Final Questionnaire for EIRO CAR on “The effect of the Information and Consultation Directive on Industrial Relations in the EU Member States five years after its transposition - IRELAND

  • Observatory: EurWORK
  • Topic:
  • Participation at work,
  • Labour and social regulation,
  • Industrial relations,
  • Published on: 18 January 2011



About
Country:
Ireland
Author:
Tony Dobbins
Institution:

Disclaimer: This information is made available as a service to the public but has not been edited by the European Foundation for the Improvement of Living and Working Conditions. The content is the responsibility of the authors.

This study examines the impact of the EU information and consultation directive in Ireland as of June 2010. For the first time, having introduced new legislation in July 2006, Ireland has statutory provisions for employee information and consultation rights. Controversially, however, employees have to ‘trigger’ these rights themselves – they are not automatic or mandatory. To date, little has happened on the ground under the legislation aside from an employee ‘trigger’ case at a US multinational, a couple of Labour Court recommendations, and a small number of information and consultation agreements. In sum, the legislation is a long way from being transformative of Irish employment relations.

Question 1: Trends in the incidence of undertaking- and/or establishment-level information and consultation bodies

(a) Using official statistics where possible, please provide annual data for the years 2005-2009 (inclusive) on the number and proportion (%) of undertakings and/or establishments which have an information and consultation (I&C) body or equivalent.

A new national survey of employers and employees by the National Centre for Partnership and Performance (the NCPP 2009 National Employee Workplace Survey and National Employer Survey) examined a range of employment relations issues, including the extent of formal workplace partnership committees (equivalent to employee information and consultation bodies).

In the NCPP employer survey, 16 per cent of private sector employer respondents in 2009 reported the presence of ‘formal partnership committees’ (equivalent to I&C body), with 34 per cent of employers reporting they have some ‘informal’ partnership arrangement. This is broadly equivalent to when a similar question was asked in an earlier survey in 2003.

Meanwhile, with regard to the NCPP employee survey conducted in 2009, just over 21 per cent of all employees reported the presence of formal partnership institutions at their workplaces. According to the NCPP, partnership committees are much more common in the public sector, where over 40 per cent of employees reported their presence, than in the private sector where only 16 per cent report their presence. However, only about 4 per cent of all employees are personally involved in such forms of employee representation (equivalent to I&C body) (down from 6 per cent when the same question was asked in 2003). Thus, there has been some decline in the incidence of workplace partnership between 2003 and 2009. Furthermore, substantial majorities of employees said they are not regularly provided with key business or work-related information. For example, less than half of private sector employees are informed about the level of competition facing their firm, and less than one-third of private sector workers receive regular information about the organisation’s budget. Just over one-third of employees receive information about plans to change work practices.

(Source: National Centre for Partnership and Performance (2010), NCPP 2009 National Employee Workplace Survey and National Employer Workplace Survey, Dublin: NCPP).

(b) Where possible, please provide data to show trends in the uptake of I&C bodies by:

  1. size of undertakings/establishments in terms of employment levels (i.e. under 50 employees, 50-99 employees, 100-199 employees; 200-499 employees, 500 or more employees or other appropriate size bands used in national statistics)
  2. sector (broadly defined, i.e. industry/manufacturing, private services, public services).

(c) Please provide information on the extent of I&C arrangements in:

  1. smaller undertakings (those with fewer than 50 employees)
  2. public administration.

The following table is from the NCPP National Employee Survey 2010, and illustrates the uptake of formal partnership committees by sector and organizational size – based on answers from employee respondents. The findings show that employees are more likely to be involved in formal partnership committees in large private sector firms or public sector organizations. Employees are least likely to be involved in partnership committees in hotels and restaurants, financial and other business activities, construction, and small firms.

Table 1: Incidence of partnership institutions in the workplace, by organisational characteristics (employee respondents)

 

Partnership in work

Involved in partnership

 

%

%

Public

40.9

7.8

Private

15.6

2.9

C–E. Other production

24.5

4.4

F. Construction

7.6

2.8

G. Wholesale and retail

13.9

3.0

H. Hotels and restaurants

5.0

1.7

I. Transport, storage, communication

33.9

5.1

J–K. Financial and other business activities

13.9

1.4

L. Public administration and defence

48.8

9.8

M. Education

26.4

5.0

N. Health

27.6

5.0

O–Q. Other services

12.5

3.4

Size of local unit    
1–4

5.0

1.1

5–19

9.5

1.9

20–99

20.5

4.6

100 plus

36.6

6.4

Total

21.0

4.0

(Source: National Centre for Partnership and Performance (2010), NCPP 2009 National Employee Workplace Survey, Dublin: NCPP).

