Shining a light on Sectoral Employment Orders…
By Tom O’Driscoll
Sectoral Employment Orders (SEOs) were part of a package in the Industrial Relations (Amendment) Act, 2015 brought in by the last Government which also included Collective Bargaining legislation and revamped procedures for Registered Employment Agreements (REAs).
An SEO is distinct from an REA in that it is an order that covers a defined economic sector and can be applied for unilaterally by a trade union whereas an REA is a registered agreement usually between a single employer and a trade union.
Though the legislation has been around since late 2015 the SEO has yet to be fully appreciated or utilised in the battle to organise and improve the terms and conditions of workers in some fallow economic sectors. The following FAQ format will hopefully shine some light into this dark corner:
What is a Sectoral Employment Order?
It is an order by the Minister for Jobs, Enterprise and Innovation acting on the recommendation of the Labour Court, fixing rates of pay, sick pay and pension entitlements of a class, type or group of workers in an economic sector. An example might well be the domestic refuse industry.
What is an “economic sector”?
It is defined in section 13a as “a sector of the economy concerned with specific economic activity requiring specific qualifications, skills or knowledge.”
Who can apply for the Order?
An application may be made unilaterally, or jointly, by a trade union of workers, a trade union of employers, or an organisation of employers, to examine the conditions relating to pay, sick pay and pensions of workers in an economic sector.
What conditions must be in existence before an application for an SEO can be made?
The trade union must be “substantially representative” of the workers to whom the order will apply and likewise, the organisation of employers must be “substantially representative” of employers to whom the order will apply.
What is the meaning of “substantially representative”?
There is no clear quantitative measure of what “substantially representative” means but it has been judicially held that the word “substantial” is equivalent to considerable, solid or big. It can also mean something more than the ‘normal’ or ‘average’.
What are the principles and policies to which the Court must have regard when making an order?
• Potential impact on employment in the sector.
• Any national agreement relating to pay and conditions of employment.
• Impact on competitiveness.
• Level of remuneration in other economic sectors in which workers of the same class, type or group are employed.
• That the SEO will be binding on all workers and employers in the sector.
• That the order will promote harmonious relations and assist in avoiding disputes.
What may be included in a Labour Court recommendation?
A recommendation may provide for all or any of the following:
• Minimum rates of pay more than the National Minimum Wage.
• Not more than two higher rates based on:
I. Length of service;
II. Recognised skills or standards.
• Lower rates may be provided for in circumstances like those set out in sections 15 and 16 of the
National Minimum Wage Act 2000.
• A minimum rate for
• Rates for shift work, piece work, overtime, unsocial hours worked, Sunday working, travelling time (when working away from base).
• Requirements as to pension schemes, including daily rates of contribution.
• Requirements as to sick pay.
• The recommendation must contain dispute resolution procedures.
What are the powers of the Minister?
Within six weeks of having received a recommendation from the Court, the Minister shall make an order confirming the recommendation provided he or she is satisfied that conditions specified in the Act have been complied with. The Minister can refuse to make an SEO if he or she is not satisfied that the conditions within the Act are met.
What can a worker do if s/he believes there is a contravention of an SEO?
Individual contracts of employments must be adapted to reflect at least the bottom line requirements of the SEO. If a worker feels that there has been a contravention of an SEO, s/he can make a complaint to an Adjudication Officer and on appeal to the Labour Court.
Penalisation of a worker for taking a claim is prohibited under section 19 of the Act.
Can an employer seek an exemption from the terms of an SEO?
Yes, but the Court must be satisfied:
• The majority of workers or their representatives have consented to the application;
•The employer is in severe financial difficulty.
The above is just a brief outline of the legislation but the Legal Rights Unit of SIPTU will gladly advise members further in this area, if required.