A union of plumbers and heating contractors claims its employer members are bound by an invalid sectoral labor code regarding pension schemes.
The Sectoral Employment Code (SEO) requires all workers to whom it applies to join 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 will change, and the prescribed terms of the SEO cover both employee and employer contribution rates, it said.
The Association of Plumbing and Heating Contractors Ireland and Co., based in Monaghan, Allbrite Electrical and Mechanical Limited, a plumbing and heating company, has challenged the order, claiming a similar provision was overturned by the Supreme Court in June 2021.
It ruled that the Labor Court’s recommendation that there should be a pension scheme containing “no less favorable” terms than those set out in the CWPS did not meet the requirements of the Industrial Relations (Amendment) Act 2015.
The plaintiffs say that although the Supreme Court has held that such a requirement goes beyond the powers of the 2015 Act, its members are still required to place affected workers in a pension scheme that meets the SEO’s prescribed terms.
Employers’ members face criminal penalties for failing to comply with an enforcement order related to the provisions of the SEO, which the Secretary of Labor and the Workplace Relations Commission need to know is unconstitutional, they allege.
They claim the minister took no steps to have the Labor Court review the SEO in the light of the judgement.
An individual has filed a lawsuit against Allbrite with the Workplace Relations Commission related to SEO compliance, the plaintiffs allege.
Alan Duffy, managing director of Allbrite, expresses in an affidavit his belief that it would be “entirely contrary to the proper administration of justice” to allow his company to be prosecuted under an SEO containing the exact same provisions as the Supreme Court has determined was outside the powers of the 2015 Act.
Mr Duffy alleges that as a director he can be prosecuted if he fails to comply with an order to comply with SEO, which in turn jeopardizes his constitutional rights.
Judge Charles Meenan on Monday gave plaintiffs leave to proceed with their case against the Minister, the Commission, Ireland and the Attorney General. He expressed his belief that the reasons on which the case is based are “more than questionable”.
When he granted leave and adjourned the case until June, only the plaintiffs were represented in court.
The Finglas-based Association and Allbrite want the court to overturn the SEO and declare the “no less favorable” provision invalid and unconstitutional.