(d) What factors explain any increase/decrease in the incidence of I&C bodies (e.g. economic climate, legislative change, other)?

The NCPP survey above notes that there has been some decline in the incidence of workplace partnership (equivalent to formal I&C bodies) between 2003 and 2009, but does not elaborate on the factors underpinning this. Possible, anecdotal, factors for the decrease could include declining trade union density, the deteriorating economic climate since 2008, and the fact that the high watermark of voluntarist workplace partnership committees was reached around about 2000 and has tailed off since. One thing is clear, the Employees (Provision of Information and Consultation) Act 2006 has had little legislative impact on increasing the incidence of I&C bodies in Ireland – due partly to the minimalist manner in which the EU Directive was transposed in Ireland.

Question 2: Procedures for establishing I&C bodies

(a) What are the procedures for establishing I&C bodies in your country? For example, are I&C bodies mandatory (i.e. employers are obliged by law to establish them), or is their establishment dependent on employees/trade unions triggering statutory procedures? In the latter case, who can initiate the procedure? Is there a specified level of employee support required?

The establishment of I&C bodies in Ireland is dependent on employees/trade unions triggering statutory procedures. Section 7 of the Employees (Provision of Information and Consultation) Act 2006 provides that negotiations to set up an I&C structure will have to be triggered by workers themselves, unless an employer sets one up on a voluntary basis. The trigger mechanism takes the form of a written request (applications either directly to employer or to Labour Court in confidence) from at least 10% of employees of the undertaking, subject to a minimum of 15 employees and a maximum of 100. Once employees make such a request, an employer must enter into negotiations to agree an I&C procedure with employees, or introduce the standard rules.

(b) Please supply any available data on the extent to which I&C bodies have been:

  1. requested by employees
  2. requested by trade unions

The fact that application of I&C rights in Ireland under the Employees (Provision of Information and Consultation) Act 2006 is not automatic, employees and trade unions in Ireland have to trigger the legislation, unions are unhappy with the Act (and have other priorities, especially after the recession hit), and few employees are aware of the existence of the Act, means that requests for I&C bodies by employees and/or trade unions are almost non-existent to date. Indeed the first publicly recorded employee trigger of I&C rights enshrined in the legislation did not occur until 2009, when more than 100 employees at non-union American multinational Boston Scientific pushed the trigger mechanism. The Labour Court wrote to the US medical devices manufacturer in June, 2009, stating that the Court had received a petition in a letter signed by 133 employees of the company under Section 7 of the Act. The matter had not yet been resolved as of June 2010, and it is clearly an important test case under the legislation, which has been little used since being passed in 2006.

A significant bottom-up employee initiative relating to requests for I&C in non-union firms emerged in June 2010, when former Dell workers signalled their intention to set up a new national organisation to represent staff at other non-union companies. The Dell Redundant Workers Association (DRWA) said a new group is needed to educate people about their rights and represent them at companies where unions are forbidden. The group successfully lobbied Dell to double its redundancy package when 1,900 job losses were announced at the Limerick plant in January 2009. Leader Denis Ryan said it is now ready to take on firms who do not comply with labour laws or do not give ex-workers their entitlements. The group is advising staff in the Quinn Group on how to get the best redundancy deal: ‘We’re starting the national association for non-union workers to campaign for equal rights for those workers. We’re in talks with staff at all non-union companies telling them about the services we can provide,’ Mr Ryan said. He said that because Dell staff were not members of a union they had no idea of their entitlements. The group also helped former workers from Waterford Crystal and SR Technics to apply to the European Globalisation Fund after Dell staff were awarded €23 million. Although both companies had unions, these had no experience of securing this type of EU funding. The globalisation fund can be used for retraining or starting a business, with the aim of helping people get back to work. The DRWA was reported in the Irish Times: http://www.irishtimes.com/newspaper/ireland/2010/0524/1224271011404.html

  1. initiated unilaterally by employers.

