Breakthrough on trade union recognition

In March 1999, the High-Level Group dealing with the thorny issue of trade union recognition in Ireland formally approved an agreement on the issue, which has been accepted by the social partners. The agreement retains a voluntarist approach to recognition, with the Labour Court issuing legally binding recommendations only when an employer rejects the voluntary process, or else deliberately abuses it. Companies may opt either to take the voluntary route or to reject it - in which case, a union may refer the matter to the Labour Court for a recommendation. Ultimately, the Court cannot issue a legally binding recommendation obliging employers formally to recognise the union(s) concerned per se, but companies may be compelled to accept the Court's recommendations in respect of pay, procedures and conditions of employment. Furthermore, individual employees will now be entitled to professional representation in instances of dispute and grievance with their employers.

The issue of trade union recognition has become increasingly contentious in Ireland in recent years (IE9803114F). Trade unions have found it increasingly difficult to recruit members, facing two problems in particular. First, multinational companies, particularly those of US origin in the electronics sector, have been unwilling to recognise unions and have made it clear that any statutory recognition measure would be unacceptable to them and would endanger inward investment. Second, unions have also had to face increased resistance to union recognition from some indigenous employers, most notably in recent times, the Ryanair airline.

In order to deal with this thorny issue, the government set up a "High-Level Group" to examine union recognition, under the terms of Partnership 2000 (P2000), the current three-year national agreement (IE9702103F). The group involved the Departments of the Taoiseach (Prime Minister), Finance and Enterprise and Employment along with the Irish Congress of Trade Unions (ICTU), the Irish Business and Employers Confederation (IBEC) and the Industrial Development Agency (IDA). It submitted its first report in December 1997 (IE9802141F), which advocated that union recognition should be dealt with through the existing voluntarist system, rather than through any statutory requirement for mandatory recognition. The report advocated that the state?s dispute resolution bodies should have an expanded role, encompassing: the advisory service of the Labour Relations Commission (LRC); a "cooling-off" period for intractable disputes; and a final non-binding recommendation from the Labour Court. However, the bitter Ryanair dispute of early 1998 (IE9803224N) severely tested this formula. In fact, the dispute persuaded ICTU to refer back the original report to a reconvened High-Level Group in order to find an alternative solution.

A breakthrough on recognition

In March 1999, the reconvened High-Level Group formally approved an agreed solution to union recognition which has been jointly accepted by the social partners. The compromise deal means that a company would not be obliged formally to recognise the union(s) concerned per se but would be compelled to accept the right of unionised employees to be professionally represented on issues relating to pay and terms and conditions of employment. They would also have to accept binding Labour Court recommendations in respect of these issues. In effect, it is something of an "arms' length" solution that would appear to be acceptable to both sides.

The social partners have historically been wary of legal intervention in the industrial relations arena. Accordingly, the agreement retains a voluntarist approach to the issue, albeit with legal provisions in the form of ultimate binding recommendations by the Labour Court in instances where employers reject a voluntary approach and a union chooses to refer the matter to the Court. The voluntary process will incorporate the involvement of the LRC, a "cooling-off" period, and, finally, a non-binding Labour Court recommendation. The voluntary process is deliberately protracted in order to provide the social partners with the maximum time to reach an agreement

Employers are in effect faced with the option of either taking the voluntary route or rejecting it, in which case a union may refer the matter to the Labour Court. In addition, there may be instances where an employer enters the voluntary process, but then fails to act in good faith and blatantly uses the process as a delaying tactic. In cases where an employer rejects the voluntary process, or else deliberately abuses it, the Court may decide that the employer had failed to follow the voluntary procedures outlined, and enact the so-called "special fallback" provisions. These provisions consist of legally binding recommendations by the Labour Court. Initially, the Court will issue a recommendation which "would be binding for a period of one year". If the disputed issues were to remain unresolved after that one-year period, the Court would then issue a final binding recommendation. Binding decisions would be implemented through "a statutory mechanism along the lines of an Employment Regulation Order". It is likely that only a handful of intractable disputes, similar to the one that occurred at Ryanair, would ever reach this ultimate stage.

The agreement also deals with "disputes of special importance" involving parties that provide essential public services. It urges the parties that provide such services to adopt the LRC?s 1992 Code of Practice on the issue, which has largely been ignored in the past. It remains to be seen whether this exhortation will have any impact.

