When the Industrial Relations (Amendment) Acts 2001-2004 came into force, the potential for employees whose employers did not engage in collective bargaining to seek a binding determination on terms and conditions of employment was potentially ground breaking. In Ireland collective bargaining is encouraged and facilitated, but employers are not legally obliged to recognise a trade union. The industrial relations landscape in Ireland is voluntarist in nature, and trade unions have claimed that this is contrary to international employment law (in that the European Court of Human Rights has held that the European Convention on Human Rights includes the right to collectively bargain under Article 11).
The Industrial Relations (Amendment) Act, 2001 (‘the 2001 Act’) set out the process for employees to seek a binding determination in relation to terms and conditions of employment where negotiating arrangements between the employer and the trade union are not in place. This was generally perceived as a way for trade unions to infiltrate employers who refused to recognise them.
The Ryanair decision in 2007 halted this process. In this case, the Supreme Court overturned a Labour Court decision and ruled that it had not adopted correct procedures in it’s ruling between Ryanair and its employees under the 2001 Act. In essence, the Supreme Court ruled that a company which did not engage in collective bargaining, but did engage in negotiations with staff groups (albeit not unionised groups) should be exempt from the requirements of the legislation.
While the Supreme Court’s decision was based on the constitutionality of the Labour Court finding in that case, (such that it was still open to trade unions to refer claims under the 2001 Act) it still resulted in the number of claims under the 2001 Act being dramatically reduced.
Changes proposed in 2015
The cabinet has approved two pieces of legislation amending the Industrial Relations (Amendment) Acts 2001-2004. One of these proposals includes a better framework for workers who seek to take action where their employer does not engage in collective bargaining. International employers in particular, view Ireland’s voluntarist system of industrial relations favourably, whereby they are not forced to recognise or deal with trade unions. However, Minister for Enterprise Jobs and Innovation Richard Bruton said that government is keen that workers have an effective system to process complaints about terms and conditions, in the absence of collective bargaining in the workplace.
Some of the proposed amendments really reflect the shortcomings in the old system identified as a result of the Ryanair case, which are as follows:-
- a clearer definition of what constitutes collective bargaining.
- listed requirements to be met by a trade union advancing a claim seeking a binding determination on terms and conditions of employment.
- policies and principles to assist the Labour Court in determining claims.
- prohibitions on employers inducing staff to forgo union representation.
Obviously these proposals (which are likely to come into force mid/late 2015) will increase the likelihood of trade unions bringing claims to the Labour Court under the new rules. While the government is still seeking to argue that Ireland will still retain the voluntary system of industrial relations, the fact is that employers who do not engage in some form of collective bargaining are at risk of their workers (where they are unhappy with terms and conditions of employment) taking them to the Labour Court in search of a binding determination against them.
Further proposed protection under the amended legislation, which will protect employees against victimisation/penalisation for seeking such a determination means that employees will feel somewhat bolstered in confidence, should they opt to go down this route.
This amending legislation will be challenging for the government, if they are to fit these proposals in with its strategy to attract international investment and employment opportunities to Ireland. As such, the breathing space given to employers as a result of the Ryanair decision will soon be limited once again, with the risk of disgruntled employees joining a union and seeking to have the Labour Court make a determination which will be binding on their employers. In order to avoid this, employers may need to engage in some form of employee group consultation which satisfies the definition of collective bargaining under the new legislation.
Contact Siobhra Rush for more information.
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