A plumbing and heating contractors’ union claims its employer members are bound to an invalid sectoral employment order provision regarding pension schemes.
The sectoral employment order (SEO) mandates 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 CWPS rate can and does change, and the SEO’s mandated terms cover both employee and employer contribution rates, it is claimed.
In challenging the order, the Association of Plumbing and Heating Contractors Ireland and Co Monaghan-based Allbrite Electrical and Mechanical Limited, a plumbing and heating contractor, claim a similar provision was struck down by the Supreme Court in June 2021.
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It ruled that the Labour Court recommendation that there should be a pension scheme containing terms “no less favourable” than those set out in the CWPS did not comply with requirements of the Industrial Relations (Amendment) Act 2015.
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The applicants say that despite the Supreme Court having determined that such a requirement is beyond the powers of the 2015 Act, its members are still required to enter affected workers into a pension scheme fitting the SEO’s prescribed terms.
Employer members face criminal sanction in the event of non-compliance with an enforcement order pertaining to the terms of the SEO, which the Minster for Employment and the Workplace Relations Commission must know is unconstituional, they claim.
The Minister has not taken steps to have the Labour Court review the SEO in light of the ruling, they claim.
An individual has brought a claim to the Workplace Relations Commission against Allbrite in relation to compliance with the SEO, the applicants allege.
Alan Duffy, managing director of Allbrite, states in a sworn statement his belief that 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.
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Mr Duffy claims he, as a director, is liable to criminal prosecution if he does not comply with an order to comply with the SEO, which in turn puts his constitutional rights at risk.
Mr Justice Charles Meenan on Monday granted the applicants permission to pursue their challenge against the Minister, the commission, Ireland and the Attorney General. He was satisfied the grounds upon which the case is based are “more than arguable”.
Only the applicants were represented in court when he granted leave and adjourned the case to June.
The Finglas-based Association and Allbrite want the court to quash the SEO and declare the “no less favourable” provision is invalid and a contravention of the Constitution.
