Union recognition in Ireland - Wiley Online Library

Industrial Relations Journal 34:3 ISSN 0019-8692

Union recognition in Ireland: one step forward or two steps back? Daryl D’Art and Thomas Turner In this paper a variety of union recognition procedures and their effect on union density levels in a number of countries are considered. The crucial importance of the national institutions that govern industrial relations are emphasised. While in Ireland, conditions such as social partnership and the buoyant economy of the 1990s would appear to favour union growth, the reverse has been the case. Recent legislation to establish more formal procedures for union recognition, we argue, is likely to be a dismal failure. Indeed, an unintended consequence of the Industrial Relations (Amendment) Act 2001 may be the exclusion of the union from the workplace and the legitimisation of a firm’s non-union status.

Introduction Since 1987, social partnership type agreements between trade unions, employers and government have been the dominant feature of collective bargaining in Ireland. These agreements have been associated with beneficial outcomes for the social partners in terms of real wages, profits, decreasing unemployment and a substantial rise in the number of people at work (Turner, 2002). Furthermore, government, employers and trade unions concur in the promotion of partnership at firm level to complement cooperation at national level (see D’Art and Turner, 2000). These political and economic circumstances would traditionally be regarded as propitious for union growth. Certainly in the ten years between 1990 and 2000, union membership has increased by 14 per cent. Yet, since 1980 there has been a steady decline in union density (see table in appendix). Union density is now at its lowest point since the 1950s, which was a period of economic stagnation. One factor contributing to the steady decline in union density may be the increasing difficulty experienced by trade unions in gaining recognition. Union recognition is the formal acceptance by management of a trade union(s) as the representative of all, or a group of employees for the purpose of jointly determining their terms and

❒ Daryl D’Art and Thomas Turner are Lecturers, Department of Personnel and Employment Relations, University of Limerick. Correspondence should be addressed to Daryl D’Art, Department of Personnel and Employment Relations, University of Limerick, Limerick, Ireland; [email protected] © Blackwell Publishing Ltd. 2003, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main St., Malden, MA 02148, USA.

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conditions of employment (Salamon, 2000: 189). Recognition, it has been argued, is the key determinant of union growth. Bain and Price (1983) suggest that union recognition and growth enjoin what they call a ‘virtuous circle’ of cause and effect whereby the more unions obtained recognition the more they are likely to grow (see also Green, 1990). The weight of the available evidence points to increasing employer resistance to granting recognition to trade unions for collective bargaining in the workplace (see Mc Govern, 1989; Roche and Geary, 1995; Turner et al., 1997; D’Art and Turner, 1999). During the 1980s there was a sharp rise in the number of union recognition recommendations from the Labour Court (Mc Govern, 1989). According to Roche and Geary (1995: 10–12), there was a general growth of resistance to trade union recognition in Ireland during the 1980s and 1990s in terms of the volume of recognition disputes being referred to third-party institutions and the number of strikes related to union recognition. In a survey of a general union in the late 1990s, 37 per cent of members believed that the capacity of unions to gain recognition from employers had decreased compared to only 16 per cent who believed it had increased (D’Art and Turner, 2000). Prior to the passage of the Industrial Relations (Amendment) Act 2001 two courses of action were open to a union that was refused recognition by an employer. The union members could strike or refer the dispute to the Labour Court under Section 20(1) of the Industrial Relations Act 1969. Unions who referred a recognition dispute to the Labour Court agreed to be bound by the Court’s recommendations. If the Court found in favour of recognition the employer was not legally obliged to accept the recommendation. A recent analysis of union recognition cases in the Labour Court shows that few of the companies involved acted on the recommendations issued by the court (Gunnigle et al., 2002). In the period 1985 to 1991 the Labour Court issued 67 recommendations relating to trade union recognition. Of these, 59 or 88 per cent were in favour of union recognition. Recognition, however, was only conceded in 16 firms, giving a success rate of 27 per cent. Gunnigle et al. (2002) suggest that these figures demonstrate the relative ineffectiveness of the Labour Court in securing union recognition. They may also indicate the growing significance of recognition disputes in Irish industrial relations. Yet, according to Roche (2001), there appears to be no pronounced upward trend in the number of strikes for union recognition in the 1980s and 1990s compared with previous decades. However, the average length of recognition strikes has risen dramatically. In the 1990s 50 per cent of all recognition strikes exceeded 40 days, compared with 30 per cent during the 1980s, 16 per cent during the 1970s and ten per cent during the 1960s. It seems that strikes over recognition have become more concentrated among smaller employers whose resistance to granting recognition has increased (Roche, 2001: 37–8). Case study evidence indicates the hostility of management towards unions and the difficulties experienced by workers in securing recognition for collective representation in small and medium enterprises (McMahon, 2001; Dundon, 2001). Contemporary trends indicate the emergence of a substantial non-union sector among US multinationals and in the small service sector firms (Gunnigle et al., 2002; McMahon, 2001). These difficulties have prompted trade unions to seek a more formal procedure designed to achieve recognition for their organisations and collective bargaining in the workplace. With the passage of the Industrial Relations (Amendment) Act, 2001, the trade union movement appears to have succeeded in this endeavour. In this paper we briefly review formal arrangements for union recognition in a number of countries. Against this background the Irish legislation is assessed with regard to its likely effectiveness in securing union recognition.

