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Industrial Relations (Amendment) Act to be reformed printable version

16 Dec 2014: posted by the editor - Ireland

The Cabinet has approved new legislation to provide an "improved framework for workers who seek to better their terms and conditions where collective bargaining is not recognised by their employer", Richard Bruton, Minister for Jobs, Enterprise, and Innovation and Ged Nash, Minister for Business and Employment announced today. It is anticipated that the draft legislation will become law by mid-2015.

Minister Bruton said: "This measure forms part of a suite of reforms to our industrial relations and employment rights system which we have put in place over the past 3 and a half years. In doing this we have been determined to find solutions that balance the interests of workers and employers—and above all to promote the job-creation we badly need.

"This legislation will mark the fulfilment a significant commitment in the Programme for Government which indicated that reform in this area was needed—a commitment to make sure that Irish law is consistent with recent judgments of the European Court of Human Rights. It will provide a clear and balanced mechanism by which the fairness of the employment conditions of workers in their totality can be assessed where collective bargaining does not take place."

He added: "The proposals are derived from a lengthy consultation process involving extensive engagement with stakeholders, with a view to arriving at broadly acceptable proposals that will give clarity to employers and operate effectively for workers. I wish to acknowledge the contributions of representatives of both sides of industry for their contribution to achieving this result."

Specifically, in order to improve the working of the Act, legislative provision will be made to provide:

a definition of what constitutes "collective bargaining",

guidelines to help the Labour Court identify if internal bargaining bodies are genuinely independent of their employer,

clarity in the process of Trade Unions advancing a claim under the Act and

policies and principles for the Labour Court to follow when assessing those workers' terms and conditions.

Minister Nash said: "The progress in this important piece of legislation is very much in keeping with my dignity at work agenda. Throughout this process, Minister Bruton and I have been keen to respect the positions articulated by stakeholders and to develop proposals that sustain our voluntary system of industrial relations.

"But, we have also striven to ensure that, in situations where there is no collective bargaining, workers can have confidence that they have an effective system that protects and promotes their rights. This legislation ensures they can advance claims about remuneration, terms and conditions and have these determined based on comparisons with similar companies—and not be victimised for doing so."

Minister Nash added: "The Government is conscious that workers in some employments may feel exposed in seeking to improve terms and conditions and that making themselves known may have unwanted consequences. With this in mind the legislation will bring in significant protection against such victimisation. This will be done by way of interim relief in the Circuit Court in circumstances where a dismissal is challenged by a worker who believes that he or she was victimised as a result of the Act being invoked."

The Ministers concluded by saying that they are confident that the legislation, when enacted, will be framed in such a way as to fit Ireland's constitutional, social and economic traditions and its international obligations, and will ensure continued success in attracting investment into the economy.

Programme for Government, Ryanair and ILO
The proposals for legislation are in fulfilment of the Programme for Government Commitment to "reform the current law on employees' right to engage in collective bargaining (the Industrial Relations (Amendment) Act 2001), so as to ensure compliance by the State with recent judgments of the European Court of Human Rights". In addition, the ILO, in 2012 issued its report in response to a complaint referred to it by ICTU and IMPACT arising from the 2007 Ryanair Supreme Court judgment. As part of the Government's response to the ILO Report, it indicated that these matters would be addressed in the context of the Programme for Government commitment.

Overview
The proposals respect Ireland's voluntary IR system but ensure that where an employer chooses not to engage in collective bargaining either with a trade union or an internal 'excepted body' the 2001 Act will be remediated to ensure there is an effective means for a union, on behalf of members in that employment, to have disputed remuneration, terms and conditions assessed against relevant comparators and determined by the Labour Court if necessary.

It will also ensure that if an employer chooses to collectively bargain with an internal 'excepted body', as opposed to a union, that body must pass tests as regards its independence.

Provisions are included to ensure the Act is used appropriately and not abused in any way. There are provisions to ensure cases dealt with are ones where the numbers of workers are not insignificant; provisions to ensure elements of remuneration, terms and conditions are not challenged without regard for the totality of remuneration, terms and conditions; provisions to manage the frequency of reassessment of the same issues.

Additional protection by way of interim relief is proposed where a union member, identified in the course of use of the process under the Act, is to be dismissed. A number of further related matters are to be dealt with such as clarifying inducement to forego collective bargaining rights is prohibited in accordance with the ECHR Wilson case. Some time frames will be extended under the Code of Practice on Voluntary dispute Resolution to enhance the opportunity to resolve the matters at issue voluntarily.

Specific Provisions—Definition of Collective Bargaining
In the Ryanair case, the Supreme Court found that the Labour Court cannot conclude that a trade dispute is in existence without first establishing that collective bargaining is in place and that internal machinery (if any) for resolving the perceived problem has been exhausted. In looking at how the case had been progressed, the Supreme Court found that the Labour Court had erred in law in its construction of the relevant provisions of the 2001 Act and the hearing of the case had been procedurally flawed.

As there was no definition of collective bargaining in the Act, as part of the decision, the Supreme Court found 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 lacuna the following definition will apply for the purposes of the Industrial Relations Act 2001 (as amended).

