Finian McGrath (Dublin North Central, Independent)
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Question 935: To ask the Minister for Enterprise, Trade and Employment if he will investigate an organisation (details supplied) in Dublin 3 regarding their attitude to trade union membership. [28297/06]

Tony Killeen (Clare, Fianna Fail)
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Responsibility for the resolution of trade disputes is a matter for the parties involved. The State provides the industrial relations dispute settlement machinery to assist the dispute resolution process, which, in line with the general principles of industrial relations in Ireland, is voluntary in nature. There are also statutory provisions designed to back up the voluntary process in areas where collective bargaining does not operate effectively.

In Article 40.6.1 of the Constitution, the State guarantees liberty for the exercise, subject to public order and morality, of the right of citizens to form associations and unions. Accordingly, an employee has the constitutional right to join a trade union, but the constitutional freedom to associate guarantees employers the right to decide for themselves whether or not to recognise trade unions for collective bargaining purposes. Primary responsibility for initiating the process of ensuring that an individual's constitutional rights are upheld and vindicated rests with the individual.

The courts have ruled that it is legitimate for a trade union to engage in industrial action in pursuit of union recognition, provided the normal requirements for industrial action (secret ballot, one week's notice etc.) are complied with. Consequently, disputes about trade union recognition may be referred to the Labour Relations Commission or the Labour Court under the Industrial Relations Acts 1946 to 1990.

For situations where it is not the practice of an employer to engage in collective bargaining negotiations and where the internal procedures normally used by the parties have failed to resolve a dispute, the parties may avail of procedures set out in the Industrial Relations (Amendment) Act 2001, as amended by the Industrial Relations (Miscellaneous Provisions) Act 2004, and supported by the Enhanced Code of Practice on Voluntary Dispute Resolution. Determinations by the Labour Court under this legislation may be enforced through the Circuit Court, but such determinations may not provide for collective bargaining.

The Industrial Relations (Miscellaneous Provisions) Act 2004 contains a specific protection for employees as regards trade union membership or activity in certain situations. Section 8 of the Act prohibits victimisation, i.e. the doing of any act (whether of commission or omission) that, on objective grounds, adversely affects the interests of the employee or his or her well-being. Sections 9 and 10 of the Act provide for redress where victimisation is alleged. A Code of Practice on Victimisation (S.I. No. 139 of 2004) sets out the procedure an individual may utilise to enforce one's right not to be victimised.

In cases of unfair dismissal, the Unfair Dismissals Acts 1977 to 2001 offer protection to employees from being unfairly dismissed from their jobs by laying down criteria by which dismissals are judged to be unfair and by providing an adjudication system and redress for employees who have been found to have been unfairly dismissed. The Acts do not normally apply to a person who has been in the continuous service of the employer for less than one year. However, if the unfair dismissal results from trade union activity, then the requirement of one year's service does not apply. A complainant may refer a case regarding unfair dismissal to a rights commissioner or the Employment Appeals Tribunal.