Collective agreements may be negotiated between employers and employees or between groups of employers and employees. They may be negotiated either directly, or more commonly through their representatives, such as unions. They are common in many sectors of industry.
Collective agreements may deal with industrial relations procedures and provide conflict resolution processes, in order to avoid strikes and lockouts. They may provide the machinery for dealing with disputes about matters arising in the course of employment or the negotiation of key terms and conditions.
Collective agreements may provide and set out some of the actual terms and conditions of employment for employees within their scope. This is subject to their incorporation in the employment contract with the express or implies consent of the employee.
Questions may arise as to whether individual terms of employment contract incorporate the terms of collective agreements. Although collective agreements are usually not intended to be legally binding, there are some circumstances in which they deal specifically with terms of employment so that the context is such that it is clear they are intended to have legal effect.
Alternative to Statutory Minimum Rights
Some legislation contemplates that collective agreements may supplement or substitute particular rules and procedures, to the default rules that would otherwise apply. Under the Organisation of Working Time Act, certain matters may be agreed in collective agreements which substitute for the default provisions in the legislation. Generally, the Labour Court must approve the agreement, having consulted with representatives of employees and employer.
Variations to the Minimum Wage Acts may be sanctioned by the Labour Court for up to 3 months, provided that there is an agreement between the employer and the majority of the employees. The matter may be agreed under a collective agreement.
Health safety and welfare legislation contemplates joint health and safety arrangements, which may be approved by the HSA. Where the agreements are in place, account is taken of them in determining compliance with health safety and welfare at work obligations.
The Industrial Relations Act provides for registered employment agreements. Once approved by the Labour Court and registered, they may apply to all employees within its scope even if they are not represented. The Legislation has been recently revised following a legal challenge to the earlier legislation. They are dealt with in detail in another article.
There are a handful of registered employment agreements only. The REA must be in a form and in terms which are compatible with the legislation. It must be negotiated by parties who are representative of employers and employees. It must provide for the resolution of disputes by negotiation, before any strike or lockout may occur. It may not impose unduly restrictive practices on employment generally, or in a particular workplace.
A draft agreement is published by the Labour Court prior to registration. Objections may be heard from any person affected. Once registered, employees within its scope, who may be designated by class, type or grade, will be bound by it. In this case, the incorporation of the relevant terms and conditions in the individual employment contract is automatic.
National Agreements I
Between 1987 and 2009, there was a series of national pay agreements and understandings. The agreements were negotiated at Employer Labour Conferences, which consisted of the Irish Congress of Trade Unions, the Government and employer representative bodies. The agreements also provided political promises by the Government, to take measures in certain areas of Government policy, in particular, in relation to social welfare, taxation and employment rights.
There were agreed rates of pay increases, which it was intended would be implemented at sectoral levels. Exceptions might be provided in certain circumstances, where employers could not meet the general pay increase, due to enterprise or sectoral constraints.
The unions agreed not to resort to industrial action, provided that the employer complied with the agreements. Sectoral industry agreements were to provide procedures for the peaceful resolution of disputes. If a union or employer breached the agreement, the relevant representative body agreed not to support them.
The Employer-Labour Conference and its committees met periodically to review the implementation of agreements and in order to examine particular issues. Over time, a wider range of interests was introduced into the process.
National Agreements II
The last agreement, “Towards 2016”, covered a very broad range of matters in relation to economic and social policy as well as employment rights, public service pay and other matters. Following the unprecedented economic crisis, a review and transitional arrangement in 2008-2009 withdrew the contemplated pay increases. At the end of 2009, the IBEC withdrew from the arrangement as it could not obtain agreement on significant pay cuts with employee representatives across numerous sectors.
The second stage pay terms, effectively collapsed at the end of 2009 when the Government imposed income cuts of between 5% and 8% for about public servants in its Budget. Belated attempts by the ICTU public service committee to offer efficiencies and flexibility in public service work practices, a proposal for 12 days’ unpaid leave to be taken by all public servants during 2010, failed to secure either political or public support or prevent the income reductions.
The Government also applies a 5% ‘pension levy’ on public service earnings to compensate for the earnings-related defined benefit pensions enjoyed by public service employees.
