2013 marks the 100 year anniversary of the 1913 Lockout where, at its height, 300 businesses and up to 20,000 workers were "locked out" by their employers until they signed a pledge never to join a trade union. What followed was an often bitter and bloody dispute which lasted over 6 months and, some argue, the beginning of Ireland's quest for independence. Moreover, even after 100 years of facilitating collective bargaining, compulsory trade union recognition remains the trade unions main priority as can been witnessed by the fact that at a recent conference, Shay Cody, IMPACT's General Secretary stated that the union will "not let next year's centenary of the 1913 Lockout pass without this issue (collective bargaining) being dealt with".
The Government has also shown some commitment to this issue. In their joint Programme for Government, it is clearly stated that "[w]e will reform the current law on employees' rights to engage in collective bargaining (the Industrial Relations (Amendment) Act 2011) so as to ensure compliance by the State with recent judgments of the European Court of Human Rights". Most recently, on 28 September last, the Minister for Jobs, Enterprise and Innovation, Mr Richard Bruton T.D., commented that the Government will "move shortly" on this commitment.
While it can be argued that there appears to be agreement on both sides that Ireland's industrial relations machinery may be overhauled, thereafter the common ground ends and the battle-lines for a new dispute have been drawn. However, it would appear that this battle may be an international battle as opposed to a domestic one as now Ireland must comply with international conventions to which we are signatories (most notably the International Labour Organisation (ILO) Convention No.98 Concerning the Application of the Principles of the Right to Organise and to Bargain Collectively and the European Convention on Human Rights (the "Convention")). To highlight the international dimension to this debate, at the UN Human Rights Council, in July of last year, a question concerning collective bargaining rights in Ireland was tabled by Norway to which the Minister for Justice, Alan Shatter was required to respond.
The difficultly, depending on what side of the argument you favour, is largely due to the fact that the term "collective bargaining" is not defined in Irish legislation. While trade unions argue that in order to have "real" collective bargaining, compulsory union recognition is a must as only then can the parties be considered of equal standing, the Government have already stressed that compulsory union recognition is entirely out of the question as to do so would not make economic sense and would immediately alienate ourselves from attracting large scale inward investment at a time when its importance is vital to our return to economic growth. In light of this fact, it therefore begs the question as to what the Government is committing to do and what Minister Bruton's move will entail.
The Industrial Relations Acts 2001 and 2004 were aimed at non-union companies where there was no collective bargaining. For the first time there was legislation giving the Labour Court the power to issue binding determinations on disputes about pay and conditions in non-union companies on foot of a referral by a trade union representing one or more employees of that company. The Acts were a cause of great concern among larger non-union multinational companies who saw it as trade union recognition by the back door.
However, the 2007 decision of the Supreme Court in Ryanair v IMPACT effectively made the legislation defunct and while welcomed by employer bodies, it was greeted with dismay by unions as the judgement opened the door for non-union companies to point to internal staff consultative bodies as satisfying the test for collective bargaining and therefore bringing them outside the ambit of the Acts. Worse, from the trade union perspective, however, was the Supreme Court's insistence on more formal procedures by the Labour Court meaning that use of the legislation by unions would be both expensive, time consuming and cumbersome, reducing its attractiveness as a tool for change. In fact, the unions have gone so far as to call the legislation "union busting".
The Government's commitment is to ensure that the State is in compliance with recent judgments of the European Court of Human Rights. Up until recently, Ireland had nothing to fear in relation to this as Article 11 of the Convention, which guarantees freedom of association, did not extend so far as to compel an employer to recognise a union for collective bargaining purposes. In fact, the European Court of Human Rights was of the opinion that the right to collective bargaining was not protected by the Convention at all.
However, this approach was substantially reversed in the landmark cases Demir and Baykara in 2008 and Enerji Yapi- Yol Sen in 2009, both against Turkey, which has significantly increased workers' rights by linking the right to collectively bargain to other international legal instruments, in particular with the relevant ILO Conventions, to which Ireland is a party. The European Court of Human Rights stated that the "evolving norms of national international law" made it necessary to interpret the Convention as a "living instrument" and the right to bargain collectively with the employer has, in principle, become one of the essential elements of the "right to form and to join trade unions for the protection of [one's] interests" set forth in Article 11 of the Convention.
Applied strictly, this could cause problems in Ireland, as the Supreme Court held in Ryanair that, in accordance with our constitution, the right to freedom of association included a right not to associate, which means not only are workers entitled not to join a trade union, but that employers had a right not to recognise one. The Supreme Court expressly acknowledged that Irish industrial relations legislation 'must be given a proportionate and constitutional interpretation so as not unreasonably to encroach on Ryanair's right to operate a non – unionised company'. However, there is no such right in international law, and by tying the right to bargain collectively to Article 11, the European Court of Human Rights has avoided the possibility that the Convention could also be read as implying a right not to bargain.
As an initial step, Minister Bruton is going to seek "the views of affected stake holders" in order to be in a "position to come forward with proposals to reform the law as appropriate". While his plans are, as of yet, unclear and there may be no compulsory trade union recognition, the trade unions will no doubt seek some mechanism which allows them bring a non-unionised employer to the Labour Court. However whether or not such decisions are to be binding remains open and perhaps here is where the ultimate debate will exist as to whether or not Ireland is promoting collective bargaining in line with its international obligations.
As soon as Minister Bruton publishes his proposal, we will provide you with an update.
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