Three security companies have brought a High Court challenge aimed at setting aside a Ministerial order that would see many working in the industry receive increased pay.
The action is over the State’s intention to bring in a new Employment Regulation Order for the Security Industry, that was approved by the Minister for Enterprise, Trade and Employment in April and which is due to come into force from September 1st next.
The action has been brought by Dublin-based Top Security Ltd, and Morbury Ltd and Las Security Ltd, located in Dunleer, Drogheda, in Co Louth.
Their action is against the Minister for Enterprise Trade and Employment, the Labour Court, the Security Industry Labour Committee, Ireland and the Attorney General.
The companies represented by Martin Hayden SC, appearing with Eoin O'Shea Bl and instructed by solicitor Tom Casey claim the process which resulted in the order being formulated was flawed.
The three claim the process utilised to arrive at such order tends to support the interests of big employers and has produced an anti-competitive outcome, and tends to reduce employment in the industry.
The three applicants claim that the market should set the rates for security operatives, which would permit different rates to be set for differently qualified operatives working in diverse employment situations.
Minimum hourly rates
Such ministerial orders deal with issues including minimum hourly rates for security operatives, deals with overtime calculations, sick pay scheme, and the minimum number of employment hours to be offered.
The order was approved by Minister, following a recommendation from the Labour Court.
The basis of the new order was formulated by the Security Industry Joint Labour Committee (JLC) which is made up of union representatives, and on the employer side members from larger security firms, that employs thousands of workers.
That Committee is chaired by an officer of the Workplace Commission. The order applies to all security operatives and employers, whether they are represented on the JLC or not.
Any breach of that order could result in a possible criminal prosecution, it is claimed. The JLC made recommendations regarding the proposed order, to replace on that was put in place in 2017.
It was then sent by JLC to the Labour Court, which recommended to the Minister, that the new order be approved.
Counsel said that his clients were not represented on the JLC for the industry. They claim that the entire process lacks transparency.
Counsel said no reasons have been given why the proposals were accepted, at any point in the decision-making chain, have been given to his clients.
Earlier this year the applicants made submissions to the Labour Court, for the attention of the Minister, when Labour court was considering the JLC's proposals.
No reasons were given for the non-acceptance of their submissions, the applicants claim, resulting in the Minister being unable to take their views into account when arriving at his decision.
Despite making submissions about the proposed new order the three companies learned from a press release in late April that the government intends to sign a new Employment Regulation Order which will see security personnel's pay increased.
They also claim that the order lacks legal clarity, and that the respondents have acted unlawfully in adopting the new Employment Regulation Order.
In judicial review proceedings the three applicants seek orders and declarations against the respondents.
These include orders quashing the Minister's decision to approve the proposed order and that the Labour Court's decision to adopt the JLC proposals be also set aside.
They also seek declarations that the failure to provide them with reasons amounts to a breach of their rights to fair procedures and that the respondents have acted outside of their powers.
Permission to bring the challenge was granted, on an ex-parte basis, by Mr Justice Anthony Barr on Monday. The judge also granted a stay on the order, pending the outcome of the hearing of the action.
The judge said that the respondents could seek to have the stay lifted, in an application that is on notice to the applicants. The matter comes back before the court in November.