Background

The Industrial Relations (Amendment) Act 2015 (the “2015 Act”) introduced substantial changes to the law on collective bargaining when it came into force on 22 July 2015. Prior to the enactment of the 2015 Act the law on collective bargaining had become somewhat redundant following the 2007 Ryanair Supreme Court judgment[1] (the “Ryanair Case”). It held that non-unionised employees could not refer a trade dispute to the Labour Court where the employer had a practice in place of engaging in discussions with workers and applied the definition of collective bargaining as referred to in the Oxford dictionary leaving the scope of the Industrial Relations (Amendment) Acts 2001-2004 (the “2004 Act”) wide and ineffective. The decision led to a significant drop in trade dispute referrals to the Labour Court.

As a result  the 2015 Act was subsequently enacted which introduced a definition of “collective bargaining” for the first time. It requires a number of pre-conditions to be satisfied in order for the Labour Court to be able to hear a referral by a trade union seeking an employer to engage in collective bargaining, namely:

1. The matter must be a trade dispute concerning employees’ terms and condition in the workplace;
2. The number of workers subject to the dispute must not be insignificant regarding the total number of employees, either of a particular group within the organisation, or of the whole organisation (i.e. if it is limited in size); and
3. That there isn’t an “excepted body” already in place which engages in meaningful negotiations with the objective of reaching an agreement with the employer. An “excepted body” is defined as “a body that is independent and not under the domination and control of an employer or trade union of employers, all the members of which body are employed by the same employer and which carries on engagements or negotiations with the object of reaching agreement regarding the wages or other conditions of employment of its own members” (emphasis added).

Case law

There have been four cases heard by the Labour Court since the enactment of the 2015 Act and we have assessed the Labour Court’s approach to each of these cases below.

Freshways Food Company -v- SIPTU[2]

Freshways was the first decision of this kind. Having satisfied itself that the number of workers who were party to the dispute (170 out of 250) was not insignificant, the Labour Court focused on the collective bargaining question. The employer also contended that it was already engaged in collective bargaining through a staff representative group (“SRG”) with the employees in question. The employer submitted that the SRG was an “excepted body” for the purposes of the 2015 Act and therefore the matter should fall outside of the scope of the 2015 Act.

The SRG had previously negotiated a pay increase of 2.5%. However, the Union argued that the process engaged in by the SRG involved consultation only and not negotiation, and that it was not independent from the employer. The Labour Court agreed with the union, and the employer failed in its preliminary argument to have the case dismissed.

As a result, the Labour Court (having heard benchmarking evidence) recommended that pay increases of €2.10 per hour be introduced in three phases over an 18-month period. It also recommended the introduction of a sick pay scheme (10 days paid sick leave) and further recommended an additional days’ annual leave for employees reaching over 5 years’ service.

Conduit Enterprises Limited -v- Communications Workers Union[3]

This dispute concerned pay and conditions of the Emergency Call Answering Service (“ECAS”) workers employed by Conduit Enterprises Limited (“Conduit”). At the preliminary hearing, the Labour Court had to decide whether the number of workers who were part of the trade dispute were insignificant. The Union contended that it represented 19 out of 61  (31.14%) of the ECAS operators and contended that this number was not insignificant.

Conduit submitted that it had 65 and not 61 employees and on that basis the number of employees involved in the dispute were insignificant. The Labour Court found this difference to be irrelevant and accepted that either 19/61 (31.14%) or 19/65 (29.23%) was not insignificant for the purposes of the legislation, bringing the dispute potentially within the remit of the 2015 Act.

The Labour Court also had to consider whether the workers who were party to the dispute and those with whom comparison was drawn were comparable for the purposes of the 2015 Act. The Union argued that the Conduit workers were comparable to civil servants working as emergency call takers in An Garda Síochána, the emergency call takers employed by the HSE ambulance service and the emergency call takers employed by the local authority Fire Brigade Services.

The Union submitted that the comparability of ECAS Operators was clear in terms of skills, responsibilities, physical and mental effort and that the pre-qualifications were identical for all roles in that no formal experience or qualifications were required.

However, Conduit argued that it was inappropriate to compare the claimant workers with civil servants when the ECAS employees were private sector. Conduit argued that the claimant workers were, based on their skills, responsibilities, physical and mental effort, most closely aligned with a customer service operator in a call centre and submitted that it had identified 15 such call centres in an internal review.

