David Cullinane (Waterford, Sinn Fein)
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139. To ask the Minister for Jobs, Enterprise and Innovation his plans to introduce legislation to bring about mandatory trade union recognition; and if he will make a statement on the matter. [8380/16]

Gerald Nash (Louth, Labour)
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While Article 40 of the Irish 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 Irish 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 previous Programme for Government contains a Commitment to ensure that Irish law on employees’ right to engage in collective bargaining is consistent with recent judgements of the European Court of Human Rights. Giving effect to this Commitment involved in-depth 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.

A decision by the Government to legislate for an improved framework in this area resulted in the Industrial Relations (Amendment) Act 2015 which came into effect on 1st August 2015.

The legislation provides a clear and balanced mechanism by which the fairness of the employment conditions of workers in their totality can be assessed in employments where collective bargaining does not take place and brings clarity and certainty for employers in terms of managing their workplaces in this respect. It also provides strong protections for workers who invoke the provisions of the 2001/2004 Industrial Relations Acts or who have acted as a witness or a comparator for the purposes of those Acts.

The legislation ensures the retention of Ireland’s voluntary system of industrial relations, but it also means that where an employer chooses not to engage in collective bargaining either with a trade union or an internal ‘excepted body’, and where the number of employees on whose behalf the matter is being pursued is not insignificant, the 2001 Act has been remediated to ensure that an effective framework exists that allows a trade union to have the remuneration and terms and conditions of its members in that employment assessed against relevant comparators and determined by the Labour Court, if necessary.

It ensures that where an employer is engaged in collective bargaining with an internal ‘excepted body’, as opposed to a trade union, that body must satisfy the Labour Court as to its independence of the employer.

Specifically, the legislation includes:

- a definition of what constitutes “collective bargaining”,

- provisions to help the Labour Court identify if internal bargaining bodies are genuinely independent of their employer and not under their domination or control,

- bringing clarity to the requirements to be met by a Trade Union advancing a claim under the Act,

- policies and principles for the Labour Court to follow when assessing those workers’ terms and conditions, including the sustainability of the employers business in the long-term,

- new provisions to ensure cases dealt with are ones where the numbers of workers are not insignificant,

- provisions to ensure remuneration, terms and conditions are looked at in their totality,

- provisions to ensure that there is some management of the permitted frequency of reassessment of the same issues, and

- enhanced protection by way of interim relief in the case of dismissal for workers who may feel that they are being victimised for exercising their rights under the proposed legislation.

In addition an explicit prohibition on the use by employers of inducements (financial or otherwise) designed specifically to have staff forego collective representation by a trade union was introduced with the adoption of a statutory Code of Practice on Victimisation on the 28th October 2015.