We are pleased to welcome this guest post by Professor Michael Doherty, Maynooth University.
Whenever a suggestion is made to strengthen the collective bargaining rights of trade unions in the workplace, the cry that ‘the multinationals won’t wear it’ is never far behind. However, Ireland currently has the weakest legal protection for collective bargaining (the rights of workers to have trade unions or representative groups negotiate terms and conditions of employment on their behalf) in the Western world. Even in the USA, employers can be forced to negotiate with trade unions if certain conditions are fulfilled, under laws dating back to the 1930s.
The Industrial Relations Amendment Acts 2001-2004 attempted to address this issue. The Acts allow a trade union, which represents members in a workplace where the employer refuses to bargain with the union, to get a legally binding order from the Labour Court in respect of specific issues related to terms and conditions of employment. The Acts, in section 5 (2), however, explicitly prohibit the Labour Court from ordering that collective bargaining take place.
Up until 2007, this legislation was becoming more and more frequently used by trade unions. Research I carried out showed that unions were taking actions under the legislation mostly against non-union indigenous employers in relatively low-pay sectors, like retail and security (again, indicating the ‘threat to US multinational investment’ argument has always been misplaced). The research also showed that the Labour Court, in its decisions, was effectively ‘bench-marking’ employers against comparators in the sector in question, and refusing union claims where the employers were in line with the ‘going rates’.
However, in 2007, the Irish Airline Pilots Association (IALPA, a branch of IMPACT) sought to negotiate with the airline Ryanair about various issues on behalf of members. Ryanair, as is its policy, refused to negotiate with the union and, as a result, the union invoked the procedures under the Acts. When both the Labour Court and the High Court found against it, Ryanair appealed to the Supreme Court, where its complaints about the Labour Court’s operation of the legislation were upheld. The case was remitted to the Labour Court for re-hearing, but the re-hearing never took place.
It is this 2007 Supreme Court decision, as well as a 2012 recommendation by the International Labour Organisation (ILO), that Part 3 of the just-published Industrial Relations (Amendment) Bill 2015 seeks to address (the Bill, in Part 2, addressees the fall-out from the McGowan decision on Registered Employment Agreements). First, the Bill (section 23) provides a definition of ‘collective bargaining’ for the purposes of the legislation. The Government has chosen neither to adopt the definition previously proposed by the Labour Court, nor the ILO definition, but to provide for ‘voluntary engagements or negotiations’ between employers and unions with the object of reaching agreement regarding working conditions or terms of employment.
Secondly, unions cannot take claims under the legislation where an employer does engage in collective bargaining, not with a union, but with a group of workers in the organisation (known as ‘excepted bodies’). This was a key factor in the 2007 Ryanair decision. The company argued that it did bargain with workers on terms and conditions of employment, via its Employee Representative Councils. IALPA argued that these Councils were a ‘sham’, and the Labour Court agreed, finding that the Councils were organised and controlled by the company and did not engage in collective bargaining. The Supreme Court, however, left open the question as to whether the Ryanair process did, in fact, amount to collective bargaining, but gave little guidance as to how this would be determined. The new Bill (section 23) now explicitly obliges the Labour Court to have regard to the extent to excepted bodies are ‘independent and not under the domination and control of an employer’. Factors such as the manner of election to, and financing and resourcing of, such a body; the frequency of elections to such a body; and the length of time the body has been in existence will need to be considered by the Labour Court. Furthermore, where an employer asserts to the Labour Court that it does engage in collective bargaining with groups of employees (but not a trade union), the employer must satisfy the Labour Court that this is the case.
Thirdly, the new Bill (section 26) explicitly requires the Labour Court, in examining whether to make a recommendation to improve the pay and conditions offered by any employer, to look at ‘the totality of remuneration and conditions of employment of comparable workers employed in similar employments’, whether or not such workers are unionised. This, as indicated above, has generally been the Court’s approach in any case, but the Bill also requires the Court to have regard to the sustainability of the employer’s business in the long-term.
Finally, concern had been expressed by commentators, and the ILO, about possible victimisation of workers seeking to invoke the provisions of the legislation. The legislation will be used, by definition, in workplaces where the employer refuses to negotiate with a trade union (as, of course, is the employer’s right). This could result in workers being fearful of coming forward to the Labour Court in order to give evidence on whether or not collective bargaining actually occurs. The new Bill (section 25) seeks to address this by allowing senior trade union officials to make a statutory declaration to the Labour Court setting out the number of union members who are employed by the employer and are party to the dispute, without identifying individuals, and the Labour Court can examine the veracity of this declaration. The Bill also (section 30) beefs up protections for individuals who are victimised as a result of providing evidence, assistance or information to the Labour Court in the course of its investigation into whether a trade dispute exists. Section 6(2) of the Unfair Dismissals Act 1977 is amended to include dismissal of such individuals as being unfair, and provision is made to allow individuals to apply to the Circuit Court for interim relief pending determination of the unfair dismissal claim.
The new Bill is a big step forward in protecting the rights of trade union members working for employers who refuse to negotiate with the union. It may also be useful to unions to use as a ‘springboard’; to demonstrate to non-members in a particular workplace the value of unionisation. However, some key matters of interpretation remain.
The use of the term ‘voluntary engagements’ in the definition of collective bargaining is odd, to say the least, and not one that is familiar in similar laws elsewhere. Much was made in the Ryanair decision of the ‘ordinary dictionary definition’ of collective bargaining. A cursory look at some dictionary definitions of ‘engagement’ indicates the barristers will be digging out their OEDs in the not-too-distant future. How this is construed by the Courts will be extremely interesting. It would be preferable if this term were simply removed from the legislation, in line with international norms. It would also be preferable if the legislation included a duty to bargain ‘in good faith’, and obliged the employer to disclose certain information to trade union or worker representatives (as per sections 181 and 182 of the UK Trade Union and Labour Relations (Consolidation) Act 1992).
Secondly, the ability of the Labour Court to establish if a non-union bargaining is genuinely independent will, ultimately, be the fundamental determinant of the success, or otherwise, of the law in protecting worker and trade union rights. Where an employer can demonstrate that it does carry on engagements (that word again…) or negotiations with the object of reaching agreement regarding wages or other conditions of employment with a group of workers, the procedures under the legislation cannot be invoked. A law on paper that can be circumvented by employers applying pressure (lawful or otherwise…) to their workforce to surrender employment rights will remain just a paper exercise.
Finally, it is somewhat disappointing, if unsurprising, that the legislation is not to apply where the number of workers party to the trade dispute is ‘insignificant’ having regard to the total number of workers employed by the employer (section 24 of the Bill) unless ‘exceptional and compelling’ circumstances exist. If collective bargaining is a fundamental right, as it clearly is under international and European law, it is not clear why I should be denied the exercise of my right just because I am in a minority in my workplace. Fundamental rights are not suspended at the office, or factory, entrance.
Professor Michael Doherty is Head of the Department of Law at Maynooth University.