The Labour Court found that the workers in the civil service were comparable: “The legislation requires the Court to establish that workers are comparable. It does not require the Court to establish that they are identical. The Act essentially requires that the workers and those with whom they claim they are comparable be capable of comparison.” The Court went even further and said that: “It is not for the Court in the within dispute to move beyond the comparator workers identified by the claimant workers so as to identify some other workers in some other employments who could be contended to be comparable to the claimant workers”.

The 2015 Act also provides that for workers to be comparable they must not only be capable of comparison but also be in similar employment. The Court concluded that the intention of the Act is not to structurally divide public and private sector employment and render them incomparable. Instead the Court had regard for the ‘line of work’ of the employers concerned, the nature and size of the undertakings and the context within which they carry on business. It concluded that the workers were in similar employment.

The Labour Court, in concluding that the dispute came within the 2015 Act, issued a number of recommendations, including improvements to rates of pay and night shift rates.

Zimmer Orthopaedics Manufacturing Ltd -v- 53 General Operatives (represented by SIPTU)[4]

In Zimmer, the employer operated two plants – one in Shannon and one in Oranmore. The dispute concerned employees in the Shannon plant only and the Union did not have any Oranmore employees in its membership. As a preliminary jurisdictional issue, the employer argued that the number of workers party to the dispute was insignificant, having regard to the fact that the total number of employees in the Company was 410 and there were only 53 employees engaged in the dispute. The Union submitted that it represented 53 members in the “general operative” grade. However, the employer contended that it did not have a grade, group or category of workers called “general operatives”.

The Labour Court accepted the employer’s argument and noted the Union had not specified what roles its members were employed in. Accordingly, the Court found that the Union had not discharged the burden of proof imposed by the 2015 Act in providing that the workers party to the dispute were not an insignificant number.

Enercon Windfarm Services Ireland Limited (represented by IBEC) -v- Group of Technicians (represented by Connect Trade Union)[5]

This dispute concerned rates of pay, overtime pay, public holiday pay, on-call payments, call out payments and health and safety of a group of workers employed by Enercon. Having satisfied itself that the number of employees’ party to the dispute was not insignificant, the Court proceeded to hear the substantive matter.

The Union contended that the workers who were party to the trade dispute were comparable to workers employed by Vestas, Siemens and GE Energy. It further submitted that Enercon categorised employees into two teams: installation teams and field service teams. Enercon argued that the workers within the teams could not be viewed together as a grade, group or category of worker.  The workers within the teams undertook different duties and had varying levels of skills, qualifications and experience.

The Court had been provided with details in relation to the breakdown of the teams within the Enercon business however, it noted that very little detail had been provided in relation to the make-up of the teams and ways of working in the comparator companies.

The Court concluded that it did not have enough information to find that the comparator workers were comparable for the purposes of the 2015 Act and rejected the referral. The Court said: “the Court must be provided with a clear view of the shape and nature of the jobs which it is asked to regard as comparable as between one and the other.”.

So what is the current state of play?

1. If an employer can show that an established practice of engaging with an excepted body in a meaningful way exists within the workplace then this will provide a defence to a Labour Court referral. Engaging with an excepted body can often be the preferred option for an employer, as it allows them to engage directly with employees rather than with a trade union. The court must be satisfied that the excepted body is not influenced by the employer and that it shows a readiness to negotiate change on behalf of the employees in question;
2. Where the employer cannot show that it has been engaged in the practice of collective bargaining, the Court will then look to the number of employees involved in the dispute. The employer must be able to demonstrate that the number of employees involved is insignificant having regard to the total number of employees involved in the grade, group or category of workers concerned. Based on the few Labour Court decisions to date, the threshold appears to be somewhere between 25-33%; and
3. If the union/ employee group can get over the initial jurisdictional hurdles, they must then demonstrate that the group of workers that they are comparing themselves with are (1) capable of comparison and (2) in similar employment. The recent Labour Court decisions have shown that comparisons can be drawn not only with private-sector workers but also public-sector workers. To avoid a finding of less favourable terms and conditions and reduce the risk of a Labour Court referral, employers should consider how well their pay and conditions are benchmarked against comparable employers in the market.

The four cases have helped to provide some clarity on what exactly a trade union will need to establish to be successful in having a dispute referred. The number of cases heard under this piece legislation over the last 3 years is much lower than originally anticipated and it is hard to see how these cases would give any trade union great faith for unfettered success in the future.

[1] Ryanair Limited v the Labour Court [2007] IESC6

[2] LCR21242

[3] LCR21388 and LCR21722

[4] LCR21729

[5] LCR21741