A separate public service agreement, the Croke Park Agreement covering the period 2010 to 2014 was entered in 2010. This was limited to the public sector. Unlike earlier “social partnership” procedures the main private sector employer bodies were not involved, and the negotiations were facilitated by the state Labour Relations Commission (LRC). This was a three-year pay-freeze and the potential clawback of some of the imposed pay cuts in return for verified efficiencies and increased flexible working rosters and mobility.
Legally Binding Collective Agreements
A collective agreement may or may not be legally binding. The ordinary law of contract applies. There is a requirement that there be an intention to create legal relations. In effect, there is a presumption that collective agreements are not ordinarily intended to be binding.
Generally, collective agreements will not be legally binding, as the requisite intention to create legally binding relations will not be present. In some cases, it may be that certain aspects of a collective agreement are binding, while others are aspirational.
Agreements between trade unions of workers and employer associations are not usually directly enforceable by employers and employee. The principle of privity of contract applies. A party may enter a binding agreement for other, only where he acts as agent or representative of that other.
Even if an agreement would be otherwise enforceable, it may be negated by reason of duress. If an agreement is negotiated under a threat of industrial or other action, this may amount to economic duress. The duress must be such as to amount to a coercion of will and a negation of consent. It is not clear of whether action which is protected under the Industrial Relations Act from civil liability, can prevent a contract being negated on the grounds of duress.
The Labour Court determines disputes under registered employment agreements, rather than the civil courts. The complaint is made against an employer or employee, that it has failed to comply with the agreement. A Labour Court hearing takes place, and the court may direct compliance. Failure to comply is an offence.
The complaint may be brought against an employer or against a union representative of workers. If for example, a union undertakes strike action in breach of the agreement, a complaint may be brought that it is promoting or assisting a strike in contravention of the agreement. The union will be liable, only if it supported the relevant action at a sufficiently high level in the organisation.
The union may be directed to refrain from assisting a strike from its funds. Noncompliance is an offence. In some circumstances, the Labour Court may order that the agreement be cancelled.
Incorporation into Employment Contracts I
The terms of collective agreements may be incorporated into employment contracts. Some terms in the collective agreement between a union and employer can become part of the employment contract. This will happen only exceptionally. Most collective agreements deal with aspirational matters which are not sufficiently certain to have contractual effect.
If they relate to a matter usually in employment contracts, they may be incorporated. If, however, the employee objects, he is not bound.
Generally, unions and employer representatives do not act as agents of their employees and employers. However, it is possible in principle that employer-employee negotiations could be conducted on the basis of agency. If a specific agreement is entered in this context, it may be legally binding and incorporated in the employment contract. The individual employee (or employer, as the case may be) may take legal action for a breach in this circumstance.
Incorporation into Employment Contracts II
Apart from the narrow exceptional circumstances where unions may be agents for employees, the terms negotiated between the employer and employee may become incorporated into the employment contract. This may happen by custom and practice in the particular industry.
Most collective agreements deal with aspirational matters which are not sufficiently certain to have contractual effect. If they relate to a matter usually in employment contracts, they may be incorporated. If, however, the employee objects, he is not bound.
The terms and conditions provided for in a collective agreement may take effect and be incorporated in this individual employment contract, where new terms are offered to the employer, and he accepts by making no objection. The new terms become incorporated into the contract of employment, where they are implemented and accepted in practice.
