High Court declares specific Industrial Relations Act provisions and an Employment Regulation Order invalid for unreasonable property interference.

Neutral Citation Number: [2011] IEHC 277

THE HIGH COURT

2008 10663 P

BETWEEN

JOHN GRACE FRIED CHICKEN LIMITED, JOHN GRACE AND

QUICK SERVICE FOOD ALLIANCE LIMITED

PLAINTIFFS

AND

THE CATERING JOINT LABOUR COMMITTEE, THE LABOUR COURT,

IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

Judgment of Mr. Justice Feeney delivered on the 7th day of July, 2011.

1. The three plaintiffs in these proceedings seek declarations that certain provisions of the Industrial Relations Act 1946 (the 1946

Act), and the Industrial Relations Act 1990 (the 1990 Act), are invalid having regard to the provisions of the Constitution. The

plaintiffs also seek a declaration that the Employment Regulation Order made by the second named defendant on the 12th May, 2008

(S.I. 142 of 2008), fixing the statutory minimum remuneration of workers outside the County Borough of Dublin and Borough of Dun

Laoghaire, is unreasonable and constitutes an unlawful and disproportionate interference with the property rights of the first and

second named plaintiffs as guaranteed by the Constitution and is invalid and they seek a consequential order of certiorari quashing

that Employment Regulation Order. The plaintiffs also seek a declaration pursuant to s. 5 of the European Convention on Human Rights

Act 2003, that the provisions of certain sections of the Industrial Relations Act 1946, and a section of the 1946 Act, are incompatible

with the State’s obligations under the European Convention on Human Rights and, in particular, are in breach of Article 6 and Article 1

of the First Protocol thereof.

2. The two Acts in respect of which a declaration is sought by the plaintiffs in this case are the 1946 Act and the 1990 Act. That

legislation originates from earlier Acts, namely, the Trade Board Act 1909 and the Trade Board Act 1918. Part IV of the 1946 Act dealt

with the regulation by the Labour Court of remuneration and conditions of employment of certain workers. Section 35 of the 1946 Act

gave power to the Labour Court to establish Joint Labour Committees. Such a committee was to be established in respect of a class,

type or group of workers. The scheme provided for under the Act was that under s. 36 of the 1946 Act, an application for the

establishment of a Joint Labour Committee could be made to the Labour Court by the minister or a trade union or any organisation or

group of persons claiming to be representative of such workers or such employers. Section 37 identifies the criteria which the Labour

Court must apply in determining whether or not to establish a Joint Labour Committee. Section 38 deals with the process of an inquiry

into an application for an establishment order requiring consultation and public notification. Having gone through the statutory process

laid down in the Act, the Labour Court has the power under s. 39 of making an establishment order either in the terms of a draft

prepared in accordance with the provisions of s. 38 or with such modifications as to the terms of the draft as the Court considers

necessary. When the Labour Court makes an establishment order it is obliged under s. 39(2) to publish an establishment order in a

prescribed manner. Section 42 and subsequent sections of the 1946 Act deal with Employment Regulation Orders (EROs) which can be

dealt with by Joint Labour Committees once such committees have been established. Section 42 provides that a Joint Labour

Committee may submit to the Labour Court proposals “for fixing the minimum rates of remuneration to be paid either generally or for

any particular work to all or any of the workers in relation to whom the committee operates, and such proposals may provide for a

minimum weekly remuneration for all or any of such workers”. Section 42(3) provides:

“A joint labour committee shall not submit proposals under this section (s. 42) for revoking or amending an employment

regulation order unless the order has been in force for at least six months.”

Section 48 of the 1990 Act alters and amends the procedure to be followed once a Joint Labour Committee has formulated proposals

for an ERO. But the statutory scheme remains unaltered in that proposals or amended proposals are submitted by a Joint Labour

Committee to the Labour Court and it is the Labour Court pursuant to s. 43 of the 1946 Act which makes an order giving effect to the

proposals or amended proposals.

Section 43 of the 1946 Act and s. 48 of the 1990 Act sets out the procedure for the making of EROs and also provides that the

Labour Court can refer proposals back to a committee and can also make either an order giving effect to the proposals as from such

date as the Labour Court thinks proper and specifies in the order or refuse to make an order.

3. The statutory scheme provided for in the 1946 and 1990 Acts gives to the Labour Court the power to fix statutory minimum rates

of pay and statutory terms and conditions in respect of all or any of the workers in relation to whom a Joint Labour Committee

operates. It is therefore the Labour Court which has the power to establish Joint Labour Committees and those committees determine

the terms and content of any proposed orders in the form of a proposal and the Labour Court can then confirm the draft proposal

which has been prepared by a Joint Labour Committee. The scheme under the Act results in a statutory scheme where the Labour

Court has the power to fix statutory minimum rates of pay and conditions of employment without any supervision from the Oireachtas

and an order comes into effect when determined by the Labour Court without any referral back to the minister or without any form of

supervision by the Oireachtas. Section 17 of the 1946 Act provides:

“No appeal shall lie from the decision of the (Labour) Court on any matter within its jurisdiction to a court of law.”

4. A Joint Labour Committee entitled the Catering Joint Labour Committee was established by Statutory Instrument No. 225 of 1977

and in 1992 the Labour Court amended the 1977 order by Statutory Instrument No. 236 of 1992 entitled Catering Joint Labour

Committee Establishment (Amendment) order 1992. It was the Catering Joint Labour Committee established thereunder which

prepared the draft proposals which led to the making of the ERO by the Labour Court on the 12th May, 2008. It is that order which is

the subject of challenge within these proceedings and which the plaintiffs seek to quash.

5. In these proceedings, the plaintiffs seek as a first relief a declaration that the provisions of ss. 42, 43 and 45 of the 1946 Act and

s. 48 of the 1990 Act are invalid, having regard to the provisions of the Constitution. A second relief that the Court will address is the

claim by the plaintiffs that the ERO is unreasonable and constitutes an unlawful or disproportionate interference with the property

rights of the first and second named plaintiffs. As set out later in this judgment, the Court is satisfied that the plaintiffs are entitled

to the declaration sought that the provisions of ss. 42, 43 and 45 of the Industrial Relations Act 1946 and s. 48 of the Industrial

Relations Act 1990 are invalid having regard to the provisions of Article 15.2.1 of the Constitution of Ireland and also that the

plaintiffs are entitled to the declaration sought that the ERO is unreasonable and unlawful and constitutes a disproportionate

interference with the first and second named plaintiffs’ property rights. It follows that the declaration sought pursuant to the

European Convention on Human Rights Act 2003 does not arise at this time.

6. The sections challenged by the plaintiffs in their claim include a challenge in relation to s. 45 of the 1946 Act. That section deals

with the enforcement of EROs which have been made under s. 43 of the same Act. Section 45 provides that if an employer fails to

pay the remuneration fixed under an ERO that the employer is guilty of an offence and shall be liable to pay a fine on summary

conviction. Section 45(2) provides that where an employer has been found guilty of the offence of paying an employee remuneration

less than the remuneration fixed by the ERO the Court, where the employer is convicted, may order the employer to pay to the

worker such sum as is found by the Court to represent the difference between the statutory minimum remuneration and the

remuneration actually paid. Sub-section (3) of s. 45 provides for an offence by an employer if that employer fails to comply with

statutory conditions of employment fixed by an ERO and provides that if an employer is guilty of the offence of failing to comply with

statutory conditions of employment the employer is liable on summary conviction to a fine and the Court may also order the employer

to pay to the worker such compensation as the Court considers fair and reasonable in respect of such non-compliance.

