Smaller employers ‘thrown under the bus’ by pay order, Supreme Court hears

Small- to medium-sized employers providing electrical contracting services were “thrown under the bus” as a result of a ministerial order setting minimum pay and conditions for their sector, the Supreme Court has been told.

Helen Callanan SC, for the National Electrical Contractors Ireland (NECI), said the playing field resulting from the 2019 sectoral employment order (SEO) is anti-competitive and “unsustainable” for consumers for reasons including members of the NECI are smaller and do not have the call-out rates commanded by larger employers in the sector.

The NECI could not have anticipated being “thrown under” the bus for what the State now maintains is a need for “social solidarity” in line with EU law, she said.

The 2015 law under which the SEO was made is “defective” and unconstitutional for reasons including its effect is a legally binding instrument, created without adequate Oireachtas supervision, with “hugely serious” consequences for employers in particular, she argued.


The disputed SEO governs hours of work, rates of pay, overtime rates and pension issues and the kernel of the loss to the employer is an infringement of property rights, including the right to contract, she said.

The Oireachtas “parachute” over all of this is insufficient and there are “no brakes”.

The law also means the disputed SEO cannot be looked at by a Minister for three years after enactment, the Labour Court can examine it only “off its own bat” and parties bound by it, and who opposed it, “can never touch it”, counsel said.

She was making submissions opposing the State’s appeal aimed at overturning a High Court finding that the Minister of State for Business Enterprise and Innovation acted outside his powers in June 2019 in purporting to make the SEO for electricians.

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The appeal continues on Wednesday.


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