Union confederation calls for more protection for collective bargaining

The Irish Congress of Trade Unions is seeking the introduction of measures to protect and promote collective bargaining arrangements. These measures include a formal statutory definition of collective bargaining, due to the fact that Ireland does not currently have national legislation in place requiring employers to recognise trade unions or to participate in collective bargaining.

In a formal response to the European Commission Green Paper on Modernising labour law to meet the challenges of the 21st century (77Kb PDF) (EU0701019I), published in November 2006, the Irish Congress of Trade Unions (ICTU) has set out a range of measures which aim to protect and enhance collective bargaining arrangements. These measures include a statutory definition of collective bargaining.

ICTU points to a lack of a statutory definition of collective bargaining in Ireland and observes that there is no national legislation requiring employers to recognise a trade union, nor is there any legal obligation on employers to participate in collective bargaining.

Moving towards flexicurity

According to the Green Paper, general agreement exists that to enhance Europe’s competitiveness, the EU-wide workforce must become more flexible, while preserving and possibly even enhancing workers’ rights and security. This involves finding a new balance between flexibility and job security – hence the emphasis on the concept of ‘flexicurity’.

In the fall-out of the Irish Ferries dispute in late 2005 (IE0604059I), the Irish government and the social partners sought to strike a balance in the current 10-year social partnership agreement [Towards 2016 (2.9Mb PDF)](http://www.taoiseach.gov.ie/attached_files/Pdf files/Towards2016PartnershipAgreement.pdf) between flexibility and security – for instance, by introducing stronger collective redundancy laws. ICTU believes that a move towards flexicurity in Ireland along the lines of Danish and Dutch policies ‘should be seriously explored’.

Non-unionised collective bargaining

Meanwhile, the issue of collective bargaining was placed centre-stage in Ireland after the Supreme Court ruled in the case involving the independent airline, Ryanair, the Labour Court and the Irish Municipal Public and Civil Trade Union (IMPACT) that a non-union ‘excepted body’ at the airline constituted collective bargaining (the Labour Court had concluded that it did not) (IE0702019I). While collective bargaining has never been defined in Irish law, it was traditionally associated with collective bargaining negotiations between employers and trade union representatives. But the Supreme Court decided there was no reason why collective bargaining should be confined to unionised employments.

Safeguarding right to bargaining

It was against this backdrop that ICTU made its submission to the European Commission to strengthen collective bargaining protections. The organisation highlights that in Ireland a trade union must ask employers to voluntarily agree to participate in collective bargaining. ICTU considers that ‘the state has thus left it to employees themselves to safeguard their right to collective bargaining through their trade unions. This contrasts unfavourably with most other EU Member States and western democracies, which legally oblige employers to recognise trade unions.’

ICTU explains that this situation is worsened by the absence of a European Union or national definition of collective bargaining. In fact, the organisation observes that the Supreme Court used a dictionary definition of collective bargaining in its recent judgement. ‘This has raised a spectre of collective bargaining being undertaken by a body of employees created by and dominated and controlled by the employer,’ ICTU claims.

Furthermore, ICTU argues that, in effect, this judgment ‘reduced to nothing’ the guarantees secured for workers when Ireland ratified the related International Labour Organization (ILO) Conventions (C87 and C98) in 1955. The latter define freedom of association as being genuine ‘only when it is free from interference from employers’.

ICTU maintains that the Supreme Court judgment will also undermine all confidence in collective bargaining being a tool to safeguard the interests of employees. ‘These “employees bodies”, being in the effective control of employers, would not be able to act with the same freedom and independence as trade unions.’ According to ICTU, the ILO Convention C98 excludes the possibility that negotiations between employers and employees under such arrangements could ever become within the ambit or definition of collective bargaining.

Finally, ICTU contends that these developments are contrary to the objectives of the EC Treaty, particularly in reference to Article 140 which assures respect for the ‘right of association and collective bargaining’ across the EU. Other articles of the European treaties generally require Member States to support, promote and protect collective bargaining. Moreover, ICTU highlights that these provisions are further reinforced in the Charter of Fundamental Rights of the European Union (80.6Kb PDF) in Article 28, ‘Right of collective bargaining and action’.

Brian Sheehan, IRN Publishing