7. The first plaintiff is a limited company which carries on the business of a restaurant including the business of the provision of

takeaway food. The second named plaintiff is a shareholder in the first named plaintiff and is the operator and managing director of

the first named plaintiff. The third named plaintiff is a limited company which was incorporated to represent the interests of the

owners of “fast food restaurants”. The first named defendant is a committee established by the second named defendant pursuant to

s. 36 of the 1946 Act, and pursuant to the Catering Joint Labour Committee Establishment Order 1977 (S.I. No. 225/1977) as

amended by the Catering Joint Labour Committee Establishment (Amendment) Order 1992 (S.I. No. 236 of 1992). The second named

defendant is a body established pursuant to the provisions of the 1946 Act. In the statement of claim, the plaintiffs identified that

the third named defendant is a juristic person answerable in law for the second named defendant and that the fourth named

defendant is joined to the proceedings for the purposes of effecting service on the third named defendant.

8. In these proceedings, the plaintiffs seek to challenge the constitutionality of identified provisions of the 1946 Act and the 1990

Act, and of an ERO made by the second named defendant on the 12th May, 2008. Pursuant to the provisions of the 1946 Act (as

amended), Joint Labour Committees can be and have been established. Those Committees make ERO’s which determine the minimum

rates of remuneration and/or regulate the conditions of employment of workers in respect of whom the Committees operate. The

effect of those Regulations is that there is in place a system to identify the minimum wage rates and employment terms and

conditions within the relevant regulated sector. On the 12th May, 2008, S.I. 142 of 2008, fixed the statutory minimum rates of

remuneration and regulated the statutory conditions of employment of workers employed in catering establishments anywhere

throughout the State, except the County Borough of Dublin and the Borough of Dun Laoghaire. That order applied to the first named

plaintiff and it covered employees who were engaged in identified work, that is to say, the preparation of food or drink, the service of

food or drink or work incidental to the preparation of food or drink or the service of food and drink and performed at any store or

warehouse or similar place in the catering establishment. The Catering Joint Labour Committee Establishment (Amendment) Order of

1992 (S.I. 236 of 1992), defined a catering establishment and the first named plaintiff’s restaurant was within that definition. In the

other two Boroughs a different order applied which provided for different terms and conditions.

9. The plaintiffs’ claim is, in essence, that the sections identified in the 1946 Act and the 1990 Act do not prescribe sufficient

principles and policies to govern the exercise of the law making power carried out in the making of S.I. 142 of 2008.

10. The first named plaintiff operates a small business in Cork city involved in the preparation and sale of fried chicken and other

snack foods. The second named plaintiff and his wife are the shareholders of that company and the first named plaintiff is operated

by the second named plaintiff. The third named plaintiff was incorporated in 2008 and as indicated above was established for the

purposes of representing the interests of the businesses and persons involved in the quick food service industry.

11. The ERO of 12th May, 2008 (S.I. 142 of 2008), is the ERO which gives rise to these proceedings. The proposals which were

ultimately incorporated in the 2008 ERO were advertised on the 7th March, 2008, and submissions were sought within a period of

twenty one days. The evidence to the Court was that those proposals were also sent by either e-mail or post to every employer

within the relevant sector who was on the Labour Court’s mailing list. No submission was received within the specified period and one

submission which was received outside that period was not considered. A draft ERO was considered by the Labour Court at a meeting

on the 14th April, 2008 and the proposals were approved and the Labour Court directed that an order be made. That order was made

by the Labour Court on the 12th May, 2008 (S.I. 142 of 2008) and the making of that order was published by way of advertisement

on the 16th May, 2008 the order coming into effect on the 2nd June, 2008. The 2008 ERO provided for an increase in the previously

identified minimum wage rates and provided for certain terms and conditions of employment in respect of persons working in the

catering sector and in businesses such as the business of the first named plaintiff. The 2008 ERO dealt with not only the minimum

wage rate, providing for two increases on specified dates, but also dealt with such issues as holidays, Sunday work, overtime and

rates of pay in respect of overtime.

12. The consequence and effect of the introduction of the 2008 ERO on the 2nd June, 2008, was to incorporate into the first named

plaintiff’s employees’ contracts of employment, certain terms and conditions as identified in the order. The scheme under the

legislation provides that an employer, such as the first named plaintiff, is required in law to observe the terms and conditions in the

order and that a breach of an order is a criminal offence.

13. The plaintiffs, in making their claim that certain provisions of the 1946 and 1990 Acts are contrary to the provisions of Article

15.2.1 of the Constitution, claim that the Industrial Relations Acts do not provide any guidance as to the principles or policies which

are to be applied in the making of EROs. The plaintiffs also rely on the fact that EROs are not made by a member of the Executive but

are made pursuant to a power delegated to the Joint Labour Committees and the Labour Court under the 1946 Act. The plaintiffs

claim that the power delegated to the Joint Labour Committees and the Labour Court under the 1946 Act and the discretion given to

those bodies thereunder is given in circumstances where there is no legislative guidance as to how such discretion is to be exercised.

14. Subsequent to the institution of these proceedings, the 2008 Order, was replaced by a later order made in 2009 (S.I. 217 of

2009), which came into effect on 15th June, 2009. These proceedings do not seek to challenge that later order. The plaintiffs

continue to seek relief in respect of the 2008 Order, notwithstanding that it has been rescinded since 2009, and do so based upon a

claim that the 2008 Order continues to have effect in respect of the first named plaintiff as an employer who employed staff pursuant

to the terms of the 2008 Order and are thereby subject, as a matter of law, to the obligations and requirements set out in the 2008

Order for the period during which that order was in force as for that period the terms and provisions of the order were in effect

absorbed into the contracts of employment of the first named plaintiff’s employees. The evidence to the Court was that these

proceedings were instituted in circumstances where the National Employment Rights Agency had expressed its opinion to the first

named plaintiff that the terms and conditions of employment being operated by the first named plaintiff after the introduction of the

2008 Order were in breach of that order and did not comply with the first named plaintiff’s obligations thereunder. The first named

plaintiff therefore contends that if it has underpaid its employees pursuant to the terms and provisions of the 2008 ERO that,

notwithstanding the subsequent revocation of that order, the first named plaintiff is still subject to both civil claims and criminal

prosecution in respect of any failure to comply with the provisions of the 2008 Order during the period for which it was in force. The

first named plaintiff remains subject to the provisions of the ERO of 2009. In submissions to the Court, counsel on behalf of the

plaintiffs sought to have the Court address in the first instance the plaintiffs’ challenge to the constitutionality of certain provisions of

the Industrial Relations Act 1946 and 1990. Counsel argued for such approach, notwithstanding a recognition that the conventional

and established practice of the Court was only to address the issue of the constitutionality of legislation as the final issue and when

all other matters have been determined. In making such application, counsel for the plaintiffs relied on the facts and circumstances of

this case which were that even if the 2008 Order was struck down by the Court, the first named plaintiff would remain subject to the

Joint Labour Committee system established by the legislation challenged and later, the ERO’s made thereunder. There was agreement

between the parties that any issue in relation to damages, if it were to arise, should be dealt with at a subsequent hearing but

counsel on behalf of the defendants contended that the Court should only address the issue of the constitutionality of the impugned

Acts as a last consideration. Having considered the matter, the Court is satisfied that the correct approach for this Court to adopt, in

the circumstances of this case, is to adopt the approach contended for by the plaintiffs. This judgment will, therefore, first deal with

the issue of the constitutional challenge to the provisions of the 1946 and 1990 Acts. It is also the case that given the judgment that

this Court makes on the issues of the constitutionality of sections of the Acts and the issue as to whether the 2008 Order is

unreasonable and constitutes an unlawful and disproportionate interference with the property rights of the first and second named

plaintiffs that a declaration sought pursuant to s. 5 of the European Convention on Human Rights Act 2003 should only be relevant in

relation to damages and since any issue as, to damages arising from this judgment will be dealt with following a further hearing by this

Court, there is no need at this point to address the claim under the 2003 Act.

