Compulsory Bargaining

Collective Bargaining

There is a procedure under the Industrial Relations Act by which employers may be bound by terms and conditions recommended by the Labour Court, following investigation of a trade dispute. In employments where collective bargain does not take place, and the existing dispute procedures have not functioned, the court may investigate a trade dispute with a view to recommending action which should be taken, having regard to the circumstances.

Where the dispute is not resolved, the court may make a binding recommendation regarding wages and terms and conditions of employment, including disciplinary and dispute resolution procedures.  The court may not require that there must be collective bargaining.

The Labour Court determination must be in writing and may be appealed to the High Court on a point of law by either party.  The failure to abide by the determination is subject to Circuit Court enforcement.


Criteria

The Labour Court has published guidelines in relation to how it approaches the legislation. There must be a trade dispute.  This is a dispute between employers and employees relating to the terms and conditions of employment of any person.

The legislation applies only, where it is not the practice of the employer to engage in collective bargaining negotiations. In a challenge by Ryanair, the Supreme Court held that once machinery exists by which independent representatives may sit around the table with representatives of the employer with a view to reaching an agreement, there is collective bargaining. Accordingly, in this case, the legislation does not apply.

The internal dispute resolution procedure, if any, must have failed to resolve the dispute.  If it is ignored, the provision will not be satisfied. The Code of Practice on Voluntary Dispute Resolution must not have been observed by the employer in certain respects.  Alternatively, the dispute may have been referred to the Workplace Relations Commission which has concluded and has reported to the Court, that no further efforts will advance the resolution of the dispute.

Employees and representatives must not have acted in a manner to frustrate the provisions of the Code. Where this dispute is referred to the Commission, there must not be recourse to industrial action.


Staff Committees

In the Ryanair case, it was held that the existence of the employee representative committees organised by the employer were sufficient to displace the jurisdiction. The Ryanair case held that the jurisdiction applies only where there is an actual dispute.  Because the machinery for negotiation was not ad hoc, there existed a practice of collective bargaining with the pilots’ representatives.

The employers may determine the form, structure and organisation of the internal collective bargaining unit. They must have a degree of permanency. A key factor is the extent to which the body is consultative, or whether negotiations are with a view to reaching agreement on wages and conditions. A further factor is the extent to which the body may seek independent advice from a third party, like a trade union.


2015 Criteria

The Industrial Relations Act 2015 provided for additional criteria for the Labour Court in determining whether the employer engages in collective bargaining for the purpose of the legislation. The intention is to reverse the effect of the Ryanair case.

Where an employer claims to the Labour Court that it is its practice to engage in collective bargaining with an excepted body in relation to a grade, group or category of workers, it is a matter for the Labour Court to adjudicate on whether this is, in fact, the case. The legislation amends the criteria by which the Labour Court is to consider whether an excepted body is engaged in collective bargaining for the purposes of the Act, whether it is genuinely independent and is not controlled by another are amended.

A statutory declaration made by the chief officer of the trade union concerned setting out the number of its members, the periods of membership in the grade, group or category to which the dispute refers and who are party to the dispute, is admissible in evidence without further proof.  The employer may request the Labour Court to satisfy itself in relation to the matter.


LC Investigation

In carrying out an investigation, the Labour Court has regard to the entirety of the labour relations practices, including those engaged in by the employer and associated employers in another place of employment, including those outside the State.  If industrial action takes place, the investigation is to cease at the request of either party. The court may still proceed if it determines it is reasonable to do so.

The Court, having investigated a trade dispute, may make a recommendation giving its opinion on the matter and, where appropriate, its view as to the action that should be taken having regard to terms and conditions of employment, and to dispute resolution and disciplinary procedures, in the employment concerned.  A recommendation shall not provide for arrangements for collective bargaining.


Refusal of Investigation

The Labour Court is to decline an investigation of a trade dispute unless it is satisfied that number of employees involved, is such as to be significant in relation to the grade, group or category or workers concerned or a larger grade group or category related to it in the context of the dispute, who are in either case, employed by the same employer. It may investigate nonetheless in such circumstances, where there are exceptional and compelling reasons to justify it so doing.

The Labour Court is not to admit a request by a grade, group or category of workers to which the trade dispute refers, where the court has made a recommendation or determination in relation to the same grade, group or category in respect of the same employer within the previous 18 months, which has been implemented. It may, nonetheless, do so

  • in exceptional circumstances;
  • where the employer has repudiated an existing Labour Court recommendation or
  • where there are material adverse changes to terms and conditions.

