FIFTH SECTION

DECISION

Application no . 72596/13 THE IRISH CONGRESS OF TRADE UNIONS and THE TECHNICAL, ENGINEERING AND ELECTRICAL UNION against Ireland

The European Court of Human Rights (Fifth Section), sitting on 2 December 2014 as a Committee composed of:

Angelika Nußberger, President, Boštjan M. Zupančič, Vincent A. D e Gaetano, judges,

and Stephen Phillips, Section Registrar ,

Having regard to the above application lodged on 6 November 2013,

Having deliberated, decides as follows:

THE FACTS

The applicants, the Irish Congress of Trade Unions (ICTU) and the Technical, Engineering and Electrical Union (TEEU), are two trade union organisations, both based in Dublin. They were represented before the Court by Mr J. Hendy QC, Professor S. Fredman QC and Mr B. Cooper, barristers practicing in the United Kingdom, and by James A. Connolly and Company, a firm of solicitors in Dublin.

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

The first applicant is the central trade union body in Ireland, encompassing 48 trade unions. The second applicant is the largest engineering union in Ireland.

Until 9 May 2013, there was a mechanism in Irish law to register employment agreements (made between an employer or a group thereof and a trade union) contained in Part III of the Industrial Relations Act 1946. If the agreement satisfied certain conditions stipulated in the Act, the Labour Court was obliged to register the agreement. The effect of registration was to give the agreement binding legal effect, in that its terms were treated as incorporated into the employment contracts of all workers within its scope, and an employer ’ s failure to respect its terms was a criminal offence.

The second applicant was party to an employment agreement with the Electrical Contractors Association and the Association of Electrical Contractors (Ireland) covering electricians. The agreement was registered by the Labour Court on 24 September 1990, and varied at the request of the parties on a number of occasions until 2007.

Within the electrical contracting sector there was disagreement on the employer side both with the terms of the agreement and with the system of registration itself. Another employer group, the National Electrical Contractors of Ireland, along with a large number of individual employers in the sector, applied to the Labour Court in May 2008 to cancel the agreement. They argued that they should not be bound by an agreement to which they were not themselves party, which had been concluded by parties that they did not regard as representative, and which imposed employment conditions that they could not afford to meet in the difficult economic climate. The second applicant and the other signatories to the agreement opposed this application. The Labour Court rejected the application, in a determination dated 26 February 2009.

Around the same time, criminal proceedings were instituted against several employers for failure to observe the terms of the registered employment agreement.

Challenges to the Labour Court ’ s determination and to the prosecutions were brought before the High Court which joined three sets of proceedings and delivered a single judgment in McGowan and Others v. The Labour Court and Others on 30 June 2010. The second applicant was a notice party in these proceedings . The High Court rejected the challenge to the agreement as out of time. It further rejected all of the grounds advanced for judicial review of the Labour Court ’ s determination. Finally, it declined to consider the constitutional challenge to Part III of the Act, which provided for the registration of the aforesaid binding agreements, taking the view such a challenge should not be raised in judicial review proceedings but by way of plenary proceedings.

The High Court ’ s judgment was appealed to the Supreme Court. The Supreme Court delivered its judgment on 9 May 2013. It noted that all the parties to the appeal had agreed to narrow the issues required to be addressed by the Supreme Court to two. The first was whether the appellants were entitled to raise, and the Supreme Court to decide, the core constitutional issue, in circumstances where the High Court judge did not determine that issue. The second issue was the constitutional question as to whether Part III of the 1946 Act contravened Article 15.2.1 of the Constitution by delegating the making, variation and cancellation of registered employment agreements to the Labour Court and the parties to such agreements, in other words, whether the mechanism provided for under the Act represented an excessive and therefore, unconstitutional, delegation of legislative powers.

On the first issue, the Supreme Court expressed its doubts as to the validity of the High Court ’ s ground for declining to address a point that was otherwise properly before the Court. It noted that for the Supreme Court to decline to hear and determine the matter would mean requiring the parties to incur substantial costs. It would expose the plaintiffs to the possibility of ongoing criminal prosecution as well as to choosing between recommencing proceedings or submitting to a regime which they considered to be unconstitutional. It held that, in the circumstances, to decline to consider that issue would not be consistent with the proper administration of justice.

