Introduction

This case removes any remaining doubt as to the question of whether recommendations of the Labour Court lawfully made pursuant to industrial relations legislation are open to challenge by way of judicial review. In short, they are not.

While it is accepted that determinations of the Labour Court that arise out of rightsbased claims are open to judicial review, the Mullally case provides a clear and useful review of the law concerning the limitations of the High Court’s supervisory function when it comes to Labour Court recommendations.

It is submitted that the Mullally case goes beyond the strict question of judicial review. By necessary implication, the judgment provides a strong authority to counter any argument to suggest that Labour Court recommendations are capable of being legally enforced. This issue has become topical in the light of a recent case that came before the Circuit Court called Paintridge Ltd. t/a Boston Brand Bars v. A Worker.1

In this case, the Circuit Court made an order enforcing a Labour Court recommendation following the referral by two employees of a trade dispute pursuant to section 13(9) of the Industrial Relations Act 1969. The dispute related to the employees’ dismissal and, on appeal from a Rights Commissioner decision, the Labour Court had recommended payment in compensation by the employer to the employees in the total sum of €40,000.

The Circuit Court’s decision in Boston Brand Bars, apparently the first of its kind, has caused ripples across employment law circles. While the relevant legislation provides that such Labour Court recommendations will be binding on the parties, this provision has heretofore been understand as denoting a moral, as distinct from legal, imperative.


Background

The Mullally case, on the other hand, involved an ongoing dispute by Waterford County Council and firefighers in relation to union recognition for negotiations purposes. A refusal on the part of the Council to recognise the Irish Fire and Emergency Services Association (IFESA) resulted in the applicants requesting the Labour Court to investigate the matter, pursuant to its powers under s. 20(1) of the Industrial Relations Act 1969. This section provides as follows:

“20.—(1) Where the workers concerned in a trade dispute or their trade union or trade unions request or requests [the Labour Court] to investigate the dispute and undertake or undertakes before the investigation to accept the
recommendation of the Court under section 68 of the [Industrial Relations Act 1946] in relation thereto then, notwithstanding anything contained in the Principal Act or in this Act, the Court shall investigate the dispute and shall make a recommendation under the said section 68 in relation thereto.”

Section 68 (1) of the Industrial Relations Act 1946, as substituted by s. 19 of the Industrial Relations Act 1969, provides as follows:

“68.—(1) The Court, having investigated a trade dispute, may make a recommendation setting forth its opinion on the merits of the dispute and the terms on which it should be settled.”

A Labour Court hearing followed during which detailed submissions were made by both parties. Shortly thereafter, a recommendation issued from the Labour Court which concluded that “[i]n the Court’s opinion, recognition of this group would have a highly undesirable destabilising effect on the established negotiating arrangements currently in place [..]” and “[f]or these reasons the Court does not recommend concession of the workers’ claim.”

The applicants subsequently initiated judicial review proceedings claiming that the Labour Court’s conclusions were based only on submissions and were unsupported by any evidence. It was also argued that the Court had taken irrelevant matters into account and had failed to give any, or adequate, reasons for its decision. In this last regard, the applicants contended that the Court had not complied with its duty under s. 68(1).

On the issue of justiciability, the applicants maintained that because they (the applicants) had agreed to accept the Court’s recommendation, it had a legal consequence for them. The Labour Court did not participate in the High Court hearing so it fell to the Council, who was named as a notice party, to act as legitimus contradictor.

The Council, in addition to emphasising the desirability of curial deference, maintained that the Labour Court possesses two statutory jurisdictions, one of which involves determination of rights and the other which does not. The Council submitted that the recommendation of the Labour Court under s. 20(1) of the Industrial Relations Act 1969 was not justiciable as it did not constitute a determination of any rights or obligations and accordingly judicial review did not lie at the suit of the applicants. References under this provision, the Council maintained, involved the provision of an industrial forum for the mediation of disputes which had no legal
consequences.

The Judgment
In its judgement, the Court (Noonan J.) had particular regard to two earlier High Court cases: The State (Stephen’s Green Club) v. Labour Court [1961] I.R. 85. and MacDonncha v. Minister for Education and Skills [2013] IEHC 266.

MacDonncha involved a trade dispute which had been referred to the Labour Relations Commission and ultimately to the Labour Court pursuant to s. 26(1) of the Industrial Relations Act 1990. This provision gives the Labour Court a jurisdiction to investigate trade disputes similar to that contained in s. 20(1) of the Industrial Relations Act 1969.

In MacDonncha, the Court (Hogan J.) summarised the role of the Labour Court in the context of such matters:

“Although the [Labour] Court’s functions are sometimes clothed in the language of law (e.g., the very use of the term “Court”) and while it employs legal principles when adjudicating on matters relating to legal rights (such as, for example, cases involving the rights of part-time workers or employees on fixed term contracts), in the present context it is really acting as a form of industrial relations mediator. [...]

[T]he Labour Court is accordingly not deciding legal rights or employing exclusively legal concepts to resolve such disputes. On the contrary, when issuing recommendations in this context the Court will often – perfectly properly – adopt a purely pragmatic and practical approach to such questions.
Its role in such cases is to resolve disputes and to maintain industrial peace and the criteria which underpin its recommendations are not strictly legal ones.

