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Freedom of association rights for trade unions and workers in Ireland are protected by an evolving framework of constitutional, statutory and procedural safeguards. In 1955, Ireland ratified both ILO freedom of association Conventions Nos. 87 and 98. Today, longstanding Irish unions are independent, relatively powerful and generally cohesive.

As a measure of genuine freedom of association, since 1987, unions have played a prominent role, along with the Government and employer associations, in fashioning a series of tripartite partnership agreements. These agreements, the seventh of which (“Towards 2016”) was inked in 2006, have had significant nationwide impacts, including a steady increase in wages and other benefits, improved workplace stability, a slew of new legislative rights for workers and, at times, improved freedom of association rights. The scope of these agreements is reflected in a 2004 estimate that Ireland’s collective bargaining coverage (the ratio of employees whose employment conditions are regulated by collective agreements) is as high as 90% of the workforce, although union density is much lower.

Trade union density (the percentage of employees who are union members) fell from 62% in 1980 to 35% in 2004, according to a 2005 Government study. However, as of 2004, trade union membership was more than 521,000 workers, an increase of about 100,000 since 1994. Another measure of relative success is reflected in the plummeting number of strikes. In 1986, more than 300,000 days were lost to strikes. By contrast, during the first nine months of 2006, only ten disputes began or were in progress, resulting in a total of just 6,262 working days lost, according to the Government. In 2005, companies lost 26,665 working days during 15 different strikes. While strikes have receded, the administrative tribunals that handle labour issues investigate and resolve thousands of labour disputes on a yearly basis.

The Government recently has taken several steps, including new laws in 2004 and proposed new legislation in 2006 and 2007, to improve freedom of association standards. Yet the Council of Europe has criticized several practices, including closed shops, barriers to obtaining negotiation licenses, inadequate protection for all union members against retaliation because of their status, and failure to grant unions without negotiation licenses immunity from civil liability in the event of a strike. Irish unions have not joined in all of those concerns, but recently they have pushed for improved enforcement and anti-retaliation protections and legally-required bargaining recognition rights.

RIGHT TO FORM AND JOIN UNIONS

Ireland’s Constitution, Article 40.6.1(iii), guarantees the “right of citizens to form” unions and associations. Irish law does not limit with the number, form, or the type of possible unions; unions have a right to control their internal affairs without government interference. Ireland’s employment laws apply equally to both nationals and legally resident non-nationals. Thus, there are no bars for legal residents to participate in any aspect of union affairs.

While the Constitution is silent on the right to join unions, the Irish Supreme Court has held that workers have the right not to join a trade union. Educational Company v. Fitzpatrick [1961] IR 323. By contrast, and contrary to the legal trend in Europe, Ireland has pre-entry “closed shop” agreements in several sectors where employees must join the union already representing workers at the business. Irish courts have not ruled on the legality of this practice but the Irish Confederation of Trade Unions (ICTU) explains that these arrangements exist only as the result of voluntary collective bargaining and that they only apply to new employees who voluntarily accept union membership as a condition of employment.

Ireland prohibits the military and the police (Garda Síochana) from forming and joining ordinary trade unions or from striking, a practice in line with the ILO Conventions. Both groups are allowed to be represented by associations. Most members of the military and Garda are covered by a conciliation and arbitration scheme for the purpose of determining their pay and conditions of employment.

It is more difficult to form than to join a trade union. A union must pass key statutory barriers, among the toughest in Europe, to obtain a Government-issued negotiation license. Unions need a license to engage in collective bargaining. Trade Union Act 1941 (TUA), § 6. A license also is critical because licensed unions have certain immunities in industrial trade disputes. A union must have at least 1,000 members and it must deposit a hefty sum, ranging from about 25,000 to 76,000 Euros, depending on its membership size. Industrial Relations Act 1990 (IRA), § 21 amending Trade Union Act 1971, § 2. See TUA 1941, Part II. The law does provide for exceptions. A union may request the Government for an “undue hardship” reduction of up to 75% in the deposit amount. TUA 1947, § 2, as amended by TUA 1952, § 3. Upon request, Ireland’s High Court also can find that the granting of a negotiation license “would not be against the public interest.” TUA 1971, § 3. Both the Government and the ICTU contend these laws have helped to avoid union fragmentation and have strengthened unions. The Council of Europe, after years of criticisms, found in 2006 that “essentially, the Irish system of negotiation licences meets the . . . requirements of representativeness, and [is] subject to judicial review, objective and reasonable standards.” At the end of 2002, 46 trade unions held negotiation licenses representing about 645,000 members.

Unions may create political funds subject to regulation, including the ability of members to opt out of payments for any such fund. TUA 1913, § 3. Irish unions have created such political funds and the overwhelming majority of members participate.

