Individual bargaining rights backed in recognition case

In one of the first cases to be heard under Ireland's 'right to bargain' trade union recognition legislation, in August 2002 Labour Court gave Bantry Bay Seafoods, a food company, one month to set up a grievance and disciplinary procedure for individual employees, which should provide for union representation where employees so wish.

On 26 August 2002, in only the second case heard by the Labour Court under the recent so-called 'right to bargain' trade union recognition legislation (IE0201260F), the Court set a one-month deadline for a food-manufacturing firm to establish a grievance and disciplinary procedure for individuals. The company – Bantry Bay Seafoods– was also told to provide each employee with a written statement to the effect that the company respected their right to join a trade union and that no employee would 'suffer any disadvantage' if they exercised that right.

The Court pointed out, however, that it 'cannot and does not recommend' that the parties engage in collective bargaining on terms and conditions of employment, adding that 'nothing contained in this recommendation should be construed as providing for collective bargaining'. Nonetheless, the Court’s interpretation of what can be dealt with under the new individual grievance procedures seems to include issues such as pay and conditions – albeit on a worker-by-worker basis rather than collectively.

The recommendation was made under the 'right to bargain' provisions of the Industrial Relations (Amendment) Act 2001 (Amendment) Act, 2001 (IE0108242N), which at this stage of the process are non-binding. However, if the recommendation is not implemented, the union concerned, the Service Industrial Professional and Technical Union (SIPTU) may apply to the Court for a 'determination', which would then be binding.

The 'right to bargain' provisions retain the largely voluntarist approach to industrial relations in Ireland, with the binding procedures representing a fall-back mechanism of last resort. The provisions do not legislate for formal trade union recognition, but do allow for effective representation at in regard to pay and conditions.

In the Bantry Foods case, SIPTU claimed that the company was refusing to meet it to agree formally a contract of employment for its members. It also alleged that a number of workers had been approached by management and asked to resign from the union.

The company had argued that the vast majority of workers wanted to continue dealing directly with the company and did not want to be represented by a union. All workers had been given statements outlining their terms and conditions of employment.

The Court observed that the employer had declined an invitation from the Labour Relations Commission (LRC) to process the dispute through the voluntary option available under the 'right to bargain' system, a decision the Court felt was 'particularly regrettable'.

The Court said the employer should put in place a 'disciplinary and grievance procedure which conforms to the general provisions of the Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000). Consistent with this code, the company procedure should provide for trade union representation in processing individual grievances and disciplinary matters, where an employee wishes to avail of such representation.' This procedure should provide for the 'full utilisation of the normal dispute resolution machinery of the state', including the use of the LRC, the Rights Commissioners’ service and the Labour Court.

The Court said that any dispute or issue in relation to terms and conditions should be processed individually through the grievance procedure that it had recommended: 'Any employee wishing to avail of trade union representation in this process should be afforded that facility in an individual capacity'. This opens up the possibility that if the workers wish to raise a claim on an issue such as pay, each of them will be able to raise it individually through the proposed new grievance procedure, with each union member entitled to full representation.