Union recognition procedures Union recognition can be seen as incorporating two distinct but complementary steps. Firstly, the employees have a right to join a union of their choice. While crucially © Blackwell Publishing Ltd. 2003.

Union recognition in Ireland 227

important, this right alone may be insufficient. The second essential factor is the willingness of employers to recognise and negotiate with the trade union as representing the collective interests of a group of workers. Recognition and the acceptance of negotiation with trade unions are the key elements in the process. However, as the International Labour Organisation (1960: 28) points out, ‘employers will give such recognition only if they believe it to be in their interests or if they are legally required to do so’. It is possible to identify a number of approaches through which trade unions are recognised by employers as representing employees for the purposes of collective bargaining at firm level. One could be described as the voluntarist approach to union recognition. The acceptance of trade unions for collective bargaining results from the available power resources, which are mobilised by the trade union and employer. This approach may sometimes involve the state acting as umpire in the recognition process. Voluntarism is the chief characteristic of the system of industrial relations in countries such as Australia, New Zealand, Ireland and until recently the UK.1 A second approach involves a well-defined statutory mechanism outlining the specific conditions under which trade unions are recognised by the employer for the purposes of collective bargaining. The state acts as the ultimate arbiter and overseer of the process. Unlike the voluntarist system, a statutory mechanism is available to support the process of union recognition. Examples of the statutory approach are the US, Canada and, since 2000, the UK. A third, or Scandinavian, approach to union recognition involves automatic statutory recognition of the employee’s right to collective representation by trade unions for collective bargaining. This right has emerged as part of a body of legislation governing collective employee collective rights. The relationship between the employer and employee is viewed as a collective relationship rather than an individual contract, which is of minor importance as a regulatory instrument (Fahlbeck, 1995). As early as 1910 in Denmark the employer and labour organisations signed a common declaration to the effect that ‘the main basis of the regulation of the conditions of work is no more the individual labour contract but the collective agreement’ (Lange, 1939: 239). As Table 1 indicates, union density levels have declined considerably in the AngloSaxon countries between 1980 and 1997. In the Scandinavian countries during the same period, where there is an automatic right to be represented by a trade union, density levels have increased or at worst registered a marginal decrease. It seems likely that the ease with which Scandinavian union are recognised has contributed to the maintenance of high levels of union density.2 Yet the uncontested right to union membership and collective bargaining is probably unique to Scandinavia and owes much to a long period of social democratic hegemony and supporting institutional structures. In political climates less favourable for collectivism the beneficial effect of statutory recognition on union density may be less certain. For instance, in the US the presence of such a procedure has apparently failed to arrest a precipitous fall in union density. Indeed, one commentator argues that the certification procedure for collective bargaining in the US and Canada is a major contributor to union decline (Adams, 1999). Prior to the establishment of a statutory procedure for union recognition, Adams (1999: 99) warned that Britain was ‘about to make the same mistake as the US in 1935 and enact into law a certification procedure which is likely to prove in nobody’s interest, least of all the trade union movement’. This appears to support the voluntarist view that statutory recognition procedures of whatever type eventually redound to the detriment of trade unions. However, an exami-

1

However, in the UK there was a statutory procedure for union recognition established in 1971 but repealed in 1980. 2 The Co-determination at Work Law (1976) in Sweden guarantees the right to representation to employees in every workplace with five or more employees, as is also the case in Denmark. A similar right pertains in Norway in every workplace with at least 25 employees (Visser, 1993; Hammarstron, 1987: 191).

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© Blackwell Publishing Ltd. 2003.

