Ballydoyle lawyers seek to have compliance order withdrawn

Ballydoyle legal representatives sought on Tuesday to have withdrawn the compliance notice that prevents training yards meeting the criteria for recognition as agricultural workplaces.

Since February 2015, racehorse training yards do not qualify for working hours exemptions that are allowed for in agricultural workplaces, as defined by industrial relations law.

The basis of the Ballydoyle Racing legal team's argument on the second day of a Labour Court appeal in Dublin is that the compliance notice issued after an inspection by the Workplace Relations Commission did not state how the employer was in contravention of the grounds under which the commission made its finding.

In his closing argument, senior counsel Mr Paul Gallagher argued for Ballydoyle that industrial relations legislation makes “very clear why the grounds must be set out, because the compliance notice is seeking to get the employer to comply”.

“It isn't a formality,” Gallagher added. “It has a very specific purpose, given the consequences. It is remarkable that there is no mention in the compliance notice of the issue that has taken up so much of the court’s time, which is the agriculture exemptions.

“Even if the [WRC] inspector was satisfied that the exemption didn’t apply, the grounds are not set out.”

Standard working hours regulations

Gallagher proffered the view that, if grooms and work-riders at Ballydoyle, run by champion trainer Aidan O’Brien, met the criteria that would see them considered agriculture workers and therefore not subject to the standard working hours regulations under industrial relations law, then the employer would have had the opportunity to fulfil its statutory requirements in that regard and provide the requisite rest periods.

As had been the case a day earlier, it was again established during the hearing on Tuesday that some Ballydoyle employees had worked 28 consecutive days without a day off.

Among the staff benefits that might constitute acceptable compensation under law, Gallagher outlined extended holidays that go beyond statutory requirements, free accommodation, medical check-ups and a subsidised canteen.

He also proposed that failure to comply with an enforcement notice is a criminal offence. He argued that, because of the failure to state the grounds of the contravention that led to the compliance notice, "it is, on its face, defective”.

'That's what the groom does'

He added: “By any version of the law and the facts, [the work of grooms and exercise riders] is agricultural activity. The groom does work with the horses – that’s what the groom does.

"What part of cleaning out stables, feeding the horse, grazing the horse, minding the horse when it's travelling, is not caring for animals? What part of it is not animal husbandry? The WRC has not addressed that."

On the specific matter of the compliance notice, the WRC’s senior counsel Noel Travers rejected any suggestion of criminal liability on behalf of the employer. He also defended the manner in which the 1976 Industrial Relations Act was amended in 2015 to preclude the rearing and training of racehorses from being recognised as agricultural labour.

Gallagher noted that the specific change to the Industrial Relations Act 2015 was not required by European law, while Travers argued nation states are free to make such derogations internally.

Gallagher said: “The Industrial Relations Act can’t take away a derogation that existed. It can’t create a criminal offence for something that was entirely lawful.

"It is a principle of our law that such an amendment must be referred to, but it doesn’t, it amends it solely for the purpose of that act and not for any other.”

Earlier, the Labour Court panel, comprising chairman and barrister Alan Haugh and committee members Sylvia Doyle and Jerry Shanahan, heard WRC Inspector Pat Phelan also reference the 2015 Industrial Relations Act amendment in explaining why he concluded grooms and work-riders aren't agricultural workers.

He noted the amendment defines agriculture as “raising animals or crops for human consumption”.

'World-class racing outfit'

Phelan stated that another element he took into account when deciding they were not exempt was a description on Ballydoyle’s own website. “It describes itself as a world-class racing outfit, racing horses, involved in sporting activity,” he said.

Gallagher, who also observed racing falls under the auspices of the Department of Agriculture, countered: “There's nothing sporting at Ballydoyle – this is a serious business.”

On the issue of not setting out the grounds for the compliance notice relating to the agriculture exemption, Phelan accepted he may not have done so in writing. However, he said he had made Ballydoyle’s HR manager Tom Cummins aware at a meeting in October 2016.

“We set out that they would need to put in writing the grounds for being considered exempt,” he said. “The onus is on the employer to prove the exemption applies to them in the first place.”

Gallagher said: “The exemption applies provided the workers are wholly or mainly engaged in agricultural activity. Even if it is not wholly, it is mainly, and that is sufficient.”

Stud farms do qualify for exemption, and the interlinking nature of Ballydoyle and Coolmore was again stressed.

On Monday, O’Brien had referred to those at Ballydoyle being charged “with firing up the genes” that contribute to Coolmore’s success, and Gallagher reiterated that assertion on Tuesday.

The appeal hearing, which is being viewed as a test case for the greater racing industry in Ireland, is now concluded, but a verdict is not expected for weeks.