Trade union recognition:The Ryanair judgment has caused a major problem, writes Martin Wall.
Nearly four years after the issue was supposed to be finally settled by means of "compromise" legislation, the thorny question of the right of trade unions to be recognised by employers for collective bargaining is set to re-emerge as a major source of controversy in the months ahead.
A ruling by the Supreme Court earlier this year in a case brought by Ryanair has put the focus once again on whether employers should be forced by law to negotiate with trade unions.
The unions argue that the Supreme Court ruling has, in effect, undermined legislation which aimed at steering a middle ground by giving them limited rights to represent workers in companies where collective bargaining is not allowed.
How this issue is addressed by the Government in the months ahead could have a significant impact on talks on the next phase of the Towards 2016 national agreement, which are scheduled to start after Christmas.
Constitutionally, individuals are guaranteed freedom of association which allows them to join trade unions. But trade unions have no statutory right to be recognised in the workplace for collective bargaining purposes. There have been concerns at Government level for some time that any requirement for mandatory representation rights for trade unions could have a negative impact on the level of foreign direct investment in the country.
Following two reports from a "high-level group" comprising the social partners several years ago, the Oireachtas passed two pieces of legislation, the Industrial Relations Act (2001) and the Miscellaneous Provisions Act (2004), which sought to steer a course between demands for statutory union recognition on one hand and the hostility of some employers towards any form of trade union activity in the workplace on the other.
The effect of this legislation was to allow unions to represent indirectly workers in non-union companies, where collective bargaining was not allowed, by bringing cases on their behalf to the Labour Court. Decisions in such cases were binding and enforceable by the civil courts.
The unions believed that the measures meant workers in non-union companies could secure similar terms to those in firms where collective bargaining was in place. However, the legislation was viewed by some employers as a means of introducing de facto trade union recognition by the back door.
Ryanair challenged the legislation in the courts and last February the Supreme Court found that procedures adopted by the Labour Court in hearing a case brought by the trade union Impact on behalf of pilots at the airline had been flawed.
Ryanair had argued that it did engage in collective bargaining with its own staff through its employee representative committees and what it described as "town hall meetings". The Supreme Court held that the Labour Court, in deciding that the "town hall meetings" were actually just consultation or information meetings, had not adequately evaluated the "in house" procedures.
It also pointed, for example, to the fact that no pilot had been called to give evidence or was identified in the Labour Court process. The Supreme Court ordered that there should be a full rehearing of the case in the Labour Court.
Some union leaders argue that the ruling effectively means that companies can set up their own internal staff bodies and as long as these operate procedures that satisfy the courts, then workers do not have a right to independent representation.
Union leaders have also expressed strong concern about the loss of confidentiality for workers engaging in the Labour Court process.
The fall-out from the Ryanair judgment is now considered a major issue by the trade union movement. Irish Congress of Trade Unions president Peter McLoone says that he would go so far as saying that it would be a "make or break issue". He said the 2001 and 2004 legislation "was an ingredient that we struggled hard to get".
"From our point of view [ it] shifted the balance slightly back in our favour in terms of being able to represent the interests of people who wanted to be part of a trade union or who wanted a trade union to represent their interest on pay and conditions of employment.
"It would be a huge concern if we did not have that facility; if workers in these companies found themselves powerless to engage with us and us in turn powerless to engage with the State machinery," he said.
Mr McLoone said the trade union movement would need to know early in the lifetime of the Government that it acknowledges that there were defects in the legislation that need to be put right.
"I do not think we could countenance a situation where the political system shrugged its shoulders and said that there is nothing we can or are prepared to do about this. That would propel us forward into a crisis situation very quickly if that was the case," he said.
However, employers are strongly opposed to any move to reopen the issue of trade union recognition and representation.
Brendan McGinty of employers' group Ibec says the Supreme Court clarified a number of issues in relation to the legislation and that all the parties should wait and see how the new procedures operate in practice.
"There have been no significant cases through the system [since the judgment]. It would be totally inappropriate to reopen the whole issue at this time. We have not got the experience of operating the revised arrangements. We have to see what that experience is," he said.
Government sources said civil servants from various department as well from the Attorney General's office were still studying the judgment.
Sources said it was expected that Ministers would begin to consider the issue in the autumn. But they said that concerns remained at Government level about going down the road of statutory union recognition.