In summary, therefore, the recommendation of the Labour Court at most amounts to a binding resolution of any such dispute for industrial relations purposes.”

The Court also stated the Labour Court’s jurisdiction under s. 26(1) of the Industrial Relations Act 1990 is not invested with that quality of legal finality. 2

The Court in Mullally also quoted extensively from Walsh J.’s judgment in Stephen’s Green Club. In that case, the applicant, a private members’ club, sought prohibition against the Labour Court prohibiting it from investigating an alleged trade dispute stating that the Labour Court had no jurisdiction to investigate the matter because the club did not carry on any trade and therefore no trade dispute could be deemed to exist. The Labour Court submitted that prohibition did not lie against it when discharging its duties under s. 67 of the Industrial Relations 1946 Act, which empowered the Labour Court to investigate trade disputes and thereafter issue a recommendation pursuant to section 68 (as in Mullally).

The High Court, in dismissing the application, noted that “the Industrial Relations Act, 1946, contains no provision to enable any superior authority to translate a recommendation of the Labour Court made under s. 67 of the Act into an award binding on the parties or to permit of any sanction in the event of non-acceptance of the recommendation by any of the parties. In its investigation of disputes under s. 67 of the Act, the Labour Court has many of the general characteristics and powers of a Court of law [...] yet these powers in themselves are not sufficient to erect it, while exercising the jurisdiction conferred by s. 67, into a tribunal against which prohibition may be awarded, because within this jurisdiction the Labour Court, though having the duty to act judicially, cannot by its recommendation impose liabilities or affect rights.”

In Stephen’s Green Club, the Court did however confirm that were the Labour Court to issue a recommendation which exceeded its statutory powers, the appropriate remedy would be an injunction to restrain such investigation or any purported exercise of the power to summon witnesses to give evidence or to produce documents as part of such investigation.

The applicants in Mullally asked the Court to depart from the Stephen’s Green Club line of authority and to have regard not so much as to whether strictly ‘legal rights’ were affected but whether one could say that the decision of the Labour Court had ‘no effect and no benefit’ to either party. In doing so, the applicants sought to rely on Maguire v. Ardagh [2002] 1 I.R. 385, in which Hardiman J. stated that a finding by a parliamentary committee that a named person had unlawfully killed another might have no legal consequences but could hardly be said to have no effect. The Court in Mullally distinguished Maguire on the basis that that type of decisions “had a significant impact on the applicant’s constitutionally protected right to his or her good name” and that “[s]imilar considerations do not arise in this case.”

The Court concluded that “[i]n exercising its jurisdiction under s. 20 (1), it is clear that the Labour Court is not finally determining any issues of law or fact.” The Court held that a Labour Court investigation under the relevant section “is in the nature of an industrial relations forum which is designed to facilitate the mediation of trade disputes and offer an opinion as to how such a dispute may be resolved. Its recommendation has no strictly legal effect but rather relies upon the moral authority of the expert statutory body from which it emanates. It does not give rise to justiciable rights such as would permit the applicants to seek judicial review.”


Conclusions

The key points of law to take from the Mullally judgment, and the case law it reiterates, can be summarised as follows:

• Labour Court recommendations in relation to trade disputes are generally not open to judicial review
• Labour Court recommendations in relation to trade disputes do not have a legal consequence and are not invested with any quality of legal finality to give rise to a right of legal enforceability
• The legislation in relation to trade disputes contains no provision to enable any superior authority to translate a recommendation of the Labour Court into an award binding on the parties or to permit of any sanction in the event of non-acceptance of the recommendation by any of the parties
• The Circuit Court acted ultra vires in making an order to enforce the Labour Court’s recommendation in the Boston Brand Bars case
• Labour Court recommendations in relation to trade disputes do not engage the principle of res judicata
• Despite having some of the attributes of a court, when the Labour Court is considering trade disputes it is operating as an industrial forum for the mediation of disputes which have no legal consequences
• The Labour Court’s role in such cases is to resolve disputes and to maintain industrial peace and the criteria which underpin its recommendations are not strictly legal ones
• Labour Court determinations arising out of rights-based claims constitute determinations of rights or obligations and accordingly are open to judicial review
• Labour Court recommendations which follow the referral of disputes under the Croke Park, Haddington Road and Lansdowne Road Agreements are not legally binding and enforceable decisions
• Judicial review may lie in respect of Labour Court recommendations if it can be shown that the recommendation has a significant impact on a party’s constitutionally protected rights.

Full case decision:
http://www.bailii.org/ie/cases/IEHC/2015/H351.html

1 This case was reported in IRN 10 - 11/03/2015.

2 Interestingly, MacDonncha also seems to confirm that the outcomes of the referral of a trade dispute to the Labour Court made in accordance with the relevant provisions of the Croke Park, Haddington Road and Lansdowne Road Agreements, gives rise to a mere recommendation as opposed to a legally binding and enforceable decision, in spite of the apparent binding nature of the wording contained in those agreements.