There is some evidence in recent years of increased employer interest in non-union employee representative I&C bodies (sometimes termed staff associations, company councils, ‘excepted bodies’), which have been initiated unilaterally by employers. But it is very difficult to give precise estimates of their extent. Employers would claim that non-union ‘excepted bodies’ can engage in information, consultation, and collective bargaining. Unions argue ‘excepted bodies’ are creatures of the employer and are not sufficiently independent to engage in consultation or collective bargaining.

(c) Have the national government and/or the social partners in your country actively promoted the establishment of I&C bodies? If so, how have they done this?

Active promotion by the Irish government and the social partners of I&C bodies has been quite limited. Indeed, the social partners and the government are susceptible to the observation that they could be doing more to advocate and push information and consultation as an ‘employee right’. But there has been some activity. In March 2007, the Minister for Labour Affairs published a guide for employers and employees to the Employees (Provision of Information and Consultation) Act 2006 (www.entemp.ie/publications/employment/2007/guideprovinfoact2006.pdf). The Explanatory Guide forms part of what the Department calls a wider dissemination strategy for the Act. The Minister also requested the state dispute resolution agency, the Labour Relations Commission, to draft a voluntary code of practice on IC under the Act to assist employers and employees in implementing its provisions. This code of practice was finalized in 2008. The state agency, the National Centre for Partnership and Performance (NCPP), has been the strongest advocate of I&C bodies, but it was disbanded in April 2010.

Meanwhile, unions in Ireland have been caught between two positions – in terms of whether to view the legislation as an opportunity or a threat. The Irish Congress of Trade Unions (ICTU) has long advocated a statutory based system of information and consultation for workers, but remains critical of what it perceives as the minimalist manner in which the European Directive has been transposed into Irish law. Nevertheless, Congress feels that the Act presents opportunities as well as challenges for unions and their members: ‘It is open to unions to take the initiative and endeavour to get agreement on consultation arrangements with individual employers that are substantive and complementary to workplace union representation’. In 2007, the ICTU held four workshops around the country on the implications for unions of the Information and Consultation Act. According to the ICTU, union officials and workplace representatives also need to be aware of the potential misuse of the Act by some employers to undermine or bypass union representative structures. The workshops involved debate on the strategies needed by unions to counter what they see as potential employer undermining tactics, in order to ensure the legislation is only used for the purpose intended: to enable workers to be better informed and consulted about issues that vitally affect their work and career.

On the employer side, the Irish Business and Employers Confederation (IBEC) issued guidelines in early 2008 to its affiliated members outlining some ‘practical suggestions’ to employers who are setting up Employee Information and Consultation Forums. IBEC has also held seminars on I&C for affiliates. As noted above, in recent years, certain employers have displayed interest in setting up non-union employee representative forums.

(d) What explains the absence of I&C bodies in some undertakings/establishments in which I&C bodies are supposedly mandatory or the statutory right to trigger their introduction applies?

Anecdotally, the absence of I&C bodies can perhaps be explained by a mix of factors: the minimalist nature of the Irish transposing legislation; union discontent with the way the Directive was transposed in Ireland; very limited employee awareness of the legislation and their rights therein (especially in non-union settings); the voluntarist nature of Irish employment relations, which allows employers significant scope to introduce alternatives to I&C bodies; a historical legacy of defensive adversarial industrial relations rather than collaborative workplace consensus/extensive employee consultation. I&C bodies would have to be made mandatory for this to change.

Question 3: Constitutional provisions

(a) Are the structure, rights and functioning of I&C bodies in your country determined by:

  1. statutory requirements that apply to all establishments/undertakings
  2. organisation-specific agreements/arrangements that may differ from the statutory provisions, providing the scope for organisations to vary the design of the I&C body and the processes of information provision and consultation
  3. a mixture of the two.

The structure, rights and functioning of I&C bodies in Ireland retains a significant element of voluntarism and is largely determined by organisation-specific arrangements (ii) that provide employers with significant scope to vary I&C arrangements and processes.

Under section 11 of the Act, there is significant potential for employers to avail of direct forms of information and consultation, to suit local circumstances, or a mix of direct and representative, so long as employees are agreeable to this. The provision for direct IC arrangements in section 11 of the Act has also attracted controversy, with Irish trade unions arguing that information and consultation should take place through independent representative channels, preferably unions. To a significant degree, this so-called ‘Intel clause’ was inserted by the Government to appease big employers and powerful employer lobby groups. However, employees must be free at a later stage to exercise their IC rights through representatives of their choosing, should they so wish.