Table 1: Trends in union growth and decline 1980 to 1997 Union density 1980 Voluntarist approach Statutory union recognition Scandinavian model

Union density in 1997

UKa Irelandb Australiac New Zealandd

51 62 50 48

33 50 30 23

USe Canadaf Swedeng Denmark Finland Norway

20+ 38 78 79 69 55.2

14 34 86 76 78 54.8

% change 1980 to 1997 -18 -12 -20 -25 -6 -4 +8 -3 +9 -0.4

(The density figures reported here refer to the employment density of union membership, that is, trade union membership as a proportion of employees at work) Density figures for +1983. a Source: Salamon (2000: 111–12). b Source: Roche and Ashmore (2001) for the years 1980 to 1990. Gunnigle et al. (2002) for 1997. c Source: Peetz (1998: 6). d Source: May, Walsh, Thickett and Harbridge (2001). e Source: Statistical Abstract of the United States: The National Data Book, 1999. f Source: Density figure for 1980 from Kumar (1991) and for 1997 from the Central Statistics Office Canada (Statistics Canada). g Source: Union density figures for the Nordic countries from Ebbinghaus and Visser (2000: Table WE.13/14, p. 72).

nation of the American experience of statutory union recognition questions the inevitability of such a negative outcome. Statutory union recognition was introduced in America in 1935 as part of the New Deal. The National Labour Relations (Wagner Act) gave American workers the right to organise in trade unions and bargain collectively with their employers. Employer interference, coercion or discrimination against workers exercising that right was rendered illegal. In Canada the provisions of the Wagner Act were incorporated into the War Decree Bill of 1944 (ETUI, 1992). It is generally agreed that the Wagner Act and its Canadian equivalent represented a success for the trade unions in terms of legal recognition and protection (ETUI, 1992: 19; Green, 1980: 150; Vale, 1971: 61). Furthermore, its effect on union density levels was dramatic. In 1930 American unions represented 12 per cent of the non-agricultural workforce and despite a revival of militancy union density registered only a very modest increase of one per cent by 1935. In the five years after the passage of the Wagner Act union density had more than doubled to 27 per cent and peaked at 35 per cent in 1945 (Bok and Dunlop, 1970: 57). American business interests opposed the Wagner Act and a series of attempts were made to modify or weaken it in various ways (Vale, 1971: 69; Green, 1980: 150). These efforts culminated with the passage of the Taft Hartley Act 1947. Taft Hartley, it is claimed, eradicated many of the rights and protections gained by unions during the New Deal and ‘perverted’ or ‘virtually repealed’ the Wagner Act (Green, 1980: 150/198; Boyer and Morais, 1973: 347). Consequently the US case does not support the claim that statutory union recognition is inimical to union growth. The near trebling of union growth between 1935 and 1945 refutes such a claim. What the US case does demonstrate is the crucial importance of the design and administration of the particular procedure for statutory union recognition (see Wood and Godard, 1999). © Blackwell Publishing Ltd. 2003.


What may be of greater importance is the institutional context in which these procedures are conceived and operate. For instance, the Wagner Act became law during a depression in which capitalism and business generally were temporarily discredited. A resurgence of business confidence allowed employers to substantially modify the New Deal statutory provisions on union recognition to their advantage. So much so that the US system now stands as a negative exemplar for the design of a statutory system of union recognition (Wood and Godard, 1999). Like the US, the Canadian system of union recognition is based on the Wagner model but the contrast between the procedures and outcomes are striking. One important difference is the absence of an equivalent Taft Hartley Act in Canadian labour law. Secondly, recognition of a trade union for workplace collective bargaining can be achieved without a certification election if it can be shown it represents at least 51 per cent of employees (ETUI, 1992). If a certification ballot is necessary it must take place within a specified time, which is far shorter than in the US. This requirement avoids ‘unfair’ interference by the employer (ETUI, 1992). In the US, the ‘free speech’ provision of Taft Hartley allows American employers or managers to actively campaign in union elections and the negative effect of such intervention is well documented (see Fossum, 1995: 163; D’Art, 2002). The procedural superiority of the Canadian system owes much to the political pressure exerted by trade unions and social democrats in shaping the evolution of labour law in Canada (ETUI, 1992). Another argument suggests that even if the design, implementation and administration of an effective statutory system of union recognition were achieved it might still prove counterproductive (Adams, 1999; Brown et al., 2001). For instance, Adams (1999) appears to argue that in the US, union recognition is perceived as indicative of managerial failure. Consequently, companies that might under other circumstances have been willing to grant recognition, are pushed towards union avoidance (Adams, 1999: 98). This is hardly a credible argument. Whether before or after the New Deal, the exceptional and persistent hostility of American management towards independent trade unions is well established (Jacoby, 1991; Brody, 1980; Boyer and Morais, 1973). Consequently, the presence or absence of a statutory procedure is largely irrelevant with regard to its effect on employer hostility. For the generality of American employers, statutory or voluntary union recognition is equally unpalatable (see Kaufman and Taras, 2000: 543). The advent of statutory union recognition in Britain has raised similar concerns regarding its possible regressive effect on labour management relations. According to Brown et al. (2001: 191–2), statutory recognition ‘cannot create the good will on which a meaningful bargaining relationship depends’. Yet, the necessity for statutory union recognition only arises in the absence of employer good will and the refusal of voluntary recognition against the expressed preference of employees. It is difficult if not impossible, as Kelly (1996: 88) observes, to achieve a bargaining relationship with a party who would prefer you didn’t exist.

