A law giving employees the right to bargain collectively has been passed in Ireland after a great deal of debate. Until now, under the constitution, a worker’s right to join a union has effectively been cancelled out by an employer’s right not to recognise a union for bargaining purposes. However, the social partners support the new regulation.
The Industrial Relations (Amendment) Act 2015 amends industrial relations laws passed in 2001 and 2004. It also addresses critical legal issues raised in a 2007 Supreme Court judgement that meant that trade unions could no longer use the original 2001 legislation.
The new law backs up the Fine Gael–Labour government’s commitment to offer opportunities for collective bargaining at companies that do not currently engage with trade unions. Ged Nash, the Minister for Business and Enterprise, told the Dáil (Ireland's parliament) in July 2015 that ‘where companies are refusing to engage with trade unions to collectively bargain’, claims can now start to be processed, firstly through the Labour Relations Commission. The minister, announcing that the new law had passed all necessary stages in the legislature, said it would ‘provide an improved framework for workers who seek to better their terms and conditions where collective bargaining is not in place’. He explained that the law contains strong anti-victimisation elements to protect workers, and also makes it possible for any collective agreement to be enforced through the Circuit Court should an employer refuse to comply.
The legislation is a key commitment in the government’s programme and was also included in the Statement of Priorities agreed by the Taoiseach and Tánaiste (Prime Minister and Deputy Prime Minister) in July 2014.
Labour Court Chair Kevin Duffy told the Resolve Ireland conference in Dublin on 6 October that the Labour Court can now look to comparators (both unionised and non-unionised) when making a decision about workers’ terms and conditions.
He said that the Court will be able to draw on precedent and experience of the remuneration and working conditions of the workers concerned, when assessing comparisons with workers in ‘similar employment’.
However, he said there could be difficulties in assessing what ‘similar employment’ means. He explained that this similarity does not relate to the actual work that a group of employees carries out, but to similar companies, and he admitted that he did not know whether this assessment would be related to company size, or to market-related criteria.
He also said that the Court could have problems assessing ‘variable pay’ systems. He explained that the Labour Court has traditionally been concerned with disputes in companies where there is collective bargaining, where pay systems tend to be uniform. Under the amended legislation, however, the Court may have to consider situations where variable pay systems are the norm ‘in similar employments’. Before the legislation was amended, he noted, variable pay systems were vulnerable because of the requirement to have regard to collectively negotiated arrangements.
The Labour Court Chair also said that the new law has, in effect, reversed the effect of two critical legal rulings made on the basis of the original 2001 legislation. These were a High Court ruling in the Ashford Castle case in 2008, and one by the Supreme Court in a case involving Ryanair in 2007.
After the Ashford case, the Labour Court could recommend terms and conditions for workers. The 2015 law removes this possibility unless existing terms and conditions are out of line with those in ‘similar employments’, not just in collective bargaining cases.
The new law supersedes the Supreme court’s Ryanair ruling because it now provides a definition of collective bargaining. This means that there must be voluntary engagement between an employer and trade union, or an ‘excepted body’ to which the legislation applies, although such a body cannot be funded or controlled by an employer.
It is now for the Labour Court to establish whether a union is representative of its unrecognised members when an employer refuses to engage in collective bargaining. This can now be done through a statutory declaration by the chief officer of a union, without having to reveal the names of union members.
The original framers of the legislation, which included Labour Court Chair Kevin Duffy and Turlough O’Sullivan, the former Director General of the Irish Business and Employers Confederation (Ibec) had set out to address the absence of a collective bargaining law in Ireland. Under the Irish Constitution, the right of a worker to freedom of association has until now been, in effect, cancelled out by the equivalent right of an employer not to recognise a trade union for bargaining purposes.
Mr Duffy said they had set out to devise an ‘Irish solution to an Irish problem’. However, this had to be achieved in a way that addressed the concerns of government, employers and Ireland’s job creation agencies about such a law discouraging inward investment, particularly from US firms with a tradition of non-unionism. Trade union and employer support for the amendment suggests that this balance has been achieved.