15. Counsel for the plaintiffs identified as a first issue the question as to whether or not the 1946 Act, as amended by the 1990 Act,

prescribes sufficient principles and policies to govern the exercise of the lawmaking power in issue.

16. The Article of the Constitution relied upon by the plaintiffs in their claim that the provisions of the 1946 and 1990 Acts are invalid

is Article 15.2.1. The powers of government are identified in Article 6 of the Constitution which states as follows:

“1. All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to

designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the

requirements of the common good.

2. These powers of government are exercisable only by or on the authority of the organs of State established by this

Constitution.”

The task of enacting legislation falls within the exclusive competence of the Oireachtas and has been recognised as being beyond the

scope of judicial review. The Courts cannot and do not interfere with the enactment of legislation. Article 15.2.1 of the Constitution

states as follows:

“The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative

authority has power to make laws for the State.”

That Article is the core provision in the Constitution dealing with legislative power and provides exclusive legislative power to the

Oireachtas which has been identified as being absolute and all-embracing.

Article 28.2 states:

“The executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the

authority of the Government.”

Article 34.1 states:

“Justice shall be administered in courts established by law by judges appointed in the manner provided by this

Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.”

Article 15.2.1 of the Constitution vests the sole and exclusive power of making laws for the State in the Oireachtas. The role of that

Article and its applicability and interpretation was considered by the Supreme Court in Kennedy v. The Law Society of Ireland [2002]

2 I.R. 458. Fennelly J. recognising the core democratic principle contained within Article 15.2 and addressing the rationale for the ultra

vires doctrine in the light of Article 15.2.1 did so in the following terms (at p. 486):

“The issue was essentially one of ultra vires. The delegatees of statutory power cannot be allowed to exceed the limits of

the statute or, as here, the secondary legislation conferring the power. The rationale for this is simple and clear. The

Oireachtas may, by law, while respecting the constitutional limits, delegate powers to be exercised for stated purposes.

Any excessive exercise of the delegated discretion will defeat the legislative intent and may tend to undermine the

democratic principle and, ultimately, the rule of law itself. Secondly, the courts have the function of review of the

exercise of powers. They are bound to ensure respect for the laws passed by the Oireachtas. A delegatee of power which

pursues, though in good faith, a purpose not permitted by the legislation by, for example, combining it with other

permitted purposes is enlarging by stealth the range of its own powers. These principles, in my view, must inform any test

for deciding whether a power has been exercised ultra vires.”

It is open to the courts to consider whether or not delegated legislation amounts to an excessive exercise of delegated discretion

thereby defeating the legislative intent. The manner in which Article 15.2.1 has been interpreted by the Supreme Court is that

Statutory Instruments are constitutional provided they are confined to matters of detail as opposed to principle. This approach was

enunciated in a case which has been identified as “the seminal decision of the Supreme Court on Article 15.2.1”, (see p. 234 of J. M.

Kelly: ‘The Irish Constitution’, 4th Ed.) in Cityview Press Co. Ltd. v. AnCO [1980] I.R. 381. O’Higgins C.J. in the Cityview Press case

held (at p. 398/399):

“The giving of powers to a designated Minister or subordinate body to make regulations or orders under a particular

statute has been a feature of legislation for many years. The practice has obvious attractions in view of the complex,

intricate and ever-changing situations which confront both the Legislature and the Executive in a modern State.

Sometimes, as in this instance, the legislature, conscious of the danger of giving too much power in the regulation or

order-making process, provides that any regulation or order which is made should be subject to annulment by either

House of Parliament. This retains a measure of control, if not in Parliament as such, at least in the two Houses. Therefore,

it is a safeguard. Nevertheless, the ultimate responsibility rests with the Courts to ensure that constitutional safeguards

remain, and that the exclusive authority of the National Parliament in the field of law-making is not eroded by a delegation

of power which is neither contemplated nor permitted by the Constitution. In discharging that responsibility, the Courts

will have regard to where and by what authority the law in question purports to have been made. In the view of this

Court, the test is whether that which is challenged as an unauthorised delegation of parliamentary power is more than a

mere giving effect to principles and policies which are contained in the statute itself. If it be, then it is not authorised; for

such would constitute a purported exercise of legislative power by an authority which is not permitted to do so under the

Constitution. On the other hand, if it be within the permitted limits — if the law is laid down in the statute and details only

are filled in or completed by the designated Minister or subordinate body — there is no unauthorised delegation of

legislative power.”

In that case, the plaintiff challenged s. 21 of the Industrial Training Act 1967 which permitted the Industrial Training Authority to

impose levies on firms for the purposes of financing its training activities. The Supreme Court determined that, even though there

were no principles in the Act regarding the fixing of the amount of the levy, the impugned section was still constitutional. They did so

on the basis that there were guiding principles contained in and capable of being identified within s. 21 of the Act and that under that

section AnCO had an obligation to consult with a relevant industrial training committee and was obliged to keep the funds collected in

a separate account and to apply them to meet the expenses of training expenses. Even though the identifiable principles were of an

extremely limited scope, they were held to be sufficient so that it could not be said that there had been a delegation of a law making

function by the Oireachtas. In a decision delivered on the day prior to its decision in the Cityview Press case, the Supreme Court had

also considered the issue of delegated legislation in the case of Burke v. Minister for Labour [1979] I.R. 354. The Supreme Court in

that case considered the powers delegated to a Joint Labour Committee to make proposals to the Labour Court for fixing statutory

minimum wages and in giving the judgment of the Court, Henchy J. (at p. 358/359) in describing the power delegated to the Joint

Labour Committees stated as follows:

“It will be seen, therefore, that the power to make a minimum-remuneration order is a delegated power of a most

fundamental, permissive and far-reaching kind. By the above provisions of the Act of 1946 Parliament, without reserving

to itself a power of supervision or a power of revocation or cancellation (which would apply if the order had to be laid on

the table of either House before it could have statutory effect) has vested in a joint labour committee and the Labour

Court the conjoint power to fix minimum rates of remuneration so that non-payment thereof will render employers liable to

conviction and fine and (in the case of conviction) to being made compellable by court order to pay the amount fixed by

the order of the Labour Court. Not alone is this power given irrevocably and without parliamentary, or even ministerial,

control, but once such an order is made (no matter how erroneous, ill-judged or unfair it may be) a joint labour committee

is debarred from submitting proposals for revoking or amending it until it has been in force for at least six months. While

the parent statute may be amended or repealed at any time, the order, whose authors are not even the direct delegates

of Parliament, must stand irrevocably in force for well over six months.

In the present case the order is not challenged on constitutional grounds. What is contended is that the manner of its

making has tainted it with invalidity.”

The Supreme Court in the Burke v. Minister for Labour case did not have to consider a challenge on constitutional grounds and

therefore did not have to consider or apply “the principles and policies” test which the Court was to identify in its judgement in the

Cityview Press case on the following day.

17. Article 15.2.1 provides a means of curbing the excessive use of executive power and the decision of the Supreme Court in the

Cityview Press case identifies a test which should be applied in considering whether or not a Statutory Instrument is constitutional.