Statutory recognition: the British experience Britain is the most recent example of the establishment of a statutory procedure for union recognition. Previously, a statutory procedure for union recognition existed in the UK in the 1970s. Under the Industrial Relations Act, 1971, and the Employment Protection Act, 1975, a statutory procedure could be invoked by trade unions where management refused voluntary recognition. During the period 1976 to 1979, the Advisory, Conciliation and Arbitration Service handled 2,066 recognition cases under the voluntary conciliation machinery and 1,168 under the statutory procedure (Salamon, 2000: 192). While the statutory mechanism was to be used only as a last resort, nevertheless, it provided an additional pressure on employers reluctant to recognise trade unions (Salamon, 1998: 176). However, the Conservative Government repealed the legislation in 1980. A statutory mechanism facilitating union recognition was revived with the passing of the Employment Relations Act, 2000. The Act allows for two routes to union recog230



Table 2: New recognition deals in the UK, 1997 to 2000

Duration of survey 1997 Jan–June 1998 Mar–Nov 1999 Jan–Oct 1999/2000 Nov–Nov

Believe unions more likely to win deals

New legal right a direct New Act impact influential

New recognition deals reported

Number of deals

Full recognition dealsa

24%

26

70%

24%

34

80%

35%

43%

75

85%

46%

19%

38%

53%

159

94%

71%

24%

51%

a

Full recognition deals are described as covering rights to collective bargaining and consultation. Source: Focus on Recognition (2000 and 2001).

nition. First, the voluntary route, where within ten days of the union’s application the employer, agrees to grant recognition and the process ends. If the employer does not accept the request but agrees to negotiate, then 20 working days are allowed for the parties to reach agreement. Secondly, a fall back statutory mechanism can come into play where the employer refuses recognition or negotiations fail. A critical factor in the statutory recognition process is the bargaining unit. A bargaining unit is essentially defined by the characteristics of the work group (similar job skills, qualifications, payment systems and other conditions of employment) and one that is compatible with effective management.3 Under this mechanism, if a majority of employees in a bargaining unit are members of a union, then the Central Arbitration Committee (CAC) may issue a declaration that the union is recognised for collective bargaining. However, this is not an automatic process and the CAC can order a ballot in certain circumstances. In the absence of a majority of union members in the bargaining unit a ballot must take place. However, for a ballot to proceed, at least 10 per cent of employees in the bargaining unit must be union members. Recognition is awarded if a majority of those voting and a minimum of 40 per cent of the total electorate in the bargaining unit vote in favour of the union. Consequently, a union can achieve recognition in a company where the bargaining unit represents a minority of the total workforce and even where a minority of the bargaining unit are union members but have the support of nonunion colleagues. During the application process for union recognition, trade union members and potential members are legally protected against actions by employer discouraging trade union membership or activity. With the passage of the Employment Relations Act, some scepticism was expressed as to its effectiveness and outcomes (see Adams, 1999; Brown et al., 2001: 192). Nevertheless, trade union evaluation of the new statutory procedure is positive. Since 1995, the Trade Union Congress, through annual surveys of trade union officials, has monitored the trend in union recognition deals. The surveys reveal a growth in campaigns to secure recognition and an increased number of recognition agreements. As Table 2 indicates, the number of full recognition deals has substan-

3

The identity of the bargaining unit is the crux of most applications as levels of membership and results of ballots must all be measured against the workers in the bargaining unit. While unions will want bargaining units with high levels of union membership and support, employers want the opposite.



tially increased. In particular, the surveys record a dramatic increase in the confidence of unions to win deals. Many union officials ascribe this growing confidence to the legislation. (Focus on Recognition, January 2000). To date, it would be difficult to argue that the statutory recognition procedure has had any adverse consequences for trade unions. However, Wood and Godard (1999) suggest that employer concerns have been accommodated in the Employment Relations Act and the compromise appears to have been struck in their favour (see also Wood et al., 2002). Indeed, from a union perspective, the Act has a number of weaknesses. The Act is complex. It excludes all employers of 20 or fewer workers and this could amount to 31 per cent of the workforce or 8.1 million workers (Smith and Morton, 2001). Furthermore it is estimated that up to three months can elapse from the date of submission by the union for recognition to the date of the ballot (Gall and McKay, 2002). In workplaces with high turnover of staff this could make it difficult for unions to sustain campaigns (Gall and McKay, 2002). This falls short of the right to representation by a trade union and automatic employer recognition available in the Scandinavian approach. Indeed, this appears to be the main thrust of the Smith and Morton (2001) critique of the Employment Relations Act. Despite these defects, the British legislation is likely to be more effective than the Irish legislative attempt to address the problem of union recognition.