The Act gives employees the right to request that an employer enter into negotiations on a IC structure (a ‘negotiated agreement’), provided that 10% of employees in an undertaking make such a request (by applying the ‘trigger mechanism’). The timeline for ‘negotiated agreement’ is six months from commencement of negotiations. Alternatively, or following failure to conclude a ‘negotiated agreement’, Standard Rules provide for elected representative Information and Consultation Employee Forums (along the lines of continental style employee representative councils). Standard Rules must provide representative arrangements – i.e. it is not possible for employers to inform and consult directly with employees under Standard Rules. The Standard Rules stipulate that employees’ representatives must be employees of the undertaking, elected or appointed for the purposes of the Act. The employer is obliged to arrange for the election or appointment of representatives. An Employee Forum must be composed of not less than three or more than 30 elected/selected employees’ representatives only, who shall be employees of the undertaking. To date, the Standard Rules are yet to be applied in the Irish Context.

As intended in the EU Directive, trade unions are not the sole channel for employee representation, but the Act provides that where it is the practice of the employer to conduct collective bargaining negotiations with a union or excepted body, and a union or excepted body represents at least 10% of the employees, those employees are entitled to have their own representatives on a pro-rata basis to non-union representatives (so much depends on union density and bargaining levels).

(b) To what extent can and do organisation-specific agreements/arrangements differ from national statutory requirements on I&C? What motivates the parties to introduce such agreements/arrangements? Please summarise any available data on the provisions of organisation-specific agreements/arrangements.

In practice, there is significant variation between organisation-specific arrangements (notably where direct arrangements dominate) and the Standard Rules in the Irish legislation. In terms of the primary motivation behind organisation-specific arrangements, at the time the Directive emerged, employers, including the Irish Business and Employers Confederation (IBEC) and the American Chamber of Commerce in Ireland, were concerned that it could potentially open up the door for de-facto union recognition in previously non-union firms. A key employer concern was how best to accommodate voluntarist industrial relations traditions, and, in particular, recognise existing direct forms of information and consultation/individualised methods of direct employee involvement. A related concern for employers was to avoid placing restrictions on business and management prerogative that would have an adverse impact on investment decisions. To a large degree, employer opposition to indirect representative structures was based on the concern that it could frighten away foreign inward investment, particularly from US multinationals.

(c) Are the terms of organisation-specific agreements/arrangements enforceable? What procedures – e.g. complaint to external administrative or judicial authorities (please specify which) – are available for this purpose?

Voluntarist employer-initiated organisation-specific arrangements tend not to be legally enforced; particularly direct arrangements in non-union workplaces where there are no employee representatives.

However, the Irish Act does provide recourse to certain external enforcement provisions, but so far the Labour Court has only issued two recommendations under the legislation. Compliance procedures and sanctions for breaches are not dramatically different to other Irish employment relations legislation, although there are some differences/additions – notably the provision for binding determinations by the Labour Court, and protections for employee representatives.

Section 13 outlines protections for employees’ representatives in the performance of their functions. It is stated that an employees’ representative is penalised if he or she ‘is dismissed or suffers any unfavourable change to his or her conditions of employment or any unfair treatment (including selection for redundancy), or is the subject of any other action prejudicial to his or her employment’. Further, ‘..the employees’ representative shall be afforded any reasonable facilities, including time off, that will enable him or her to perform his or her functions as employees’ representative promptly and efficiently’. Section 13(1)), sets out a procedure to be followed by employee representatives who believe they have been penalised, whereby they will be able to refer their complaint to a Rights Commissioner who, if satisfied that the complaint is justified, may order the employer to take corrective action, and can award the employee up to two years remuneration by way of compensation.

Section 15 sets out the dispute resolution procedures that will apply. Disputes regarding the negotiation of agreements and disputes regarding the interpretation or operation of agreements or systems of direct involvement may be referred by either party to the Labour Court for recommendation or determination, after internal dispute resolution procedures have failed to resolve the dispute. Section 17 provides for enforcement of a Labour Court determination by the Circuit Court, ‘within the period specified in the determination or decision or if no such period is so specified within 6 weeks from the date on which the determination or decision is communicated to the parties’.

