Labour and Industrial Courts: Different Approaches to Collective Bargaining Rights North and South

LABOUR AND INDUSTRIAL COURTS: DIFFERENT APPROACHES TO COLLECTIVE BARGAINING RIGHTS NORTH AND SOUTH

Hernan Perez McKay

Introduction

In light of the steady decline of trade union membership in Ireland and Northern Ireland over the past decades, it is worth examining the challenges faced by the labour movement in both jurisdictions. This paper will examine the process of recognition for the purposes of collective bargaining. The system of collective bargaining in the Republic of Ireland (ROI) is voluntary, while in Northern Ireland (NI) there is a process for unions and collective bargaining units to receive statutory recognition. However, both systems contain weaknesses that place employer groups in a stronger position than that of unions. This paper will discuss these weaknesses and compare the systems in the two jurisdictions.

Collective Bargaining in the Republic

The ROI has a hands-off approach to collective bargaining. While workers have a right to form or join a union, the Irish Courts have repeatedly ruled that it is voluntary whether an employer recognises that union or not.1 This effectively means that there is no right to collective bargaining. What exists instead is a system set up by legislation2 that on paper creates a ‘backdoor to recognition’3 and provides workplaces where unions are not recognised with a method of resolving disputes less extreme than industrial action. Rather than employer and union representatives leading negotiations, as is the practice in collective bargaining, both sides present their cases to the Labour Court, which makes a recommendation as to how the dispute should be resolved.4 In order for the Labour

1 Daryl D’Art, ‘Freedom of Association and Statutory Union Recognition: a Constitutional Impossibility?’ (2020) 62 Irish Jurist 82. 2 Industrial Relations (Amendment) Act 2001, Industrial Relations (Miscellaneous Provisions) Act 2004, and Industrial Relations (Amendment) Act 2015 3 Caroline Murphy and Thomas Turner, ‘Tipping the scales for labour in Ireland? Collective Bargaining and the Industrial Relations (Amendment) Act 2015’ (2020) 49(1) Industrial Law Journal 113. 4 Industrial Relations (Amendment) Act 2001, s 5. 63

Court to hear a dispute, the following criteria must be met:

i. There is no ‘excepted body’ independent of employers engaged in collective bargaining on behalf of its members.5

ii. The number of workers party to the trade dispute is ‘not … insignificant’.

6

iii. The Labour Court has not made a recommendation to the group of worker’s party to the dispute in the last 18 months,7 and the employer has implemented the recommendations or determinations issued by the Labour Court.8

If the employer does not abide by the Labour Court’s recommendations, a union can request they investigate the matter again and make a legally binding determination that the employer must follow.9

Collective Bargaining in Northern Ireland

As in England and Wales, the right to form a trade union in Northern Ireland is accompanied by a statutory right to recognition and collective bargaining, as laid out in Schedule A1 of Employment Relations (Northern Ireland) Order 1999 and its amendments. If a union submits an application for recognition of a collective bargaining unit to their employer and their employer refuses to recognise the union,10 an eligible union can apply to have the Industrial Court get involved in the negotiations. The Industrial Court will only accept applications of this nature if:

i. The proposed collective bargaining unit is not covered by another union,11 and no members are already part of a separate unit.12

5 Industrial Relations (Amendment) Act 2015, s 27 1B. 6 ibid, s 28(b)(3). 7 ibid, s 28(b)(7). 8 ibid, s 28(b)(8); Ibid, s 28(b)(9). 9 Industrial Relations (Amendment) Act 2001, s 6; Industrial Relations (Miscellaneous Provisions) Act 2004, s 4. 10 The Employment Relations (Northern Ireland) Order 1999, sch 1A para 11; ibid, sch 1A para 12. 11 ibid sch 1A para 44. 12 ibid para 46.

ii. At least 10% of the workers are members of a union or found to be in support of a union.13

iii. The Court has not ruled that the union or unions applying are ineligible to represent workers in collective bargaining negotiations within the last three years.14

Once the Court has accepted an application, it will give the employer and the union time to come up with ‘an appropriate bargaining unit’ together.15 If the Industrial Court decides that the two parties are unlikely to come up with one, it can provide its own unit.16 Once a bargaining unit has been decided on and accepted by the Industrial Court, and a majority of the workers in the unit are union members, it can declare that the union has the right to represent the unit for collective bargaining purposes.17 However, if the majority of workers are non-union, or if the Industrial Court feels a vote is necessary in ‘the interest of good industrial relations’, it will order the union to hold a secret ballot on union representation before granting recognition.18

Comparison

The system of third party resolution in the ROI places unions in a significantly weaker position than that of their NI counterparts. Labour Court recommendations and may only address ‘the totality of remuneration and conditions of employment’,19 while in NI, bargaining parties may decide the subject of their negotiations.20 The Labour Court may only make recommendations if they are satisfied that the wages and working conditions are inferior to those of ‘comparable workers’.21 However, they can base these comparisons on either unionised or un-unionised workplaces,22 potentially limiting the scope of any recommendations. While the conditions of other workplaces may be a factor in NI, it is in the context of negotiations between a union and an employer. There