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 on the other, with the object of reaching agreement regarding working conditions or terms of employment or non-employment of workers.

Excepted Body
Under industrial relations legislation it is not lawful for a body to bargain collectively unless it has a negotiation licence (e.g. a trade union of employers or employees). The Trade Union Act 1941, in introducing "excepted bodies", provided for a situation where both employer and employees in an individual firm wanted to negotiate terms and conditions in a situation where the employer or employees would not be acting illegally for not having a negotiation licence under that Act.

It is not proposed to amend the definition of excepted body other than, for the purposes of the 2001 Act (as amended) to reflect the concept of voluntary negotiations or engagements as contained in the collective bargaining definition above.

However, the legislation will address the status of the "excepted body" insofar as ensuring that it is genuinely free of employer influence in terms of negotiating and agreeing on wages or other conditions of employment. The following legislative provision will address this:

In determining if the body is an excepted body within the meaning of the 2001/2004 Acts the (Labour) Court shall have regard to the extent to which the body is independent and not under the domination and control of the employer or trade union of employers with which it engages or negotiates, in terms of its establishment, functioning and administration. In this regard, the Court shall take into account;

a. The manner of election of employees,
b. The frequency of elections of employees,
c. Any financing or resourcing of the body beyond de minimus logistical support, and
d. The length of time the body has been in existence and any prior collective bargaining between the employer and the body.

Remove Right of Access for Excepted Bodies
Given that excepted bodies, by their nature, are involved in collective bargaining as defined above, they will no longer have a right of access under the Act. This in effect means that it will be a matter for a trade union alone to initiate the processes under the legislation.

Establishing Trade Dispute and Access to Labour Court
While restoring and improving the operation of the Acts, it is recognised that the processes under this legislation are not appropriate to disputes involving very small numbers of workers. For this reason the legislation will ensure that the Court shall decline to conduct an investigation of a trade dispute under the Act where it is satisfied that, in the context of the dispute, the number of workers party to the trade dispute is insignificant.

To avoid a situation arising where, in the context of the totality of terms and conditions having been recently assessed by the Labour Court it is proposed that, other than in exceptional circumstances, the Labour Court shall not admit an application by a group, grade, or category of worker to which the trade disputes applies where the Court has made a recommendation or determination in relation to the same group, grade or category of worker in respect of the same employer in the previous 18 months.

Initiating Process
For the purpose of initiating a process of establishing the position when referring the matter to the Labour Court the following process will apply:

A statement made under the Statutory Declarations Act 1938 by the General Secretary or equivalent of the trade(s) unions concerned, setting out the number of its members and period of membership in the group, grade or category to which the trade dispute refers and who are party to the trade dispute, shall be admissible in evidence without further proof.

This brings clarity to the process and obviates the need for protracted procedures early in the process and removes the need for workers to be identified at an early stage.

Proof that Collective Bargaining with an Excepted Body is Taking Place
In the course of the consultations there was all party agreement that bringing further clarity to the above process could help avoid lengthy and potentially acrimonious hearings at the Labour Court. The following provision will assist in this regard:

Where an employer asserts to the Labour Court 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, it is a matter for the employer to satisfy the Labour Court that this is the case.

Labour Court: Policies and Principles in Context of Establishing Terms and Conditions
Related decisions of the High and Supreme Courts indicated that further guidance to the Court was needed by way of primary legislation in terms of what the Court should take into account when looking at terms and conditions of the workers party to the trade dispute. Accordingly, the legislation will specify that:

When examining the terms and conditions of any employer the Labour Court will take into account the totality of remuneration and of terms and conditions of employment, and in doing so, look at comparators, where available, which can comprise both unionised and non-unionised employers.

In addition, in making any recommendation or determination under this Act, the Labour Court shall have regard to the sustainability of the employer's business in the long-term.

Inducements
Having regard to recent judgments of the European Court of Human Rights, the legislation will remove any doubt as to Ireland's full compliance with the Wilson judgment as regards inducement of workers to relinquish trade union representation.

Accordingly, the Code of Practice on Victimisation (Declaration) Order 2004 (S.I. No. 139 of 2004) will be amended to explicitly prohibit such inducements.

Victimisation of Workers in Context of 2001 Act (as amended)
The legislation will enhance protection for victimisation of individuals who are victimised as a result of invoking through the trade union, or acting as witness, comparator for the provisions of the 2001/2004 acts will be incorporated in the legislative changes proposed.

Employment Termination
This 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/she is being victimised as a result of invoking through the trade union, or acting as witness, comparator for the provisions of the 2001/2004 Acts.

Where such relief is granted the case itself will be dealt with by the Adjudicator arm of the Workplace Relations Commission that is to be established in the near future.

Victimisation" in Context of Ongoing Employment Relationship
In many cases "victimisation" does not result in employment termination; it may witness reduced access to particular work, training opportunities, shift work, overtime etc.

Remediating the ongoing and/or proven victimisation where the employment relationship has not been terminated will be dealt with in the context of enhanced and more robust enforcement of the current sections 9, 10 and 13 of the IR Act 2004.

Tags: Industrial Relations (Amendment) Act

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