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  • By Brian Morgan of Morgan McManus solicitors

    Email : bmorgan@morganmcmanus.ie

     A Notice was published in the Irish Times on the 10th February 2011 requiring submissions to be made with regard to the Independent Review of ERO and ERA Wage Setting Mechanisms: Closing Date 25th February 2011.

    The Terms of Reference are on the attached Link :

     http://www.deti.ie/publications/employment/2011/ToR080211.pdf

     but, in summary, the Department of Enterprise, Trade & Innovation sought Submissions on reforms required to the labour market aimed at removing barriers to employment creation and disincentives to work allied with a commitment by the Government to review the framework of Registered Employment Agreements (“REAs”) and Employment Regulation Orders (“EROs”) within a 3 month period.

    Brian Morgan of Morgan McManus solicitors, Clones, County Monaghan (brilliantreddev.co.uk/morganmcmanus ) made the Submission detailed below on behalf of a Northern Ireland Electrical Contractor. The Report of the Independent Review, named after its authors the chairman of the Labour Court, Kevin Duffy, and Dr Frank Walsh of UCD, known as the “Duffy/Walsh” Report issued on the 24th May last. The Report is on the attached Link :

    http://www.deti.ie/publications/employment/2011/Report_ERO_REA.pdf

     In summary, the Duffy/Walsh Report recommends the retention of the basic framework of the REA / ERO system but with substantial reform. The Minister for Enterprise, Trade & Innovation, Richard Bruton, has issued a Press Release through the website of the Department. The Press Release is on the attached Link :

     http://www.deti.ie/press/2011/20110524.htm

     While the Press Release records that the Minister commits merely to have Recommendations for the overhaul of the framework completed by the end of June, this has however been interpreted by the media as meaning that there may be more radical reform than that recommended in the Duffy/Walsh Report. The writer refers in particular to a front page Report in the Irish Times dated 26th May 2011 titled “Thousands face pay cuts in proposed reform of wage deals” and copied on the attached Link :

     http://www.irishtimes.com/newspaper/ireland/2011/0525/1224297714624.html

     The area in this debate which was not considered by the Duffy Walsh Review was whether the REA / ERO framework is in breach of European law. The writer made a submission to the Independent Review that the framework was in breach of the Lisbon Treaty. This was not considered by Duffy Walsh as they explain that they were prohibited from considering such submissions due to the fact that the legal and constitutional validity of the system did not come within their Terms of Reference. It is in those circumstances that this Submission has been published with the consent of our client. Certain extracts have been excluded in order to protect the identity of our client.

     It is submitted that the REA / ERO framework conflicts with :

     (i)                          The fundamental principle of freedom of movement contained in Article 39 of the Treaty of Lisbon;

     (ii)                        The right of freedom of establishment as provided by Article 49 of the EU Treaty of Lisbon, which right provides for prohibition of restrictions on the setting up of agencies, branches or subsidiaries by nationals of any Member State in the territory of any other Member State, and also includes the right to set up and manage undertakings in particular companies or firms within the conditions laid down for its own nationals by the law of the country where such establishment is effected;

     (iii)                      The prohibition of restrictions on the freedom to provide services within the European Union as provided by Articles 56-57 of the Treaty of Lisbon.

     It is submitted that this European aspect to the debate requires consideration before the Government finalizes its recommendations.

     The following is an extract of the Submission furnished : http://bit.ly/lPxGwq