CNN194

Section 28(1) of the 2015 Act provides:

• “(1) Where an inspector is satisfied that an employer has, in relation to any of his or her employees, contravened a provision to which this section applies, the inspector may serve a notice (in this section referred to as a “compliance notice”) on the employer.”

Compliance notice No. 000332, under appeal in the within proceedings, notified the Appellant that the inspector was of the opinion that it was in breach of section 12 of the 1997 Act in so far as it had failed to ensure that a number of named pharmacists did not work for six hours or longer on specified sample dates without being allowed a rest break of at least thirty minutes in that time. In total, five of the Appellant’s employees are named in the compliance notice under appeal. Each of those employees is a qualified pharmacist and employed as such by the Appellant.

Compliance notice No. 000332 also alleged

• “contrary to the provisions of the Organisation of Working Time (breaks at Work for Shop Employees) Regulations 1998 [S.I. No. 57/1998]. Pharmacists, who are shop employees for the purposes of S.I. No. 57/1998, whose hours of work included the period from 11:30 am to 2:30 pm, were not after 6 hours, allowed a break of at least one hour”.

The Function of the Court pursuant to Section 28(10)

Section 28(10) of the 2015 Act provides:

“The Labour Court shall, upon an appeal under this section, do one of the following:

• 
  (a) affirm the compliance notice concerned;

  (b) withdraw the compliance notice concerned;

  (c) withdraw the compliance notice and require the employer to whom the notice applies to comply with such directions as may be given by the Labour Court.”

The Hearing

The Court, at the outset of the hearing of the appeal, and having regard to the functions invested in it by the Oireachtas by virtue of section 28(10) of the 2015 Act, raised its concerns with the Parties about the purported statutory breaches notified to the Appellant in CN No. 000332 and invited the Parties’ representatives to make submissions addressing those concerns.

The Court’s particular concern related to the inclusion of alleged breaches of S.I. No 57/1998 on the face of the compliance notice as issued. That statutory instrument is not an enactment specified in column (3) of Schedule 4 of the 2015 Act.

Mr Travers SC made two principal observations to the Court. Firstly, he stated that S.I. No. 57/1998 was secondary legislation made pursuant to the 1997 Act and should, therefore, be deemed to be included in Schedule 4. Secondly, Mr Travers SC directed the Court to the following definition in section 2 of the Interpretation Act 2005:

• “’enactment’ means an Act or a statutory instrument or any portion of an Act or statutory instrument”.

Mr Murray SC observed that the Court was, in his opinion, correct to raise its concerns about the reference to the alleged breaches of S.I. No. 57/1998 on the face of the compliance notice under appeal. He submitted that the Oireachtas had not included any statutory instrument – not least S.I. No. 57/1998 - in Schedule 4 of the 2015 Act and that, therefore, the inclusion of alleged breaches by the inspector of S.I. No. 57/1998 in CN No. 000332 rendered the compliance notice defective.

Decision

Mr Travers SC is correct in so far as he submits that S.I. No. 57/1998 is promulgated pursuant to section 12(3) of the Act of 1997. However, this does not alter the fact, as previously observed by the Court, that S.I. No. 57/1998 is not an enactment specified in column (3) of Schedule 4 of the 2015 Act. It is not open to this Court to infer or imply the inclusion of a statutory instrument into Schedule 4 simply on grounds of the legislative basis for the promulgation of that statutory instrument. To do so would rightly be seen to be an attempt by the Court to usurp a function invested solely in the Oireachtas under the Constitution.

The Court does not accept Mr Travers SC’s submission in relation to the significance he seeks to attach to the wording he quoted from section 2 of the Interpretation Act 2005. The definitions and interpretations listed in that section are prefaced by the words, ‘In this Act’. It follows that section 2 of the 2005 Act applies only to that Act. Mr Travers did also draw the Court’s attention to the fact that a similar interpretative provision is to be found in the 2015 Act itself and he is correct in this regard. However, in the Court’s view, Mr Traver’s attempt to invoke that interpretative provision undermines his first submission to the Court. S.I. No. 57/1998 is indeed an enactment within the meaning of the Act of 2015 but it is not an enactment that the Oireachtas deemed appropriate to be included in column (3) of Schedule 4 to that Act.

Section 28(10) of the 2015 Act vests jurisdiction in this Court to affirm or withdraw a compliance notice which is the subject of an appeal before it. In the alternative, the Court may withdraw the compliance notice and require the employer to whom the notice applies to comply with a direction from the Court.

What is patently clear from the wording of section 28(10) is that the subsection does not invest the Court with the power to ‘blue pencil’ a compliance notice issued by the Workplace Relations Commission. The Court has jurisdiction to affirm or withdraw, etc. a compliance notice as issued by the Commission but it does not have the power to amend or otherwise rewrite any such compliance notice.

CN No. 000332, for the reasons outlined above, is defective on its face and, therefore, the Court, pursuant to section 28(10)(b) directs that it be withdrawn.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
6th June 2019______________________
SCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.