The Cityview Press case identifies that the Oireachtas may delegate a power to put flesh on the bones of an Act, thereby giving

effect to principles and policies but that a delegation of parliamentary power which goes beyond that is not authorised and would

amount to a purported exercise of legislative power by an authority which is not permitted to do so under the Constitution. The law

must be laid down in the statute and the Statutory Instrument made under an Act is constitutional only if that Statutory Instrument

is no more than the giving effect to principles and policies which are contained in the statute.

18. Since the Supreme Court decision in the Cityview Press case, the principles and policies test has been applied in a number of

varying circumstances. Those cases include the Supreme Court considering a Statutory Instrument made under the Health Act 1970

in the case of Cooke v. Walsh [1984] I.R. 710, a further Supreme Court consideration of the powers to delegate under the Social

Welfare Act 1952 in the case of Harvey v. Minister for Social Welfare [1990] 2 I.R. 232, a further consideration of the Supreme Court

of delegated legislation under the Duties Act 1957 in McDaid v. Sheehy [1991] 1 I.R. 1, and an extensive Supreme Court review of the

validity and lawfulness of the delegation of legislative power in the case of Laurentiu v. Minister for Justice [1999] 4 I.R. (at p. 26),

and a further Supreme Court consideration of delegated legislation in relation to the European Communities (Milk Quota) Regulations

2000 (S.I. No. 94) and whether the Constitution required that there be a primary Act of the Oireachtas to make the exercise of a

delegated power lawful in Maher v. Minister for Agriculture [2001] 1 I.R. 139. The Supreme Court further addressed delegated

legislation under the Aliens Act 1935 in Leontjavn v. D.P.P. [2001] 1 I.R. 591. Consideration of those cases confirm a consistent

application of the principles and policies test and the Courts have reiterated that the Oireachtas is the sole body with the power to

legislate and it is for the Oireachtas to establish the principles and policies of legislation. The decisions of the Supreme Court

demonstrate that the principles and policies test is a flexible one which must be applied to the differing factual scenarios and

legislative contexts with due regard to the complexity involved. It is also clear from the Laurentiu decision that the principles and

policies test is to be applied in accordance with constitutional presumptions as to the interpretation of legislation and that the actions

of Ministers and officials are to be presumed to be constitutional. For a delegation to be unlawful the power delegated must exceed

the mere giving effect to principles and policies contained in the statute.

19. In applying the flexible test, the courts have recognised the need for subordinate legislation. The courts, however, whilst

recognising the need for subordinate legislation, have in applying the principles and policies test consistently used as a cornerstone of

that test the issue as to whether or not the subordinate legislation achieves and applies principles policies and purposes identified in

legislation.

20. In considering the issue of the Constitution and the Oireachtas as sole legislature, Fennelly J. in the Supreme Court decision of

Maher v. Minister for Agriculture [2001] 2 I.R. 139 stated (at pp. 245/246):

“Article 15. 2.1 of the Constitution provides:-

‘The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative

authority has power to make laws for the State.’

An enormous body of subordinate laws is, nonetheless, constantly passed by means of statutory instruments, regulations

and orders. This type of delegated legislation is, by common accord, indispensable for the functioning of the modern

state. The necessary regulation of many branches of social and economic activity involves the framing of rules at a level

of detail that would inappropriately burden the capacity of the legislature. The evaluation of complex technical problems is

better left to the implementing rules. They are not, in their nature such as to involve the concerns and take up the time

of the legislature. Furthermore, there is frequently a need for a measure of flexibility and capacity for rapid adjustment to

meet changing circumstances. Without suggesting that a different approach is required for the present case, by reason of

the fact that it concerns the implementation of European Community legislation, it is obvious that the adoption of detailed

rules regulating production and trade in agricultural products is a particularly notable example of the exigencies of this

type of law-making. There is, for example, an obvious need to be able to react rapidly and often severely to sudden

trading problems or so as to protect human and animal health in the face of the outbreak of disease.

On the other hand, it is obvious that secondary legislation largely by-passes parliamentary scrutiny and the democratic

process. Thus, the courts have found it necessary to strike an appropriate balance between the protection of the

exclusive law-making domain of the Oireachtas and the proper function of the executive. The distinction is a functional

one, aimed at designating the proper bounds of legislative and executive power. Delegated legislation is permitted and

does not infringe Article 15. 2.1, provided that the principles and policies which it is the objective of the law to pursue,

can be discerned from the Act passed by the Oireachtas, so that the delegated power can only be exercised within the

four walls of the law. This serves the double purpose of preserving the legislative prerogatives of the Oireachtas and

assuring to those affected by orders or regulations that the courts may be asked to police the bounds set by the law

and, if necessary, to declare them to be ultra vires the powers of the relevant Minister or other delegated authority.”

In an unreported judgment delivered on 23rd November, 2006, in Bupa Ireland Ltd. and Another v. The Health Insurance Authority and

Others, McKechnie J., in commenting on the Maher v. The Minister for Agriculture case and other authorities stated (at para. 146, p.

122):

“These decisions offer a clear view that in adjudicating upon an issue involving Article 15 of the Constitution, the court

must reflect the reality of the subject which the legislature is addressing and of the implementing method best chosen by

it for that purpose. If what is involved, or thought to be achieved is complex, technical or designed to operate as part of

a dynamic and evolving model, capable of businesslike adjustment, then a subordinate body may be a much more suitable

vehicle (indeed, on occasions, perhaps the only suitable vehicle) for the implementation and achievement of legislative

objectives. If, on the other hand, the subject matter is easily capable of exact definition with established parameters,

then there may be no justification whatsoever in the exercise of delegatory power. So it all depends on the individual

circumstances of a given case, which, however, must always be determined against the backdrop of a statutory

framework in which ‘the principles and policies’ of the legislature are set forth. This should not be the situation, as the

High Court held in McDaid v. Sheehy [1991] 1 I.R. 1, then the delegation is, and will always remain, invalid.”

21. The plaintiffs in this case ask the Court to police the bounds set by law and to declare the power exercised by the delegated

authority to be ultra vires. If the Court did not have such power a party affected by an ultra vires delegation of authority would lack

an effective remedy. The claim in this case is not that the delegated authority has exceeded its powers, giving rise to a claim based

on judicial review, but rather that the powers sought to be exercised by the delegated authority are ultra vires.

22. From a consideration of the decided cases, identified above, dealing with the principles and policies test, this Court can identify

certain principles, factors and considerations to apply and take into account in addressing the principles and policies test. They are as

follows:

(1) In applying the test it is necessary to strike a balance between the protection of the exclusive lawmaking domain of

the Oireachtas and the proper function of the legislature.

(2) In carrying out that balance the Court is carrying out a function which it must exercise, in an appropriate case, to

ensure that a party affected by an ultra vires delegation of power has an effective remedy.

(3) The principles and policies test is a flexible test.

(4) If the legislation being considered is technical or complex, due account must be paid to that fact.

(5) In addressing the test, the Court must first look at the particular legislation and seek to identify and ascertain the

principles laid down by the Oireachtas.

(6) In addressing the principles and policies test, the purpose of the legislation under consideration is of real significance

and provides the backdrop against which the test is to be applied.

(7) In the event that the Court can identify principles and policies it is permissible for the delegated body to fill in the

details and to make choices and decisions within those principles and policies without such actions on the part of the

delegated body being deemed ultra vires.

(8) In seeking to identify the principles and policies, the Court should have regard to the entire statute and not just the

section challenged. The full terms of the statute require to be considered as is any policy or guiding principles which can

be identified within the Act.