The Irish legislation and the voluntarist tradition Given the shared industrial relations tradition and similarities in union organisation in Britain and Ireland, up to the 1980s at any rate, the recent British experience with statutory recognition is of particular interest. In Ireland, as in the UK, union density levels have fallen sharply since 1980. This trend and the refusal of most employers to implement Labour Court recommendations for union recognition prompted the Irish trade union movement to seek a form of statutory enforcement. Under Partnership 2000 a tripartite working group comprised of Government, trade unions and employers was established.4 The final ‘Report of the High Level Group on Trade Union Recognition’ was produced in 1999. It recommended the establishment of two mechanisms to deal with dispute situations where there is an absence of collective bargaining: a set of voluntary procedures and a fall back statutory mechanism. However, while the proposed statutory mechanism covered disputes relating to pay, conditions of employment or procedures in the workplace there was no provision for either a voluntary or statutory recommendation on union recognition. Two arguments have been advanced to justify the emphasis on voluntary procedures and binding recommendations on wages and conditions of employment while excluding statutory recognition procedures. First, it accorded with the aim of preserving the voluntarist tradition in Irish industrial relations. There was mutual agreement between employer and union leaders that a voluntarist approach would serve their mutual interests and strengthen the tradition of collective bargaining better than any move towards a mandatory solution (Sheehan, 2000 and 1998; Dobbins et al., 1999). Voluntarism is usually understood to mean that trade unions and employers are opposed to legal intervention in industrial relations and that the parties remain largely free to regulate the substantive and procedural terms of the employment relationship without state interference. Yet this appears to ignore the fact that government through legislation has constantly intervened in regulating both the individual and collective employment relationship. Trade unions and employers are not opposed to legislation per se—certainly not when it is perceived to support their interests. Therefore the primary issue in respect of the government’s role in industrial relations is not whether it should intervene but rather what the degree of intervention should be, in what areas 4

The high level group involved the Departments of the Taoiseach, Finance and Enterprise, Trade and Employment, the Irish Congress of Trade Unions, the Irish Business and Employers Confederation and the Industrial Development Authority—Ireland.

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and for what objective (Salamon, 1997: 219–20). Indeed, numerous pieces of Irish legislation regulating individual and collective relationships at work are not regarded as departing from the voluntarist tradition.5 It could be argued, from a trade union perspective at any rate, that a statutory procedure merely supports the employee’s right to union representation and collective bargaining with the employer. Even where statutory representation occurs, the bargaining outcome is still dependent on the relative bargaining power and negotiation skills of the parties. Thus, these outcomes are not imposed by the state but remain very much within the tradition of voluntarist free collective bargaining. Trade unions and employers remain free to regulate the substantive and procedural terms of the employment relationship. The conclusion in the first Report that ‘mandatory union recognition would represent a shift from the voluntary system of industrial relations’ does not stand up to examination (Sheehan, 1998: 4). It seems more likely that a statutory procedure for union recognition would support the process of collective bargaining as the principal method for the regulation of the employment relationship. A second argument justifying the approach adopted in the Final Report on union recognition is that the proposed mechanism was sufficient to bridge the representation gap for non-union workers. This mechanism, it has been observed, would secure for employees the benefits of union membership without the employer having to formally recognise the unions involved (Dobbins et al., 1999; Sheehan, 2000). However, it is doubtful whether this can be achieved without union recognition. As Daniel and McIntosh (1972) point out, hierarchy defines many employees as subordinates, inferiors in responsibility, authority, status and value to the enterprise. Indeed, ‘it is difficult to conceive of any practicable business organisation where this is not the case’ (Daniel and McIntosh, 1972: 111). This locates the employee in a position of dependence on the good will, discretion and patronage of his or her superiors in a whole range of areas affecting a job and career. Such a context is not conducive to an atmosphere in which ideas and criticisms that may implicitly challenge superiors can be freely expressed (Daniel and McIntosh, 1972: 111). It seems more likely that the voice of those at the bottom of the hierarchy will be more freely expressed and more effectively heard when backed by a framework independent of the power, status and reward system of the organisation. By the deployment of their collective strength, trade unions compensate employees for the power they cannot have within the formal hierarchy (Daniel and McIntosh, 1972: 112). Consequently, a union presence in the workplace would seem to be essential for the full independent representation of union members (see also Scott, 1994).6

The Industrial Relations (Amendment) Act, 2001 Many of the recommendations of the High Level Group on Trade Union Recognition were embodied in the Industrial Relations (Amendment) Act 2001 (IRAA). Disputes over union recognition are referred in the first instance to the Advisory section of the Labour Relations Commission (LRC). Though the primary issue in contention is generally union recognition, this cannot be considered by the LRC as the dispute will be processed through the Codes of Practice on Voluntary Dispute Resolution (SI 145 of 2000). These Codes of Practice are solely designed to settle disputes or claims regarding pay and conditions. The issue of union recognition is outside their scope and cannot be addressed directly. Indeed, the Irish Congress of Trade Unions (ICTU) advises unions seeking recognition to add specific claims relating to pay, conditions of employment or procedures in relation to grievance and disciplinary matters (ICTU, 5

