Irish industrial relations system no longer voluntarist

An 'explosion' in labour law and its growing encroachment on traditional industrial relations terrain - and the greater use of mandatory outcomes in cases referred to dispute-resolution bodies involving collective bargaining - has resulted in the demise of industrial relations voluntarism in Ireland. This was the argument of a consultant and academic, Martin King, and the chair of the Labour Court, Kevin Duffy, at a conference held in February 2005.

There is considerable debate in Ireland at the moment about just how accurate it is to describe the industrial relations system as 'voluntarist', given the exponential increase in labour law in recent years (IE0406203F and IE0412203F). Under the traditional voluntarist model of Irish industrial relations, there was a view among employers and trade unions that there should be an absence of legal intervention in the industrial relations arena. In other words, the law should keep out of industrial relations. Part of the rationale behind voluntarism was the widespread perception that lawyers did not understand industrial relations. Rather, voluntary collective bargaining between employers and trade unions was the norm for regulating workplace issues across large sections of the economy. Employers and unions would deploy their respective power resources at the negotiating table to achieve the best outcome.

Voluntarism was one of the key themes of debate at the 25th anniversary conference of Ireland’s specialist industrial relations publication, Industrial Relations News, entitled 'Shaping the future', held on 24 February 2005.

In two wide-ranging presentations at the conference, Martin King, a consultant and academic, and Kevin Duffy, the chair of the Labour Court, both concluded that such is the scale of the encroachment of employment law on the terrain of traditional industrial relations in Ireland that the system can no longer accurately be portrayed as voluntarist.

Growth of labour law

According to Mr King, the Irish system of industrial relations has traditionally been, and continues to be, described as voluntarist, but he argues that this is no longer the case. He asked whether voluntarism still fits actual behaviour and practice.

In recent years, there has been an exponential expansion in individual labour law, but trade union density and collective bargaining in Ireland - as in many other countries - have been in retreat (IE0102164F). Comparing past with present, Mr King said that, in the 1960s and 1970s, workers seeking rights and/or entitlements generally contacted trade unions. However, by 2005, he estimates that union density has declined to about 20% in the private sector (only 11% in foreign-owned private sector companies), although it remains at well over 85% in the public sector.

There are now 25 separate pieces of employment legislation and the volume of cases referred to 'third-party' institutions has been increasing year on year. Employers suggest they are finding it difficult to cope with the mounting burden of compliance. The volume of employment legislation now means that virtually no aspect of the employment relationship is now completely free from regulation. Ireland’s employment law framework has grown on an ad hoc and fragmented basis, argued Mr King, and its complexity prompted the government to call for a simplification of employment rights laws and bodies, and a report was produced in 2004 by an Employment Rights Review Group. It remains to be seen how this review will proceed.

Mr King pointed out that the third-party dispute-resolution agencies report on their own specific areas of activity: 'Practitioners time has been taken up with 'learning' the obligations imposed by the increasing list of 'new' legislation, how to ensure 'compliance', and how to navigate the complexities of the legislative routes, rather than having an overall view about how the system has actually changed'.

Shift to issues of right

Increasingly, it is argued, much of what formerly took place within the domain of interest-based collective bargaining between unions and employers now takes place within the realm of individual rights-based legislation, with third-party institutions more and more deciding outcomes - which are increasingly mandatory and binding on the parties. While issues of interest are disputes in pursuance of claims based on the terms of an agreement, fair comparison and equity, issues of right are disputes in relation to a claim to a legally enforceable right derived from statute.

As chair of the Labour Court, Kevin Duffy, is in an ideal vantage point to discuss voluntarism. Mr Duffy referred at the conference to the explosion in labour legislation and the changing role of the Labour Court, commenting that in keeping with the voluntary nature of the industrial relations system, the parties to an industrial dispute are still mostly free to accept or reject Labour Court recommendations. However, he said that while the bulk of the Labour Court’s work is still on industrial relations disputes over issues of interest, it now has an expanding role in adjudication on disputes over issues of right.

According to Mr Duffy, in 2003 there were a total of 9,289 referrals on issues of right to Rights Commissioners, the Equality Tribunal, the Employment Appeals Tribunal and the Labour Court. This compares with 2,505 referrals on issues of interest to Rights Commissioners and the Labour Court. In percentage terms, nearly 80% of referrals to all employment adjudication bodies relate to issues of right, and 21% on issues of interest.

Mr Duffy pointed out that, significantly, of the case referrals on issues of interest, 51% had non-binding or voluntarist outcomes that can be accepted or rejected (under Section 26 of the Industrial Relations Act 1990) . This applies to 10% of all case outcomes (issues of right and interest). However, the remaining 49% of cases on issues of interest had binding/mandatory outcomes. He observed that the 10% of voluntarist case outcomes are often in sensitive areas of the economy, with strikes sometimes ensuing. Of all Labour Court voluntarist recommendations under Section 26, Mr Duffy pointed out that 75% are accepted by both parties. Employers accept 99% of such recommendations, while unions accept less. While an employer rejection is perceived as extraordinary, he suggested, there is more of an expectation that it is voluntary for unions to accept or reject recommendations.