COLLECTIVE BARGAINING ISSUES

While Irish workers have the right to join and form unions, there is no corresponding constitutional or statutory duty (unlike many other European countries) for employers to recognize or negotiate with any trade union (with certain legislative exceptions). See Ass’n of Gen’l Practitioners Ltd v. Minister for Health [1995] 1 IR 392 (“an employer is not obliged to recognize, or to treat with, a particular union”). The lack of recognition rights does not mean that employers are free to ignore unions. Instead of a mandatory approach to collective bargaining, Ireland generally follows a voluntary system in which legislatively-created state agencies help to resolve industrial relations disputes. The goal of the laws regulating industrial disputes, including the Industrial Relations Act 1990, is to create a cooperative process, including conciliation, mediation and arbitration, that effectively solves collective bargaining disputes without resort to Court-ordered rulings. But that model has changed. The Labour Relations Commission (LRC) observed in 2005 that “Virtually no aspect of the employment relationship is now completely free from regulation.”

Three administrative tribunals primarily handle union-related disputes. The LRC, formed by the IRA 1990, is the first forum to hear and conciliate collective bargaining complaints. Since 2001, it has resolved about 80% of the thousands of disputes it has heard. Second, the Labour Court, created in 1946, specializes in collective disputes. It successfully resolves many of the disputes that it hears on appeal from the LRC. A 2005 survey revealed unions are generally satisfied with the LRC’s work. The ICTU stated in 2004 that the Labour Court operates effectively. The Rights Commissioner Service (part of the LRC since 1969), primarily hears complaints about unfair dismissals, which may be appealed to the Employment Appeals Tribunal (staffed by both employer and worker nominees).

In 2003, the ICTU argued that Irish law “seriously restricts freedom of association” given “the absence of any rights and duties in law to oblige employers to accept the right of workers to be represented by their union in matters of social and economic interest.” In response to complaints, the social dialogue partners agreed to amend the industrial disputes framework in both 2001 and again in 2004. The laws are designed to strengthen trade union bargaining rights but still do not require statutory recognition.

The 2001 and 2004 laws advocate voluntary resolution of labour disputes, but when those efforts fail, a Labour Court may issue legally enforceable rulings, as long as a union refrains from industrial action while using the administrative process. The Industrial Relations (Amendment) Act 2001 allows a Labour Court to issue binding rulings in industrial disputes about union representation in non-union workplaces that do not have collective bargaining agreements (and after the parties exhaust voluntary efforts). The law explicitly states that it does not provide a process for granting union recognition. Instead, the Labour Court has the power to order obstructive employers, who do not recognize a union and ignore the state-created voluntary dispute resolution process, to implement disputed pay terms of existing national agreements or other conditions. These orders may be enforced by a higher court.

Unions complained that the 2001 law was too cumbersome. The IRA 2004 streamlined the litigation process so that complaints generally are resolved in six months or less. Also, an improved Code of Practice on Voluntary Dispute Resolution was approved in 2004 to provide guidelines to help implement this new law. The impact of these laws is under evaluation. A 2005 survey found that employers are fighting recognition in most cases, while 46% of recent recognition cases resulted in union recognition. In a key 2006 ruling interpreting the new laws, an Irish Court rejected an employer’s appeal of a Labour Court ruling, upholding its binding order that the employer give pay raises to the union workers that the employer had refused to recognize. Ashford Castle Hotel v. SIPTU, 2006 [IEHC] 201.

In contrast to non-binding National Partnership Agreements, a union may register a local collective agreement with the Labour Court (pursuant to Industrial Relations Act 1946, § 27) and it may be enforced by a union or the Government (even on non-signatories). IRA 1990, § 54. Only 45 agreements (covering about 80,000 workers) are registered in this manner.

Aside from collective bargaining, other laws and procedures require employers to regularly work with union representatives. For example, the Employees (Provision of Information and Consultation) Act 2006 creates a process for information and consultation agreements in companies with 50 or more employees. The law calls for negotiated agreements to be established, protects employees’ representatives from retaliation (§ 13) and provides dispute resolution procedures. Moreover, union members are allowed to represent employees in discipline cases. LRC Code of Practice, ¶¶ 7-8. (In Ireland, a Code of Practice is not legally binding, but it is admissible in evidence and can be considered as dispositive in proceedings before the labour agencies and civil courts.)

RIGHT TO STRIKE

Unlike many other European countries, Ireland’s laws do not have any positive right to strike. Instead, the Government partially regulates conflicts by statute. The IRA 1990 permits peaceful industrial action such as strikes (with the exception of the police and military) and picketing that a union takes in “contemplation or furtherance of a trade dispute.” A trade dispute is defined as: “any dispute between employers and workers which is connected with the employment or non-employment, or the terms or conditions of or affecting employment, of any person.” IRA 1990, § 8. Secondary picketing is allowed where the workers have an objective basis to believe the secondary “employer has directly assisted their employer” to frustrate the strike. IRA 1990, § 11.