Sections 18 and 19 give the Minister of Enterprise, Trade and Employment the power to appoint labour inspectors to investigate alleged breaches of the legislation. This is a standard provision in most employment legislation and is the mechanism through which the Minister initiates legal action when parties are found to be in breach of standards. Penalties are covered under Section 20: a person guilty of an offence under Sections 18 and 19 shall be liable on summary conviction to a fine not exceeding €3,000 or imprisonment for a term not exceeding 6 months or both, or on conviction on indictment, to a fine not exceeding €30,000 or imprisonment for a term not exceeding 3 years or both.

Question 4: The main subjects for I&C

(a) What types of information are regularly provided by senior management to I&C bodies? Please give examples.

The NCPP 2009 employee survey provides details on frequency and type of information provided by senior management to I&C bodies in the private and public sector, as illustrated in the two tables below. In the private sector, for example, 46 per cent of employee respondents said information on the level of competition is provided on a regular basis, with 44 per cent saying that information on plans to develop new products/services is regularly provided. In comparison, other types of information are reported less frequently.

Table 2.1: Frequency of information provision – private sector

 

The level of competition

Plans to develop new products/ services

Plans to introduce new technology

Plans to re-organise the company

Plans to change work practices

Information on sales, profits, market share

Plans

to reduce staff

Regular basis

46.4

44.3

37.2

29.9

35.6

35.8

24.7

Occasionally

23.9

26.9

27.7

28.9

28.9

21.3

26.3

Hardly ever

29.6

21.9

26.1

31.0

27.2

42.9

34.5

Has not arisen

- -

6.9

8.9

10.2

8.3

- -

14.5

 Total

100.0

100.0

100.0

100.0

100.0

100.0

100.0

Table 2.2: Frequency of information provision – public sector

 

The Budget of your organisation

Plans to improve services

Plans to introduce new technology

.

Plans to re-organise delivery of public services

Plans to change work practices

Plans to reduce staff

Regular basis

32.7

41.3

33.6

33.5

35.7

28.8

Occasionally

21.8

33.5

32.5

32.4

34.5

25.1

Hardly ever

45.5

22.9

27.7

27.5

23.9

35.7

Has not arisen

2.4

6.3

6.5

5.8

10.4

 Total

100.0

100.0

100.0

100.0

100.0

100.0

(b) What issues are typically the subject of consultation between management and employee representatives? Please give examples.

The NCPP 2009 employee survey does not provide the same detail as a) above on the subjects of consultation. However, the available case study evidence illustrates that, apart from a handful of exceptions, consultation between management and employee representatives typically encompasses lower-level operational issues relating to health & safety, welfare issues (work canteens etc), pensions working time and conditions of employment, as opposed to higher-level consultation on corporate strategy related matters such as business plans, company finances. Only the most robust examples of workplace partnership would provide for consultation over strategic-level issues.

(c) What issues are typically raised by employee representatives themselves? Please give examples.

Recently, issues raised by employee representatives have often related to the impact of the recession. In certain instances, employee representatives can raise issues relating to redundancies, future employment, company restructuring. Examples of consultative issues raised by employee representatives are provided by ongoing case study research on the impact of information and consultation arrangements in the Republic of Ireland and Northern Ireland by a team of researchers from NUI Galway and Queens University Belfast. In one retail company visited by the researchers that was experiencing difficulties in the recession, employee representatives were consulted by management on alternatives to redundancies for cutting costs, the result being that collective agreement was reached on short-time working and social welfare top-ups (as an alternative to compulsory redundancy).

(d) Since the onset of the recession, to what extent have I&C bodies been a vehicle for dialogue and consultation over management decisions concerning restructuring and recession-related developments? Please provide a general overview with evidence and examples.

See c) above. In some instances, like the retail example above, I&C bodies have been a vehicle for dialogue and consultation over management decisions concerning restructuring and recession-related developments.

