INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 33(1), INDUSTRIAL RELATIONS ACT, 1946
MCR PERSONNEL LIMITED
- AND -
(REPRESENTED BY POLISH CONSULTANCY ENTERPRISE)
Chairman: Mr Duffy
Employer Member: Ms Cryan
Worker Member: Mr Shanahan
1. Interpretation of a Registered Employment Agreement
2. The case before the Court concerns a dispute between MCR Personnel Services Limited and Adam Barnowski represented by the Polish Consultancy Enterprise (PCE) in relation to the application of the Construction Industry Registered Employment Agreement (REA). The Worker's representative contends that the Company carried out work within the scope of the REA and employed the Claimant to work in circumstances that entitle him to payment on the Grade A rate. The Employer maintains that it is not covered by the REA however during the time of the Worker's employment he was paid at rates dictated by the REA.
The Workers' representative submitted a request for Interpretation of the REA on March 2nd, 2011 in accordance with Section 33(1) of the Industrial Relations Act, 1946. A Labour Court hearing took place on 4th August, 2011.
The following is the Court's Decision:
- This matter came before the Court by way of an application by Mr Adam Barnowski (the Applicant) pursuant to s.33(1) of the Industrial Relations Act 1946 in which he sought the opinion of the Court on the question of whether the Registered Employment Agreement for the Construction Industry (the REA) applies to his former employer MCR Personnel Limited (the Respondent).
The said Section provides: -
- 33.—(1) The Court may at any time, on the application of any person, give its decision on any question as to the interpretation of a registered employment agreement or its application to a particular person.
The Applicant was employed by the Respondent between 29th March 2007 and 3rd October 2010. The representative of the Respondent told the Court that while the Respondent contends that it is not covered by the REA it paid the Applicant the rates of pay prescribed by that Agreement during the currency of his employment. The representative of the Applicant told the Court that there is a dispute concerning the rate paid to the Applicant while in the employment of the Respondent. The Applicant previously brought a claim against the Respondent under the Payment of Wages Act 1991, but the question of his rate of pay was not raised in that claim. It is accepted that there is no claim in being concerning the Applicants rate of pay although the Court was told that depending on the outcome of the current application a claim may be brought.
Conclusion of the Court
At the commencement of the hearing the Court raised with the parties the question of whether, on the facts of the case, the within application is moot. The Court raised that question in circumstances in which it appeared to it that the question of whether or not the Respondent is covered by the REA is not relevant to any claim currently in issue between the parties. In that regard the Applicant is no longer employed by the Respondent and the evidence is that while he was so employed he was remunerated in accordance with the REA. While the Court was told that the Applicant may take proceedings against the Respondent depending on the Court’s determination in the case no such proceeding have been commenced nor has any claim been served on the Respondent. In these circumstances decision of the Court on this application could have no current practical significance for the Applicant.
The law in relation to mootness was considered by the Supreme Court inGoold v Judge Collins and Others IESC 38. Here Hardiman J. referred to the following dictum of Finlay C.J. inMurphy v Roach IR 106: -
- There can be no doubt that this Court has decided on a number of occasions that it must decline, either in constitutional issues or in other issues of law, to decide any question which is in the form of a moot and the decision of which is not necessary for the determination of the rights of the parties before it
In considering the rationale for the Courts’ refusal to consider points which are moot Hardiman J. referred to the leading Canadian case ofBorowski v Canada 1 SCR 342, in which the Supreme Court of Canada said the following : -
- "The first rationale for the policy with respect to mootness is that a court's competence to resolve legal disputes is rooted in the adversary system. A full adversarial context, in which both parties have a full stake in the outcome, is fundamental to our legal system. The second is based on the concern for judicial economy which requires that a court examine the circumstances of a case to determine if it is worthwhile to allocate scarce judicial resources to resolve the moot issue. The third underlying rationale of the mootness doctrine is the need for the Courts to be sensitive to the effectiveness or efficiency of judicial intervention and demonstrate a measure of awareness of the judiciary's role in our political framework. The Court, in exercising its discretion in an appeal which is moot, should consider the extent to which each of these three basic factors is present. The process is not mechanical. The principles may not all support the same conclusion and the presence of one or two of the factors may be overborne by the absence of the third, and vice versa."
More recently, inIrwin v Deasy IESC 35, Murray CJ pointed out that the mootness doctrine is applied by the courts to restrain parties from seeking advisory opinions on abstract, hypothetical or academic questions of the law by requiring the existence of a live controversy between the parties to the case in order for the issue to be justiciable.
In this case the questions raised in the application are of serious and far reaching import for the Respondent and, potentially, for present or future employees of the Respondent. Yet in the submission to the Court grounding the application there is nothing to indicate what if any dispute of substance now exists between the parties the resolution of which requires a determination of the question posited in this application. Accordingly the Court is not satisfied that the Applicant has a full stake in the outcome of this application.
In these circumstances the Court considers that the issue raised in the within application is moot as between the Applicant and the Respondent and should not be dealt with by the Court.
Signed on behalf of the Labour Court
15th August 2011______________________
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.