Opinion

Time To Recognise

After 100 years of struggle, trade unionists in the Republic still lack basic legal protections, Darly D’Art reports

Next year will mark the centenary of the 1913 Lockout. The Irish labour movement will rightly celebrate the great strike and lockout as a heroic example of worker resistance and solidarity. However, it would be mistaken to view 1913 as an example of long-ago battles that have been triumphantly transcended.

At the heart of the great struggle of 1913 was the workers’ demand for recognition of a union of their choice. Although the dispute would eventually involve tens of thousands of workers it was initially sparked by the lockout of ITGWU members employed by the Dublin tram company owned by Irish Independent tycoon William Martin Murphy. The struggle would eventually end in heroic defeat and even a century later for Irish workers union recognition remains extremely problematic.

Prior to 2001, two courses of action were open to union members who desired their employer to recognise their unions’ right to negotiate for them. They could strike, and force their employer to negotiate with the union, or refer the matter to the Labour Court. Unions who referred a recognition dispute to the Labour Court were bound by its recommendation. However, if the Court found in favour of recognition the employer was not legally obliged to accept it.

Over one six year period the Court issued 67 recommendations on recognition. Of these recommendations 59 or 88% were in favour of recognition but only 16 of the firms involved granted recognition. This
gave a success rate of 27%.

Growing employer resistance to recognition, the ineffectiveness of the
Labour Court and the failure to secure recognition for the Ryanair baggage handlers prompted the Irish trade union movement to seek some form of state support. However the Industrial Development Authority, Government and the employers argued that statutory recognition might adversely affect inward investment. Even though most developed states, including the US, do protect union recognition, the Irish union leaders seem to have allowed the inward investment
agreement stand and the result was the Industrial Act 2001.

From the outset the Act was muddled. Though it owed its existence to difficulties in securing recognition it was precluded from dealing directly with this question.

Workers seeking recognition for their union were advised to add specific claims of pay, conditions of employment or procedures in relation to grievance and discipline which were firstly brought before the Labour Relations Commission (LRC) and, if not resolved, then the Labour Court.

Where a Labour Court recommendation fails to resolve a dispute it can then make a determination which is legally binding on both parties. The determination only applies to pay, conditions or procedures union recognition is outside its scope.

This imperfect truce between employers and trade unions was broken in 2004 when a dispute arose between Ryanair, a litigious and aggressive anti-union employer, and its pilots who were seeking union representation.

Under the terms of the Industrial Relations Act 2001 the Labour Court can only intervene after it has been established that workers in an employment cannot avail of collective bargaining, where they negotiate as groups with their employer. As far as Ryanair was concerned this
seemed to be an open and shut case as the company had never recognised unions, making collective bargaining impossible. But such a common sense conclusion was about to be overturned by the highest
court in the land.

Citing the Trade Union Act 1941, Ryanair argued that it already carried on collective bargaining through its company established employee representative council or ‘excepted body’, thus excluding a Labour Court investigation. The 1941 Act defines an ‘excepted body’ as “a body, all the members of which are employed by the same employer and which carries on negotiations for the fixing of wages or other conditions of employment of its own members.”

Ryanair’s argument that it carried on collective bargaining through its
employee representative council was rejected by the High Court. Indeed the judge went on to describe the conduct of employee relations in Ryanair as tyrannical, bearing all the hallmarks of oppression. Undaunted, Ryanair appealed its case to the Supreme Court.

In 2007 the Supreme Court found in favour of the company that collective bargaining was carried on in Ryanair and consequently the Labour Court had no right to adjudicate in the company’s dispute with its pilots.

Among the Supreme Court’s highly controversial findings was that an
excepted body could:

• Only be established at the behest of the
employer.
• Does not require a negotiation licence.
• Did not require the consent or
participation of the company’s
employees.
• Employee withdrawal is of no
consequence with regard to its
continuing existence.

So an excepted body is one established, dominated and controlled by the employer. It is in short the employer’s creature. The excepted body is essentially a company or house union with the consequent disparities of power and employee dependence.

In both Canada and the United States employer-dominated bodies, or house unions, have been declared illegal since 1935. Convention 98 of the International Labour Organiation (ILO) – the international body which brings together representatives of governments, union and employers – categorises any workers’ organisation established under the control and domination of the employer as an interference with the right of freedom of association. In addition the ILO definitively dismisses the possibility that negotiation between an employer and employees within a house union or excepted body could ever be considered as collective bargaining. Officially the Irish State endorses Convention 98.

The 2007 Supreme Court judgement seems to even rule out the possibility that a law might be enacted to facilitate union recognition. Generally in countries where such laws are in force they operate on democratic principles. If a majority of employees either within the enterprise or a particular bargaining unit express a clear wish for union recognition then the employer is legally obliged to comply.

However the Supreme Court judges found that “Ryanair is perfectly entitled not to deal with trade unions,” and further “nor can a law be passed compelling it to do so”. The Supreme Court seems to claim that such statutory union recognition would be unconstitutional.

If statutory union recognition cannot be introduced, then Ireland would occupy a relatively unique position among the western democracies. For example, in the Scandinavian countries employers are legally obliged to recognise trade unions. In the UK, there is a statutory mechanism in place to facilitate union recognition. Since 1935 employers in Canada and the United States are legally obliged to recognise and negotiate with trade unions if that is the democratic choice of their employees.

Since the Supreme Court judgement the Irish trade union movement has claimed that one of its central aims is to achieve some form of statutory recognition. What is certain is that something has to be done
to reverse or neutralise the Supreme Court judgement. As it stands any employer can claim to carry on collective bargaining through an ‘excepted body’. It severely limits the scope of the Labour Court and provides a legal basis for employer dominated company unions which makes union recognition and growth even more difficult to achieve.

After nearly twenty five years of social partnership, the Irish trade union
movement finds itself in a parlous position. All the utopian talk of a new
relationship between labour and capital and the transcendence of adversarial relations has ended with the union movement weaker than at any time since the 1950s.

Some enthusiasts for partnership failed to recognise that it is difficult to be partners with someone who would prefer that you did not exist. With regard to relations between labour and capital, 1913 does not seem that remote or far away.

Finally an anecdote – the employees of William Martin Murphy’s tramway
company were obliged to pay for their uniforms from their wages. Ryanair has gone one further cabin crew are obliged to pay for their uniforms and training from their wage.

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