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Can we organise now?

New legislation on collective bargaining won’t undo the damage done to workers’ organisation by Supreme Court decisions and the 1990 Labour Relations Act, Richard O’Hara reports

Current Irish trade union legislation was profoundly shaped by events in England in 1980s. While the UK Conservative government, led by Margaret Thatcher, pursued a full frontal assault on the union movement, the Irish union leadership sought protection in social partnership. This was to prove cold comfort when Bertie Ahern, then Minister for Labour, introduced the Industrial Relations Act in 1990, inspired by laws introduced in the United Kingdom in the 1980s.

These laws restrict trade unions’ ability to picket effectively, to ballot without interference from employers or the courts and narrow the grounds on which unions can take legal industrial action.

At the time of its introduction, the 1990 Act was welcomed by the ICTU leadership. Others on the left of the union movement warned of the deleterious effect it would have.

Daryl D’Art, lecturer in Industrial Relations in Dublin City University, believes that the 1990 Industrial Relations Act has had a chilling effect on trade unions and their willingness to take effective action. He says that “the scope for industrial action under the 1990 Act has been severely restricted and is likely to get worse” and believes that it set trade union legislation back a century, tilting the balance of power completely in favour of employers.

He identifies a number of areas of serious concern where the Act has a detrimental effect on trade unions. Under Section 9 of the Act, a union cannot take industrial action relating to an individual worker until all procedures have been exhausted. This means a lengthy route through the Employment Appeals Tribunal, which can take years, and prevents workers from walking off the job to defend a colleague.

D’Art comments that, “Unions cannot strike for a single worker, which is hugely important; unions must be able to strike for an individual worker”.

He also points out that the balloting provisions under the 1990 Act are explicitly modelled on Thatcher’s anti-union legislation in the UK; in fact,this section has been copied almost word for word from its UK equivalent. The rules around who should be balloted for any particular action, which must be written in to the constitution of every trade union, are vague and open to interpretation. They are now open to challenge and injunction from the employer and, unsurprisingly, the courts have found in favour of the employer repeatedly.

In the UK these rules continue to cause serious issues with implementing effective industrial action. In recent years, UNITE the Union was temporarily prevented from taking industrial action at British Airways after the courts ruled they had not informed their 12,000 members at the company about 11 spoilt votes in the ballot. The ruling was later overturned, but UNITE’s General Secretary, Len McCluskey, has warned that his union would have to consider acting outside the law.

In Ireland, restrictions around balloting had an immediate and negative impact. In 1992, Nolan Transport sought to prevent SIPTU from taking industrial action on behalf of truck drivers at the company, dragging the union through a lengthy court dispute over balloting procedures and the legality of the strike.

Just last year, the Dublin Airport Authority successfully sought an injunction preventing SIPTU from taking industrial action related to the ongoing pensions dispute, while Aer Lingus also served papers on SIPTU for the same dispute, claiming that the union’s ballot was unlawful and threatening to sue them for millions of euro of damages under the 1990 Act.

Section 11 of the Act deals with picketing and D’Art sees the restrictions of this section as another major obstacle acting against effective industrial action. Unions can only picket their employer’s own premise, mass pickets are banned, and secondary action is now effectively outlawed; unions having to prove that another employer is ‘attempting to frustrate’ their industrial action, which is extremely difficult.

Employers now enjoy the ability to use injunctions to threaten trade unions and their members for taking industrial action. During the Greyhound Recycling dispute in Dublin during 2014, the employers sought to frustrate SIPTU members’ attempts at effective picketing by seeking High Court injunctions against the unions and picketers. The courts and employers have no problem with workers placing a picket on their place of employment, but any attempt to make the picket effective will be immediately be injuncted.

LookLeft spoke to a trade union official who has seen the impact of the Act firsthand. The official commented that “it has become nearly impossible to take effective industrial action within the constraints of the Act.”

Earlier this year, during the strike by SIPTU and NBRU members at Dublin Bus and Bus Eireann, management at the two companies threatened to sue the two unions for damages. They claimed that the strike contravened the stipulations in the 1990 Act that industrial action must be taken only in ‘furtherance of a trade dispute’ and was not ‘a legal trade dispute’.

Esther Lynch, legal advisor to the Irish Congress of Trade Unions, believes that the ease with which employers can now be granted injunctions against unions was a crucial way to damage the union movement. Globally, employers have attacked the right to strike and they have done so by making it difficult for unions to meet all the technicalities that would allow them to strike legally.

The courts and employers have no problem with workers placing a picket on their place of employment, but any attempt to make the picket effective will be immediately injuncted.

She stresses the positive impact that the new collective bargaining legislation will have on unions’ ability to organise. Lynch highlights a mechanism that will allow workers in firms without collective bargaining to bring a case to the Labour Court demanding comparable pay and conditions of workplaces with collective bargaining in their sector.

“It will make a meaningful difference, will strengthen the hand of workers and unions, and can use the strength of unionised companies to influence the conditions of workers who don’t work in unionised companies and it addresses some of the key blows that the Supreme Court dealt out in 2001 and 2004”.

While some have warned that this is likely to lead to the re-emergence of house unions, Lynch disagrees, stressing that only a union and not an exempted body can refer a dispute over pay and conditions to the Labour Court, meaning that workers are more likely to engage with a union ultimately although she believes that this will have to be closely monitored.

Lynch says that the issue of union recognition legislation is something that is also likely to come on the agenda of the ICTU conference, and she believes that the union movement needs to do more to protect the right to organise. She says that the movement needs to look to Europe to and the provisions for the right to organise that exist in other countries.

D’Art, however, is less convinced by the new legislation. He stresses that that it does not secure union recognition and highlights that the unique definition of collective bargaining as ‘voluntary engagement’ contained in the legislation is problematic, and may allow firms to claim that they are being coerced into negotiation with unions.

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