of workers who are reliant on these SEOs. We have evidence to suggest that, where legal protections or minimums are removed, employers will seek to act. We need to legislate to ensure and guarantee people these minimal rights. We are not talking about a bonanza for those covered by sectoral employment orders; we are talking about very modest rates of pay and fairly basic terms and conditions of employment. Nonetheless, these people require that level of protection. Will the Minister enlighten me as to whether he plans to bring in such legislation? We in Sinn Féin will certainly work with him to ensure its quick passage so that protection can be provided to the affected workers pending the outcome of the appeal.

The last Government and the one before it increased the minimum wage four times, having reversed the earlier cut in the minimum wage. Notwithstanding the earlier comments of the Deputy's party leader, we increased the minimum wage to one of the highest levels in the European Union and to a much higher level than that in Northern Ireland, where the Deputy's party is in power. Legislation to introduce new sectoral minima is problematic because the High Court has found that this House and the Government of the time acted unconstitutionally by applying sectoral employment orders. We need the courts to clarify this issue. There is now a serious point of law to be considered as to whether sectoral employment orders such as these are permissible. Such orders have been struck down before. Legislation to reintroduce them was passed in 2015. They have now been struck down again, or at least the one in question has. Our actions have been found to be unconstitutional. We do not agree with this judgment, which is why we are appealing it to the Supreme Court. It would not be possible, however, to bring in new legislation to set sectoral minima when the courts have found that we do not have the power to do so.

The Tánaiste has outlined the difficulties. I am well aware of the difficulties regarding sectoral employment orders, registered employment agreements and employment regulation orders. As the Tánaiste said, they are open to legal action and such actions have been taken on a number of occasions.

In the intervening time, what protections does an electrical worker who is due to start work tomorrow or the next day have for his or her basic minimum rights and entitlements now that such workers are no longer set by or covered by the SEO? We must bear in mind that this challenge was not taken by people who sought to improve the terms of the SEO; it was taken by people who sought to get around the terms of the SEO and in some instances to pay less than the SEO would have granted. Is there a plan for the intervening time, pending the appeal? As I stated to the Minister, we commit to working with him if there is a plan to bring in a form of legislation that will underpin the basic rights and entitlements. The Government clearly sees the need for the SEO, as it introduced it, and I am sure the Minister believes it is a good idea. Therefore, when it is gone something must replace it. What will the Minister say to a worker starting on a site tomorrow morning and in the intervening period?

What we need is for the Supreme Court to hear this case quickly because there is little point in us bringing in legislation that is equally unfirm and could be struck down. We will be seeking an early hearing by the Supreme Court so that this issue can be clarified. In the meantime, the terms and conditions of those on existing contracts cannot be reduced unilaterally. There is an issue, which the Deputy has identified, where people are changing employer or starting a new contract. They will still be covered by the existing minimum wage legislation and minimum terms and conditions but not by the SEO. That is a real problem. For Government contracts, we are saying the SEO terms and conditions should still apply. That is a matter of contract law but I cannot guarantee that everyone in the private sector will take the same view. Some of the unions have indicated that they would look very dimly on any employer trying to diminish terms and conditions while the issue is under appeal and may take industrial action. Any employers thinking of taking advantage of this High Court decision, while it is on appeal, should think about the fact that they may bring industrial action on themselves.