References and Sources
Employment Law Meenan 2014 Ch. 7
Employment Law Supplement Meenan 2016
Employment Law Regan & Murphy 2009 Ch.17 ( 2nd Ed 2017)
Employment Law in Ireland Cox & Ryan 2009 Ch.2
Other Irish Books
Employment Law Forde & Byrne 2009
Principles of Irish Employment Law Daly & Doherty 2010
Industrial Relations Act 1946 (No. 26)
Industrial Relations Act 1969 (No. 14)
Industrial Relations Act 1976 (No. 15)
Industrial Relations Act 1990 (No. 19)
Industrial Relations (Amendment) Act 2001 (No. 11)
Industrial Relations (Miscellaneous Provisions) Act 2004 (No. 4)
Industrial Relations (Amendment) Act 2012 (No. 32)
Periodicals and Reports
Employment Law Yearbook (annual) Arthur Cox
Employment Law Reports
Irish Employment Law Journal
Employment Law Review
Dismissal & Redundancy Consolidated Legislation Barrett, G 2007
Irish Employment legislation (Looseleaf) Kerr 1999-
Employment Rights Legislation (IEL offprint) Kerr 2006
Employment Law Nutshell Donovan, D 2016
Employees: Know Your Rights Eardly 2008
Essentials of Irish Labour Law Faulkner 2013
Workplace Relations Commission http://www.lrc.ie/en/
Irish Human Rights and Equality Commission https://www.ihrec.ie/
Health and Safety Authority http://www.hsa.ie/eng/
Textbook on Employment Law, Honeyball, et al. 13th Ed. 2014
Labour Law, Deakin and Morris 5th Ed. 2012
Employment Law, Smith and Wood 13th Ed 2017
Selwyn’s law of Employment Emir A 19 Ed. 2016
Employment law : the essentials. Lewis D Sargeant M and Schwab M 11 Ed.2011
Labour Law Collins H, Ewing K D and McColgan 2012
Industrial relations law reports. (IRLR): Law Section,
Employment law Benny R Jefferson M and Sargent 5th Ed. 2012
Pitt’s Employment Law 10th Ed. Gwyneth Pitt 2016
CLP Legal Practice Guides: Employment Law 2016 Gillian Phillips, Karen Scott
Cases and Materials on Employment Law 10th Ed. Richard Painter, Ann E. M. Holmes 2015
Blackstone’s Statutes on Employment Law 2015 – 2016 Richard Kidner
UK Practitioner Services
Tolley’s Employment Handbook 2017 Mrs Justice Slade 2017
Butterworths Employment Law Handbook 2017 Peter Wallington 2017
Blackstone’s Employment Law Practice 2017 Edited by Gavin Mansfield, John Bowers, John Macmillan 2017
UK Periodicals and Reports
The Employment Law Review 8th Ed. Erika C. Collins 2017
Industrial Relations Law Reports
Employment Law in Context: Text and Materials 2nd Ed. David Cabrelli 2016
S.I. No. 169/1993 –
Industrial Relations Act, 1990, Code of Practice on Employee Representatives (Declaration) Order, 1993.
INDUSTRIAL RELATIONS ACT, 1990, CODE OF PRACTICE ON EMPLOYEE REPRESENTATIVES (DECLARATION) ORDER, 1993.
WHEREAS the Labour Relations Commission has prepared a draft code of practice on the duties and responsibilities of employee representatives and the protection and facilities to be afforded them by their employer;
AND WHEREAS the Labour Relations Commission has complied with subsection (2) of section 42 of the Industrial Relations Act, 1990 (No. 19 of 1990), and has submitted the draft code of practice to the Minister for Enterprise and Employment;
NOW THEREFORE, I, RUAIR�? QUINN, Minister for Enterprise and Employment, in exercise of the powers conferred on me by subsection (3) of that section, hereby order as follows:
1. This Order may be cited as the Industrial Relations Act, 1990 , Code of Practice on Employee Representatives (Declaration) Order, 1993.
2. It is hereby declared that the draft code of practice set out in the Schedule to this Order shall be a code of practice for the purposes of the Industrial Relations Act, 1990 (No. 19 of 1990).
Draft Code of Practice on the Duties and Responsibilities of Employee Representatives and the Protection and Facilities to be afforded them by their Employer.
Section 42 of the Industrial Relations Act, 1990 makes provision for the preparation of draft codes of practice by the Labour Relations Commission for submission to the Minister for Enterprise and Employment (Appendix).
The main purpose of this draft Code of Practice is to set out for the guidance of employers, employees and trade unions the duties and responsibilities of employee representatives (frequently referred to in trade union rule books and employer/trade union agreements as shop stewards) and the protection and facilities which should be afforded them in order to enable them to carry out their duties in an effective and constructive manner.
