In the current Programme for Government there is a commitment “to reform the current law of employees’ right to engage in collective bargaining (the Industrial Relations (Amendment) Act 2001) so as to ensure compliance with recent judgements ofthe European Court of Human Rights”. This commitment was repeated to the ILO’s Committee of Experts on Freedom of Association in 2012.

Students are to assume that the ECtHR judgements referred to are Wilson and Palmer v United Kingdom [2003] IRLR 128 and Demir andBaykara v Turkey (2009) 48 EHRR 54.For this Assignment, students should analyse what the ECtHR decided in those cases; outline the procedure established by the 2001 Act (as amended in 2004); consider the impact on thatprocedure of the Supreme Court decision in Ryanair Ltd v Labour Court [2007] 4 IR 199; and determine whether the Government’s proposal to further amend the 2001 Act will ensure compliance with the jurisprudence of the ECHR.

This essay will discuss and analyse what the European Court ofHuman rights decided in the case of Wilson and Palmer v United Kingdom [2003]1 and Demir and Baykara v Turkey (2009)2. Then it willoutline the procedure established by the 2001 Act (as amended in 2004). It will then consider the impact of the decision theSupreme Court held in the Ryanair Ltd v Labour Court [2007]3 for Ireland in relation to European Law. Finally closing with theGovernment’s proposal to amend the 2001 Act and if by doing this will it ensure compliance with the jurisprudence of the European Court of Human Rights.

Firstly the writer will discuss the 2003 decision in the Wilson and Palmer v United Kindgom [2003], the basic facts of this case are that the applicants alleged that the law of the United Kingdom at the time failed to ensure their rights to protect their interests through trade union membership and to freedom of expression by allowing the employer to de-organise trade

1 Wilson and Palmer v United Kingdom [2003] IRLR 128 2 Demir and Baykara v Turkey (2009) 48 EHRR 543 Ryanair Ltd v Labour Court [2007] 4 IR 199

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unions, contrary to Articles 104 and 115 of the Convention of Human Rights or ECHR. As well as this, the individual applicants complained UK law permitted discrimination by employers against trade union members, contrary to Article 146 of the convention in conjunction with Articles 10 and 11. Their employer gave notice that it was dismantling the collective agreement and de-organising the union for all purposes. The applicants then issued proceedings before the tribunals complaining that the requirement to sign the personal contract and lose union rights, or accept a lower payrise, was contrary to Section 23(1)(a) of the Employment Protection (Consolidation) Act 1978.7 All applicants in this case complained that there was a violation of Article 11 of the Convention of Human Rights 1950 and at the time the United Kingdom failed to secure their rights. Article 11 of the Convention provides for:

1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society for the protection of the rights and freedom of others.8

In the proceedings brought by the applicants the Industrial Tribunal found in favour of the applicants and following on from this the employers successfully appealed to the Employment Appeal Tribunal, and in turn the applicants appealed to the Court of Appeal. Proceedings commenced by thefirst three members namely, Mr Wilson, Mr Palmer and Mr Wyeth and went as far as the House of Lords, which found against them, holding that collective bargaining over employment terms

4 Article 10 of the Convention of Human Rights, Freedom of Expression. 5 Article 11 of the Convention of Human Rights, Freedom of Assembly and Association.6 Article 14 of the Convention of Human Rights, Prohibition of Discrimination.7 Employment Protection Consolidation Act, Section 23 (1)(a) Trade Union Membership and Activities.8 Article 11 of The Convention of Human Rights.

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and conditions was not a defining characteristic of union membership. While the absence under UK law of an obligation on employers to enter into collective bargaining did not give rise to a breach of Article 11, the permitting of employers tooffer financial incentives to persuade employees to surrender important trade union rights did constitute, both for the trade unions and their members, a violation of Article 11. However under UK law, employers were not prohibited from offering inducements to employees who were not prepared to give up a freedom that was an essential characteristic of union membership. Following the House of Lords Judgement, theapplicants withdrew their applications from the Industrial Tribunal, having being advised as they could not succeed.