For example the Unfair Dismissal Act, the Employment Equality Act, the Maternity Protection Act and Working Time Act, all regulate the individual employment relationship. Collective relationships are regulated by the Industrial Relations Act, 1990. 6 In a survey of over 10,000 new members in 12 unions conducted between 1991 and 1993 in the UK, 72 per cent gave their primary reason for joining as support if they have a problem at work compared to 36 per cent who ranked improved pay and conditions as their second reason (Waddington and Whitson, 1997). © Blackwell Publishing Ltd. 2003.


2001: 3). Where the employer engages in good faith with the process and is willing to settle matters regarding pay and conditions then the LRC will disengage and the case is closed. Indeed, it would appear that companies and corporations who can demonstrate the presence of good conditions of employment and effective disputes procedures are unlikely to move beyond the initial stage in the Codes of Practice. Yet the central issue in dispute, union recognition, is likely to remain unresolved unless voluntarily conceded by the employer. When the issues in dispute are not resolved or the employer refuses to cooperate the union may refer the dispute for investigation by the Labour Court under section 2 of the IRAA. Again, however, such a referral can only be on the basis of a claim for improvements in pay, conditions of employment or procedures. The Labour Court will process the dispute as follows. First the Court must establish the validity of the referral as set out in section 2(1) of the Act. Assuming the Court considers the referral valid, it will then conduct an investigation. On completion, the Court may make a recommendation with regard ‘to terms and conditions of employment and to dispute resolution and disciplinary procedures in the employment concerned’ (section 5(1)). However any recommendation by the Court cannot provide for arrangements for collective bargaining (section 5(2)). Where in the opinion of the Court, a dispute that is the subject of a recommendation has not been resolved then the Court may, at the request of a union, make a determination (section 6(1)). A determination will only have regard to substantive and procedural issues and cannot provide for arrangements for collective bargaining (section 6(2)). Indeed, the Act explicitly excludes any recommendation on collective bargaining. A determination of the Court is legally binding on the parties. Where an employer fails to comply with the terms of the determination, a trade union may apply to the Circuit Court to make an order directing the employer to carry out the determination (section 10). However, there are no penalties or provisions in the Act that can enforce the determination. The Irish Congress of Trade Unions has pointed out that failure to comply with an order leaves the employer open to the risk of being declared in contempt of Court and in jeopardy of judge’s powers to force compliance (ICTU, 2001).

The Industrial Relations (Amendment) Act, 2001 in practice As already noted, in the past union recognition cases were referred to the Labour Court under the Industrial Relations Acts, 1969 and 1990. The general outcome from these referrals was a recommendation in favour of recognition. With the passage of the Industrial Relations (amendment) Act (IRAA) all cases on union recognition are now referred in the first instance to the Advisory section of the Labour Relations Commission (LRC) to be processed through the Codes of Practice.7 By December 2001, a total of 39 cases for union recognition were being processed under these new arrangements. As Table 3 indicates, 15 cases are still at various stages in the Codes of Practice process. In 11 cases the employer has refused to participate and the unions involved do not appear to be pursuing the dispute through the IRAA. A further four cases were withdrawn by the unions because they judged the process to be ineffective. Of the six completed cases, one appears to have achieved union recognition, two achieved a limited form of union representation and three failed to reach any settlement. In summary, out of a total of 39 cases taken since the Act came into operation, only in one case has the employer conceded union recognition. These initial outcomes would appear to characterise the Act as a dismal failure.8 The objection might be raised that such a conclusion is unwarranted and misunderstands 7

Although a number of these recognition cases were initially taken under the 1969 Act, they were subsequently referred to the Advisory section of the LRC in order to process them under the new act. 8 At the second stage of reading in the Dail, Deputy Pat Rabbite described the Bill as having ‘an extremely limited, narrow focus’ and as being ‘unlikely to leave any perceptible mark on the Industrial Relations landscape’ (524 Dail Debates Col. 822).