When preparing this draft Code of Practice the Commission held meetings and consultations with the Irish Congress of Trade Unions and the Irish Business and Employers Confederation. It also consulted with the Departments of Enterprise and Employment and Finance. The Commission has taken account of the views expressed by these organisations to the maximum extent possible in preparing this draft Code. It has also had regard to the procedures and practices applied in undertakings and establishments which have pursued sound industrial relations policies and to the provisions of trade union rule books.
1. Employee representatives, for the purpose of this draft Code, are—
( a ) employees of an undertaking or establishment who have been formally designated employee representatives for that undertaking or establishment by a trade union in accordance with the rules of that trade union and any employer/trade union agreement which relates to the appointment of such representatives in that undertaking or establishment and
( b ) who normally participate in negotiations about terms and conditions of employment for all or a section of the workforce and who are involved in the procedures for the settlement of any disputes or grievances which may arise in that undertaking or establishment.
Reference to trade unions throughout this draft Code includes reference to “excepted bodies” under the Trade Union Acts, 1871-1990. An “excepted body” is a body which may lawfully negotiate wages or other conditions of employment without holding a negotiation licence. “Excepted body” is defined in section 6 (3) of the Trade Union Act, 1941 , as amended, and includes an association all the members of which are employed by the same employer.
2. The duties and responsibilities of employee representatives and the protection and facilities to be afforded them under this draft Code are indicative of the important position and role of such representatives in our system of industrial relations and in the resolution of disputes/grievances. The manner in which employee representatives discharge their duties and responsibilities significantly affects the quality of management/labour relations in the undertaking or establishment in which they work, its efficient operation and future development.
Duties and Responsibilities of Employee Representatives
3. The principal duties and responsibilities of employee representatives include—
( a ) representing members fairly and effectively in relation to matters arising within the undertaking or establishment in which they work and which concern employment and conditions of employment;
( b ) participating in negotiation and grievance procedures as provided for in employer/trade union agreements or in accordance with recognised custom and practice in the undertaking or establishment in which they work;
( c ) co-operating with the management of the undertaking or establishment in ensuring the proper implementation and observance of employer/trade union agreements, the use of agreed dispute and grievance procedures and the avoidance of any action, especially unofficial action, which would be contrary to such agreements or procedures and which would affect the continuity of operations or services;
( d ) acting in accordance with existing laws and regulations, the rules of the union and good industrial relations practice; liaising with and seeking advice and assistance from the appropriate full-time trade union official;
( e ) having regard at all times to the safe and efficient operation of the undertaking or establishment;
( f ) subject to any other arrangements made between an employer and a trade union, employee representatives should conform to the same job performance standards, company rules, disciplinary conditions and other conditions of employment as comparable employees in the undertaking or establishment in which they work.
Election of Employee Representatives
4. Employee representatives should be elected/designated in accordance with the appropriate trade union rules and procedures and, where relevant, in accordance with employer/trade union agreements. These procedures and agreements should ensure that such representatives will be representative of the trade union members concerned. Such representatives should normally have a minimum of one year’s service in the undertaking or establishment concerned; their appointment as employee representatives should be confirmed in writing by the union to the employer and the union should provide relevant information, advice and training to employee representatives on their principal functions and duties. Nothing in this draft Code precludes an employer from providing additional training.
5. The number of employee representatives should be reasonable having regard to the size of the undertaking or establishment concerned, the number of trade union members employed and the structure of trade union organisation within the undertaking or establishment.
6. Following notification of the appointment of an employee representative, the employer should provide the representative with relevant information about the normal procedures for communicating with the appropriate representatives of management.
Protection of Employee Representatives
7. Employee representatives who carry out their duties and responsibilities in accordance with paragraph 3 of this draft Code should not—
( a ) be dismissed or suffer any unfavourable change in their conditions of employment or unfair treatment, including selection for redundancy, because of their status or activities as employee representatives, or
( b ) suffer any action prejudicial to their employment because of their status or activities as employee representatives,
without prior consultation taking place between the management and the relevant trade union.
Where it is established that an employee representative has been dismissed in contravention of the provision at (a) above such representative should normally be re-instated.