(9) One of the factors to consider in addressing the question as to whether or not there has been an ultra vires

delegation is whether the Oireachtas has reserved to itself a power of supervision including the power of revocation or

cancellation.

(10) The effect and consequence of an order made by a delegated body can be a factor to take into account particularly

if the effect is to create a criminal offence.

(11) In addressing the principles and policies test, the Court should consider the circumstances and context of the

legislation including an evaluation of what is fundamental and a consideration of whether the matters are fundamental.

The Court must consider whether the fundamental matters dealt with by the delegated body are identified in the

principles and policies in the Act.

(12) A central issue underlying all consideration by the Court of the principles and policies test is the question can

standards, goals, factors and/or purposes be identified?

(13) A potentially useful way to address the issues in a particular case include the Court carrying out the task of

determining whether the principles and policies (including goals, factors, standards and purposes) identified and relied

upon by the defendant or defendants can properly be identified and located within the legislation.

(14) The absence of any particularity does not render a delegation ultra vires if it can truly be said that standards, goals,

factors and purposes have been specified.

(15) If the principles and policies test is satisfied by a defendant or defendants the Court has no function in adjudicating

on whether the decision taken by the delegated body is one the Court would have made.

(16) In looking at the question as to whether principles and policies have been identified and have been identified

adequately to comply with Article 15.2.1, the Court can recognise that Administrative Bodies can be given tasks or

delegated functions under Statute, and that these will vary, and that when given such tasks or functions, the delegate

can exercise expert judgment, using accumulated knowledge, but the judgment always requires to be guided by specified

principles and policies.

(17) If the legislation and/or Statutory Instrument impugned no longer applies or is no longer of any importance the Court

should abstain from deciding the issue. That is not the position in this case where the first named plaintiff can still be

prosecuted or sued in respect of actions taken by it during the period when the ERO Order in question was in force.

23. In support of the plaintiffs’ claim for a declaration that the provisions of ss. 42, 43 and 45 of the 1946 Act and s. 48 of the 1990

Act are invalid, having regard to the provisions of Article 15.2.1 of the Constitution, the plaintiffs contend that neither the 1946 Act

or the 1990 Act identify any standards, goals or factors which are to be applied by the catering Joint Labour Committee and/or the

Labour Court in exercising the powers conferred upon them under the said Acts. The plaintiffs contend that the respondents have the

power to fix minimum rates of pay and conditions of employment in excess of those decided upon by the Oireachtas, in other

legislation, and that they do so based on the basis that the Acts “specify a number of principles and policies”. What was in issue

before the Court was whether or not the 1946 Act and the 1990 Act contained sufficient principles and policies to satisfy the

requirements of Article 15.2.1. The plaintiffs submitted that those Acts did not identify principles or policies and did not identify any

standards, goals or factors to be applied by the catering Joint Labour Committee or the Labour Court in exercising the powers

conferred upon them under the said Acts. The defendants contended that it was clear that “the 1946 Act contains sufficient

principles and policies to satisfy the requirements of Article 15”. The defendants contended that the 1946 Act contained numerous

principles and policies which necessarily limit and guide the exercise of powers under that Act.

24. The nature and scope of the power delegated to Joint Labour Committees and the Labour Court under the 1946 Act was

addressed by Henchy J. in his judgment in Burke v. Minister for Labour case (at p. 354). One of the factors which the Court must

take into account in considering delegated power and the authority to make orders is the effect and consequences of an order made

by a delegated body. The actual power delegated to Joint Labour Committees and the Labour Court under the 1946 Act was

considered and characterised in the judgment of Henchy J. (at p. 358 and 359), where the learned Judge stated:

“It will be seen, therefore, that the power to make a minimum-remuneration order is a delegated power of a most

fundamental, permissive and far-reaching kind. By the above provisions of the Act of 1946 Parliament, without reserving

to itself a power of supervision or a power of revocation or cancellation (which would apply if the order had to be laid on

the table of either House before it could have statutory effect) has vested in a joint labour committee and the Labour

Court the conjoint power to fix minimum rates of remuneration so that non-payment thereof will render employers liable to

conviction and fine and (in the case of conviction) to being made compellable by court order to pay the amount fixed by

the order of the Labour Court. Not alone is this power given irrevocably and without parliamentary, or even ministerial,

control, but once such an order is made (no matter how erroneous, ill-judged or unfair it may be) a joint labour committee

is debarred from submitting proposals for revoking or amending it until it has been in force for at least six months.”

He went on to state (at p. 361):

“Apart from the skeletal provisions in the second schedule to the Act of 1946 as to its constitution, officers and

proceedings, the Act of 1946 is silent as to how a committee are to carry out their functions in making orders.”

Those descriptions of the effect, consequence and nature of the power delegated by the 1946 Act are ones which this Court adopts

and notes that, notwithstanding the subsequent amendment of the 1946 Act by the 1990 Act, such delegated power remains

unaltered. That power can properly be described as being of a most fundamental, permissive and far-reaching kind. It also remains the

case that orders made by the Labour Court under s. 43 of the 1946 Act come into effect without the Oireachtas exercising any power

of supervision and without the Oireachtas having a power of revocation or cancellation. The power delegated to the Labour Court

under the 1946 Act continues to be the power to fix minimum rates of remuneration and conditions of employment enforceable by

criminal prosecution.

25. The defendants contend that the 1946 Act contains numerous principles and policies which necessarily limit and guide the

exercise of powers under the Act. In their defence the defendants set out at paragraph 11 their plea that sufficient statutory

guidelines by way of principles and policies are set out in the 1946 and 1990 Acts. The defendants pleaded that:

“It is contended that the 1946 and 1990 Acts contain sufficient principles and policies to satisfy the requirements of

Article 15.2.1. In particular, it is contended that the said Acts specify a number of principles and policies, including but

not limited to:

(i) the importance of promoting harmonious relations between workers and employers;

(ii) the desirability of providing machinery to regulate rates of remuneration and conditions of employment;

(iii) the desirability of preventing and/or settling trade disputes;

(iv) the desirability of ensuring the existence of effective rather than inadequate machinery for regulating rates of

remuneration and conditions of employment;

(v) the necessity for substantial agreement between workers and employers as to the establishment and

maintenance of such machinery;

(vi) the necessity for matters relating to the exercise of such machinery to be widely publicised;

(vii) the necessity for consultations for all parties expressing an interest in the exercise of such machinery;

(viii) the necessity that such machinery be used to regulate rates of remuneration and conditions of employment

only where it is proper to do so and in accordance with all the aforementioned principles and policies.”

The defendants went on to plead, at paragraph 12 of their defence, that the 1946 and 1990 Acts provided further principles and

policies in relation to the establishment and maintenance of Joint Labour Committees and further provide for the revocation or

variation orders establishing an Joint Labour Committee where appropriate and that the said principles include, but are not limited to,

the following:

“(i) The establishment of a Joint Labour Committee, such as the first respondent, cannot occur unless the Labour Court is

satisfied that the claim for its establishment is well founded and second, either that there is substantial agreement

between the relevant workers and their employers; or that the existing machinery for effective regulation of remuneration

and other conditions for such workers is inadequate or potentially inadequate; or that, having regard to the existing rates

of remuneration or conditions of employment of such workers, or any of them, it is expedient to establish such a

committee.

(ii) The 1977 order establishing catering Joint Labour Committee expressly acknowledges that the Labour Court was

satisfied that the existing machinery for effective regulation of remuneration and other conditions of employment of the

relevant workers was inadequate.”