Next the writer will discuss the basic facts of the Demir and Baykara v Turkey (2009)9 case and subsequently the decision held in that case, then analysing and comparing both judgements fortheir similarities and differences. The basic facts of the case are as follows, the applicants complained that, in breachof Article 11 of the Convention, by itself or in conjunction with Article 14 that the domestic courts had denied them, boththe right to form trade unions and the right to engage in collective bargaining and enter into collective agreements. Demir and Baykara brought proceedings in the District Court and won their claim. On appeal to the Court of Cassation tookinto account the special relationship between civil servants and the public administration and as a result of this Law no 2322,10governing collective agreements and the right to strike or lock-out action, could not apply in relations between civilservants and a public administration. Therefore any agreementof a “Collective” nature between civil servants union and a public administration had to be grounded in specific legislation. Unfortunately there was a lack of express statutory provision which recognised a right for trade unions formed by civil servants to enter into collective agreements. The court found, that the right for civil servants to be able,in principle, to bargain collectively, was recognised by international law instruments, both universal and regional.

9 (2009) 48 EHHR 5410 Law no 2322, governing collective agreements and the right to strike and lock-out.

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Further to this, Turkey had in 1995 ratified the ILO Convention No. 98,11 the principle instrument protecting, internationally, the right for workers to bargain collectivelyand enter into collective agreements. There was no evidence in the case file to show that the applicant’s union represented public servants engaged in the administration of the State, that is to say according to the interpretation of the ILO’s Committee of Experts, officials whose activities arespecific to the administration of the State and who qualify for the exception provided for in Article 612 of ILO ConventionNo. 98. The Court of Cassation held there was a right to joina union and there had been a violation of Article 11 of the ECHR Convention on this point also, in respect of both the applicant’s trade union and the applicants themselves. This judgment was then referred back to the District Court which defiantly restated their view that the applicants did have theright to join a trade union. Subsequently this decision was referred back to the Court of Cassation which yet again quashed the decision of the District Court. After all avenueshad been exhausted the within their jurisdiction the applicants took their case to the European Court of Human Rights. Here they alleged there was a violation of Article 11and violation of Article 14 of the ECHR Convention. The Courtunanimously held there had been a violation of Article 11 of the Convention and that it was not necessary to examine separately the complaints submitted under Article 14 of the Convention. The Court applied Article 41 of the Convention. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party”.

Under careful analysis and consideration both cases had a common denominator in the fact that there was a violation of Article 11 of the European Convention on Human Rights. In the

11 ILO Convention No 98, Right to Organize and Collective Bargaining.12 Article 6 of ILO Convention, This Convention does not deal with the position of public servants engaged in the administration of the State, norshall it be construed as prejudicing their rights or status in any way.

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case of Wilson and Palmer v United Kingdom [2003]13 the applicants were arguing that the requirement to sign the personal contract and lose union rights, or accept a lower pay rise, was contrary to Section 23(1)(a) of the Employment Protection (Consolidation) Act 1978. This did not only violate UK law but also European law in that it failed to comply with the European Convention of Human Rights by breaching Article 11. Moreover,while the absence under UK law of an obligation on employers to enter into collective bargaining did not give rise to a breach of Article 11, what did give rise to a breach of European Law was the permitting of employers to offer financial incentives to persuade employees to surrender important trade union rights did indeed constitute, both for the trade unions and their members, a violation of Article 11.With the United Kingdom being in breach of this, UK law therefore allowed employers to treat less favourably employeeswho were not prepared to give up a freedom that was an essential characteristic of union membership. It also permitted employers to offer financial incentives to persuade employees to surrender important trade union rights. What wasneeded was a voluntary system of collective bargaining for a trade union which was not recognised by an employer to take steps to persuade the employer to accept collective bargaining. While also allowing employees’ freedom to instruct or permit their union to make representations to their employer or to take action to promote their interests.

It is clearly evident that this is not the case here, by UK law allowing employers from offering inducements to employees who renounced the right to union representation on the condition that the employer did not intend to prevent or deterthe particular employee from being a union member. This essentially allowed a restraint on the use of employees of union membership to protect their interests and it was possible for an employer effectively to undermine or frustratea union’s ability to strive for the protection of the interestof its members, which was defeating the purpose of what a union should aim for. The judgement the House of Lords held in this case was that even though on the face of it UK law wasclearly in breach of the European Convention on Human Rights,

13 Wilson and Palmer v United Kingdom [2003]

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the employers were firmly within their rights as long as they did not act in such a way as to prevent the individual employees from being a member of a trade union. This is because under UK law at the time this was possible for the employer to do this the UK government were criticised on this by the Social Charter Committee of Independent Experts and theILOs Committee on the freedom of association. Ultimately the result of this decision by House of Lords meant that the UK had to change its law to comply with that of the European Court of Human Rights but only did what was absolutely necessary to comply with the ruling and not to breach Article 11 of the ECHR. The end result of this was the Employment Relations Act 200414 which provides in section 146 that all workers were protected by the provisions on detriment for union membership.

