Trade union recognition - mandatory?
Employers who do not recognise unions and are unwilling to participate in collective bargaining may find themselves faced with binding determinations from the Labour Court.
This represents a significant change from the traditional voluntary nature of the industrial relations system in Ireland in favour of a more compulsory approach in relation to trade union recognition. This has been brought about by the Industrial Relations Act 2001 as amended by the Industrial Relations (Miscellaneous Provisions) Act 2004. In the last few years the number of applications to the Labour Relations Commission for investigation of a dispute under these Acts has risen dramatically. It has jumped from 7 referrals in 2004 to 53 referrals so far this year.
Although there is a constitutional right to join a trade union, there is no right to have a union recognised. This has been confirmed by the courts many times.
The purpose of the legislation was to address the situation where employers refuse to recognise trade unions and are unwilling to avail of the State's conciliation service. Most notably it enables the Labour Court to make binding determinations about pay and conditions of employment.
Before referring a dispute to the Labour Relations Commission for voluntary dispute resolution, the trade union or the employees who they represent must try to resolve the dispute with the employer in accordance with the employer's internal dispute resolution procedures. This statutory requirement shows the importance for an employer to have a grievance procedure in place.
The Union is obliged to inform the employer at the referral stage of the categories of members they represent. The employer should insist on this as soon as possible to prevent the Union from using this procedure as a member recruitment tool.
Some employers are resisting the pro-union recognition aspects of the legislation and have gone as far as instigating proceedings seeking to quash Labour Court determinations. Ryanair has brought a case to the Supreme Court after the High Court determined that the Labour Court had jurisdiction under the Industrial Relations Act 2001 (as amended). The judgment is expected shortly.
As the effect of this legislation is that it can essentially force employers to recognise trade unions, it may be open to constitutional challenge.
For further information, please contact Boyce Shubotham or Anne O'Connell of our Employment Unit.
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