Trade Union Recognition in the Irish Workplace

David McCarroll of Ronan Daly Jermyn reviews Trade Union Recognition in the Irish Workplace.

With Social Partnership either dead or on life support, depending on who you ask, employers are facing the prospect of increased trade disputes and an inevitable increase in interactions with trade unions. But do employers have to recognise or deal with trade unions? The recent implementation of the Lisbon Treaty raises new considerations in answering this question.

The Constitutional Position

Many employers, both small and large, chose to deal directly with their employers and therefore do not recognise trade unions. Over the years such employers have, through the Courts, sought to resist compulsory union membership, recognition and collective bargaining on the basis of an interpretation of the Irish Constitution.

The Irish Constitution is the highest form of law in our jurisdiction, except where issues of European law are concerned. The Constitution guarantees, at Article 40.6.1(iii), the right of the citizens to form associations and unions. The interpretation of Art.40.6.1(iii) by the High Court and Supreme Court can only occur within the context of the facts of the cases before the Court. Very often those cases have concerned trade union attempts for dominance in a particular employer or sector (see, for example, Meskel v CIE, 1973 or Association of GPs v Minister for Health, 1992). Certainly the right to disassociate (the right not join a particular, or indeed any trade union) is now well recognised. More than that though, the Courts have not to date interpreted Art.40.6.1(iii) as being an obligation on an employer to recognise a trade union. Indeed, the Court has over the years frequently made observations which suggest a positive constitutional right of employers not to recognise trade unions but those comments have been largely, what they call in legal parlance, “obiter dictum” – or ‘by the way’ observations regarding non-material points or issues that are not in question or dispute in a case. Such “obiter dictum” is non-binding on future case law but is certainly very persuasive.

Codes of Practice

Notwithstanding all that, the Code of Practice regarding Grievance & Disciplinary Procedures (S./I. 146/2000) does define an “employee representative” as including “a colleague of the employee's choice and a registered trade union but not any other person or body unconnected with the enterprise.” (Emphasis added) In so far as that refers to trade union recognition, however, it is clear that that refers to individual representation and not collective representation or collective bargaining. Crucially, this Code of Practice is not formally legally binding but it is persuasive and regularly successfully relied upon in the Courts and the Employment Appeals Tribunal. Indeed, as the “freedom of association” is a principle rooted in our Constitution, actual binding legislation to provide for compulsory trade union recognition has up to now been considered by many to be unconstitutional. For example Mr Justice Geoghegan stated, again “obiter dictum”, in the Supreme Court decision of Ryanair Limited v Labour Court & Impact, 2007 that :

“As a matter of law Ryanair is perfectly entitled not to deal with trade unions nor can a law be passed compelling them to do so. There is an obvious danger however in a non-unionised company that employees may be exploited and may have to submit to what most reasonable people would consider to be grossly unfair terms and conditions of employment. With a view to curing this possible mischief the Industrial Relations Acts 2001 and 2004 were enacted. Given their purpose they must be given a proportionate and constitutional interpretation so as not unreasonably to encroach on Ryanair’s right to operate a non-unionised company.”(Emphasis added).

That is a fairly clear indication of the view the Supreme Court may take on any such legislation.

The Lisbon Treaty

However, with the implementation of the Lisbon Treaty the matter is somewhat clouded. It contains the much heralded “EU Charter of Fundamental Rights” which is now essentially a part of European Law. It provides at Article 28 a “Right of collective bargaining and action” which states:-

Workers and employers, or their respective organisations, have, in accordance with Union law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action. The Charter thus expressly acknowledges the right of employees to engage in compulsory bargaining but that right is subject to “national laws and practices”. There are, of course, no such laws in this jurisdiction and the Charter appears to only uphold the right where it has already been provided for in legislation.

So, where are we now?

So is there a problem then? Well, ultimately, it is hard to see how national legislation providing for compulsory trade union recognition could now be found to be unconstitutional and unlawful given that it is a matter expressly allowed for in the Charter, particularly where the Charter as a form or European Law could take precedence over our constitution on matters of European Law. It is possibly only a matter of time before the issue of trade union recognition is referred by the High Court, or possibly the Labour Court to the European Court of Justice for clarification as to what the EU position is and how that effects our laws and interacts with our Constitution.