International Centre for Trade Union Rights

Labour law in IrelandAuthor(s): ALEX WHITESource: International Union Rights, Vol. 13, No. 1, Labour rights are human rights: Unionsmarch for justice (2006), pp. 4-5Published by: International Centre for Trade Union RightsStable URL: http://www.jstor.org/stable/41937393 .

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OPINIONI IRELAND

Labour law in Ireland

There have been a number of high- profile disputes

where trade unions have

sought to establish

negotiating rights with employers. The Irish Labour

Court has usually recommended

that the employer should recognise

the union

ALEX WHITE is a barrister based in Dublin, Ireland

PRIOR Irish nor to

employers to

engage

2001

in

there to any

recognise was

way

no

with

compulsion trade workers'

unions, rep-

on Irish employers to recognise trade unions, nor to engage in any way with workers' rep-

resentatives or their organisations. This has changed to some extent with the introduction of a novel system whereby terms and conditions of employment effectively may be imposed on employers who refuse to deal with trade unions. While it would be wrong to characterise the new law as amounting to compulsory recognition, since there is still no legal requirement on employers to recognise trade unions, it has been suggested that the new system amounts to recognition by the 'back door'.

The Irish Constitution of 1937 guarantees, sub- ject to public order and morality... the right of citi- zens to form associations and unions'.1 This right of association has been held by the Irish Supreme Court to include, by necessary implication, the right of any citizen not to join associations or unions if they do not desire. This constitutional right to form and join trade unions does not, how- ever, require an employer actually to negotiate with any trade union. Indeed, the Supreme Court has stated that ...an employer is not obliged to meet anybody as the representative of his worker, nor indeed is he obliged to meet the worker him- self for the purpose of discussing any demand which the worker may make'.2

There have been a number of high-profile dis- putes where trade unions have sought to establish negotiating rights with employers. When called upon to adjudicate on such disputes, the Irish Labour Court3 has usually recommended that the employer should recognise the union. The prob- lem for the trade union movement has been that such recommendations' had no binding force, ren- dering it extremely difficult to establish negotiating rights where the employer is able to withstand the pressure of industrial action.

Since the 1960s, Irish governments have devel- oped a highly successful strategy of attracting for- eign direct investment to the country. Many of the businesses which have located in Ireland as a result are US-based, and do not welcome or encourage trade union activity Accordingly, trade unions have found it extremely difficult to organise in this high- growth sector of the Irish economy. In addition, many indigenous employers have also sought to exclude trade unions - the most well-known being Ryanair, whose refusal to recognise the SIPTU union led to a major dispute at the airline in 1998.

As a result of pressure from the trade union movement in the aftermath of the Ryanair dispute, the Irish government agreed to consider legislative intervention in this area. A lengthy period of debate and negotiation4 led ultimately to the enact- ment of the Industrial Relations (Amendment) Act, 2001.

The most significant provision contained in the 2001 Act was the power given to the Labour Court to make binding recommendations on terms and

conditions of employment, in circumstances where the employer refuses to negotiate. The Act did not introduce compulsory recognition of trade unions. Instead, it introduced a system whereby terms and conditions of employment, including pay, could be imposed on an employer who fails to enter into collective bargaining with a trade union. Part of the thinking behind the legislation was that employers would come round to negotiating directly with trade unions, when they realised that the union's demands could end up being imposed anyway.

The new regime consists of a number of differ- ent stages which the union must go through before it may seek a binding recommendation. Because these procedures were soon found to be cumber- some and lengthy, particularly where an employer was intent on delaying the process, an amendment was made to the Act in 2004 as a result of further trade union pressure. This amendment tightened up the time frames involved (setting an overall time limit of 26 weeks, extendable to 34 weeks by agreement) and introduced a new Code of Practice in order to make the enforcement mechanisms more effective.

The procedures only apply where there are no negotiating arrangements in place in the particular employment, and where collective bargaining has failed to occur. The first stage of the process takes place in the Labour Relations Commission, and essentially consists of negotiation/conciliation. If the issues are resolved at that stage, the matter does not need to progress any further, since both sides - employer and trade unions - have engaged in negotiation, and agreement has been reached on the issues involved. However, if the employer does not participate in the process (or does so, but no agreement is reached) the matter progresses to the next stage, involving the Labour Court.

Before the Court can consider a dispute, a num- ber of conditions must be met. These include a requirement that the Court is satisfied that it is not the practice of the employer to engage in collec- tive bargaining negotiations in respect of the grade, group or category of workers who are party to the trade union, and the internal dispute resolution procedures (if any) normally used by the parties concerned have failed to resolve the dispute'.5 In addition, the trade union or the employees must not have had recourse to industrial action at any time after the dispute in question was referred.