8. Section 7 of this draft Code is without prejudice to the provisions of the Unfair Dismissals Acts, 1977 and 1991.
9. Where an employer considers that an employee representative has acted or is acting beyond the usual authority and functions of an employee representative as set out in paragraph 3 or in a manner which is damaging to the undertaking or establishment, the employer should, in the first instance, take the matter up with the employee representative concerned and failing satisfaction at that level with his/her trade union.
Facilities for Employee Representatives
10. For the purposes of effectively ensuring the provision of reasonable facilities for employee representatives in accordance with paragraph 11 below, employers and trade unions should enter into agreements at the level of the undertaking or establishment which would incorporate the following provisions suitably adapted to the circumstances of the particular undertaking or establishment as referred to in paragraph 12 below.
11. Employee representatives should be afforded such reasonable facilities as will enable them to carry out their functions as employee representatives promptly and efficiently and in accordance with paragraph 3.
12. The granting of such facilities should have regard to the provisions of paragraph 5 and especially to the needs, size and capabilities of the undertaking or establishment concerned and should not impair the efficient operation of the undertaking or establishment.
13. Employee representatives should be afforded necessary time off for carrying out their representative functions in the undertaking or establishment in which they work. In the absence of formal standing arrangements, employee representatives should obtain prior permission from an appropriate representative of management. Such permission should not be unreasonably withheld. Reasonable limits may be set on the amount of time off.
14. On the same basis as at paragraphs 10 and 12 above, employee representatives should be granted reasonable time off for trade union meetings and training courses which relate to their activities as employee representatives.
15. The question of payment of wages in respect of time off for any of the purposes set out at paragraphs 13 and 14 above should be the subject of discussion in advance at the level of the undertaking or establishment.
16. Employee representatives in the undertaking or establishment should be granted reasonable access to all workplaces where they represent trade union members and where such access is necessary to enable them to carry out their representative functions.
17. Employee representatives should have access, without undue delay, to management at the appropriate level on matters relating to their representative functions and responsibilities.
18. In the absence of check-off arrangements, employee representatives should, by agreement, be permitted to collect union dues regularly in the undertaking or establishment.
19. Employers and trade unions should agree arrangements whereby employee representatives, acting on behalf of their trade union, should be permitted to post notices relating to normal activities of the union in the undertaking or establishment in a place agreed with management to which employees have easy access.
20. Employee representatives, acting on behalf of their trade union, should be permitted to distribute non-political news sheets, pamphlets, publications and other documents relating to normal trade union activities amongst the members of the union in the undertaking or establishment.
21. The use of the facilities referred to in paragraphs 19 and 20 above should have regard to the orderly operation and tidiness of the undertaking or establishment.
22. Management and trade unions should agree on the particular information and facilities which should be made available to employee representatives to enable them to carry out their functions and responsibilities in accordance with this draft Code.
Section 42 of the Industrial Relations Act, 1990 states:
(1) The Commission shall prepare draft codes of practice concerning industrial relations for submission to the Minister, either on its own initiative or at the request of the Minister.
(2) Before submitting a draft code of practice to the Minister, the Commission shall seek and consider the views of organisations representative of employers and organisations representative of workers, and such other bodies as the Commission considers appropriate.
(3) Where the Minister receives a draft code of practice from the Commission he may by order declare that the code, scheduled to the order, shall be a code of practice for the purposes of this Act.
(4) In any proceedings before a court, the Labour Court, the Commission, the Employment Appeals Tribunal, a rights commissioner or an equality officer, a code of practice shall be admissible in evidence and any provision of the code which appears to the court, body or officer concerned to be relevant to any question arising in the proceedings shall be taken into account in determining that question.
(5) A failure on the part of any person to observe any provision of a code of practice shall not of itself render him liable to any proceedings.
(6) The Minister may at the request of or after consultation with the Commission by order revoke or amend a code of practice.
(7) Every order made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either House within the next twenty-one days on which that House has sat after the order has been laid before it, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.
GIVEN under my Official Seal, this 25th day of June, 1993.
Minister for Enterprise and Employment.
The effect of this Order is to declare that the draft code of practice set out in the schedule to this Order is a code of practice for the purposes of the Industrial Relations Act, 1990 .
Public Sector Materials; Statutes and Cases in italics are reproduced as public sector material. See the Legal Materials link in the footer.