On the substantive constitutional issue, the Supreme Court noted that Article 15.2.1 of the Constitution contained very clear terms: “The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas (parliament); no other legislative authority has power to make laws for the State”. It noted the emphatic nature of the article which was an assertion of a core democratic principle. Since all power comes from the people, the only body with power to make legislation binding upon the people is the Oireachtas , which comprises the chosen representatives of the people. The Supreme Court then examined domestic jurisprudence on the place of subordinate regulation within the constitutional scheme and noted the contrast between that and the scope of the power afforded under the 1946 Act. It considered that the breadth of the power delegated under the Act which extended to any matter that could be regulated by a contract (of employment) was of a “most fundamental and far-reaching kind”. The law making power granted under the Act was granted over a broad area of human activity to private persons, themselves unidentified and unidentifiable at the time of the passage of the legislation in question. When an employer was the subject of prosecution for breach of a registered employment agreement, that amounted to a clear allegation that a part of the law of the State had been breached. In such a case, the particular provision allegedly breached had been made by private parties to the employment agreement, which had been registered by the Labour Court.

Such a far-reaching conferral of law-making authority could only be valid if the process of registration by the Labour Court introduced sufficient limitations on this power so that it was no more than the filling in of gaps in a scheme established by the parent statute. However, the Labour Court ’ s power was essentially limited and negative since it was required to register an agreement once it complied with certain statutory criteria. Moreover, the right to apply for variation of the terms of a registered employment agreement was limited to the original parties. Persons subsequently subject to its terms had no standing to seek to vary it nor could the Labour Court initiate such a process. Neither did the Oireachtas retain any capacity for review of the agreements actually made. Once such an agreement purported to become binding upon non-parties thereto pursuant to section 30 of the Act, it passed unmistakably into the field of legislation which, pursuant to Article 15, is the sole and exclusive preserve of the Oireachtas .

The Supreme Court allowed the appeal and declared that the provisions of Part III of the 1946 Act were invalid having regard to the provisions of Article 15.2.1 of the Constitution.

B. Relevant domestic law and practice

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.”

The effect of the McGowan judgment was to deprive then-existing registered employment agreements of all legal effect, such agreements now being binding “in honour only”. It is only where the terms are explicitly or implicitly incorporated into the individual employment contract that they may be enforced as between the parties. The applicants appended a statement to this effect made by the relevant Government Minister some weeks after the Supreme Court judgment.

The applicants indicated that there were 73 agreements registered with the Labour Court as of April 2011. While the great majority of these were single-employer agreements, 6 of them were sectoral in scope, the most significant ones covering the electrical contracting and construction sectors. Two more agreements, concerning the contract cleaning and private security sectors were in the process of registration when the legislation was struck down.

COMPLAINT

The applicants complained under Article 11 of the Convention that the striking down of the relevant statutory provisions was a violation of their right to freedom of association.

THE LAW

The applicants contended that the respondent State had failed to discharge its positive obligation to secure their freedom to engage in practical and effective collective bargaining, this being an essential element of trade union freedom protected by Article 11. The system for registering employment agreements was introduced in 1946 so as to support collective bargaining in sectors of the labour market where, without such support, there would be no real or effective means to protect workers ’ interests. That system had been struck down and not replaced. The applicants submitted that, based on ministerial statements on the issue, the Government intended to propose legislation to re-establish the system in a manner consistent with Article 15.2.1 of the Constitution by making registration subject to parliamentary oversight. They argued that this would be incompatible with the requisite autonomy of employers and trade unions.

Article 11 of the Convention provides:

“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”

The Court will first consider whether, as required by Article 35 § 1 of the Convention, the applicants have exhausted domestic remedies in relation to their complaint. In this regard, it notes that the first applicant was not involved in any capacity whatsoever in the domestic proceedings described above.

Regarding the second applicant, the Court notes that it was a notice party to the proceedings before the Supreme Court. While it was critical of the reasoning of the Supreme Court, in particular of the absence of any consideration by it of freedom of association as guaranteed by the Convention and the Constitution, it gave no indication that such arguments were ever raised by it before the Supreme Court. As a notice party, the second applicant would have been in a position to indicate to the domestic courts any concerns, particularly in relation to its right to freedom of association that it may have had within the context of the proceedings specifically under consideration by the courts. It is clear from the judgment of the Supreme Court that the sole question of substantive law agreed by the parties related exclusively to the compatibility of Part III of the 1946 Act with Article 15.2.1 of the Constitution.

It follows that the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Declares the application inadmissible.

             Stephen Phillips Angelika Nußberger Registrar President