Tánaiste Eamon Gilmore announced at the Labour Party’s National Conference that the Government will begin the process of legislating in the coming weeks to give employees the rights to engage in collective bargaining. In the address, Mr. Gilmore spoke about the importance of people having “better security in their jobs decent working conditions, and better opportunities”.
He said Labour had agreed in the Programme for Government to reform the current law on employee rights to engage in collective bargaining, so as to ensure State compliance with judgements of the European Court of Human Rights and added that the Government will being the process of legislating for that commitment in the coming weeks.
The Irish Courts have traditionally held a hostile approach to any notion of collective bargaining rights in Ireland. This can be evidenced from a 1982 High Court decision where it was held that “[t]here is no duty placed on any employer to negotiate with any particular citizen or body of citizens”. However, this Irish approach seems to be falling out of sync with the general approach adopted by the EU and one of the major campaigning points of the current joint Fine Gael-Labour programme was to introduce Irish legislation to deal with the issue of collective bargaining. Indeed, Minister Bruton has previously stated that the Department are seeking to “reform the current law on employees’ right to engage in collective bargaining (the Industrial Relations (Amendment) Act 2001), so as to ensure compliance by the State with recent judgments of the European Court of Human Rights”.
The Government has come under severe pressure from unions to deliver on this campaign promise as Unions had expressly stated they would not let the centenary year of the 1913 lockout pass without some movement on this issue. In February 2013 Minister Richard Bruton formally asked for submissions from all interested parties on collective bargaining, and as just announced we can expect to see the Government legislating on this matter very soon.
To give a background of the current position in Ireland and the EU we have outlined below the Irish and EU positions in relation to this issue.
The Irish Position: the “Ryanair Case”
Any such legislation will have to heavily bear in mind the well-known 2007 ‘Ryanair case’. In that case Ryanair were seeking to challenge a decision of the Labour Court which required Ryanair to engage in collective bargaining on foot of the Industrial Relations (Amendment) Act 2001. Ryanair brought the matter all the way to the Supreme Court and successfully had the Labour Court ruling overturned, with the Supreme Court stating that any such legislation needed to “be given a proportionate and constitutional interpretation so as not unreasonably to encroach on Ryanair’s right to operate a non-unionised company”.
The EU Position
As it stands, the Irish position above appears to be quite out of sync with the EU approach. In Demir and Baykara -v- Turkey the European Court of Human Rights recognised that the European Convention of Human Rights (ECHR) contained a right to collectively bargain under Article 11. Furthermore, the Charter of Fundamental Rights of the European Union which was introduced into Irish law contains a similar provision as Article 11 of the ECHR. Given that Irish law needs to be compatible with the ECHR and the Charter it is difficult to see how the current Irish position can remain the same.
Recommendations for the Current System
Following Minister Bruton’s invitation for interested parties to provide submissions on Collective Bargaining, Peninsula Ireland provided such, and firstly restated that Irish employees and trade unions enjoy extensive protection under Irish legislation. The focus of any such reform should be on fostering negotiations at a local level between the employer and employee directly. This can take two separate guises:
- The employee may negotiate directly and individually with their employer and in such circumstances they may, if they so wish, be accompanied by a trade union representative.
- The employees may agree to form an employee council which will act as a representative body on behalf of the employee body.
In the event of a trade dispute, whereby the employer fails to effectively meet the requirements expected of them, the matter may be referred to the Labour Court. In the event that the employees opt to elect an employee council, regard may be had to the Employees (Provision of Information and Consultation) Act, 2006, which requires an employer to put in place internal mechanisms through which their employees would be informed of developments of the employer’s activities and economic situation. The 2006 Act provides the following existing framework for Employee Councils which could be used as a framework for any future reform in respect of collective bargaining:
- Section 6 defines “employees’ representatives” in that they must be employees of the undertaking, elected or appointed for the purposes of the Act,
- The employer is obliged to arrange for the election or appointment of employee representatives.
- Where it is the practice of the employer to conduct collective bargaining negotiations with a trade union or excepted body that represents 10% or more of the employees in the undertaking, the 2006 Act provides that employees who are members of that trade union or excepted body are entitled to elect or appoint from amongst their members one or more than one employees’ representatives.
It is suggested that the evolution of the Employee Councils under the 2006 Act to cover collective bargaining issues would be a logical progression which would ensure that employees retain ownership of their terms and conditions, employers will retain their right to dissociate, trade unions will have an employee body with whom they can liaise, and the Labour Court and LRC can oversee the process to ensure that it is fair and compliant with Industrial Relations legislation. In addition, employees will still retain all the protection afforded to them by the Irish legislative system, including the rights afforded under the Industrial Relations Acts.
Is there a need for Reform?
As it stands, the question of the appropriateness of protection afforded to employees and trade unions has been challenged at the Supreme Court and before the ILO Committee and at no stage has the current system been found to afford insufficient protection for employees or unions. Ireland has always operated a voluntarist system to industrial relations and to introduce a system whereby both employees and employers are obliged to negotiate via a third-party union will only serve to strain relationships.
In effect, the employee and employer working relationship, protected as it is by an extensive body of Irish legislation and EU Regulation, will become completely subservient to a forced employer/union/employee bargaining triangle. Employees and employers can freely negotiate and enter into the terms upon which the employment relationship will be founded but yet the suggestion is that a trade union should have the authority to negotiate changes to those terms. The logic behind such an argument is baffling.
Every employee in Ireland has the right to join a trade union and is afforded substantial protection in respect of such membership. This protection is also supported by an established supervisory network operated by both the LRC and the Labour Court. To enforce mandatory collective bargaining and de facto trade union recognition is a step too far and will only serve to unduly fetter an employer’s right to dissociate and unduly hinder the day-to-day working activities of both employee and employer alike.