FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 57(1); INDUSTRIAL RELATIONS ACT; 1946 PARTIES : P. MULRINE & SONS SALES (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Applicability of the Aerated Waters and Wholesale Bottling Joint Labour Committee's Employment Regulation Order (S.I. 559 of 2006).
BACKGROUND:
2. Pursuant to S. 57(1) of the Industrial Relations Act, 1946, SIPTU has refered to the Court the question of whether the Aerated Waters and Wholesale Bottling Joint Labour Committee's Employment Regulation Order (S.I. 559 of 2006) applies to 46 named employees of P. Mulrine & Sons Sales.
DECISION:
This matter came before the Court by way of an application by SIPTU pursuant to s. 57(1) of the Industrial Relations Act 1946 for the decision of the Court on whether the Employment Regulation Order, Aerated Waters and Wholesale Bottling Joint Labour Committee (S.I. 559 of 2006) (hereafter the ERO) applies to 46 named employees of P. Mulrine & Sons, Sales (the Respondent).
The Court received detailed and helpful submissions from the parties on the issues involved in the case. The Court also visited the Respondent’s plant in Donegal and inspected the manufacturing process in which the Respondent is engaged.
The Respondent processes various fruit juices from concentrate and then packages the product for sale. The bulk of the produce has nothing added in the process other than water. The produce is packaged, mainly in tetra and elopak cartons and in a small number of cases in plastic bottles, and sold as pure fruit juice.
The ERO applies to workers employed in any branch of the Aerated Waters and Wholesale Trade. That trade is defined by Part III of the Order, which provides as follows: -
PART III
WORKERS IN RELATION TO WHOM THE COMMITTEE OPERATES
The minimum rates of remuneration and conditions of employment shall, subject to the provisions of the Industrial Relations Acts, 1946-2004 and of this Order, apply to all workers in respect of any time during which they are employed in any Branch of the Trade as specified hereunder:-WORKERS IN RELATION TO WHOM THE COMMITTEE OPERATES
THE AERATED WATERS AND WHOLESALE BOTTLING TRADE, that is to say:
(a) The manufacture, wherever carried on, of mineral or aerated waters, non-alcoholic cordials, flavoured syrups, unfermented sweet drinks and other similar beverages, and the manufacture, under licence, of brewed liquors elsewhere than upon the licensed premises of a cider manufacturer or a brewer of beer;
(b) The operations of bottle-washing, bottling and filling and all other operations preparatory to the sale of any of the aforesaid liquors in bottles, jars, siphons, casks or other similar receptacles;
(c) The operations of bottle-washing, bottling and filling and all subsidiary operations preparatory to the sale under a Beer Dealer's licence in bottles, jars and other similar receptacles of ale, stout, porter and other alcoholic beers, except where such operations are conducted or carried on upon the licensed premises of a brewer of beer, and
(d) The operations of bottle-washing, bottling and filling and all subsidiary operations preparatory to the sale, by wholesale, of cider in bottles, jars or other similar receptacles, except where such operations are conducted or carried on upon the licensed premises of a cider manufacturer.
BUT EXCLUDING
Workers affected by a Registered Employment Agreement, that is, “an agreement relating to the remuneration or the conditions of employment of workers of any class, type or group made between a trade union of workers and an employer or trade union of employers or made, at a meeting of a registered joint industrial council, between members of the council representative of workers and members of the council representative of employers” and registered in the Register of Employment Agreements.
At the second hearing, and following the Court’s inspection of the work in issue, the Union confirmed that it was relying on paragraph (a) of the definition of the trade contained in the ERO, and in particular on the reference therein to the manufacture of unfermented sweet drinks. The Union submitted that the juices produced by the Respondent come within the literal meaning of that term.
On behalf of the Respondent it was submitted that the term “unfermented sweet drinks” must be construed in the context in which it appears in the ERO. In advancing that submission it was argued that the ERO is intended to apply to the manufacture of mineral and aerated waters and that the type of product listed in paragraph (a) of the definition must be of the same type as mineral and aerated waters, that is to say fizzy in character with sugar added which are marketed and sold as drinks. It was pointed out that the product in issue is pure fruit juice with no additives and is sold not as a drink but as a foodstuff.
It was further argued on behalf of the Respondent that the ERO should be construed strictly as a penal statute and that any ambiguity should be resolved by giving the provision in issue a narrow meaning. It was submitted that having regard to the context in which the words under consideration appear the provision must be regarded as ambiguous.