Similar to the Wilson and Palmer v United Kingdom [2003]15 discussed above, the judgment in the Demir and Baykara (2009)16 case came tothe consensus there was a violation of Article 11 of the Convention of Human Rights. The Turkish Government raised twoobjections to this being admissible in court, the first objection was, that it was impossible to rely against them on international instruments other than the Convention, in particular instruments that Turkey had not yet ratified. Articles 5 and 6 of the European Social Charter had not been ratified by Turkey. Article 5 of the European Social Charter provides as follows:

Article 517 – The right to organizeArticle 618 – The right to bargain collectively

Objection on the first grounds the Government contended that the Court, by means of an interpretation of the Convention, could not create for Contracting States new obligations that were not provided for in the Convention. They requested the Grand Chamber to declare the application inadmissible as being14 Employment Relations Act 2004 15 Wilson and Palmer v United Kingdom [2003]16 Demir and Baykara v Turkey (2009)17Article 5 The right to organise. 18 Article 6 The right to bargain collectively.

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incompatible ratione materiae with the Convention, in view of the impossibility of relying against the Government on international instruments that Turkey had not yet ratified.

Secondly, the Government objected on the grounds on the restriction provided for in the last sentence of Article 11 ofthe Convention with regards to the applicability of this provision to “members of the administration of the State”. They argued that Turkish civil servants, including municipal civil servants, were covered by a specific and highly detailedset of legal rules under the Public Service Act (Law no. 657)19, thusbeing distinguished from other employees. The Government requested the Court to dismiss the application on the grounds that it was incompatible ratione materiae with the provisions of Article 11.

These objections were met by the Courts adaptation or interpretation of the alleged violation of Article 11 of the convention and its compatibility with the European Union’s Charter of Fundamental Rights, where article 1220 section (1) provides for:

“Everyone had the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters, with implies the right of everyone to form and to join trade unions for the protection of his or her interests”.

According to the judgment this right applies to public servants and civil servants, whether they work for central government or a local authority, who are generally allowed to join a trade union of their own choosing. The judgment also took into consideration the Charter’s Committee of IndependentExperts (now the European Committee of Social Rights) as to the interpretation of Article 6 section (2) of the Charter, 19 Public Service Act No. 657, Civil Servants are authorized to join and form trade unions.

20 Article 12 European Union Charter of Fundamental Rights, Freedom of Assembly and Association.

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which applies to public officials. Therefore States which impose restrictions on collective bargaining in the public sector have an obligation to comply with this provision and toorganize for the involvement of staff representatives in the drafting of the applicable employment regulations.

The European Union’s Charter of Fundamental Rights makes provision for its members in Article 2821 for the right of collective bargaining and action. This absence of an express provision in the European Convention on Human Rights guaranteeing the right to enter into collective agreements wascounterbalanced by consideration of Turkey not being party to Article 522 (the right to organize) or Article 623 (the right tobargain collectively) of the European Social Charter. The Court sought to interpret the Convention in accordance with the Vienna Convention, which enables the court to ascertain the ordinary meaning to be given to the words in their contextand in the light of the object and purpose of the provision from which they are drawn. In addition to this the Court mustconsider the provisions of the Convention with regards to any relevant rules and principles of international law applicable in relations between the contracting parties. The Court also took into account while adjudicating this case that in searching for common ground the norms of international law it has never distinguished between sources of law according to whether or not they have been signed or ratified by the respondent State. Moreover the Court recognized that “membersof the administration of the State” cannot be excluded from the scope of Article 1124 of the Convention. The Government failed to show how the nature of the duties performed by the applicants, as municipal civil servants, requires them to be 21 Article 28 European Union Charter of Fundamental Rights. Right of Collective Bargaining and Action.22 Article 5 of the European Social Charter, the right to organize.23 Article 6 of the European Social Charter, the right to bargain collectively.24 Article 11 of the Vienna Convention Article 11 means of expressing consent to be bound by a treatyThe consent of a State to be bound by a treaty may be expressed by signature,exchange of instruments constituting a treaty, ratification, acceptance, approval oraccession, or by any other means if so agreed.