Other case examples, since the onset of recession, that have involved joint management-union dialogue through I&C/negotiating bodies include the airline Aer Lingus and insurance company AXA. A recent Aer Lingus collective agreement is a highly significant example of joint action taken by companies and trade unions in a recessionary context, because it was based on alternative union proposals to an original company outsourcing plan. Therefore, it is a prominent example of proactive, as opposed to defensive, trade unionism. The subsequent agreement between Aer Lingus and the Services Industrial Professional and Technical Union (SIPTU) has been registered with the Labour Court as a legally binding agreement. The agreement was brokered by the Labour Relations Commission (LRC) in late November 2008 and, as noted, is based on the trade union’s own alternative to an earlier outsourcing plan proposed by the airline (IE0810039I). This initial management outsourcing plan would have involved 1,300 ground-based jobs ‘migrating’ to an alternative unionised service provider. As it is, the union was successful in retaining employment ‘in-house’ – albeit with workers on inferior pay and conditions than hitherto.

Like other firms in the insurance sector, AXA has experienced competitiveness problems. But it responded to the challenge in a creative manner by reaching consensus agreement in 2008 with its two trade unions, the Services Industrial Professional and Technical Union (SIPTU) and Unite IE0809019I. The 2008 restructuring agreement entailed a new remuneration process, changes to performance management and rewards programmes, new profit share criteria, as well as 120 voluntary redundancies. AXA managed, by agreement, to cut salary band limits by 15%-20% and reduce the number of higher earners by at least 100. The company also agreed to an additional salary review process for employees under €30,000.

Overall, however, such cooperative workplace dialogue tends to be very much the exception rather than the general rule. The majority of employers still make decisions unilaterally with little consultation/workplace dialogue.

Question 5: The nature and extent of the I&C process

(a) How often do I&C bodies typically meet with management? Is it common practice for special meetings of the I&C body to be called to consider urgent or important matters? If so, on what issues?

This can vary considerably.

(b) How does consultation take place? For example, is information on proposed changes provided by management so that employee representatives can prepare a considered view? Do managers provide a reasoned response to employee representatives’ opinions? Examples of good and poor practice would be helpful.

Again, the practice of consultation varies widely. Examples of alleged poor consultative practice are common and would outnumber examples of good practice. In May 2010, workers’ representatives from Quinn Insurance expressed anger at finding out through the media that up to 800 staff may be made redundant as part of a restructuring plan to address the company’s insolvency issues: http://www.irishtimes.com/newspaper/breaking/2010/0430/breaking4.html

An example of good consultative practice occurred at a public sector case study examined by the aforementioned research team from NUI Galway/Queens University Belfast. In this public sector organization, management consulted union representatives in good time on the I&C body over flexible working time proposals (including flexi hours, time off in lieu), and unions were able to provide their own opinions on new employee friendly flexible working arrangements. The process involved management and unions jointly examining best practice flexible working time arrangements in the Republic of Ireland and Northern Ireland, and cherry-picking the best examples from both jurisdictions. New working time arrangements were subsequently successfully rolled out.

(c) Is information usually provided on a confidential basis to the I&C body before management decisions are taken and announced? Are there examples of I&C not taking place due to confidentiality considerations?

There are instances where I&C may be limited by confidentiality restrictions. For example, in a transport company case study examined by the NUI Galway/Queens Belfast research team, union representatives on the I&C body have to sign a confidentiality letter each time potentially sensitive business issues are discussed. Since the company became listed on the stock exchange, certain topics of I&C are forbidden/highly restricted due to confidentiality considerations and potential impact on share price.

(d) Please outline what guarantees and protections employee representatives usually have, e.g. time off work, training, material and financial resources, facilities, protection against dismissal/ discrimination, access to workers.

Again, this varies from company to company. In practice, in many instances where unions are present, union representatives are granted time-off work for training/conducting their representative duties – but within business/operational constraints.

As noted in question 3(c) above, section 13 of the Employees (Provision of Information and Consultation) Act 2006 outlines protections for employees’ representatives in the performance of their functions. It is stated that an employees’ representative is penalised if he or she ‘is dismissed or suffers any unfavourable change to his or her conditions of employment or any unfair treatment (including selection for redundancy), or is the subject of any other action prejudicial to his or her employment’. Further, ‘the employees’ representative shall be afforded any reasonable facilities, including time off, that will enable him or her to perform his or her functions as employees’ representative promptly and efficiently’. Section 13(1)), sets out a procedure to be followed by employee representatives who believe they have been penalised, whereby they will be able to refer their complaint to a Rights Commissioner who, if satisfied that the complaint is justified, may order the employer to take corrective action, and can award the employee up to two years remuneration by way of compensation.