Construction of the ERO
The ERO was promulgated as a Statutory Instrument and is therefore in the nature of secondary legislation. Consequently the provision in issue must be construed by application of the normal rules of statutory construction. In considering the meaning to be ascribed to the provision the Court must have regard to the intention of the framers of the ERO which is to be gleaned from the words used in the text. Primacy should be given to the literal meaning of the words and expressions used unless some other meaning is suggested or where there is ambiguity in the language employed.
InHoward v Commissioners of Public Works[1994] 1 IR 101 Denham J explained the literal rule of construction as follows: -
- "[T]he correct conclusion to be drawn is that the plain language of the Act must not be extended beyond its natural meaning so as to supply omissions or remedy defects. The court should neither misconstrue words so as to amend defects in the legislation nor legislate to fill gaps left by the legislature. If there is a plain intention expressed by the words of a statute then the court should not speculate but rather construe the Act as enacted."
The provision of the Interpretation Act 2005 are also relevant in considering this question. Section 5(2) of that Act provides: -
- (2) In construing a provision of a statutory instrument (other than a provision that relates to the imposition of a penal or other sanction)—
- (a) that is obscure or ambiguous, or
(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of the instrument as a whole in the context of the enactment (including the Act) under which it was made,
the provision shall be given a construction that reflects the plain intention of the maker of the instrument where that intention can be ascertained from the instrument as a whole in the context of that enactment. - (a) that is obscure or ambiguous, or
It is clear that s.5(2) of the Interpretation Act 2005 has no application where the provision in issue relates to the imposition of a penal or other sanction. On behalf of he Respondent the Court was urged to treat the ERO as such a provision.
Maxwell identifies four aspects of the rule that penal statutes must be strictly construed:
- 1. The requirement of express language for the creation of an offence;
2. Strict interpretation of the words setting out an offence;
3. Fulfilment to the letter of statutory conditions precedent to the infliction of punishment;
4. Strict observance of technical provisions concerning criminal procedure and jurisdiction.
The Court has considerable doubt that an ERO can be regarded as being in the nature of a penal statute. The statutory instrument neither creates an offence nor provides for the imposition of any sanction for a contravention of the instrument. A failure to comply with the instrument can constitute an offence but the offence is created not by the ERO but by the Act under which it is made.
InMullins v Harnett[1998] 4 IR 426, the rules regarding the interpretation of penal statutes were carefully scrutinised by O'Higgins J. Relying on Maxwell and Bennion, he found that the principle of strict interpretation was to be applied only following the application to the statute of the normal principles of statutory interpretation. Only if the application of these principles left the meaning of the statute open to continuing doubt, was the principle of strict construction to be applied in order to give the benefit of the doubt to the individual as against the State.
Hence, it would only be necessary for the Court to definitively decide if the ERO (or s.57(1) of the Act under which this application is made) constitutes a penal provision if the definition in issue is in doubt by application of the normal rule of construction.
The definition refers to the manufacture of “unfermented sweet drinks”. It is common case that the process undertaken by the Respondent is manufacturing. The produce is naturally sweet (except in the case of one product to which sugar is added). Fruit juices are “drink” within the normal meaning of that word. It follows that fruit juices are “unfermented sweet drinks” within the normal and natural meaning of that term.
The Court has considered whether the term in issue should be given a restricted meaning by reference to the context in which it appears. While the introduction to the definition refers to the Aerated Waters and Wholesale Bottling Trade the other types of produce referred to at paragraph (a) of the definition clearly indicates that drinks that lack the defining characteristic of aerated waters (i.e. fizzyness) are also included since neither non-alcoholic cordials nor flavoured syrups are effervescent.
Consequently there is nothing that could be regarded as absurd or failing to reflect the plain intention of the instrument as a whole in the conclusion that the process in issue involves the manufacture of unfermented sweet drinks within the meaning of paragraph (a) of the definition of the trade covered by the ERO.
Conclusion
Having considered all of the submission made by the parties, and for the reasons referred to above, the Court has come to the conclusion that the process undertaken by the Respondent constitutes the manufacture of unfermented sweet drinks and is a branch of the trade encompassed by the ERO. Accordingly it is the decision of the Court that the ERO applies to the persons named in the Union’s application.
Signed on behalf of the Labour Court
Kevin Duffy
28th April, 2010______________________
JMcCChairman
NOTE
Enquiries concerning this Decision should be addressed to Jonathan McCabe, Court Secretary.