The three childcare companies behind an attempt to have the employment regulation order (ERO) for the childcare sector quashed contend the Labour Court process did not properly comply with the Industrial Relations Act, 1946.
In court documents obtained by The Irish Times, the legal firm acting for the providers, HG Carpendale, argues that because a number of requirements of the Act in relation to young workers have not been properly met, the Minister of State who approved the current ERO in October, Alan Dillon, could not have met his statutory duty to ensure the Act had been complied with and should therefore have rejected the proposed order.
Under the ERO system, representatives of employers and workers contribute to a joint labour committee (JLC) which, after a wider consultation, it is intended, agrees the key aspects of an order which goes to the Labour Court and is then forwarded to the Minister for approval.
The owners of Mary Geary’s Childcare in Cork; Kidology, which runs three facilities in Dunboyne, Mulhuddart and Castleknock; and Faylinn, in Gorey, Co Wexford, last week sought leave in the High Court to judicially review the Minister of State’s handling of the process.
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Having been granted leave after an ex-parte hearing, the case is due to return to court on April 21st.
The documents lodged with the court raise issues with aspects of the proposed order that emerged from the Labour Court in that it does not specifically address the rates of pay for those entering employment in the sector for the first time after reaching the age of 18 or for those who start work in the sector before the age of 18 and then continue working in it on turning 18.
Both, the legal team representing the three argue, are requirements of section 42A (5) of the Act.
In addition, it is argued that provisions in the ERO are mistakenly based on section 15 of the National Minimum Wage Act 2000 rather than the Industrial Relations Act.
This, it is argued, is clear from a reference to sub-basic rates for 19-year-olds when no provision for specific rates to be paid to this age cohort is included in the Act under which the EROs are drawn up.
The firms also argue the regulations require an explanation of how the new recommended rates of pay were arrived at but that this is entirely absent.
In accompanying affidavit, Conor Ryan, a director of Faylinn and previously a member of the JLC which formulated the EROs for 2022 and 2024, says he “objected to proposals to link remuneration increases to a proposed or anticipated grant”.
He said Siptu, which represents workers at the JLC stage, argued that the amount of money the Government had allocated to improve wages in the sector should be an important consideration when deciding on any pay increase but this, Ryan argues, is contrary to the requirements of the Act and “undermined the fairness and sustainability of the intended increase”.
The ERO approved by the Minister in October set the basic rate of pay in the sector, which employs about 35,000 people, mainly women, at €15 per hour, 85 cent per hour above what has been the national minimum wage since January 1st. The minimum rate for graduate lead educators was set at €17.50.
The owners of the three companies seeking to have the order quashed organised meetings of other service providers in early February seeking financial support for their legal challenge.
