Richard Grogan: Employment legislation in turmoil after landmark EU ruling

Richard Grogan

Employment legislation solicitor Richard Grogan of Richard Grogan & Associates writes for Irish Authorized Information following a landmark ruling from the Court docket of Justice of the European Union (CJEU).

This will sound like an odd heading. Nevertheless, the CJEU’s choice in case C-378/17, Minister for Justice and Equality, Commissioner of An Garda Siochana v Office Relations Fee, has fully and completely reversed our understanding of employment legislation and the way it will apply in Eire.

We now have written concerning the judgment in case C-684/16, which was lately issued on seventh November and indicated to employment attorneys that varied claims must be dropped at the Excessive Court docket as a result of the Directive had not been correctly carried out and that the CJEU had successfully offered that these claims have direct impact towards non-public employers. This was ground-breaking for any employment lawyer in Eire. Nevertheless, the choice which has been issued now underneath case C-378/17 is much more profound.

This case has decided that the precept of primacy of EU legislation should be interpreted as precluding nationwide laws, which on this case was the employment equality laws prescribing that the WRC (and routinely by implication the Labour Court docket) lacks jurisdiction to resolve to disapply a rule of nationwide legislation that’s opposite to EU legislation.

The impact is that the WRC and the Labour Court docket now can be obliged as of Tuesday four December to disapply Irish laws and apply EU laws. It will apply in all circumstances towards non-public employers, definitely underneath the Organisation of Working Time Act, the place there may be additionally a treaty provision. It is a sea change within the legislation because it applies in Eire and throughout all 28 EU nations at the moment. It implies that the WRC and the Labour Court docket could have the identical jurisdiction because the Excessive Court docket.

There are difficulties. The Labour Court docket would have the fitting to refer a matter to the CJEU or to the Excessive Court docket to get an interpretation on a selected piece of laws. This is not going to apply within the WRC as they don’t have this energy. The WRC was not arrange as an entity which might have the ability to disapply Irish laws. It was arrange on the idea that it must observe selections of the Excessive Court docket and the Labour Court docket. Now it is going to be ready as being the physique of first occasion the place challenges to Irish laws not complying with a Directive can be heard.

This modifications the WRC from what was meant to be an inexpensive and easy system for anyone to make use of, whether or not represented or not, into one the place there are going to be a few of the most complicated authorized arguments that might probably apply. The sources with regards to entry to referring circumstances to the Excessive Court docket or the CJEU will not be there. The sources for gaining access to specialists within the space of EU legislation, the interpretation of laws, attainable constitutional legislation points and a myriad of different issues haven’t been offered for. There’s going to must be important retraining of Adjudication Officers. It is a important price. They’re now going to be taking over roles equal to that of a Excessive Court docket decide as regards the interpretation of laws on the subject of a Directive being correctly transposed into Irish legislation.

This choice has far higher influence than simply the world of employment legislation. It’ll apply to any quasi-judicial physique established within the State.

Nevertheless, there’s a drawback with the WRC. The WRC is an inquisitorial entity. Because of this even when a difficulty regarding the correct transposing of a Directive into Irish legislation will not be raised, the individual listening to the case must successfully take a look at every bit of laws which derives from a Directive to see if there is a matter. This is not going to apply within the Labour Court docket, because the Labour Court docket is an adversarial course of. The laws is sort of completely different for each the WRC and the Labour Court docket. Within the Labour Court docket, until the difficulty is raised they won’t want to deal with the difficulty. This creates large extra prices and requirement for sources within the WRC.

Instant motion goes to be wanted by the Division of Enterprise, Enterprise and Innovation to deal with this new jurisdiction of the WRC. Important extra sources by means of personnel and backup goes to be required as a matter of urgency.

Due to different Selections which have issued by the CJEU, the WRC is now going to be left open to claims for compensation by workers and doubtless additionally employers if issues will not be disposed of in a short time. It is a large problem for the WRC. It’s a large problem for employment solicitors and those that follow within the space of employment legislation.

The entire jurisprudence of our courtroom system has successfully been turned on its head by one Determination from the CJEU. This situation goes to be one which is able to want important enter, from solicitors, barristers, the WRC, the Labour Court docket and the judiciary, I’d anticipate, over the approaching weeks and months.

This new choice will create turmoil, at the very least within the brief time period.

  • Richard Grogan is the principal solicitor at Richard Grogan & Associates Solicitors. You possibly can subscribe to the agency’s month-to-month publication at

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