Also at national level, trade unions had sought legislation to ban victimisation against those joining trade unions, but the Government appears to have put commitments in this regard on hold. The commitment on victimisation on grounds on union membership was a key provision in the social partnership deal agreed between the Government, employers and trade unions in September 2008.

(e) Can employee representatives seek external advice on how to handle difficult topics for consultation (e.g. from trade unions, external consultants)? In the case of the latter, who pays?

To avail of external advice on how to handle difficult topics for consultation, employee representatives generally need to have some independence from management (i.e. usually in unionized workplaces, where they can avail of central union expertise). Where external consultants are used, the central union would generally pay, but this does not appear to be common practice.

As noted in question 2(b) above, the Dell Redundant Workers Association (DRWA) formed a new group in May 2009 to educate people about their rights and represent them at companies where unions are excluded. The DRWA suggests it can provide advice to employee representatives in non-union companies on how to handle difficult topics for consultation.

Question 6: Practical outcomes of consultation

(a) What evidence is there, if any, of the consultation process resulting in the modification of management decisions and/or the process or timetable for their implementation? Please give an overview of the impact of consultation with examples.

As noted above, a recent Aer Lingus consultative process/collective agreement is a significant example of joint action taken by companies and trade unions in a recessionary context, because it was based on alternative union proposals to an original company outsourcing plan. The union was successful in retaining employment ‘in-house’ – albeit with workers on inferior pay and conditions than hitherto.

Another example of the consultation process resulting in the modification of management decisions, also referred to above, is that one retail company visited by NUI Galway/Queens research team was experiencing difficulties in the recession, and employee representatives were consulted by management on alternatives to redundancies for cutting costs, the result being that collective agreement was reached on short-time working and social welfare top-ups (as an alternative to compulsory redundancy).

(b) How many complaints per year concerning the operation of I&C procedures (e.g. employers not consulting in circumstances where consultation is obligatory) have been lodged with administrative or judicial authorities since 2005? Who were the claimants and what were the key issues? What proportion of these applications were upheld? What sanctions were imposed?

There were no referrals of disputes concerning the operation of I&C procedures to the Labour Relations Commission under the Employees (Provision of Information and Consultation) Act 2006 between 2006-2007 (the Act was not transposed until July 2006). There were 7 referrals to the LRC under the Act in 2008. To date, the Labour Court (Ireland’s industrial relations court of final resort) has issued 2 recommendations under the Act. In the first Labour Court recommendation issued in February 2008 (RIC081), a dispute between health service unions and the Health Service Executive, the health sector group of unions claimed that the HSE breached an agreement on information and consultation between the parties, which was concluded in September 2006 as a pre-existing agreement under Section 9 of the Act. The unions believe that the HSE has contravened the pre-existing agreement by not consulting with them over the implementation of a recruitment freeze and other cutbacks. The HSE contend that senior management met the unions in September 2007 and provided a comprehensive overview of their financial difficulties. The Court concluded that the unions’ complaint is well-founded and that the HSE contravened the agreement by its failure to inform and consult in advance of its break-even initiative. The Court recommended that the HSE should assure the unions that should the need for a similar initiative arise in the future full and adequate consultation will take place.

The second Labour Court recommendation (RIC101), issued in March 2010, concerned a case taken by the employee information and consultation forum at Nortel (Ireland) Ltd. The Labour Court concluded that ‘the financial resources which an employer is obligated to provide must be for the purpose of enabling the Forum to perform it duties under the Act and must be necessary to that end. The resources required must also be within the bounds of what is reasonable in the circumstances of the case under consideration.’ The Court ‘does not accept that legal advice or representation is necessary for the pursuance of industrial relations claims. Nor does the Court accept that the pursuance of such claims falls within the range of duties ascribed to an information and consultation forum under the Act.’ The case taken by the employee forum was that the company had refused to provide it with financial resources, that it maintained were both ‘necessary and reasonable’ to enable it to perform its duties under the Information and Consultation Act, 2006. The company contested this and maintained that the only issue involved was that of legal costs and that it was not obliged to pay such costs. The dispute centred on the interpretation and operation of the standard rules applicable to an information and consultation forum, under section 10 of the Act.

A third Labour Court case, involving an employee ‘trigger’ of I&C rights at non-union US company Boston Scientific, is ongoing.

