High Court strikes down sectoral employment order over ‘invalid’ pension provision

The Minister for Employment has agreed the High Court can strike down a 2018 sectoral employment order (SEO) over an “invalid” pension scheme requirement for plumbing and heating contractors.

The SEO mandated that all workers to whom it applies must enter a pension scheme whose terms are “no less favourable” than those set out in the Construction Workers’ Pension Scheme (CWPS).

The Association of Plumbing and Heating Contractors Ireland, which represents employers in the sector, and Co Monaghan-based Allbrite Electrical and Mechanical Limited, a plumbing and heating contractor, claimed a similar provision was struck down by the Supreme Court in June 2021.

On Tuesday, Helen Callanan SC, with David O’Brien, instructed by Harry Carpendale of HG Carpendale & Co Solicitors, for the plaintiffs, told the court the dispute had been resolved.

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The Minister’s senior counsel, Padraig Lyons SC, said his client was consenting to an order quashing the 2018 SEO for the mechanical engineering building services contracting sector.

This concession comes on grounds that the provision requiring relevant workers to be entered into a pension scheme “no less favourable” than the CWPS is “invalid” and outside the powers of the Industrial Relations (Amendment) Act 2015.

Ms Justice Niamh Hyland granted the order in the terms agreed and struck out the action. It is the third SEO to be quashed by the courts in the last three years.

Nationally binding SEOs are made under the 2015 Act when either employers or trade unions apply to the Labour Court to examine pay and conditions for a defined economic sector.

The Labour Court may then make a recommendation to the minister for employment for an SEO and the minister can then opt to fix statutory conditions.

In challenging the order, the union and Allbrite claimed affected employers faced criminal sanction in the event of noncompliance with an enforcement order pertaining to the terms of an unconstitutional SEO.

An individual has brought a claim to the Workplace Relations Commission against Allbrite in relation to compliance with the SEO, the applicants alleged.

Alan Duffy, managing director of Allbrite, said it would be “wholly inconsistent with the proper administration of justice” to allow his firm to be prosecuted under an SEO that contains precisely the same provisions that the Supreme Court determined was beyond the powers of the 2015 Act.

Mr Duffy claimed he, as a director, was liable to criminal prosecution if he did not comply with an order to obey the SEO.