The future of Collective Bargaining Rights? Reform of the Industrial Relations (Amendment) Act 2001 Brendan McGinty November 2014
Programme for Government To reform the current law on employees right to engage in collective bargaining (the Industrial Relations (Amendment) Act 2001) so as to ensure compliance by the State with recent judgments of the European Court of Human Rights.
Industrial Relations (Amendment) Act of 2001 Provides a mechanism whereby companies who do not have a practice of engaging in collective bargaining negotiations can be brought to the Labour Court by trade unions; Something of an Irish solution to an Irish problem where: Voluntarism remains a core value; Absence of thresholds to trigger compulsion e.g. as in the UK; In the absence of CB, fairness of pay & conditions can be assessed; Robust legal rights exist and protection against victimisation of employees to be enhanced and Allows for flexibility at a company level in how relations are managed and disputes resolved. Main provisions already in existence, so its NOT a clean slate. LC may make recommendations about the terms and conditions of employment of certain workers in those companies & can result in enforceable determinations. LC may not recommend in favour of CB arrangements so that affected companies recognise any trade union.
Supreme Court Challenge Ryanair Significant problems arose for employers in the operation of the Act of 2001. In 2007, in Ryanair, the Supreme Court overturned the Labour Court s interpretation. Act of 2001 has not been used very often since 2007, though it has remained in force Employer bodies focus on fixing the Act
Effect of Decision in Ryanair Key element of Ryanair decision - meaning of the expression practice of the employer to engage in collective bargaining negotiations. Any employer who has such a practice is not subject to the operation of the Act of 2001. Supreme Court gave a wide interpretation of that expression. Thereby excluded certain categories of employers from the Act who had previously been thought to be covered if there is machinery in a company whereby employees may have their own independent representatives who sit around the table with representatives of the company with a view to reaching agreement if possible, that would seem to be collective bargaining within an ordinary dictionary meaning. Note Complaint also made by Congress & IMPACT to the ILO Committee on Freedom of Association
ILO Committee on Freedom of Association Report (June 2012) Made no adverse finding about Ireland s IR framework in terms of compliance with Convention 98 and recognised the robustness of IR structures and legislation Insufficient information to address the question of whether the events complained of at Ryanair had occurred, or were in breach of existing Irish legislation? The Committee recommended that: 1. The Irish government conduct a thorough review of protective measures with the social partners; 2. An independent inquiry to take place into the alleged acts of interference within Ryanair; 3. The government, in consultation with the social partners, to review the existing framework and consider any appropriate measures, including legislative measures, to ensure respect for the principles of freedom of association and collective bargaining, including through the review of the mechanisms available with a view to promoting machinery for voluntary negotiation between employers and workers organisations..the recommendations were part of the backdrop for the review of the Industrial Relations (Amendment) Act 2001.
DJEI Discussion Document March 2014 Compulsory union recognition remains unrealistic & most likely would require a Constitutional referendum. Preceded by consultations with Ibec, Congress and AmCham. Confirms that the Government is committed to maintaining Ireland s voluntarist tradition of industrial relations. Not proposing any form of mandatory union recognition or mandatory collective bargaining for Ireland.
Government Decision May 2014 Provide clarity to the expression collective bargaining.. and essentially that Voluntary negotiations between the employer (on the one hand) and a trade union or excepted body (on the other) would be captured.
Proposed Definition of CB For the purposes of this Act, 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. Where an employer asserts that it engages in CB with an Excepted Body for the grade, group or category, it is for the employer to satisfy the Court that this is the case.
Key Issues Arising from definition of Collective Bargaining? Should consultations as well as engagements and negotiations be included in the definition of Collective Bargaining? Could I&C structures be considered to constitute Collective Bargaining for the purposes of the Act? An occasional failure to reach agreement should not take the practice of negotiation or engagement outside the scope of Collective Bargaining?
Protection for Employers (1) When bringing a claim, a union (Gen. Sec) must provide a statutory declaration as to the number of its members and period of membership in the grade, group or category workers who are in dispute with the company. The Court, when making a recommendation under the 2001 Act, must have regard to the sustainability of the employer s business in the long term. The Court, when assessing the terms and conditions of employment which are in issue, must consider the totality of remuneration and terms and conditions, and Comparable terms and conditions in other companies, both unionised and non-unionised rather than confining terms and conditions benchmarks to unionised entities This will not reveal the identity of those involved which is likely to remain a contestable issue for many employers and risk further legal challenges? Guidance will be required as to what is meant by sustainability? Guidance will be needed as to what is meant by (i) the totality of T&C s? (ii) how will information about comparable T&C s in other companies (union & non-union) be gathered and assessed? (iii) will independent assessors be used? (iv) will other non-union firms share their data? (iv) will the onus rest with the Union to prove that terms and conditions are out of line? (v) will the LC will recognise the legitimacy of performance based pay & total reward models in assessing fairness?
