Richard Bruton (Dublin North Central, Fine Gael)

I thank Senator Cullinane for raising this issue on the Adjournment.

While Article 40 of the Constitution guarantees the right of citizens to form associations and unions, it has been established in a number of legal cases that the constitutional guarantee of the freedom of association does not guarantee workers the right to have their union recognised for the purpose of collective bargaining. It has been the consistent policy of successive Governments to promote collective bargaining through the laws of this country and through the development of an institutional framework supportive of a voluntary system of industrial relations that is premised upon freedom of contract and freedom of association. There is an extensive range of statutory provisions designed to back up the voluntary bargaining process. The freedom of association and the right to organise and bargain collectively are also guaranteed in a number of international instruments which the State has ratified and which it is, therefore, bound to uphold under international law.

The 2007 decision of the Supreme Court in Ryanair v. The Labour Court cast doubt on the mechanisms that had been established in the Industrial Relations (Amendment) Act 2001 and the Industrial Relations (Miscellaneous Provisions) Act 2004 to resolve problems between employers and workers on employee representation issues, where that could not be done through existing procedures. Prior to the outcome of the Ryanair Supreme Court case, the original legislative arrangements had been seen as a workable compromise. The legislative model for resolving issues relating to employee representation had reflected a shared commitment that, where negotiating arrangements are in place, the most effective means of resolving differences which arise between employers and trade unions representing employees is by voluntary collective bargaining. In the absence of a practice of voluntary collective bargaining, subject to agreed qualifying criteria, the industrial relations Acts 2001 and 2004 provided a mechanism by which the fairness of the employment conditions of workers in their totality could be assessed.

The social partnership Towards 2016transitional agreement of 2008 committed to establish a review process to consider the legal and other steps necessary to enable the employee representation mechanisms that had been established under previous agreements - and in legislation - to operate as they had been intended. The agreement also provided for a commitment to bring forward legislative proposals to prohibit the victimisation of trade union members and the incentivisation of persons not to be members of a trade union. The review process did not result in any substantive progress being made on the issue. There is a commitment in the programme for Government to ensure that Irish law on employee's rights to engage in collective bargaining is consistent with recent judgements of the European Court of Human Rights. This process will require consultation with stakeholders, including employer and worker representatives, and a review of the experience of the operation of the existing legislative framework as put in place under the industrial relations Acts of 2001 and 2004 and the consequences of the litigation that has arisen in the course of the operation of these Acts. The programme for Government also contains a commitment to establish a Constitutional Convention. The Government has approved the establishment of the convention and has agreed in principle, arrangements for its structure and operation.

The programme for Government sets out a programme of topics to be considered by the convention and the Government does not propose to depart from that. The programme for Government proposes that the convention examine the following matters - review of the Dáil electoral system; the presidential term; giving citizens the right to vote at Irish embassies in presidential elections; provision for same-sex marriage; amending the clause on the role of women in the home and encouraging greater participation of women in public life; increasing the participation of women in politics; removing blasphemy from our Constitution; and reducing the voting age to 17 years. The programme for Government also makes it clear that the convention is free to consider "other relevant constitutional amendments that may be recommended by it". It is the Government's view, however, that the convention should deal first with the topics that were assigned to it in the programme for Government. To get the convention started, the Government proposes that initially it should look at two matters of reducing the presidential terms to five years and reducing the voting age to 17 years. This Government is committed to the implementation of its programme for Government commitment to reviewing our legislative provision for collective bargaining in the light of international jurisprudence. I would remind Senators, moreover, that the programme for Government is a five year programme. I believe that the established dispute settling institutions should continue to play an important role in disputes over trade union recognition. The established procedures can be improved and secured without introducing a mandatory requirement upon employers to recognise trade unions for collective bargaining purposes.

I am certain that satisfactory arrangements can be put in place that are suited to our constitutional, social and economic traditions, as well as our international obligations. I am also convinced that they can be framed so as to ensure continued success in attracting investment into our economy.