The issue of trade union recognition has attracted a great deal of controversy in Ireland in recent years, and this looks set to continue in 2002. New measures on recognition, which have been in place since May 2000, do not provide for statutory recognition. Rather, they can be termed 'right to bargain' provisions which, in some instances, may compel employers to accept that union members have a right to be represented over pay and conditions. The provisions retain an essentially voluntary approach to the issue, although a binding element of last resort applies when the lengthy voluntary procedures are exhausted. Although the measures are in their infancy, there are already signs that the unions are dissatisfied with their impact.
From the mid-1980s to the present, Irish trade unions have found it increasingly difficult to secure recognition from employers. Union density levels in Ireland have declined during this period, with membership growth falling behind employment growth (IE0102164F), and, to a significant extent, the unions have attributed this decline to problems in securing recognition. In this context, union recognition has been a central issue in Irish industrial relations in recent years.
Trends in union recognition
A recent authoritative study by Professor Bill Roche of University College Dublin ('Accounting for the trend in trade union recognition in Ireland', WK Roche, Industrial Relations Journal 32:1, 2001), drawn from a survey of 450 workplaces, examines the extent of, and reasons for, 'non-recognition' in Ireland. The results indicate that the overall trend was for increasing levels of 'non-recognition' by new companies in Ireland between 1985 and 1997.
The overall proportion of workplaces where unions were recognised decreased from 52.5% in the pre-1985 period to 36.4% between 1985 and 1997. The fall was least severe amongst subsidiaries of firms based in the UK and continental Europe ('other foreign-owned' workplaces), where the figures were 75.7% pre-1985, and 69% between 1985 and 1997. In terms of Irish-owned firms, the proportion prepared to recognise unions fell from 43.8% in the pre-1985 period to 34.3% between 1985 and 1997. Finally, the fall in recognition was much more pronounced in US-owned firms, where the proportion prepared to recognise unions fell from 69.5% during the pre-1985 period to 14.8% between 1985 and 1997.
Turning to the reasons for the rise in 'non-recognition', Professor Roche argues that in 'Irish-owned' and 'other foreign-owned' (ie UK and continental European) workplaces, various structural and institutional changes have made it much harder for unions to gain a foothold in firms:
- the decline of some traditional - often highly unionised - manufacturing industries, and the expansion of new - often non-unionised - service and technology sectors;
- the growth in 'atypical' forms of employment, such as part-time work;
- the growth in smaller workplaces, which are more likely to be non-union; and
- changes in state policy towards trade unions, in the sense that it is no longer a fundamental tenet of state policy to encourage incoming multinationals or new indigenous companies to recognise, and bargain with, unions. As a result, the Irish institutional context has become amenable to the diffusion of different 'models' of employment relations - including non-union models.
It is only in the case of new US-owned subsidiaries, Professor Roche claims, that the substantial rise in non-recognition cannot be explained primarily by structural factors. Rather, there is evidence of 'a very significant hardening of posture of employers against conceding recognition'. It is argued that the sharp increase in non-recognition of unions by US-owned subsidiaries in Ireland cannot be attributed to the adoption of sophisticated human resource management practices associated with 'individualisation' and 'union substitution'. Rather, it reflects the fact that a much tougher line has been adopted on union recognition at board level in the USA in the face of competitive pressures: 'What recently arriving US employers in general appear to have in common above all is a strong anti-union animus and a greater determination to assert their preferences for remaining non-union in the economic and institutional circumstances now prevailing. As a result they now have higher levels of non-recognition than in the past and also higher levels than their Irish and foreign-owned contemporaries. This change is very likely to be rooted in the assertion of the corporate values and strategies of their parent multinationals in the face of competitive pressures.'
The new 'right to bargain' provisions
Given the background outlined above, Irish unions have found it increasingly difficult to gain recognition and to represent members, and a number of high-profile disputes over recognition have occurred. In order to deal with the contentious issues associated with recognition, a 'high-level group' on trade union recognition, composed of representatives from the government, unions, employers, and the Industrial Development Agency (IDA), devised proposals that were agreed in March 1999 (IE9903135F).
The proposals were aimed at preserving the essentially 'voluntarist' nature of the Irish industrial relations system, and basically involve giving existing third-party institutions - the Labour Relations Commission (LRC) and the Labour Court- greater powers to resolve recognition disputes. To this end, the proposals amount to a set of dispute-resolution procedures, rather than a means of promoting recognition per se. Under these procedures, an employer is not legally obliged formally to grant full-blown recognition, but may voluntarily choose to do so. This is in contrast to the UK, where the Employment Relations Act 1999 provides for statutory trade union recognition (UK0007183F). For political and economic reasons, employers' organisations, the government, and the IDA were unwilling to countenance statutory recognition, as there was a strong belief that it would endanger foreign inward investment, particularly from powerful US multinationals strongly opposed to union recognition. Employers, however, may be compelled to grant union representatives the 'right to bargain' and represent unionised employees on issues relating to pay and terms and conditions of employment. In this sense, the procedures may result in an 'arms-length' form of union recognition.
The procedures involve a two-stage process: a lengthy voluntary procedure and a binding 'fall-back' provision of last resort. The first stage of the process - which has been operational since May 2000 - is known as the 'voluntary procedure', covered under a Code of Good Practice on Voluntary Dispute Resolution drawn up by the LRC. The aim of this voluntary procedure, under which both employers and trade unions can refer a matter to the LRC's advisory service, is to secure agreement on the representation of workers on a consensus basis. To this end, a series of conciliation meetings takes places. If a resolution cannot be reached, then a 'cooling-off' period comes in to play, during which time the LRC advisory service continues to work with the parties, drawing on the assistance of outside experts if necessary. If the issues are then resolvable, the LRC makes a non-binding proposal - either on recognition or representation on pay and conditions - which can then be implemented by the parties.