The above matters were relied upon by the defendants as establishing sufficient principles and policies to satisfy the requirements of

Article 15.2.1 of the Constitution. The matters set out in the pleadings were expanded upon in the submissions made by counsel on

behalf of the defendants. They added to the matters identified in paragraphs 11 and 12 of the defence the following matters, namely:

“(a) the necessity for any claim by an organisation or a group of persons claiming to be representatives of such workers

or such employers, to be well founded;

(b) the desirability of there being substantial agreement between workers and their employers about the establishment of

a Joint Labour Committee, (this is in fact the same as part of what is claimed at paragraph 12(i) of the defence);

(c) the desirability of a Joint Labour Committee being established for the existing machinery for effective regulation of

remuneration and other conditions of employment of workers as inadequate or as likely to cease or to cease to be

adequate, (this also is in fact part of 12(i) of the defence);

(d) the expediency, having regard to the existing rates of remuneration or conditions of employment of such workers or

any of them, of a Joint Labour Committee should be established; and

(e) the necessity for terms of EROs to be appropriately applied and enforced.”

The first four of these deal solely with the establishment of Joint Labour Committees and say nothing about how a committee, once

formed, is to act or what that body or the Labour Court are to use as standards or principles or policies in making EROs. Those four

matters do not add to the matters pleaded. The fifth item at (e) uses the word “appropriately” which entirely begs the question of

what is appropriate and leaves the delegated body at large to decide what is appropriate. This also does not add to the matters

pleaded.

26. The defendants contend that the 1946 Act and the 1990 Act contain sufficient principles and policies and it is for this Court to

consider whether or not the matters pleaded and identified by the defendants can be identified as principles and policies and if some

or all of them can be so identified whether such principles and policies are sufficient to satisfy the requirements of Article 15.2.1. The

matters relied upon by the defendants at (i) and (iii) of paragraph 11 of their defence, namely, the importance of promoting

harmonious relations between workers and employers and the desirability of preventing and/or settling trade disputes are matters set

out in the long title to the Industrial Relations Act 1946. The Court accepts that when endeavouring to ascertain whether principles

or policies have been identified within legislation that it is both appropriate and necessary to have regard to the entire statute and

not just the sections challenged within a particular case. The full terms of a statute require to be considered to ascertain whether or

not any principles or policies have been identified within the Act. Whilst it is correct that the long title of the 1946 Act refers to the

importance of promoting harmonious relations between workers and employers and the desirability of preventing and/or settling trade

disputes, those matters are not mentioned or referred to in Part IV of the Act which is the part where ss. 42, 43 and 45 are set out.

Whilst in the long title the regulations of terms and conditions is expressed to be for the “purpose” of promoting harmonious relations,

there is no reference to that matter or to the desirability of preventing and/or settling trade disputes in Part IV of the 1946 Act.

Consideration of the entire Industrial Relations Act 1946 and the context of its various parts and sections identifies that the reference

in the long title to the importance of promoting harmonious relations between workers and employers and the desirability of preventing

and/or settling trade disputes relates to Part VI of the 1946 Act which deals with trade disputes. It is that section of the Act which

gives to the Labour Court the power to investigate trade disputes and make recommendations and provides for the appointment of a

conciliation officer to mediate in trade disputes. It is also the case that none of the paragraphs in (i) to (iii) inclusive could properly

be regarded as principles or policies. Particularly, they provide no principles or policies in relation to the basis upon which wages or

remuneration are to be fixed or terms or conditions of employment established are fixed. The matter being dealt with in Part IV of the

Act is the creation of a scheme and the identification of procedures leading to orders fixing the rate of remuneration and conditions of

employment for employees. The fundamental power delegated is the entitlement to make binding orders and these paragraphs do not

in any way deal with how or on what basis such power is to be exercised. There is no indication how such power is to be exercised.

The items pleaded at paragraph 11(i) and (iii) are objectives and provide no indication as to how such objectives are to be achieved.

The item identified at (ii) is again taken from the long title to the 1946 Act and relates to the machinery and not to any principles or

policies to apply in determining the rate of remuneration or the conditions of employment of an employee. The item pleaded at

paragraph 11(ii) identifies the desirability of having machinery but it is not any guidance or direction as to how such machinery is to

operate. It is not a statement of an objective by reference to which that process can be measured. This matter is not and cannot be

read as identifying a principle or policy.

27. In considering the full terms of the 1946 and 1990 Acts, the position is that whilst the Joint Labour Committees and the Labour

Court might be said to be entrusted with promoting harmonious industrious relations and preventing and/or settling trade disputes

through the regulation of terms and conditions of employment, the Acts are entirely silent and leaves to the Labour Court and the

Joint Labour Committees an unfettered discretion as to what to take into account and the basis upon which the rates of remuneration

and terms and conditions of employment are to be determined. Given that the fundamental power under Part IV of the Act is the

determination of the content and the making of EROs and given the complete absence of any principle or policy upon which such

matters are to be determined, the absence of any principle or policy results in a situation where the delegated body is establishing its

own principles and policies and not just filling in details or making choices or decisions within principles and policies. The only potential

guidance is in “the skeletal provisions” in the second schedule to the 1946 Act.

28. The items relied upon by the defendants at (iv) and (v) of paragraph 11 of their defence repeat part of the provisions contained

in s. 37(b). That section deals with the establishment of Joint Labour Committees. Those provisions provide no assistance, guidance,

principle or policy in relation to the making of recommendations by the Joint Labour Committees or of orders by the Labour Court. Nor

do they identify any principles or policies to be considered and applied when making recommendations or orders. The matters set out

at (iv) and (v) concern the making of establishment orders. The Catering Joint Labour Committee was established by Order (S.I. 225

of 1977) in 1977 and there is no basis either in logic or from the text of the statute to suggest that the matters required to be taken

into account in making that order are to be read as providing a policy or a framework for the later making of recommendations by that

Committee or Orders by the Labour Court. As with sub-paragraphs (iv) and (v) of the pleas contained in sub-paragraphs (vi) to (vii)

inclusive of paragraph 11 of the defence are also derived from the sections of the Act dealing with Joint Labour Committees. The

defendants have failed to identify any basis for a claim which would require the Court to proceed on the basis that the conditions

governing the establishment of a committee can be said to effect or guide the exercise of a power by that committee or the Labour

Court. The principles and policies contended for by the defendants at sub-paragraphs (iv) to (viii) of paragraph 11 of the defence

relate to circumstances and conditions which must exist prior to the Labour Court making an order for the establishment of a Joint

Labour Committee. They do not relate to how the Joint Labour Committee or the Labour Court is to operate or what matters they are

to take into consideration as matters of principle or policy when making an ERO. An ERO can only be made when a Joint Labour

Committee has been appointed and the circumstances and requirements for the appointment of such a Joint Labour Committee do not

and cannot provide assistance in identifying the principles or policies to be followed by such Committee or by the Labour Court in

considering the rates of remuneration or conditions of employment to be contained in an ERO. In sub-paragraphs (iv) to (viii) of

paragraph 11 of the defence, the defendants seek to rely, in establishing matters of principle and policy, on matters concerned with

the establishment process. The Court does not accept that a full or realistic reading of the Act can allow or permit substantive

principles and policies concerning the making of EROs to be identified from the sections of the Act dealing with the establishment of

Joint Labour Committees. The identification and the adequacy of the legislative articulation of what are the principles or policies to be

applied by a delegated body can be difficult to ascertain or isolate. No standard test or checklist can be established and the context

and precise terms of the legislation will always have to be considered. In answering the question as to whether or not principles and

policies can be identified the Court must further address the issue as to whether the delegated body is exercising a fundamental

power and if it is, then does the State making the delegation to it as a delegated body can the legislation identify principles and

policies to the extent that it can be said that the delegate is filling in details and making judgments within identified principles and

policies. In the Act the power to make EROs is of a fundamental nature and is untrammelled and no guidance as to principle or policy

is provided. In relation to the plea contended in sub-paragraph (viii) of paragraph 11 of the defence that the necessity that such

machinery be used to regulate rates of remuneration and conditions of employment only where it is proper to do so and in accordance

with all the aforementioned principles and policies, there is no principle or policy identified in establishing what is proper remuneration

and conditions of employment. The Act is entirely silent as to the basis upon which proper rates of remuneration or conditions of

employment are to be identified. The use of the word proper begs the question how proper is to be determined and on what basis.