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Table 3: Union recognition cases and the IRRA, 2001 Cases in the system up to Feb. 2002

N

On-going cases

15

•

Employer refusal to participate

11

•

Cases withdrawn by union

6

•

Codes of Practice on Voluntary Dispute Resolution

• • Referred to the Conciliation Service

1

•

Completed cases through the Codes of Practice process

6

• •

• •

• Total

These are cases where the employer has agreed to engage in the process and have yet to be completed. In these cases the employers have refused to cooperate in the process. So far the unions have not referred the cases to the Labour Court for investigation under the IRAA, 2001. In one case, entry into the Codes of Practice appeared to prompt the employer to negotiate with the union at local level. While recognition was not granted to the union, it was able to deal with the specific issues in dispute. A second case was considered to be an individual issue and was referred to the Rights Commissioner. In the remaining four cases, the unions considered the process slow and unwieldy and withdrew (one union referred their case under the Industrial Relations Act, 1990). One case completed the passage through the Codes of Practice but subsequently the union referred the case to the Labour Court under the Industrial Relations Act, 1990. In one case the union appears to have achieved full recognition for collective bargaining purposes. In two other cases there is a limited form of union representation rights. The union in one instance is allowed to represent its members but is not actually recognised. In the other case, the relationship is one in which the union is allowed represent their members on grievance and discipline issues but not substantive areas such as pay and working conditions. The parties in the 4th case completed the procedures but there was no settlement of any of the issues involved. In Case 5 the parties having gone through the procedures, appeared to have reached agreement but subsequently the union was unhappy with the employers response and referred the matter to the labour Court. In the final case no settlement was reached through the process and the union referred the case under the Industrial Relations Act 1990 to the Labour Court.

39

Source: LRC interviews.

the function and purpose of the Act. After all, both the Codes of Practice and IRAA are designed, not to deal with union recognition, but with disputes over pay, conditions of employment and procedures. Yet, the principal concern of the High Level Group, whose report was largely embodied in the IRAA was the increasing difficulty experienced by Irish trade unions in gaining recognition. By late 2001 evident union dissatisfaction with the operation of the Act prompted the Irish Congress of Trade © Blackwell Publishing Ltd. 2003.


Unions to refer unions to pre-existing routes to recognition under the Industrial Relations Acts 1969 and 1990 (ICTU, 2001). Assuming these routes continue to remain open,9 their use may render the IRAA a dead letter or at least call into question its usefulness. If on the other hand, these routes are closed off, unions will be unable to secure a clear and unambiguous recommendation on union recognition. In that case, the IRAA may serve to hinder rather than assist unions in pursuit of recognition. Overall, the Act is extremely unlikely to improve trade union access to workplaces, especially where employers are opposed to unions. Consequently, it will do little to reverse the decline of union density in the private sector. As an instrument or mechanism supporting the efforts of union members to gain recognition in non-union firms, the Industrial Relations Amendment Act may be at best ineffective or at worst damaging for unions. It is ineffective because the Act explicitly excludes the provision of ‘arrangements for collective bargaining’10 (section 6(2)). While, the Act may operate to improve the employee relation’s practices and procedures in firms, it may also legitimise a firm’s non-union status. For instance, in large non-union multinational corporations where it appears there are good conditions of employment and effective disputes procedures, unions with members in these companies are unlikely to find cause for complaint under the Codes of Practice and the IRAA. Another major flaw in the Act is the absence of any legal protections for the union members involved in a recognition dispute. This omission may well expose union activists to hostile employer pressure and dissuade employees from becoming active on behalf of an absent union. Evidence collected by the Commission on Industrial Relations in the UK (CIR, 1969–1974) found that campaigns for union recognition were frequently initiated and led by very small numbers of pro-union activists. Consequently, unionising drives are highly vulnerable to employer dismissal of such activists. In some cases organising drives have collapsed as a result of such action (Kelly, 1998: 49). The absence of protection for union members or potential members in the Irish legislation compares poorly with the legal safeguards enshrined in the British legislation. This omission seems to have been realised by ICTU which advises unions to bring such ‘hostile acts or behaviour in respect of the union, its officials or members in the company’ to the notice of the Labour Court as a sign of ‘bad faith’ on the part of the employer (ICTU, 2001: 10). However, while the Labour Court may well take such considerations into account, it is not empowered to do so by the Act. Yet, statutory protection is a common practice in many countries.11 The experience in the UK, US and Canada would suggest that such protections are essential (see ETUI, 1992). This is particularly important when the recognition process is lengthy and the outcomes uncertain. For instance, the UK Act on union recognition has been criticised for taking up to three months to complete the recognition process.12 In the Irish Codes of Practice there are no specific time limits for stages in the process. Cases can take from six to 12 months to process through the codes of practice. Nor are there any time limits specified for a Labour Court investigation under the IRAA. Only in the case of a review of a Labour Court determination are time periods specified. This inordinately lengthy process and the absence of legal protection may leave the union activist vulnerable to employer pressure. 9