The Court has defined collective bargaining as a process by which employers or their representa- tives negotiate with representatives of a group or body of workers for the purpose of concluding a collective agreement fixing the pay and other con- ditions of employment applicable to the group or collective of workers'.6

In addition the Court has stated that ...an essen- tial characteristic of collective bargaining, properly so called is that it is conducted between parties of equal standing who are independent in the sense

INTERNATIONAL union rights Page 4 Volume 13 Issue 1 2006

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that one is not controlled by the other'. The signifi- cance of this observation is that an employer can- not avoid the new procedure by pointing to some form of non-union employee consultation process established by it. In a case taken against Ryanair,7 the Court ruled that the company's 'town hall meetings' and 'Employee Representative Com- mittees' had none of the essential characteristics of collective bargaining and so the employer could not offer this as an excuse for avoiding the new procedures.

In order for the new procedures to be available, the internal dispute resolution procedures (if any) must have failed to resolve the dispute. The proce- dures referred to here are collective dispute proce- dures. It is not sufficient for an employer to point to the existence of an internal individual dispute procedure, as this normally would not be appropri- ate for addressing claims by a collective group of workers. The Labour Court has been very clear on this point and has refused to allow employers to rely on the existence of individual grievance proce- dures as a means of avoiding the provisions of the Act, which is primarily concerned with resolving group or category disputes.

If these various pre-requisites have been satis- fied, the Labour Court can proceed to investigate the dispute, and make a recommendation. Where this recommendation is not implemented by the employer, the Labour Court may go on to make a legally-enforceable determination.

In general, the Labour Court will only exercise these powers where pay or conditions of employ- ment are out of line with accepted standards in the particular industry concerned. But where the Court is satisfied that there is such a divergence, it will be prepared to impose terms and conditions - even to the extent of ordering the payment of spe- cific rates of pay into the future. This is a very radi- cal departure, especially when one considers that the Court's orders may be rendered legally binding under the procedures described above.

It is important to emphasise again that the rec- ommendation or determination may only deal with a claim concerning the employees' terms and con- ditions. The Court cannot make a recommendation or determination setting out arrangements for col- lective bargaining as such, since there is no power under the Act to require the employer to deal with the union. What the Court can do is impose terms and conditions on a recalcitrant employer. This is why the procedure has been described by its advo- cates as 'recognition by the back door' since it affords the union a mechanism for achieving the very outcome it was seeking in the first place through collective bargaining. It may also work as an incentive to employers to deal directly with trade unions rather than going through an indirect procedure, the outcome of which may be the same, or arguably worse, from the employer's point of view.

However, this may amount to wishful thinking -

especially in the case of employers who resolutely refuse to negotiate with trade unions as a matter of policy One such employer, Ryanair, has already brought a High Court challenge to the operation of the procedures by the Labour Court. The action was unsuccessful but is now on appeal to the Supreme Court, with a decision expected later this year. The new regime has also been criticised by some commentators who claim that it may act as a disincentive to multi-national companies consider- ing locating in Ireland. As yet, however, there is no evidence to support this contention. Another criti- cism is that the Labour Court effectively is acting as a surrogate trade union in non-union employ- ments, forcing employers to improve the terms and conditions of its employees, even if the unions are not gaining recognition as such.

Viewed from the perspective of trade union rights, these new procedures represent a signifi- cant advance for trade unions and their members - especially in low-pay employments where unions are not recognised. However, the new regime may not be of much assistance to workers in larger multinationals where pay and conditions are bet- ter, and where it would be difficult to persuade the Court that the terms and conditions are significant- ly out of line with appropriate standards.

Also, the demand for trade union recognition is an important one in its own right. The fact that improved terms and conditions can be secured from the Court is a welcome advance for workers in non-union employments. But there are many other compelling reasons for trade unions to demand negotiating rights. Relying on a third party to secure basic terms and conditions can never be a real substitute for the right to trade union recog- nition.

Notes 1 Article 40.6.1 2 EI Company Ltd v Kennedy [1968] IR 69 3 The Labour Court deals with labour disputes under the Industrial Relations Acts. Its jurisdiction has been extended significantly in recent years to cover individual employment rights, for example, under equality legislation (though not including dismissals). There is also a separate conciliation body known as the Labour Relations Commission. 4 Under the partnership' process, a tri-partite sys- tem of bargaining between government, employ- ers and trade unions, in place since the 1980s. 5 Section 2(1) 6 Ashford Castle Limited v SIPTU CD/04/971, Determination No. 051 7 Ryanair v Impact/LALPA CD/04/1199, Decision No. 18075

One criticism is that the Labour Court is acting as a surrogate trade union in non-union

employments, forcing employers to improve the terms and conditions of its

employees, even if the unions are not

gaining recognition as such

Page 5 Volume 13 Issue 1 2006 INTERNATIONAL union rights

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