The 1946 Act allows all choices and decisions as to the rates of remuneration and conditions of employment to be made by a

delegated body without providing any identification of the principles or policies upon which that body is to act.

29. The matter pleaded at sub-paragraph (i) of paragraph 12 of the defence is a reiteration of what is contained in s. 37 of the 1946

Act which is the section dealing with the restrictions on the making of establishment orders. That section deals with the

establishment of a Joint Labour Committee and the basis upon which such Committee can be established but does not and cannot be

said to provide assistance as to the basis upon which such Committee should operate after it has been established. The same

observations which the Court makes in relation to sub-paragraphs (iv) to (viii) of paragraph 11 of the defence equally apply in relation

to sub-paragraph 1 of paragraph 12 of the defence.

30. Sub-paragraph (ii) of paragraph 12 seeks to identify principles and policies on the basis that the 1977 order establishing the

Catering Joint Labour Committee expressly acknowledges that the Labour Court was satisfied that the existing machinery for effective

regulation of remuneration and other conditions of employment of the relevant workers was inadequate. As with sub-paragraph (i) of

paragraph 12, sub-paragraph (ii) also deals with the establishment of the Catering Joint Labour Committee under the provisions

relating to Joint Labour Committees in the 1946 Act. The matters sought to be relied upon by the defendants relate to the

establishment of Joint Labour Committee. The sections of the Act, relied upon, which set out the principles and policies necessary for

the establishment of a Joint Labour Committee do not relate to or impact on the power in s. 43 to make an ERO. They are entirely

separate. The establishment of the first named defendant is not in issue in these proceedings and none of the principles or policies

purported to be relied upon by the defendants in paragraphs 11 and 12 of their defence are directed to how or on what basis the

Joint Labour Committee or the Labour Court are to perform their delegated duties leading to the making of an ERO. It is not the

establishment of the first named defendant which is in issue in these proceedings but rather the fact that there is an absence of

principle or policy contained in the legislation to guide the making of an ERO. The provision allowing for the establishment of a Joint

Labour Committee provide no assistance on how the Joint Labour Committee is to perform its functions after establishment. It is the

case that the Catering Joint Labour Committee was established in circumstances where it was determined that the machinery for the

regulation of pay and conditions was inadequate. It was also the case that that Committee operates in such a manner as to make

recommendations in relation to pay and conditions and that the Labour Court makes orders in relation to pay and conditions.

Therefore it can be said that those two bodies are part of the machinery dealing with that matter but that does not explain what

principles are to be applied in deciding the rate of pay or the conditions to be included in an ERO.

31. In the Leontjava case, which was extensively relied upon by the defendants, the Supreme Court held that the delegation under

the Aliens Act 1935 was not in breach of Article 15.2.1. The judgment in the Supreme Court identified that the delegation was lawful

in that the law making power was constrained by the provisions in s. 5(1) of the Aliens Act 1935, where, registration, change of

abode, travelling, employment, occupation and other like matters were set out. In that case, prior to the Minister making an order,

such order had to be referable to the matters identified in section 5(1). That statutory framework resulted in the Supreme Court

identifying principles and policies sufficient to ensure that an order was not in contravention of Article 15.2.1 of the Constitution. In

this case, no such identification of matters can be gleaned from the statute. The statutory framework is that the delegated body, the

Labour Court, in making an order under s. 43, is effectively at large in relation to what matters to take into account in considering and

fixing wage rates and conditions of employment. In this case, the statutory provisions are such that there are no core policies or

principles identified in the Act to guide the exercise of delegated power. It can properly be said that there is present no touchstone,

or policies or principles, against which a party wishing to challenge the legality of an order, can measure or evaluate whether an order

was made in accordance with the intent of the Oireachtas. The provisions contained in the 1946 Act, and insofar as is relevant in the

1990 Act, identify no discernable standard against which the delegated lawmaker’s decision can be measured.

32. In conclusion, the Court has viewed the legislation in issue in its context and has had regard to the entire statute. In recognising

that the principles and policies test is a flexible test, the Court has considered the question as to whether the scheme and provisions

in issue herein could be viewed as a delegation of power or a transfer of power. Whilst it is possible to identify certain objectives in

the legislation, when one considers its full terms and context, there is no indication, direction, statement of policy or identification of

principles or policies present to indicate how the objective identified in the legislation is to be achieved. The far reaching nature of

the delegation within the 1946 Act was identified by Henchy J. in Burke v. Minister for Labour and the absoluteness of the delegation

which he identified remains unaltered. Since that judgment which was given in December 1978, the 1946 Act has been amended and a

universal statutory minimum wage has been enacted by the National Minimum Wage Act 2000. The 1990 Act did not address the

concerns obvious from the judgment of Henchy J. in Burke v. Minister for Labour. The enactment of the National Minimum Wage Act

2000 and the identification of principles and policies which were to inform the Minister in making an order for a national minimum hourly

rate of pay as set down in s. 11 of that Act did not result in any amendment to the 1946 Act and the principles and policies

contained in the 2000 Act were not extended to the 1946 Act. This was the situation notwithstanding the identification of real

concerns concerning the scope and extent of the delegation in the 1946 Act apparent from the judgment of Henchy J.

33. This is a case where the delegated power is excessive. Such a delegation would be lawful if the Act delegating the power had

either in 1946 or by subsequent amendment provided policies or principles to guide, inform and direct the Labour Court or the Joint

Labour Committees established under the 1946 Act. If that had occurred then those expert bodies could have used their expertise

and knowledge to fill in the details, on an ongoing basis, based upon principles or policies identifying standards, goals, factors and

purposes laid down by statute. As that did not occur, the delegation in issue in this case amounts to a transfer of power. The

legislation in issue in this case permits not even the executive to be at large but the Labour Court and permits that body to make

laws.

34. Having carefully perused the entire 1946 Act (and the 1990 Act insofar as it is relevant) and paying full regard to its context and

the technical difficulties of investigating, considering and ascertaining wage rates and conditions of employment on an ongoing basis,

the Court has been unable to find any matters which could properly be described as policy or principle within the terms of the Act

directing or informing the delegated body. The matters identified by the defendants as a specification of principles and policies cannot

properly be regarded as policies or principles and are in no way directed to informing the delegated body as to how that body is to

carry out its functions or what that body is to take into account in carrying out the fundamental task of fixing wage rates and

conditions of employment. 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.

35. It is possible to discern within the legislation in issue the objectives sought to be achieved but it is not the objectives which are

required to make a delegation lawful but the identification of principles and policies. The legislation is silent as to how the delegated

body is to carry out its functions in making orders.

