The Government recently published the long awaited Industrial Relations (Amendment) Bill 2015. The new legislation aims to provide an improved framework for workers who seek to enhance their terms and conditions of employment, where collective bargaining is not recognised by their employer, as well as to provide a replacement framework for the Registered Employment Agreements (REAs) system.
The proposals, which fall short of statutory union recognition, have been broadly welcomed by trade unions and worker groups. For employers who engage in some form of negotiation with a staff association (not a trade union) they need to assess whether this body is genuinely independent from the employer business and if so this may be sufficient to bring it outside the scope of the legislation.
The current position for employees, whose employers do not engage in collective bargaining, is set out under the Industrial Relations (Amendment) Acts 2001 to 2004. These Acts provided a statutory right for employees to be represented by trade unions in trade disputes regarding terms and conditions of employment. While they are able to seek a binding determination from the Labour Court in relation to their terms and conditions of employment, no binding determination however can be made in respect of trade union recognition.
The Ryanair decision in 2007 was the beginning of the end for the Industrial Relations (Amendment) Acts 2001-2004. In brief the Supreme Court held that a company which did not engage in collective bargaining, but did engage in negotiations with staff groups or representatives (i.e. even though they were not unionised) should be exempt from the provisions of the legislation. As a result of this decision the number of applications under this legislation reduced dramatically as the scope of the Act was perceived as being further limited.
The Bill – what's new
The proposed changes to the legislation respect the voluntarist tradition of industrial relations in Ireland. It does not require employers to engage in collective bargaining, rather it provides a framework through which employers who fail to engage in collective bargaining, may be brought before the Labour Court by trade unions. Some of the key provisions of the Bill are set out below:
- A new definition of collective bargaining
The Supreme Court decision in Ryanair noted that there was no definition of collective bargaining in the 2001 to 2004 Acts. It went on to state that the Labour Court was in error in utilising the industrial relations concept of collective bargaining and that instead an ordinary dictionary definition should apply. To address this deficiency a definition of collective bargaining is set out in the new Bill. It states “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 to which this Act applies on the other, with the object to reaching agreement regarding working conditions or terms of employment, or non-employment, of workers”.
- Excepted body
The proposed legislation will not amend the definition of "excepted body” however the legislation will address the status of the "excepted body" in so far as ensuring that it is genuinely free of employer influence in terms of negotiating and agreeing on wages or other conditions of employment. Given that excepted bodies by their very nature and constitution are involved in collective bargaining as defined above, they will no longer have a right of access under the Act. This means that it will be a matter for a trade union alone to initiate the procedures under the Act.
- Proof that collective bargaining with an Excepted Body is taking place
It will be up to employers to satisfy the Labour Court where it asserts that it is the practice of the employer to engage in collective bargaining with an excepted body in respect of the grade group or category of workers concerned. This represents a shift in the burden of proof.
- New principles and policies to assist the Labour Court
The Bill provides for more detailed policies and principles to be followed in the context of establishing remuneration and conditions. When examining the terms and conditions of any employer the Labour Court will take into account the totality of the remuneration and conditions of employment, and in doing so, look at comparators, where available, which can comprise both unionised and non-unionised employers. Further in making any recommendation or determination under the Act, the Labour Court will still have regard to the sustainability of the employer’s business in the long term.
- Protection for employers
Some protections are proposed in the Bill for employers who face claims from small sections of their workforce. Claims will be excluded if the workers in question comprise an insignificant proportion of their workforce.
- Protection against victimisation
The Bill provides enhanced protections against victimisation by employers of workers who invoke their rights under the new legislation. Protection will be provided by way of allowing interim relief to be applied for in the Circuit Court in circumstances where a dismissal is being challenged on the grounds of unfairness arising from an individual believing that he or she is being victimised as a result of being directly involved in the investigation of the trade dispute by the Labour Court under these Acts.
Registered Employment Agreements (REAs)
Part 2 of the Industrial Relations (Amendment) Bill 2015 will provide significant amendments to the Registered Employment Agreements (REAs) process in Ireland. It will provide for the reintroduction of a mechanism for the registration of employment agreements between an employer or employers and trade unions governing terms and conditions of employment in individual enterprises. It also provides a revised framework to replace the sectoral REAs. The need for reform in this area arose as a result of the Supreme Court striking down as unconstitutional the electrical REA system. The Court held that Part III of the Industrial Relations Act 1946 was unconstitutional, thereby invalidating the registration of all REAs made under this section. Since May 2013 new employees in those sectors could be hired at a rate of remuneration agreed between workers and their employers. This is subject only to the provisions of the National Minimum Wage Act 2000.
The likely impact of the amendment to the 2001 -2004 Acts is an increase in worker bodies/trade unions utilising the provisions of the Act to seek to better their terms and conditions of employment, with a likely corresponding increase in claims as well.