Question 7: Relationship between I&C bodies and other forms of employee voice

(a) Can, and if so do, trade unions play a part in the establishment of I&C bodies and in their operation? Do external trade union officers often sit on I&C bodies? How common is it for I&C bodies to include both union and non-union employee representatives?

This varies.

(b) Is there any overlap between the remit of I&C bodies and trade union-based collective bargaining? If so, how are such issues resolved?

In unionized workplaces yes, there is often an overlap between consultative I&C bodies/issues and collective bargaining - particularly given Ireland’s history of single channel employee representation through union-based collective bargaining.

(c) Is the consultation required by the collective redundancies/transfer of undertakings Directives carried out via I&C bodies, trade unions or other employee representatives?

Again this depends. In unionized workplaces this would be carried out via trade unions. In non-union workplaces employee representatives may be appointed for this specific purpose to comply with legal obligations. In view of this, the employers body, the Irish Business and Employers Confederation (IBEC), is advising its affiliated members to comply with the European Court of Justice ruling on collective redundancies (the ‘Junk’ case), in terms of giving workers advance consultation in collective redundancy situations.

(d) Is the use of direct forms of employee involvement by management through such things as team briefings seen as complementary to or in competition with the I&C body?

Unions are more likely to view direct forms of employee involvement as in competition with representatives I&C arrangements, whereas management are more likely to see direct arrangements as complementary (or else to prefer direct arrangements).

Question 8: Views of the social partners

(a) What are the attitudes of the main employer and trade union organisations in your country towards (i) the value or necessity of I&C bodies and (ii) the operation of I&C bodies in practice, especially in a recession?

(b) Have the social partners, jointly or separately, conducted any review of the operation of the national regulatory framework governing I&C? What is their assessment of its effectiveness? Is there any pressure from the social partners for reform?

There have been no formal reviews of the operation of the national regulatory framework governing I&C in Ireland.

The indications are that employer organisations can live with the legislation in its present form because it does not interfere too much, as employers would see it, on voluntarism and managerial prerogative. The response to the legislation from employer group IBEC came across as somewhat more positive than that emanating from union sources. Together with other powerful employer groups, such as the American Chamber of Commerce, IBEC set limits on the extent to which the EU Directive encroaches on traditional management prerogative.

Unions have been much more vocally dissatisfied with the Irish transposing legislation, which they would assess as minimalist. The Irish Congress of Trade Unions has criticised the Government for its ‘pro business sentiment’ in its approach to the legislation transposing the Directive. When the legislation was in the process of being transposed, Congress issued the following statement on the Directive:

A current example of pro-business sentiment is the approach of the Government to the transposition of the EU Directive on Employee Information and Consultation. On all of the key issues the legislation now going through the Oireachtas [parliament] comes down heavily in favour of the submission made by IBEC, the Chambers of Commerce and the American Chamber of Commerce. From our viewpoint the legislation is of no real value. We shall end up being in the most unfavourable position in Europe as regards this Directive. A significant opportunity to enhance workplace cooperation has been sacrificed to appease business interests.

The ICTU would no doubt like to see reform of the national regulatory framework governing I&C, but they are presently faced with what they would see as more pressing priorities in the context of Ireland’s deep recession. In addition, unions are still trying to secure a legal right to collective bargaining/union recognition.

Commentary by national correspondents

I&C bodies are a long way from becoming established industrial relations institutions in Ireland. For the most part, they tend to be seen as rather peripheral by the government, employers, unions and/or employees – indeed both employers and employees have very little awareness of the I&C Regulations.

Therefore, the extent of change thus far in Ireland has not been as far-reaching as perhaps might have been anticipated if I&C rights under the legislation had been automatic and placed stronger emphasis on representative forms of employee voice. Given that collective groups of workers have to trigger the rights contained in the Act, and that the law also provides substantial scope for direct methods of information and consultation, a continuation of what is already happening in the employment relations sphere in Ireland can more or less be expected – increased diversity in employer employment relations postures. The indications are that employer organisations can live with the legislation in its present form because it does not interfere too much, as employers would see it, with voluntarism and managerial prerogative. Meanwhile, unions in Ireland have been unsure whether to view I&C bodies as an opportunity or a threat to the existing single channel of union representation through collective bargaining, a factor exacerbated by their disenchantment with the current legislation and what they see as its minimalist nature. Plus, unions may feel they have bigger battles to fight at the moment in the context of recession.

Tony Dobbins, NUI Galway

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