36. In this case, the defendants contended in submissions to the court that what the plaintiffs were seeking to do was to require the

Oireachtas to specify in advance a minimum remuneration and terms and conditions should be determined on an ongoing basis, within

a specific sector, following discussions by representative groups and a supervision of an expert body. It was claimed that the

approach argued for by the plaintiffs would defeat the whole aim of the Oireachtas in establishing flexible participatory and sector

specific machinery. This Court in its judgment is not seeking to require that there be legislation specifying in advance how wages and

conditions of employment should be determined but rather ascertaining if a policy or principle can be identified for the delegated body

as to how such matters are to be determined. In the absence of such principles and policies, delegation is a breach of Article 15.2.1

and results in a situation where the insufficiency of legislative articulation of any policy and principle for determining wage rates and

conditions offends the provisions of Article 15.2.1.

37. In paragraph 8 of the defence it is pleaded;

“In the alternative, if the exercise of the statutory powers of the first and second named defendants does constitute an

interference with the property rights of the plaintiffs (which is denied), it is now that any such interference is unjust or

disproportionate. To the extent that the exercise of the first and second named defendants’ statutory powers does

constitute an interference with the property rights of the plaintiffs (which is denied), any such interference constitutes a

permissible regulation of the property rights of the plaintiffs in accordance with the provisions of the Constitution of

Ireland, the principles of social justice and the exigencies of the common good.”

Central to the defendants’ plea in relation to property rights, as set out at paragraph 8 of the defence, was reliance by the

defendants on the provisions of Article 43(2) of the Constitution. That provision provides:

“The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right

to transfer, bequeath, and inherit property.”

The core issue for consideration by the Court in considering the plaintiffs’ property rights challenge is the contention by the plaintiffs

that there is an interference with such rights due to the fact that the challenged legislation and the ERO made thereunder requires

the first and second named plaintiffs, as a condition of legally carrying on their business, to pay wage rates and apply conditions of

employment to their employees which it is claimed have been determined in an arbitrary and illegal manner. As set out in this

judgment, this Court is satisfied that the plaintiffs have established that such pay rates and conditions of employment have in effect

been determined in an arbitrary and unfair manner. The legislation upon which the Joint Labour Committee operates is silent as to how

that Committee is to carry out its functions in making orders. That situation was identified by Henchy J. in the Burke case in 1978 and

remained the position up to the date when S.I. 142 of 2008 was introduced. As this Court is satisfied that that Statutory Instrument

was made in the absence of any principles or policies and was in effect therefore arbitrary or subjective, such order cannot be

enforced where the consequences of the failure to comply with such order can include criminal prosecution. Absent a court order

declaring the ERO (S.I. 142 of 2008) an unlawful and disproportionate interference with the property rights of the first and second

named plaintiffs, the first named plaintiff would remain at risk of criminal prosecution in respect of an arbitrary and illegal statutory

provision. In those circumstances this Court is satisfied that it is not open to the defendants, on the facts of this case, to contend

that the provisions contained in the ERO do not constitute an interference with the property rights of the first two plaintiffs nor is it

open to the defendants to contend that such interference is not unjust or disproportionate.

38. Insofar as the defendants contend in paragraph 8 of their defence that if there is an interference in the plaintiffs’ property rights

that such interference is permissible within the provisions of the Constitution of Ireland, this Court is satisfied that the defendants

cannot rely on Article 43 of the Constitution. The defendants have not contended that Article 43 of the Constitution provides

“principles and policies”. By their plea, in paragraph 8 of the defence, the defendants are endeavouring to introduce, what in reality

amounts to, a claim that principles and policies under the 1946 and 1990 Acts should be established or introduced by reference to the

provisions of the Constitution. This Court is satisfied that there is no basis for such claim. The statutory position is that a Joint Labour

Committee cannot be established unless the provisions of the 1946 Act are satisfied. Establishment orders made by the Labour Court

are based upon and confirm that particular conditions have been satisfied for the making of an establishment order. The facts of this

case are that the Labour Court did not decide that having regard to the rates of pay or conditions of employment prevailing in the

relevant sector that it was expedient that a Joint Labour Committee should be established as the conditions recorded in the

Instrument establishing the first defendant were those set out in s. 37(B)(ii) of the 1946 Act, which deals with the absence of

effective machinery to regulate wages and conditions and not with actual rates or conditions.

39. In the Supreme Court decision of Brennan v. Attorney General [1984] ILRM 355, the Court considered the valuation system in

force in respect of agricultural land and held that the valuation system constituted an unjust attack on the property rights of the

plaintiff. O’Higgins C.J. held (at p. 365):

“With regard to Article 40.3 the court is of the opinion that the plaintiff’s complaints that this Article has not been

observed are justified and should be upheld. In the opinion of the court the complaints are proper to be considered

primarily under the provisions of Article 40.3.2.

The evidence and facts as found by the learned trial Judge was that the use of the 1952 valuations was continued as a

basis for agricultural rates, long after the lack of uniformity, inconsistencies and anomalies had been established and, long

after methods of agricultural production had drastically changed. This in itself was an unjust attack on the property rights

of those who like the plaintiff found themselves with poor land paying more than their neighbours with better land. When

this injustice became obvious the State had a duty to take action in protection of the rights involved. This it failed to do.

In continuing by means of s. 11 of the Local Government Act 1946, the same system without revision or review the State

again, in the opinion of the Court, failed to protect the property rights of those adversely affected by the system from

further unjust attack. In the assessment of attacks such as a country rate reasonable uniformity of valuation appears

essential to justice. If such reasonable uniformity is lacking the inevitable result is that some ratepayer is required to pay

more than his fair share ought to be. This necessarily involves an attack upon his property rights which by definition

becomes unjust. The plaintiffs have established such injustice in this particular case.”

The evidence which this Court heard established that terms and conditions of employment provided for under the ERO system of

orders could result in businesses immediately adjacent to one another being required to adhere to significantly different statutory

obligations. These included extra and different rates of pay for Sunday and night work. There was not any reasonable uniformity of

terms which would be required by justice. The Court also heard evidence that the rates of remuneration and conditions of employment

determined by the ERO in issue were in excess of those laid down by the Oireachtas in statute by the National Minimum Wage Act

2000 where principles and policies giving rise to such rates of remuneration and conditions of employment are identified. On the facts

of this case no such principles and policies were identified in the ERO or in the 1946 or 1990 Acts which would enable persons

affected by the ERO to ascertain the principles and policies or supervisory measures which resulted in different rates from those

established under the 2000 Act, where principles and policies are identified.

A body which has delegated to it a power of subordinate legislation must exercise that power within the limitations which are

expressed or necessarily implied in the provisions providing for such delegation. One implication which arises in the circumstances of

such delegation is that the power to make subordinate legislation should be exercised reasonably. On the facts before this Court that

is not what has occurred. The ERO which was made introduced fixing wage rates and conditions of employment and was made in an

arbitrary manner in that certain rates were set out for a geographical area when significantly different and more restrictive rates and

conditions of employment applied in an immediate adjoining area without there being any identifiable basis for such discrimination. In

the light of the above, this Court is satisfied that the plaintiffs have established that the ERO made on the 12th May, 2008 (S.I. 142

of 2008) unlawfully interferes with the first two plaintiffs’ property rights under Article 40.3 of the Constitution.

40. On the basis of the findings made by this Court, the plaintiffs are entitled to a declaration that the provisions of ss. 42, 43 and 45

of the 1946 Act and s. 48 of the 1990 Act are invalid having regard to the provisions of Article 15.2.1 of the Constitution of Ireland

and also the declaration sought that the ERO is invalid. The Court will hear the parties in relation to the terms of such declarations.

The court will also hear the parties in relation to the procedure to be followed in relation to outstanding matters for consideration by

the court including the issue of the damages, if any, to which the plaintiffs might be entitled.