Before starting a legal industrial action, a union must win a majority of votes cast from a secret membership ballot (a restriction contrary to most other European countries). It also must provide an employer seven days notice before striking. IRA 1990, §§ 14, 19. The ILO maintains these types of hurdles do not unreasonably infringe the right to strike. If a union follows these steps, an employer’s ability to obtain an injunction against it is restricted. Id., § 19. More importantly, if licensed unions follow the procedures set forth in the 1990 Act before striking, both they and their members are sheltered against legal action and retaliation. Unions and their officials and members who engage (or threaten to engage) in strikes, picketing and other “industrial actions” are sheltered from civil and criminal immunity, as long as the union has a negotiation license. IRA 1990, §§ 9-13.

Also, striking union members are protected by the Unfair Dismissals Acts. The Unfair Dismissals Act 1977 established a legal process for workers to challenge unfair dismissals. Workers who are illegally fired can obtain remedies, including reinstatement and/or up to two years backpay. The Unfair Dismissals Act 1993, § 4, prevents employers from firing certain workers and also from selectively rehiring certain workers who were on strike or who were locked out. In 2006, the Government agreed to further expand the coverage of the Unfair Dismissals Acts by proposing legislation that will protect against collective dismissals of workers who take part in a strike or who are locked out.

Yet the Council of Europe believes that the framework of Irish laws still does not adequately protect all unions and their members from civil liability related to industrial actions and from retaliatory conduct based on their status. It explains that the existing laws are not “compatible with the right to strike” because workers who are not members of trade unions and trade unions without a negotiation license have no immunity against civil action and can be held liable in the event of a strike or other industrial dispute.

PROTECTION OF TRADE UNION MEMBERS

An increasing number of Irish laws protect union members or workers from discrimination if they join a union or participate in union activities. Again, the key variable in most cases is whether a worker is a member of a licensed union. The Unfair Dismissals Act 1977, § 6 protects the bulk of union workers against dismissal because of trade union membership or activities. Thus, an employer who fires an employee for joining a licensed trade union is automatically liable for an unfair dismissal. The law has been criticized because it only applies in cases where a union has a negotiating license.

In the wake of union criticism that employers were taking advantage of a gap in the laws to retaliate against union or non-union organizing activists, the IRA 2004 expands the reach of the Unfair Dismissal Act beyond firings. It still does not provide all-inclusive anti-retaliation protection. First, it is limited only to workplaces where collective bargaining arrangements are not in place and voluntary attempts to resolve a dispute have failed. Second, a union or a member must have invoked or intended to invoke the Code of Practice on Voluntary Dispute Resolution or the 2001 IRA. If those conditions are met, then the 2004 Act prohibits retaliation (any “adverse affect”) related to either an employee’s union membership (or not) or activities on behalf of a union. Complaints of victimization may be filed with a Rights Commissioner and, if meritorious, an employer may be liable for up to two years pay. IRA 2004, §§ 9-10. Preliminary decisions may be appealed to the Labour Court. In 2004, the LRC drafted a new Code of Practice that details victimization procedures.

The Employment Equality Act of 2004 also prohibits retaliation against trade union representatives and shop stewards who represent or support employees who file complaints of discrimination. Employment Equality Acts, 2004, § 74(b). As part of the 2006 National Partnership Agreement, the Government has agreed to introduce new legislation to protect employees, such as a union member, who file a complaint against his or her employer “under any employment rights provision,” and who thereafter suffer retaliation. Also, the LRC’s Code of Practice on the “Duties and Responsibilities of Employee Representatives” protects employee representatives, such as union shop stewards, from dismissal, unfair treatment or an unfavorable change in their job because of their status as representatives.

GOVERNMENT PROTECTION FOR FREEDOM OF ASSOCIATION RIGHTS

As legislative protections for workers have grown in recent years, the Government has begun to take needed steps to improve its enforcement of those laws. “Towards 2016” contains major plans to expand both the enforcement of existing labour laws and education of workers about their rights. In 2007, the Government plans to create a new office, the Office of the Director for Employment Rights Compliance, to ensure compliance with employment rights laws. ODERC plans to triple its inspector force from 31 to 90 and to provide inspectors with new statutory powers. It also will receive more legal and other support, while extra staff will be hired for Ireland’s employment-related tribunals. The Irish social partners also are working on a proposal to simplify the existing (confusing) employment rights scheme, which includes dozens of laws and multiple agencies to enforce those rights.

Analysis provided by Philip Simon, OSCE/ODIHR consultant.

Posted: April 2007.

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