OPINION:The denial by the Government and employers of collective bargaining rights for workers is unsustainable under international law
THE RIGHT of workers and trade unions to engage in collective bargaining with employers is now firmly back on the agenda – with a bang.
Rather bizarrely, the initiative has been made newsworthy by an extraordinary intervention at Ibec’s recent annual employment law conference. The wider business community, it seems, is biting its nails at the prospect of having to recognise trade unions.
This is because the right to bargain collectively is acknowledged in article 28 of the EU Charter of Fundamental Rights (given legal effect by the Lisbon Treaty).
But in a pre-emptive strike (no pun intended), Ibec solicitor Loughlin Deegan sought to calm the business lobby’s nerves by administering the soothing reassurance that “the notion that the charter creates an obligation to introduce compulsory collective bargaining is incorrect”, and that nothing in the Lisbon Treaty can require Ireland to make any provision for mandatory union recognition.
If only it were that simple. Deegan’s problem is that he is looking at the wrong Europe and the wrong European treaty. His concern should be not with the European Union and the Lisbon Treaty, but with the Council of Europe and the European Convention on Human Rights (ECHR), which Ireland has ratified, and indeed incorporated into domestic law.
In one of the most extraordinary decisions of a court anywhere in recent years, in the landmark Demir v Turkey, the European Court of Human Rights concluded on November 12th 2008 that the right to freedom of association in article 11 of the ECHR now includes the right to bargain collectively, said by the Grand Chamber of 17 judges to be an "essential element" in the principle of freedom of association.
This was a stunning decision, in which the judges overruled earlier cases going back to 1975. The Strasbourg-based court is now saying that it must take into account developments in international labour law, the law and practice of other member states of the Council of Europe, as well as the fact that the right to bargain collectively is recognised by article 28 of the EU Charter.
This has huge implications for Ireland. In the Ryanair decision in 2007, the Supreme Court held that employers have a right not to recognise trade unions. In this, Ireland stands alone in modern democracies, elevating by constitutional law the rights of multinational enterprises above those of its citizens.
In doing so, the Supreme Court has taken Ireland clearly into breach of International Labour Organisation Convention (ILO) No 98, on the Right to Organise and to Bargain Collectively, ratified by Ireland in 1955.
Acknowledging that the right to bargain collectively is a fundamental human right, the latter imposes various duties on states, several of which were called into question in the Ryanair case. The most significant is the duty on states to promote collective bargaining, a duty under international law which cannot be reconciled with the Supreme Court’s dubious right of employers not to engage in collective bargaining.
The Strasbourg court states that, “the absence of the legislation necessary to give effect to the provisions of the international labour conventions” amounts to an interference with trade union freedom under article 11 of the ECHR.The court has now opened the door to litigation as a trade union strategy to (i) challenge the decision in the Ryanair case, and as (ii) an essential step in gaining a legal right which is taken for granted in most liberal democracies.
Keith Ewing is professor of public law, King’s College London; president of the Institute of Employment Rights; and vice- president of the International Centre for Trade Union Rights