ICTU and IBEC representatives have emphasised their joint agreement and commitment to the deal and are confident that their respective members will also back it. ICTU has welcomed the agreement and the benefits that it will bring to its members, although some union activists would probably prefer stronger legal backing. Many union leaders, however, have been very sceptical about a legal solution to the issue, because they foresee a potential "double-edged sword", with the prospect of protracted legal battles with employers and possible derecognition disputes. Furthermore, a statutory recognition device would have been unacceptable to IBEC in view of its concern that this would discourage inward investment from foreign companies. In the event, IBEC appears to be happy that its members, including those in the non-union high-technology sector, will back the new agreement because it provides employers with every opportunity to conclude voluntary agreements without having to concede formal recognition. Consequently, it would seem that one of the major barriers in advance of negotiations on a new national agreement to succeed P2000 has been removed.

Commentary

The report of the High-Level Group on "union recognition and the right to bargain" is significant in a number of important respects. First, an employer and union preference for pursuing a voluntarist approach to industrial relations matters is preserved and, in that, there is something for both parties. The unions will be pleased that employer attempts to avoid and resist union involvement in company disputes can be addressed through a set of formalised dispute resolution procedures. As a consequence, union involvement in the dispute resolution process is formally allowed for and sanctioned. The possibility of the Labour Court issuing a legally binding recommendation allows the unions to pursue an "issue to finality" and, in that sense, provides them with demonstrable evidence of servicing members' interests, even where an employer insists on refusing to grant recognition.

Employers, on the other hand, can be content that they have successfully seen off a statutory union recognition procedure. American high-technology companies, in particular, will be pleased that a voluntary code has been adopted and that their predominantly non-union status will remain unchallenged.

In brief, the current proposals amount simply to a set of dispute resolution procedures. They do not legislate for a set of procedures that might ultimately permit unions to gain recognition from reluctant employers. The title given to the High-Level Group is consequently a misnomer. Significantly, too, the social partners have agreed that the current proposals will not allow for union recognition to be granted through a Court recommendation. The issue of union recognition will be confined to, and continue to be addressed through, existing Court procedures. The proposals? objectives are therefore an attempt to foster cooperative relations between management and employees and to design an effective dispute resolution procedure; they are not designed to promote union recognition or collective bargaining per se.

On the other hand, the benefits of union representation may still accrue to employees, but without any compulsion on employers to concede union recognition. Recognition of an "arms' length" kind may therefore develop as a dominant pattern in these workplaces. The Irish proposals also stand in stark contrast to the provisions for union recognition enshrined in the UK's recent Employment Relations Bill (UK9902180F). There is, however, provision in the Irish agreement. for individual employees to seek union representation in discipline and grievance cases. To this extent, then, the current proposals allow for, and encourage, employers (voluntarily) to permit individual representation, but desist from prescribing a statutory mechanism for collective union representation.

Against this, the proposals of the High-Level Group may go some considerable way towards the establishment of orderly and good industrial relations. Certainly, there is considerable incentive for employers to resolve issues in-house. The prospect of a dispute being drawn through a protracted process, as well as a solution being imposed by the Labour Court, may well increase the chances of some employers, at least, accepting unions as legitimate bargaining agents of employees. Ultimately, the success of this agreement will be determined by its ability to "guide" employers and unions towards the orderly resolution of their difficulties within the workplace. However, the number of employers that are likely to concede recognition as a consequence of the agreement is likely to be small. One might therefore suggest that the political significance of this agreement may be more important than any substantive benefits that may accrue to unions from its conclusion.

Nonetheless, employers, unions and government will welcome this agreement in that discussions on a new national agreement to succeed P2000 can now proceed. The failure to agree such a provision in the face of a small, but visually significant, number of employers overtly resisting union recognition, had certainly become a matter of some urgency for unions. To this extent, and in the face of the objections of US companies (which remain convinced of the benefits of non-union mechanisms for giving employees a voice), and government and development agencies? fears that a statutory union recognition procedure could act as a significant impediment to inward investment, this agreement represents a significant gain for unions. For those employers which are hostile to unions and which have not developed sophisticated non-union human resources policies, this agreement may well come to represent a significant watershed. Other employers will see little threat in these provisions and its terms are likely to represent a fair compromise. (Tony Dobbins and John Geary, UCD, Brian Sheehan, IRN)

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