However, since the recommendations of the High Level Group and the passage of the IRAA, unions seeking recognition under section 20(1) of the Industrial Relations Act, 1969 are now being referred to the Advisory section of the LRC to be processed through the Codes of Practice. Under the 1969 Act, unions could receive an unequivocal recommendation for union recognition. Under the Codes of Practice and the IRRA, this is no longer possible. 10 Indeed, this was recognised by a number of opposition deputies, in particular, Deputies Rabbite, Gilmore, Broughan and Higgins (Dail Debates, Cols. 810–853). 11 For example, UK, US, Canada. 12 Under the UK Act the voluntary process takes ten working days. If within this time the employer fails to respond to the request for recognition (i.e. does not accept the request and shows no willingness to negotiate) then the union can apply to the Central Arbitration Committee to initiate the statutory process. The statutory process is constrained by specific time limits. It is estimated that the entire process from date submission to the date of the ballot for union recognition will take up to a maximum of three months.

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Conclusion Since the industrial revolution, cooperation, conflicts of interest and disparity of power between the employer and employees have been permanent characteristics of relations at work in a market economy (see D’Art, 2002). Employees have joined trade unions in an attempt to offset the superior market power of the employer in the bargaining relationship and the subordinate position of the worker in the enterprise. However, the freedom of employees to exercise choice in joining a union may be severely circumscribed or overridden by employer preference and superior power. We have seen how a majority of employers ignored Labour Court recommendations on union recognition. An essential aspect of pluralist democratic values is the recognition of the rights of interest groups to combine and have an effective voice in their own destiny (Fox, 1966). From this perspective, part of the state’s function is to ensure the freedom of combination and also check the dominance and power of strong interest groups who might suppress the exercise of choice and distort interest group competition. Thus, it could be argued, statutory union recognition creates the conditions in which a democratic choice can be exercised free from interference or coercion by superior power. It is at once both a manifestation and concrete realisation of democratic pluralism. Effective legislation on union recognition would enable employees to fully exercise these rights free from overt or covert interference by the more powerful. A simple and effective recognition process would establish a ‘level playing field’ on which workers are ‘free to choose’ and definitively answer the vexed question of union relevance or necessity in the modern economy. Some commentators are sceptical regarding the benefits of statutory union recognition for trade union growth. Yet the evidence from the Scandinavian countries, Canada and the recent experience in the UK apparently confounds this scepticism. Indeed, the ease with which Scandinavian trade unions are recognised has contributed to the maintenance of high union density levels. Thus, there is a compelling argument for the relationship between statutory union recognition, union survival and growth. The oft-cited example of union decline in the US, despite the presence of statutory recognition, does not in any way challenge this conclusion. Indeed, given the exceptional anti-union hostility and power of US employers statutory recognition is judged to be detrimental to unions rather than advantageous (Gould, 1994; Towers, 1997). Furthermore, it points up the importance of constructing a simple and effective process for union recognition which is not, the Scandinavian case would suggest, beyond the bounds of possibility. Ultimately, the crucially important determinant of effective recognition is the institutional context in which the procedures are conceived and operate. With regard to the Irish legislation there appears to be an expectation that it will strengthen the tradition of collective bargaining (High Level Group Report, 1997, cited by Sheehan, 1998). Such an outcome is unlikely. Collective bargaining cannot take place unless a union is recognised for that purpose (ILO, 1960). Yet, union recognition is not a requirement of the Industrial Relations Act. Indeed, in cases where the legislation is invoked, its effect may be to weaken rather than strengthen collective bargaining. Furthermore, there are no times specified for the stages in either the Codes of Practice or the Act and there is no legal protection for union members seeking recognition. Some unintended consequences of the Act may be the removal of any prospect of a clear determination on union recognition, the exclusion of the union from the workplace and the legitimisation of a firm’s non-union status.13 Finally, it must be

13

Since the submission of this paper there have been two Labour Court recommendations made under the Industrial Relations (Amendment) Act. The most recent recommendation (26 August 2002: recommendation No. 17236) bears out much of our analysis with regard to the IRAA. For instance, the employer argued that the substance of the union’s claim was for trade union recognition and the Act was not intended for that purpose. Indeed, the recommendation of the Labour Court made clear that ‘it cannot and does not recommend that the parties engage in collective bargaining in relation to terms and conditions of employment, and nothing contained in this recommendation should be construed as providing for collective bargaining’.



remembered that it is employer opposition to the right of employees to organize and bargain collectively that render an effective statutory union recognition process a necessity. It might be expected that freedom of employee choice in this matter would be an uncontested right in any democratic polity.

Appendix Trends in trade union density in Ireland

1975 1980 1985 1990 1995 1999

Membership

Employment Density %

449,520 527,960 485,050 474,590 504,450 561,800

60.02 61.93 61.31 57.10 53.07 44.5*

*Gunnigle et al. (2001) for the 1999 estimation. Source: Roche and Ashmore (2001) for the years 1975 to 1995.

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