Government proposals on the “right to bargain”

The Government recently unveiled plans for addressing the fall-out from the 2007 Supreme Court ruling in the Ryanair and Impact dispute. This ruling undermined the operation of the Industrial Relations Acts (2001–04), known as the “Right to Bargain” legislation. The purpose of this legislation was to assist unionised workers in non-union firms where employers refused to collectively bargain in drawing on the support of the Labour Court to determine terms and conditions of employment.

While the new proposals may make the legislation operational again, some doubts must be raised about what is now being offered.

The source of the problem lies in a challenge against a Labour Court determination brought by Ryanair to the Supreme Court. Ryanair advanced the view that there was no trade dispute, that internal dispute-resolution procedures had not been exhausted in the first instance, and that the company already provided for “internal collective bargaining.”

The company maintained that collective bargaining existed because it “negotiated” with representatives of employees in concluding collective agreements on terms and conditions of employment. It further maintained that it had an Employee Representative Committee, whereby elected employee representatives negotiated with the employer—a fact contested by Impact, which claimed that the body was a consultative forum with no independence.

In a somewhat bizarre set of conclusions, the Supreme Court struck out the Labour Court determination. It found that, in the absence of sufficient evidence, the Labour Court could not conclude that the Employee Representative Committee was not a collective bargaining body, and that a collective bargaining unit need not be a “trade union or excepted body” with a negotiating licence but could be a body established by an employer, provided it exhibited an element of “independence,” had a system of elections, and operated in a “fair and reasonable” manner.

The Supreme Court further stipulated that employees could not simply leave a “functioning” internal bargaining body, not having exhausted its procedures for resolving disputes, and then say they had no collective bargaining, thereby triggering the provisions of the Industrial Relations Acts. It added that if the Labour Court did have jurisdiction to investigate the case it should consider the dispute through gathered evidence, referring to lack of evidence of sufficient union membership.

Following the Supreme Court judgement, the Right to Bargain legislation has largely remained in limbo. In attempting to alleviate the apparent problem, the new Government proposals, on the face of it, appear to go some way towards restoring the functioning of the act. However, on closer inspection some concerns arise over how effective the proposals will be in ensuring that workers in non-union firms have the necessary support for collectively bargaining.

Collective bargaining

To circumvent the risk that company-sponsored employee forums of the Employee Representative Committee variety would be used to supplant genuine unions, an important requirement of reform was held to be a definition of “collective bargaining,” which is not strictly defined in Irish law, although the Worker Participation (State Enterprises) Act (1977) contains a definition of “collective bargaining negotiations.” The definition now being proposed is:

collective bargaining comprises voluntary engagements or negotiations between any employer or employers’ organisation on the one hand and a trade union of workers or excepted body on the other, with the object of reaching agreement regarding working conditions or terms of employment or non-employment of workers.

In contrast, article 2 of ILO Convention No. 154 defines collective bargaining as

 . . . all negotiations which take place between an employer, a group of employers or one or more employers’ organisations, on the one hand, and one or more workers’ organisations, on the other, for: (a) determining working conditions and terms of employment; and/or (b) regulating relations between employers and workers; and/or (c) regulating relations between employers or their organisations and a workers’ organisation or workers’ organisations.

“Voluntary engagements,” on the other hand, might imply that the management made an effort to simply interact with, communicate with and consult the workers, perhaps over matters of common interest to workers and employer. “Engagements” might even allow their joint examination with a view to identifying, in so far as possible, appropriate solutions. But it does not entail or imply a negotiated solution, which would traditionally be associated with collective bargaining.

Collective bargaining is normally confined to co-determining terms and conditions of employment and relations between the parties. It implies, at some fundamental level, joint regulation, not simply engagement.

Why use the term “engagements”? Some doubt must be raised about whether this will open up the possibility of non-union bodies that are really echo chambers for senior management communication, passing muster for collective bargaining. Or perhaps a determined employer could stonewall attempts to use the act by claiming that they are trying to voluntarily engage with the union at the local level.

Representation and the burden of proof

One potential problem with the proposals is the prescription that unions cannot use the legislation “if very small numbers of workers” are involved. No figure for “small” has so far been provided, but it seems to be left to the Labour Court’s discretion whether the numbers offered are “insignificant” relative to the total number in employment.

This is a change from past practice. Previously the court took the assurances of a union official about membership, although in some cases a union would voluntarily provide the court with membership numbers.

Unions have often relied on bringing a small minority of employees into membership first, using the Industrial Relations Act to secure gains and demonstrate their value to potential recruits and thereby increase membership. Now the burden of evidence of membership has increased for the union: it must make a statement under the Statutory Declarations Act setting out the number of members and the period of membership in the group, grade or category to which the trade dispute refers.

Where evidence is contested by an employer—for example where the employer claims to be already engaged in collective bargaining with a non-union excepted body—there may be a requirement for an employee to give oral evidence. The court has experimented with this already in the period following the 2007 Supreme Court ruling in a small number of cases. How this might work in identifying and bringing forth union members to give evidence in disputed cases, where an employer’s hostility and threat of victimisation is high, is uncertain.

Repeated use of the act

The new proposals will also limit the repeated use of an act in the case of particular companies: “The Labour Court shall not admit an application by a category of worker to which the trade dispute applies where the Court has made a recommendation or determination in relation to the same category of worker in respect of the same employer in previous 18 months.”

Under the former procedure there were a number of companies that were subject to multiple hearings under the Industrial Relations Acts on separate dispute items that they refused to negotiate on. Under the old situation, the prospect of repeated multiple claims sometimes encouraged employers to meet the union to sort issues out at the local level. Now they will just deal with one batch of issues and go for eighteen months before the process could start again.

In the light of the proposed Code of Practice Timeline changes, which involve doubling the initial reply period from the Labour Relations Commission and extending the voluntary resolution period from six to eight weeks, this could make the process of securing workers’ rights in non-union firms very sluggish.


Finally, non-union firms are being proposed as valid points of comparison in relation to terms and conditions.

This is a new departure. The implicit original intention of the acts was to provide an outcome to workers that would be similar to that which might have occurred in a situation where collective bargaining did actually take place. The court, therefore, in making recommendations, did so with reference to unionised terms and conditions in comparable employments. But now the situation as it prevails in a non-union firm subject to the acts must be considered in the light of the prevailing situation in other non-union firms, and not just unionised firms. This might risk putting downward pressure on the gains workers might achieve through the acts.

Overall, the Industrial Relations Acts delivered some modest gains for unionised workers in non-union firms where employers refused to enter into collective bargaining. Relative to properly designed legislation on union recognition, it certainly was the poorer cousin. On the other hand, it is not entirely inferior to the statutory recognition regimes that exist in Britain and the United States, which have delivered very little to unionised workers.

The proposals might well inject new life into the use of the acts; but it is not clear that the present proposals will necessarily be of much advantage to Irish unions, and they are unlikely to turn around the trend of declining density.

Surprisingly, some union figures, such as Begg and O’Connor, have expressed some optimism about what is on offer. Although there is a long way to go before these proposals pass into law, it is difficult to see if such optimism is warranted. A range of concerns over the definition of collective bargaining, representation, the burden of proof and the nature of comparators all seem to justify some concern about the proposals’ effectiveness in securing bargaining rights for Irish workers.

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