Test of voluntarism

To test whether the Irish system can still be described as voluntarist, Mr King said that actual practice should be examined. In relation to collective bargaining: 'The ultimate test of a voluntarily negotiated collective bargaining agreement, is whether the employees covered by such proposed agreements are at liberty to reject the outcome of those negotiations. The liberty of the parties to determine the nature and the content of their own relationship, clearly implies that the acid test of a truly voluntarist system, is one in which the parties are at liberty not to agree.'

Mr King sought to apply the test of whether an outcome is capable of being rejected (a voluntary outcome) or is binding (a mandatory outcome) to over 200,000 employment cases taken since 1968. The results indicate the Ireland now has a highly regulated industrial relations system, given that, back in 1968, 80% of case outcomes were voluntary, whereas today only 20% of cases can be classified as voluntary.

Moreover, even where voluntarism remains (cases taken through the Labour Relations Commission conciliation service), it has been further eroded by the recent introduction of the two binding arbitration procedures introduced under the current Sustaining Progress national agreement (IE0301209F and IE0304201N): the pay compliance clauses (IE0312204F); and the provisions of the Industrial Relations (Amendment) Acts relating to disputes over union representation (IE0409204F). Thus, although the parties are ostensibly free to reject the Labour Relations Commission conciliation stage of these procedures, they both ultimately contain binding mechanisms to bring finality to disputes. The very presence of the binding provisions may prompt voluntarist solutions.

According to Mr King, outbreaks of high-profile, non-binding voluntarist activity are now only likely to be seen in rationalisation/reorganisation programmes, and even in these remaining voluntarist heartlands, there could yet be further 'peace clauses' and essential service regulations circumscribing voluntarism even more (IE0404202F).

One of the main consequences of the shift from voluntarism to binding procedures, Mr King suggested, has been greater predictability - which is valued by employers and government, and has been consolidated by national social partnership agreements. Looking to the future, Mr King said if there is another national agreement there will be a further consolidation of mandatory clauses. He raised the question of what would happen in the event that social partnership deals come to an end. In relation to this - and combined with the fact that the industrial relations system is increasingly 'case-based'- both trade unions and employers may be gradually losing the skill of workplace negotiation.

More 'excepted bodies'

Mr King also referred to the forthcoming Irish legislation transposing the 2002 EU information and consultation Directive (2002/14/EC) (EU0204207F) , which will introduce additional mandatory employment rights (IE0502203F). There is likely to be an increase in 'excepted bodies', such as staff/works councils, as non-union channels of employment regulation. The upshot of all this, Mr King concludes, is that 'the voluntarist emperor is threadbare if not totally naked'.

Mr Duffy also looked at the practicality of the further use of mandatory dispute-resolution procedures and outcomes in the future, in respect of: matters covered by agreements, before industrial action, in essential services, or in all cases. For instance, on using mandatory procedures before industrial action, Mr Duffy said that this is the current position in many cases already, but he warned that it could lead to abuse of procedures whereby parties 'go through the motions' and result in Labour Court involvement where there is no realistic possibility of success.

In respect of mandatory outcomes on matters covered by local collective agreements, Mr Duffy said that this would be in line with other European countries; an adaptation of what is in the current national pact, Sustaining Progress; would provide certainty and safeguards for both sides against breach of agreement, and encourage parties to conclude clear and comprehensive agreements. At the moment, he said, there are many spurious claims, whereas, 'if people were stuck with agreements, they would take more care over constructing them'.

On mandatory dispute-resolution outcomes in essential services, Mr Duffy asked whether the situation in such services is good enough anymore. Should workers in essential services not accept that they are different from other workers and have added responsibility? And should this be reflected in local agreements and should these workers have special premiums in pay and conditions, Mr Duffy asked. On whether mandatory outcomes should apply in all cases, the Labour Court chair said that this is unlikely to be acceptable, and could have legal/constitutional difficulties.

Commentary

It is clear that the proliferation of labour law in Ireland in recent decades - both from EU and domestic sources - and its growing encroachment on traditional industrial relations terrain, has resulted in the demise of industrial relations voluntarism in Ireland. Whereas, traditionally, employers and trade unions were largely free to conduct collective bargaining on their own terms, intervention by politicians and lawyers now tends to be the norm rather than the exception. This is reflected by the widespread use of mandatory outcomes in cases involving collective bargaining. It does seem accurate to suggest then, that the voluntarist emperor in Ireland is threadbare if not totally naked. (Tony Dobbins, Industrial Relations News)