All the key issues?

Last September the Trade Union Left Forum asked, will this Government guarantee the right to union representation for workers? (The full article can be read at

Judging by yesterday’s press statement by the Minister for jobs, enterprise, and innovation, Richard Bruton, on legislating for reform of the Industrial Relations Act (2001), the answer has to be a resounding and disappointing but not surprising No.

The minister’s statement added very little to what he had already stated, and what was leaked to the media before Christmas. The Fine Gael minister has been clear that any legislation brought forward in this area would be a reform of the 2001 act, would not introduce compulsory collective bargaining and the recognition of trade unions, would retain our voluntary system of industrial relations, would legislate for the Supreme Court ruling on the infamous Ryanair case, and would be consistent with our dependence on foreign direct investment.

The minister has said all this publicly; so yesterday’s statement, which advised us that the main provisions of the legislation would include the below points, is not exactly news and, coming two weeks before an election, appears much more like a Labour Party stunt in the face of what may well be that party’s worst electoral performance in recent history.

There is no draft legislation, not even headings, just the following list of points:

• a definition of what constitutes “collective bargaining”;

• provisions to help the Labour Court identify whether internal bargaining bodies are genuinely independent of their employer;

• bringing clarity to the requirements to be met by a trade union advancing a claim under the act;

• setting out policies and principles for the Labour Court to follow when assessing those workers’ terms and conditions, including the sustainability of the employer’s business in the long term;

• new provisions to ensure that cases dealt with are ones where the numbers of workers are not insignificant;

• provisions to ensure that remuneration, terms and conditions are looked at in their totality;

• provisions to limit the frequency of reassessment of the same issues;

• an explicit prohibition of the use by employers of inducements (financial or otherwise) designed specifically to have employees forgo collective representation by a trade union;

• enhanced protection for workers who may feel that they are being victimised for exercising their rights in this regard by way of interim relief in the case of dismissal.

Within hours both SIPTU and the ICTU expressed their support for these proposals. David Begg went so far as to say that the points listed above “appeared to deal with all the key issues, from a trade union point of view.”

All the key issues? Will a group of workers in a shop, factory or office who get together and say, “Mr Employer, please talk to us and our chosen union about our terms and conditions of employment,” be able to compel their employer to do so? No. So has it dealt with the fundamental issue from a trade union point of view? No, it has not.

Worse than that: if provisions to help the Labour Court identify whether internal bargaining bodies are genuinely independent of their employer allows and legislates for the recognition and acceptance of staff associations or information and consultation committees as independent internal bargaining units, then this legislation is a step backwards for the trade union movement and will in fact make organising non-union workers into the movement even more difficult than it already is.

These proposals have the potential to weaken the trade union movement significantly over time, as internal bargaining units fill the private sector and declining union density is replaced by these internal associations. This is not merely unacceptable: it is potentially damaging to the movement.

Let’s look at some of the other points. The “sustainability of the employer’s business in the long term” sounds awfully like adding a vague competitiveness clause to any discussion about terms and conditions of employment. Pay and terms and conditions of employment to be “looked at in their totality” sounds as if any pay claim might be resisted on the grounds of a totality of terms and conditions of employment and benefits.

“Provisions to limit the frequency of reassessment” can clearly work both ways. Will a pay claim only be allowed every so often? This is hardly a mechanism for facilitating annual collective bargaining on pay.

An explicit prohibition of financial inducements to forgo collective bargaining with a union, while very welcome, is in fact the law under the European Court of Human Rights Wilson Judgement. And enhanced protection against victimisation, while again very welcome, is already provided for (somewhat weakly) in equality legislation.

So, do these points appear to deal with “all the key issues”? It is not possible to make such a statement on the basis of what is provided; and, worse than that, it seems it could be worse than achieving nothing if it provides for the legal recognition of internal non-union staff bodies.

To summarise what we said in our article in September about what would be positive and progressive legislation, it should include:

• a recognition of union membership and collective bargaining as a basic human right;

• a legal right and a mechanism for compulsory recognition of a trade union for employees by employers;

• broad outlines of what constitutes collective bargaining and negotiating mechanisms and an avoidance of minimal consultation-style frameworks;

• a clear understanding of a “trade union” as an independent registered trade union and not a staff association established by the management;

• the right of trade unions to have access to workers in their work-place, to ensure that all workers are given the right to organise a union free from intimidation;

• the right of access to existing members where collective bargaining already exists;

• protection for union members from penalisation, discrimination or disciplinary action for carrying out legitimate trade union activity;

• legal protection for the collection of union subscriptions at source;

• economically harsh fines and penalties for companies found to be in breach of the legislation, so that it is not economic to illegally avoid unions.

Of course, this article is not based on any draft legislation, so we must wait to see this. However, based on what has been made public, union members should be under no illusions about what is on the table.