13 The Employment Relations (Northern Ireland) Order 1999, sch 1A para 45. 14 ibid para 48. 15 ibid para 18. 16 ibid para 4. 17 ibid para 22. 18 ibid para 23. 19 Industrial Relations (Amendment) Act 2015, s 30(1). 20 The Employment Relations (Northern Ireland) Order 1999, sch 1A para 3 (3). 21 Industrial Relations (Amendment) Act 2015, s 30(2). 22 Tony Dobbins, Niall Cullinane, and Brian Sheehan, ‘Ireland's conundrum on union bargaining rights: assessing the Industrial Relations Amendment Act 2015’ (2020) 51 Industrial Relations Journal 75.

is not a strict limit on what can be gained by workers, as in the ROI. It is also possible for an employer to prevent the Labour Court from resolving a dispute if it demonstrates that it practices collective bargaining with a non-union ‘excepted body’. The 2015 Amendment states that such must be independent of the employer, but it is entirely possible that employers will figure out how to create bodies under their influence that pass the ‘excepted body’ test in order to prevent disputes from reaching the Labour Court.23 No such exception exists in NI, where only unions may engage in collective bargaining.24 These factors severely limit what unions are able to achieve by using this dispute resolution mechanism.

NI is not without its own issues. There is a right to collective bargaining in NI, and yet only 14 applications for union recognition have been made since 2015.25 For comparison, 37 applications were made from 2000 to 2007.26 In his analysis of the legislation in the UK as a whole, Bogg points out that giving the Industrial Court discretion to call for a secret ballot even in instances where a workplace has majority union membership gives an employer time to engage in anti-union activities that may alter the outcome of the vote.27 This is a valid concern, but does not seem to apply to NI. The Industrial Court has only declined to grant recognition to a union on the basis of a ballot failure five times,28 and the majority of applications have resulted in a voluntary agreement between the parties or the Industrial Court granting the union recognition.29 This would seem to indicate that the decrease in applications comes from challenges facing the labour movement as a whole, rather than the specific process by which unions are recognised in NI.

Despite this decline, unions in NI are clearly in a stronger position than those in the ROI for the purposes of collective bargaining. The difference in power can be seen in the disparity between union coverage rates: NI had a 53% union coverage rate as of 2020,30

23 Murphy and Turner (n 3). 24 The Employment Relations (Northern Ireland) Order 1999, sch 1A para 6. 25 Northern Ireland Industrial Court list of declarations and decisions. https://www.industrialcourt.gov.uk/decisions-and-declarations-by-year accessed 9 February 2022. 26 ibid. 27 Alan Bogg, ‘The Death of Statutory Union Recognition in the United Kingdom’ (2012) 54(3) Journal of Industrial Relations 409. 28 IC02/01; IC11/02; IC31/06; IC72/17. 29 Northern Ireland Industrial Court list of declarations and decisions (n 25). 30 Paul Mac Flynn, ‘The Impact of Collective Bargaining on pay in Northern Ireland’, (2020) NERI Working Paper Series, 2020/N0 66.

while the ROI had a coverage rate of just 33.5% in 2021.31 The right to collective bargaining allows unions in NI to achieve far more than is possible under the Labour Court dispute resolution mechanism. The Labour Court can only issue recommendations relating to wages and conditions, and there is no guarantee that these recommendations would bring a non-union workplace to a union standard. This, combined with the excepted body rule, makes it difficult for unions to justify spending the time and resources required to make an application under this system.32 Unions in the ROI prefer to apply for a non-binding recommendation under the Industrial Relations Act 1969 than use the 2015 Amendment for this very reason.33 Only four applications have been made under the 2015 Amendment since it was passed, while 25 applications were made under the 1969 Act over the same period.34 Of those four applications, only two resulted in a recommendation from the Labour Court.35 In NI, 14 applications for union recognition have been made since 2015. The benefits of being granted recognition by the Industrial Court and the bargaining power that come with it are far greater than a Labour Court recommendation, explaining why one system is used far more than the other.

Conclusion

Union organisation does not exist in a vacuum; employer groups are capable of using their resources to fight against union recognition, or even cut organisation efforts off at the bud. This is true in both the ROI and NI. However, the right to collective bargaining that exists in NI gives unions slightly more leverage. It is possible for them to be granted recognition by the Industrial Court if a majority of workers vote in favour of union representation. Unions in the ROI have no such option. In a situation where the majority of a workplace are union members and their employer refuses to recognise the union, their only recourse through law is to use the 2015 Amendment’s dispute resolution process. Unfortunately, the process is so limited in what it can achieve that it has only been successfully used twice in the seven years since it was introduced. The legislation

31 Alan Eustace, ‘Collective Benefit Harnessing the power of representation for economic and social progress’ (Fórsa 2021) <https://www.forsa.ie/wpcontent/uploads/2021/05/CollectiveBenefit.pdf> Accessed 11 March 2022. 32 Dobbins, Cullinane, and Sheehan, (n 22). 33 ibid. 34 ibid. 35 ibid.

has utterly failed to achieve its goal of creating a ‘backdoor to recognition’ within Ireland’s voluntarist system.