Protection for Employers (2) Before the LRC under SI.76, the union will be required to set out the issues and identify the affected grade, group or category of workers. The Court shall decline to hear a case where it is satisfied that the workers who are in dispute are insignificant having regard to the total number of workers employed by the employer in the group, grade or category. A stipulation that only one claim can be taken in any 18 month period in respect of the same grade, group or category of workers. SI. 76 of 2004 - no change in 26-34 week period allowed but reply period to be 4 weeks (from 2) and the period for the LRC to resolve matters to be 8 weeks (from 6) Clarity needed for both the employer and the LRC and the issue remains about the absence of a requirement for those employees involved to be made known to the employer? How will this operate in practice? If an employer has 1,000 staff and there are 20 in a grade, group or category and of this number there are 10 claimants or 1% of the total staff number, should an employer still be subject to the rigours of this Act? The 18 month period should reduce the risk of a revolving door for cases involving the same parties under the legislation. The time frames remain too short. should be e 49-52 weeks & exempt time on procedural points. Previous casework showed a higher resolution rate at the LRC stage when parties had more time. Reference to internal dispute resolution procedures (if any) normally used by the parties concerned should be amended to make it clear that the term parties relate to the workers concerned and the employer, (not the trade union and the employer)
Issues re Victimisation Will provide enhanced protections for union members victimised due to membership or activity. Major concern as allegations of victimisation do not exist to a meaningful extent as significant protections already exist for those who assert victimisation. (S.8 IR Act 2004) - the employer, an employee, or a trade union or an EB of which an employee is a member, shall not victimise an employee or (as the case may be) another employee in the employment concerned on account of membership / non membership OR engaging / not engaging in any activities on behalf of a trade union or an EB) Victimise, means any act (commission or omission) that, on objective grounds, adversely affects the interests or well being of the employee and includes conduct prohibited in a COP. Employee includes person whose duties includes that of managing the business or activity to which the employment relates. Relates to situations where negotiating arrangements are not in place and where CB fails to take place (and where SI.76 2004 have been invoked or steps have been taken to invoke.) New protections against victimisation where workers have invoked the Act of 2001. Due to the Wilson ECJ Judgment, the Code of Practice on Victimisation (SI.139 of 2004) is to be amended to prohibit employers from offering inducements (financial or others) to workers to leave union m ship. Opportunity to apply to the Courts for interim relief to the Circuit Court in the case of victimisatory dismissal as a result of invoking, or acting as witness or comparator for the 2001/4 Acts.
Key Issues Arising from the enhanced protection from Victimisation? How will such protections work? New protections proposed for workers against victimisation are confined to where such workers have invoked the provisions of the Act of 2001.but Case was advanced for increased penalties for unfair dismissal or implications of access to interim relief by civil courts in employment matters? Need to consider the full implications for normal management practice e.g. in cases of performance management? Employers face prospect of a robust enforcement of S. 9, 10 and 13 IR Act 2004 where employment is continuing?
Other Elements Excepted Body (EB) Amendments to the definition of excepted body which allows employees to negotiate with their employer, without the involvement of a trade union, to negotiate T&C s in a situation where they would otherwise be acting illegally for not having a negotiation licence. To provide greater clarity around what types of non-union staff representative organisations qualify to engage in CB negotiations. The Court to satisfy itself that the EB is independent and take account of (a) the manner of election of employees (Note election V selection ) (b) the frequency of elections (c) any financing or resourcing beyond logistical support and (d) the length of time the EB has been in existence and any prior CB conducted. An EB, by its nature is involved in CB and so will not have a right of access under this Act and it will be a matter for a union alone to initiate the processes under the legislation
A Look Back - Examples of Previous Cases Some 380 cases initiated before LRC Key LCR s in: Analog Devices Ashford Castle Bell Security Cooley Distillery Clearstream Technologies Dell GE (Amersham) Healthcare Green Isle Foods Meteor Radio Kerry Ryanair Sercom Solutions Swords Packaging United Airlines All Water Systems
Some Key Issues looming for those with Direct Engagement Models? Procedures will change Devil in the detail.with practice to follow. History shows big names were pursued.so its not just the small firms! Key LC powers remain - legally binding & enforceable decisions still in prospect. Parties need to consider implications? Are problem solving structures robust? Can they cope with crises? Does the organisation engage in CB as per proposed definition? What benchmarks are used for T&C s? What does total reward look like? Victimisation will open up potential new avenues of agitation & claim How will unions behave? Will organisations wait and see or get ahead of the game?
Some Key Issues looming for those with Direct Engagement Models? Why does it matter who cares anyway? Is there a leadership or corporate view? What's the investment made to maintain the model? Are they dealing or negotiating with representatives anyway? Does the Strategy & Practice match? Relevance of culture fit & legacy issues? Is it a case of accidental occurrence or herd mentality or seen as strategically important? Who looks after staff interests? What's the ER culture? Are communications effective? Are employee voice structures up to it? Who is responsible & accountable?
..Next steps Could see some refinement of definitions but not expecting anything radically different. DJEI consideration of outstanding issues. Government has given approval for drafting of a Bill to give effect to the proposals. Expect legislation in 2015 & now part of electoral cycle. All will grapple with implications expect to see some unions offer flexible membership options and PBR? Expect upsurge in claims, and as you will know. failure to prepare is to prepare to fail.
Thank you for listening.questions?