by Breda O'Malley January-20-2016 in Employment Law
There has been an ongoing political debate in Ireland as to whether employers should be required to recognise trade unions. One key question concerns the correct balance between the right of an employee to associate with a trade union, and the right of an employer to disassociate from a trade union.
While employers are not required by law to recognise and engage with trade unions, there are now various legal protections available to employees whose employer does not engage collectively with them in negotiating their terms and conditions at work. Those employees can rely on recent legislative changes to protect their interests and priorities in the workplace and to seek to have them legally enforced by their employer, on the direction of the Labour Court.
In light of these recent legislative changes, it is important that employers are aware of the following key updates regarding trade union activity:
- the Industrial Relations (Amendment) Act 2015 and;
- the Code of Practice on Victimisation (SI 463/2015).
Industrial Relations Act 2015
The 2015 Act provides a legal solution for employees whereby the Labour Court can provide a legally enforceable resolution to a dispute between an employer and either its non-unionised staff, and/or its unionised staff, where there are no collective bargaining facilities in place between the employer and employees.
“Collective bargaining” is defined as the “negotiation of wages and other conditions of employment between an organized body of employees, generally by a trade union on their behalf with their employer”.
Where an employer does not engage in a collective bargaining process with its staff via either their trade union, or with what the law describes as an “excepted body” in the case of a non-unionised workforce, the collective staff dispute may be referred by a trade union to the Labour Court seeking a court direction for the legal enforcement of the requested terms and conditions of employment.
An “excepted body” is defined as a body (organization/group) which is:
- independentand not under the domination and control of an employer
- made up of members who are all employed by the same employer
- involved in negotiations/engagements with the employer regarding wages or other conditions of employment.
On the request of a trade union, and provided that certain conditions are met, the Labour Court is empowered by the 2015 Act to investigate an employee claim for improved terms and conditions at work and to make a recommendation based on its findings.
However, before the Labour Court will commence its investigation, the following circumstances must be met:
- the employer did not engage in collective bargaining
- internal dispute resolutions failed to resolve the dispute
- the employer failed to observe a provision of the Code of Practice on Voluntary Dispute Resolution or the Workplace Relations Commission is unable to advance a resolution of the dispute
- the trade union or employees, as the case may be, did not have recourse to industrial action (strikes etc.) after the dispute was referred to the Workplace Relations Commission
- an investigation may not be commenced if there is an insignificant number of employees involved in the trade dispute, relative to the total number of workers employed in that category.
Provided the above conditions are met, the Labour Court can proceed to investigate the dispute. In doing so, it must consider wider industry norms in order to determine what entitlements should be afforded to the employees in question. As part of this exercise, the Labour Court has to consider the effect its recommendation might have on the “long term sustainability of the business involved”.
If, following the recommendation of the Labour Court, the dispute remains unresolved, the Labour Court may, at the request of the trade union, convert the recommendation to a binding determination. This determination usually takes the same form as the recommendation. Where an employer fails to comply with a determination of the Labour Court, an application may thereafter be made by a trade union to the Circuit Court to enforce the order. This provides a mechanism for staff who do not enjoy the benefit of collective bargaining mechanisms to have their issues addressed outside the employment relationship by the Labour Court.
Employers should be aware that in order to prevent referral to the Labour Court in this manner, they must be able to show that they engaged in a meaningful way with a trade union or an excepted body, with the aim of reaching agreement on the terms and conditions of employment in question. However, it is ultimately for the Labour Court to determine whether negotiations of a meaningful nature actually took place between the parties.
It is expected that these changes will result in a large increase in the number of trade disputes referred to the Labour Court. In that context, employers may wish to assess any existing arrangements they might have in place to negotiate with non-unionised employees regarding collective terms such as pay and other items. Further, if there are no such mechanisms in place for the non-unionised group of staff in the nature of an excepted body, employers should consider whether these should be introduced in order to prevent escalation and the referral of disputes to the Labour Court.
Code of Practice on Victimisation 2015
The new code of practice provides further protections for employees in terms of their right to associate with trade unions.
The code provides as follows:
- if an employee suffers any adverse treatment as a result of refusing an inducement by an employer - whether financial or otherwise - to forego trade union representation, this amounts to victimisation.
- where a dispute arises in the workplace, and there are no collective bargaining or negotiation arrangements in place between employers and non-unionised employees, no employee should be victimised or suffer any disadvantage as a result of “their legitimate actions or affiliation” arising from that dispute.
It is open to an employee who believes they have been victimised to bring a claim against their employer to the Workplace Relations Commission.
Conclusion
The above legislative changes constitute a significant development, particularly in respect of non-unionised employers who will find it more and more difficult to ignore trade union pressure. In light of these important developments, and in order to reduce the risk of referral to the Labour Court, it is advisable that employers consider having arrangements in place to facilitate collective negotiations regarding terms and conditions of employment with all of its employees.
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About the Author
Breda O'Malley
Breda is a partner in the Employment Law Team at Hayes solicitors.
Breda advises on the full range employment issues across a broad range of sectors, for established business clients and senior executives.