Supreme Court ruling will affect ‘right to bargain’ law

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A recent judgement by the Supreme Court concerned a case between the independent airline, Ryanair, the Labour Court and the Irish Municipal Public and Civil Trade Union. The ruling is likely to have major implications for the ability of trade unions to process claims on behalf of members in non-union companies under the Industrial Relations (Amendment) Act, 2001 and the Social Welfare (Miscellaneous Provisions) Act, 2004.

Supreme Court ruling

On 1 February 2007, the Supreme Court made a judgement on a case involving the independent airline, Ryanair, the Labour Court and the Irish Municipal Public and Civil Trade Union (IMPACT). Delivering judgement on behalf of the five-person Supreme Court, Mr Justice Hugh Geoghegan ruled that the Labour Court had failed to follow fair procedure in determining that it had jurisdiction to decide on a range of industrial relations issues referred to it by the trade union. Specifically, the Labour Court did not have the evidence before it to decide the following three points: 1) that there was a trade dispute between Dublin-based pilots and Ryanair; 2) that it was not Ryanair’s practice to engage in ‘collective bargaining negotiations’; 3) that Ryanair had no operative internal dispute resolution procedures.

Mr Justice Geoghegan highlighted the failure of IMPACT to call a single pilot, or other employees of Ryanair, to give evidence. In his view, ‘it was not open to the Labour Court in the circumstances of this case to reach the conclusion which it did reach in the absence of such oral evidence.’ Mr Justice Geoghegan ordered a re-hearing ‘in which the Labour Court would apply the procedures and the law as indicated in this judgement’.

Impact of judgement

Most industrial relations observers believe that the immediate impact of the Supreme Court judgement will be to refashion how the Labour Court conducts cases under the Industrial Relations (Amendment) Act, 2001 and the Social Welfare (Miscellaneous Provisions) Act, 2004, by imposing a higher level of judicial procedures. Legal opinion suggests that this is not surprising, given the Labour Court’s powers effectively to impose binding decisions on important issues like pay and the terms and conditions in such cases. Labour Court recommendations under the 2001 and 2004 acts are enforceable by the courts.

The Labour Court must now ensure that full and fair procedures are followed in all future cases under these acts. Crucially, the court must also adopt a different test to establish whether an internal company staff council or body, where it exists, can be defined as an ‘excepted body’ or a collective bargaining unit. An excepted body is defined in the Trade Union Acts of 1941 and 1942 as a body of members who are employed by the same employer and which carries on negotiations to determine wages or other conditions of employment of its own members but of no other employees.

Right of collective bargaining

When it originally heard the Ryanair case, the Labour Court decided that the company’s employee representation committee (ERC) for the pilots was not an ‘excepted body’ or collective bargaining unit as defined in the Trade Union Acts. The Labour Court reasoned that, as the employees concerned apparently did not want to be represented by ERC, but by IMPACT, then ERC could not have the status of an independent excepted body. However, the Supreme Court found that insufficient evidence was presented to support this contention. Not only did no pilot give evidence, but the pilots concerned could not simply decide to leave the ERC, which had been operational, and then argue that they had no collective bargaining system in place.

The Supreme Court found that an excepted body need not be a trade union. Indeed, such a body can be established by the employer, as long as it exhibits a degree of ‘independence’, has a system of elections and is part of an internal bargaining system that is ‘fair and reasonable’. The court did not, however, set down firm or precise rules for the operation of such an internal non-union bargaining unit.

Under Irish law, such a body can only have the status of an ‘excepted body’ if it is actually recognised by the employer, as an employer has a constitutional right not to recognise a trade union for collective bargaining purposes. In effect, this has always cancelled out the constitutional right of employees to join a trade union of choice for the purposes of collective bargaining.

The 2001 and 2004 acts were seen as a ‘middle way’ for employees who want to be represented by a trade union in a non-union organisation. The acts give them access to the Labour Court if they can show that the employer - as is his or her right - refuses to engage in collective bargaining.

Reaction of parties involved

Ryanair told its pilots after the case: ‘You will all have seen the Supreme Court decision last week which found unanimously (5-0) in Ryanair’s favour. This was not, as some newspaper suggested, “one round” for Ryanair. The Supreme Court is the final round.’ Meanwhile, IMPACT reacted to the decision by asserting that it would argue its case in the re-hearing.

Brian Sheehan, IRN Publishing

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