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regarded as “members of the administration of the State” subject to such restrictions. The fact that the Convention makes no distinction between the functions of a Contracting State as holder of public power and its responsibilities as employer further reiterates that Article 1125 section (1) of the convention presents trade-union freedom as one from or a special aspect of freedom of association. Article 11 is binding upon the “State as employer”, whether the latter’s relations with its employees are governed by public or privatelaw. This resulted in the applicants being able to legitimately relying on Article 11 of the Convention and the objection raised by the Government of this point was effectively dismissed. In addition to this the Court also found there had been a violation within the meaning of Article1126 section (2) of the Convention:

“No restrictions shall be placed on the exercise of theserights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention ofdisorder or crime, for the protection of health or moralsor for the protection of the rights and freedoms of others. This article shall not prevent the imposition oflawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State”.

Here the Court found that the impugned interference, namely the annulment ex tunc of the collective agreement entered into by the applicant’s union following collective bargaining with the authority was not “necessary in a democratic society”; within the meaning of Article 11 section (2) of the Convention. Therefore there has been a violation of Article 11 of the Convention on this point also, in respect of both the applicant’s trade union and the applicants themselves.

25 Article 11 Section 1 of the European Convention of Human Rights, Freedom of Assembly and Association.26 Article 11 Section 2 of the European Convention on Human Rights.

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Unlike the Wilson and Palmer v United Kingdom27 the applicants in the Demir and Baykara v Turkey28 along with violation of article 11 of the Convention, alleged violation of Article 1429 of the Convention which provides for prohibition of discrimination;

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.

The applicants argued that the restrictions imposed on them toform trade unions and enter into collective constituted a discriminatory distinction for the purpose of Article 14 of the Convention taken in conjunction with Article 11. Analysing this, the Court applied Article 4130 of the Convention, which provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

The final consensus amongst the Court, it found unanimously the complaints submitted under Article 14 of the Convention did not have to be examined separately and held the respondentstate to pay damages while dismissing the remainder of the applicants claim for just satisfaction.

The Industrial Relations (Amendment Act) 200131 provided a procedure for resolving disputes where negotiating arrangements are not in place and the parties are not engaged in talks. That Act was amended by the Industrial Relations (Miscellaneous Provisions) Act 2004, which27 [2003] IRLR 12828 (2009) 48 EHRR 5429 Article 14 of the European Convention of Human Rights, Prohibition of Discrimination30 Article 41 of the European Convention of Human Rights, Just Satisfaction.31 The Industrial relations Act 2001

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came into operation 6th April, 2004. With the introduction of the Industrial Relations Act 2001 which was amended in the light of the Industrial Relations (Miscellaneous Provisions) Act, 2004 the act introduced a series of mechanisms to provide both the employerand employee a means to which they could resolve disputes. This act derived from the Industrial Relations Acts, 1946-199032 which was initially based on the concept of the parties voluntarily seeking to resolve their differences with the machinery being provided by the State.

The Industrial Relations (Amendment) act 2001 and the Industrial Relations (Miscellaneous Provisions) act 200433 initiated a change in Irish law from what had previously been the voluntarist system of resolving disputes to one were the Labour Court has the power to make binding determinations on pay and conditions of employment without taking into consideration the views of the parties. These Acts introduced a departure into Irish Law from the voluntarist system of resolving disputes. The LabourCourt has a key role under the Acts in investigating disputes,making recommendations and, if necessary, making binding determinations34. Firstly let’s take a look at what exactly was the procedure established by the 2001 Act. The 2001 Act was amended in 2004 by amending section 2, 3 and 10 of the 2001 Act. Section 2(1)(a) of the Act is the section that the Labour Court initially used against Ryanair in their appeal. It provides as follows:

(a) It is not the practice of the employer to engage in collective bargaining negotiations in respect of the grade, group or category of workers who are party to the trade dispute and the internal dispute resolution procedures (if any) normally used by the parties concerned have failed to resolve the dispute.

Section 2 of the Act of 2001 is amended by substituting the previous paragraph (a) and (b) of subsection (1) with

(b) Either 32 Industrial Relations Acts 1946-199033 The Industrial Relations (Amendment) Act 200434 Michael Doherty, ‘Union Sundown? The future of collective representation in Irish law, Employment Law Journal, 4, pp96-102 2007

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(i) the employer has failed to observe(1) a provision of the Code of Practice on Voluntary

Dispute Resolution under section 42 of the Industrial Relations Act 1990 specifying the period of time for the doing of anything (or such a provision of any code of practice amending or replacing that code), or

(II) any agreement by the parties extending that period of timeOr

(ii)The dispute having been referred to the Commission ofresolution in accordance with the provisions if such code, no further efforts on the part of the Commission will, in the opinion of the Commission, advances the resolution of the dispute and the Court has received a report from the Commission to that effect”.