If the issues are still not resolved, or the employer refuses to engage with the voluntary process, the second, binding component of the new provisions, known as the 'fall-back' provision, may be enacted. The 'fall-back' provision has been in place only since June 2001 (IE0108242N), when it was implemented under the Industrial Relations (Amendment) Act 2001. It provides for a full Labour Court hearing, initially resulting in a non-binding recommendation. If this initial recommendation fails to resolve the dispute, then the union can apply to the Labour Court for a binding 'determination'. This binding determination can cover representation relating to pay and conditions, but not formal recognition. If the employer refuses voluntarily to accept this determination, the union then has two options:
- it can wait for 12 months and then apply to the Circuit Court for an order to implement it; or
- it can take the more likely option, which means waiting three months and then applying for a 'review' of the determination. If the result of the review has not been implemented within six weeks, the union can then apply to the Circuit Court to have it legally enforced.
A key element in these 'right to bargain' procedures is that the union may be excluded from them if it takes industrial action. This applies from the moment the dispute is referred to the LRC voluntary process. Under the previous system, almost all recognition cases that came before the Labour Court resulted in a non-binding recommendation that the employer should recognise the union in respect of those workers who were union members. While these voluntary Labour Court recommendations were often ignored by non-union employers, they nevertheless meant that the union could then engage in industrial action in an attempt to force recognition, free in the knowledge that it had abided by procedures. By contrast, the new process leaves less scope for unions to engage in industrial action.
Initial impact of the 'right to bargain' provisions
A recent report in Industrial Relations News ('The right to bargain law - is it working?', C Higgins, IRN 45, 29 November 2001) examines the initial impact of the new 'right to bargain' procedures. The report suggests that, as of November 2001, 28 union recognition disputes had been referred to the LRC advisory service under the 'voluntary procedure', which has been in place since May 2000. The majority of firms involved were indigenous Irish-owned, while just six were foreign-based multinationals. It would appear that non-union multinationals are less likely to be affected because their pay and conditions often, but not always, tend to be not too dissimilar to those in unionised firms.
Of the 28 cases, only three had completed the voluntary process. Two of these resulted in improvements in pay and conditions, with the third being referred into the second-stage binding procedure. Of the 25 remaining cases, 13 were still ongoing. In nine of the remaining 12 cases, employers refused to enter the process or failed to respond. This left three other cases, which were either withdrawn or put on hold. Thus, in nearly half of the cases, no engagement with the voluntary process took place.
According to the IRN report, there is evidence of growing dissatisfaction with the new procedures within the trade union movement (IE0112226N). In particular, many on the union side argue that it takes too long to achieve any concrete results for prospective members. The whole process is complex and can last for 18 months or even two years. There is a concern that many employers are unwilling to engage with the process, or are using delaying tactics to stall it. Moreover, as mentioned above, unions now have less freedom to use industrial action to secure recognition from recalcitrant employers.
In view of this dissatisfaction, it may be the case that the unions will seek some kind of change to the current provisions. Some on the union side have been examining the concept of 'recognition ballots', which form the basis of the statutory recognition legislation in the UK, where the unions have enjoyed significant success in securing new recognition deals. Employers in Ireland, however, are likely to oppose any moves in this direction. Another option would be to remove the time lags in the existing procedures. If there were to be changes to the legislation, these would more than likely occur at the end of 2002, when a new government will be in place, and when negotiations on a potential new national agreement to replace the current Programme for Prosperity and Fairness (IE0003149F) may commence.
Commentary
The issue of trade union recognition has provoked a great deal of controversy in Ireland in recent years, and this controversy looks set to continue. Irish trade unions have found it increasingly difficult to secure recognition. Research shows that much of this difficulty is attributable to structural changes, such as the decline of traditional highly unionised manufacturing industry and the growth of new technology and service industries, which are predominantly non-unionised. Structural factors aside, there has also been a sharp rise in the number of US multinational subsidiaries investing in Ireland, which are opposed to union recognition.
The new 'right to bargain' provisions largely retain a voluntarist approach, with the binding procedures representing a 'fall-back' mechanism of last resort. The provisions do not legislate for formal recognition, but may facilitate 'arms-length' recognition, in the sense that employers may be compelled to accept that union members have a right to representation in relation to pay and conditions. The nature of the provisions reflects the attempt to devise a compromise solution which addresses the various concerns of the unions, employers, government and development agencies. The position of the latter three embraces an unwillingness to countenance a more substantial binding/mandatory element. This position is shaped by a concern to attract and retain foreign inward investment. In particular, opinion has been shaped by the opposition of powerful US multinationals and the US Chamber of Commerce to union recognition.
Although the existing 'right to bargain' provisions are in their infancy, there are already signs of dissatisfaction and frustration within the union movement relating to the limited impact that they have had in promoting representation rights thus far. Employers, it would appear, are for the most part unwilling to engage constructively in the process, and some union representatives are expressing impatience with the amount of time it takes to bring issues to finality. It remains to be seen whether union dissatisfaction will intensify, and whether, to address it, any modifications will be made to the current provisions. Significantly, the provisions have recently been criticised by the Labour Party leader, Ruairi Quinn, and there is a strong possibility that he may hold a key position in the next government, which is due to be elected by June 2002. Moreover, the government may have to address union concerns on recognition if it wants to secure a new national agreement. (Tony Dobbins, CEROP, UCD)