Determination

Where, in the opinion of the Court, a dispute that is the subject of a recommendation has not been resolved, the Court may, at the request of a trade union or excepted body and following a review of all relevant matters, make a determination. A determination may have regard to terms and conditions of employment, and to dispute resolution and disciplinary procedures, in the employment concerned. It may not provide for arrangements for collective bargaining.

A determination must be in the same terms as the recommendation except where—

  • the Labour Court has agreed a variation with the parties, or
  • the Labour Court has decided that the recommendation concerned or a part of that recommendation was grounded on unsound or incomplete information.

Every determination made by the Court must be in writing and shall include a statement of the reasons for the determination. The Court may, as it thinks proper, by order give effect to any determination from such date as the Court specifies in the order. The order shall be served on the parties to the dispute.


Review

After a period of 3 months but not later than one year from the date of a determination the Court may, on the application of either party to a dispute, review such determination, and

vacate the determination and the order giving effect to the determination where, in the opinion of the Court, the dispute has been resolved,

  • affirm the determination and the order giving effect to the determination where, in the opinion of the Court, the dispute has not been resolved, or
  • vary the terms of the determination and the order giving effect to the determination where the Court agrees such variation with the parties,
  • or it is the Court is satisfied that the determination or a part of the determination was grounded on unsound or incomplete information.

Limits on Terms

The Labour Court shall not make a recommendation providing for an improvement in the remuneration and conditions of employment of a grade, group or category, unless it is satisfied that the totality of remuneration and conditions of employment of the workers concerned provides lesser benefit to the workers concerned, relative to the totality of remuneration and conditions of employment of comparable workers employed in similar employments.

The legislation provides guidance to the Labour Court in relation to the procedures to be followed in assessing whether the totality of the remuneration and condition of employment concerned, provide lesser benefit to the workers concerned, having regard to the totality of the remuneration and conditions of employment of comparable workers employed in similar employments.

In considering whether the totality of remuneration and conditions of employment of a grade, group or category provide a lesser benefit to the workers, having regard to the totality of remuneration and conditions of employment of comparable workers in similar employment, the Labour Court is to have regard to

  • the totality of remunerations and conditions of employment of comparable workers, whether or not they are represented by trade unions, and
  • the comparability of skills, responsibilities, physical and mental effort required to perform the work in which the workers are engaged. Regard may be had to similar employments of an associated employer outside the State.

Where collective agreements are commonplace in employments similar to the employment, the subject of the dispute, the court is to have regard to the terms of such agreements as are n force.  Where they are not commonplace in similar employments, the court is to have regard to evidence presented by the parties whether by way of collective agreements or otherwise established practice.  The court is to have regard to the effect which the recommendation may have on the maintenance of employment and the sustainability of the business of the employer in the long term.


Enforcement

Where an employer fails to comply with the terms of a determination within one year from the date on which the determination is communicated to the parties, or the findings of a review of a determination within 6 weeks from the date on which such findings are communicated to the parties, then on the application of a trade union or excepted body, the Circuit Court shall, without hearing the employer or any evidence (other than in relation to the matters aforesaid) make an order directing the employer to carry out the determination or review in accordance with its terms or findings, as appropriate.

Where a determination is made by the Court, either party to the dispute may appeal to the High Court on a point of law.


Labelled Self Employed Groups

The Competition (Amendment) Act 2017 provides that trade unions may apply to the Minister for Jobs, Enterprise and Innovation to allow groups of self-employed workers who come within the definitions, to act collectively, notwithstanding the general prohibition on restrictive agreements between traders.


References and Sources

Primary References

Employment Law  Meenan  2014 Ch. 7

Employment Law Supplement Meenan 2016

Employment Law Regan & Murphy  2009  Ch.18 ( 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

Acts

Industrial Relations (Amendment) Act 2001 (No. 11)

Industrial Relations (Miscellaneous Provisions) Act 2004 (No. 4)

Industrial Relations (Amendment) Act 2015

Periodicals and Reports

Employment Law Yearbook (annual) Arthur Cox

Employment Law Reports

Irish Employment Law Journal

Employment Law Review

Legislative Guides

Dismissal & Redundancy Consolidated Legislation   Barrett, G   2007

Irish Employment legislation (Looseleaf) Kerr  1999-

Employment Rights Legislation (IEL offprint)   Kerr  2006

Shorter Guides

Employment Law Nutshell    Donovan, D         2016

Employees: Know Your Rights       Eardly        2008

Essentials of Irish Labour Law       Faulkner    2013

Websites

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/

UK Texts

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