Ireland's conundrum on union bargaining rights: assessing the Industrial Relations Amendment Act 2015

• Author: Tony Dobbins,Brian Sheehan,Niall Cullinane
• Published date: 01 March 2020
• DOI: http://doi.org/10.1111/irj.12281
• Date: 01 March 2020

Ireland’s conundrum on union bargaining

rights: assessing the Industrial Relations

Amendment Act 2015

Tony Dobbins,*Niall Cullinane and Brian Sheehan

ABSTRACT

Anglophone countries address the question of workplace-level union bargaining

rights via the mechanism of statutory recognition. Existing literature has evaluated

such regimes as underpinned by several weaknesses. In contrast, Ireland presents an

unusual case whereby the question of bargaining rights is resolved via collective dis-

pute resolution procedures combining voluntary and statutory provisions. However,

employer challenges and civil court rulings resulted in the weakening of these proce-

dures from a trade union perspective. We assess the latest attempts to reform the Irish

provisions via the Industrial Relations (Amendment) Act 2015, evaluating the impli-

cations for unions and their capacity to represent members’on pay and working con-

ditions in comparison to Anglophone statutory recognition regimes.

1 INTRODUCTION

This article assesses the impact of Ireland’s revised Industrial Relations (Amendment)

Act 2015 (IRAA 2015) for resolving disputes involving union members in firms where

collective bargaining is not practised. The contribution of the article lies in its com-

parative evaluation of Ireland’s distinct approach to providing workers in non-union

firms with collective bargaining rights in comparison with statutory regimes of union

recognition predominating elsewhere in the Anglophone sphere. Given the relative in-

ability of the latter regimes to counter problems of a growing representation gap in

union coverage, we consider how the Irish regime compares in delivering effective

union voice for members in non-union workplaces. The value of the article is that it

is the first research to analyse the industrial relations (IR) implications of IRAA

2015 for Irish trade unions, which provides new primary empirical evidence regarding

the experiences of union officials.

Ireland remains unique among so-called ‘Anglophone’countries in not legislating

for statutory union recognition for collective bargaining purposes. There is a legal as-

sumption that the Constitution of Ireland (1937) contains a double-edged sword: while

guaranteeing citizens’rights to form associations and trade unions, paradoxically, the

❒Tony Dobbins, Birmingham Business School, University of Birmingham, Birmingham, UK, Niall

Cullinane, Queen’s Management School, Queen’s University Belfast, Belfast, UK and Brian Sheehan,

Industrial Relations News, Dublin, Republic of Ireland. Tony Dobbins is Professor of Employment

Relations & HR Management and Director of MSc HRM Programmes. Correspondence should be

addressed to Tony Dobbins, Department of Management, Birmingham Business School, University of

Birmingham, Birmingham B15 2TT, UK.

Email: t.dobbins@bham.ac.uk

Industrial Relations Journal 51:1–2, 75–91

ISSN 0019-8692

© 2020 Brian Towers (BRITOW) and John Wiley & Sons Ltd

Irish courts interpret this as not imposing obligations on employers to recognise such

bodies (Hogan and White, 2003: 1793). The historical approach in Ireland has been

to pursue recognition through voluntary IR means. Under the Industrial Relations

Act 1969, unions were able to forward claims for union recognition to the Labour

Court: however, the status of any court ruling was purely a voluntary recommendation

with no legal force. This voluntary route has proved problematic for unions as collec-

tive bargaining coverage and union membership density have diminished, notably in

the private sector. Walsh (2018) notes that union density declined from 36 per cent of

employees in 2003 to 25 per cent in 2017. In the private sector, density has declined

from 27 per cent to 14 per cent. Labour and product market changes, alongside a hard-

ening in employers’preferences for non-unionism, weaken unions’ability to establish

workplace presence (Cullinane and Dundon, 2012; Turner et al., 2013; Sheehan, 2008).

A government commission appointed to review the matter in the late 1990s under

the Irish social partnership model recommended a policy solution to the vexed matter

of recognition. In recommending against statutory recognition, the commission iden-

tified not merely the constitutional impediment above, but championed the existing

voluntarist IR system as a crucial component of Ireland’s political economy. There

were fears that to break from voluntarism would jeopardise the country’s attractive-

ness to the mostly non-union US multinationals who had established plants in Ireland

(Gunnigle et al., 2009). Instead, the commission recommended dispute resolution pro-

cedures for addressing collective disputes in firms where collective bargaining was ab-

sent. These became encapsulated in the Industrial Relations Amendment Act 2001

and subsequent 2004 Miscellaneous Provisions amendment (henceforth, IRAA

2001–04). In firms where collective bargaining is absent, the legislation provided that

unionised workers can refer unresolved local disputes on pay and conditions to exter-

nal third-party state institutions for rulings on those matters (but not union recogni-

tion, which is proscribed). While union uptake of this legislation was reasonably

high in the 2000s, it was subject to a successful Ryanair challenge in 2007 at the

Supreme Court (Doherty, 2013; O’Sullivan and Gunnigle, 2009). The consequences

of that ruling introduced greater legal complexity into the procedures, much to the

chagrin of unions. Unions stopped using the legislation after 2007.

It was not until the middle part of this decade that the fallout from the Supreme

Court ruling was addressed by public policy, resulting in the Industrial Relations

(Amendment) Act of 2015. The review process underpinning this resulted in several

significant procedural reforms. The IRAA 2015 is unexamined in the IR literature,

hence the contribution of this article. The article is structured as follows. Section 2

briefly reviews recurring thematic issues in Anglophone countries regarding regula-

tory issues in designing collective bargaining rights procedures. Section 3 summarises

the original Irish IRAA 2001–04 and the problems it subsequently encountered, ne-

cessitating review and reform. Section 4 describes the methods and evidence sources

used to evaluate the reformed legislation. Section 5 evaluates the IRAA 2015, and

section 6 considers subsequent Labour Court cases and union evaluations. Section 7

looks at alternative strategies unions are considering, followed by the discussion

and conclusion in the final section.

2 COMPARATIVE ANGLOPHONE BARGAINING RIGHTS

Compared with many continental western European countries (especially the Nordic

countries), Anglophone countries like Ireland and the UK have historically had fewer

76 Tony Dobbins, Niall Cullinane and Brian Sheehan

© 2020 Brian Towers (BRITOW) and John Wiley & Sons Ltd