Section 8 does provide a mechanism for employees who are not represented by a trade union to vindicate their employment rights as stipulated in section 8(1). The Supreme Court foundthat an excepted body need not be a trade union. Under Irish law such a body can only have the status of an excepted body if it is actually recognised by the employer, as an employer has a constitutional right not to recognise a trade union for collective bargaining purposed. This has always been counterbalanced by the constitutional right of employees to join a trade union of choice for the purposes of collective bargaining35. In an article by Keith Ewing in the Irish Times he critiques the government and employers of collective bargaining rights for failing to acknowledge Article 28 of theEU Charter of Fundamental Rights36 which was part of the LisbonTreaty that Ireland ratified in 2009 and closely related too the European Convention on Human Rights (ECHR) which Ireland signed in 1950.

However the Acts are lacking in the sense that they explicitlyrule out granting trade union recognition rights. Section 5(2) of the 2001 Act provides that the Labour Court cannot provide for arrangements for collective bargaining. The 35 Article 40.6.1 (iii) of the Irish Constitution 1937, the right of the citizens to from associations and union.36 Ewing, Keith, Court ruling challenges Ryanair victory, The Irish Times July 2010.

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provisions set out in this Act, provide for a time-frame for dealing with referrals, an application for Labour Court Investigation, Preliminary hearing, Investigation and issuing of recommendation, issuing of determination, effect of industrial action, enforcement of determination, transitional provision, victimisation as well as an enhanced code of practice on voluntary dispute resolution. It is Section 2 of the Industrial Relations (Amendment) Act 2001) which provides for a the employer to engage in collective bargaining as set out in Section 2(1)

(1) It is not the practice of the employer to engage in collective bargaining negotiations in respect of the grade, group or category of workers who are party to the trade dispute and the internal dispute resolution procedures (if any) normally used by the parties concerned have failed to resolve the dispute;

(2) Either The employer has failed to observeA provision of the Code of Practice on Voluntary Dispute Resolution, specifying the period of time for doing anything, OrAny agreement extending that period,

OrThe dispute has been referred to the Labour Relations Commission for resolution in accordance with the Code of Practice and the Commission has sent to the Court a report to the effect that no further efforts on the part of the Commission will, in its opinion, advance the resolution of the dispute;

(3) The trade union or excepted body or employees concerned have not acted in a manner which, in the opinion of the Court, has frustrated the employer in observing of the Code of Practice on Voluntary Dispute Resolution; and

(4) The trade union or excepted body or employees concerned have not had recourse to industrial Commission in accordance with the Enhanced Code of

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Practice on Voluntary Dispute Resolution (S.OI No 76 of2004)

The 2001 and 2004 acts were seen as a middle way for employeeswho want to be represented by a trade union in a non-union organisation. The acts give them access to the Labour Court if they can show that the employer that is his or her right refused to engage in collective bargaining.

However the decision in 2007 by the Supreme Court in Ryanair v TheLabour Court has resulted in far fewer cases being taken under this new legislation. This decision made Ireland unique in modern democracies and chose the rights of multinationals likeRyanair above the rights of its own citizens. The Court in Strasbourg states that,

“the absence of the legislation necessary to give effect to the provisions of the international labour convention”, gives rise to an interference with trade union freedom under article 11 of the ECHR.37

Legally this made Ireland clearly in breach of the following laws, firstly article 11 of the ECHR, the right to freedom of association in Article 11 of the ECHR, secondly Article 2838 ofEU Charter the fact that the right to bargain collectively is recognised by the EU Charter and finally it is in breach of International Labour Law (ILO) No 98, on the Right to Organiseand to Bargain Collectively which was ratified in Ireland as far back as 1955. This decision by the Supreme Court has not only resulted in breaches of the previously mentioned laws butalso places employers in the position where they are not required to engage in collective bargaining with their employees. In effect this decision by the Supreme Court on the Ryanair case makes it easier for litigation cases from trade unions to challenge this decision; so as to make Irish

37 K.D Ewing and John Hendy QC The Dramatic Implications of Demir v Baykara in Institute of Employment Rights Employment Law Update 21st October 2009.38 Article 28 of the European Court of Fundamental Human Rights, the Right of Collective Bargaining and Action.

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law compatible with the Strasbourg Court by gaining a legal right which is taken for granted in most modern democracies.

Before a discussion of the judgement and impact of this case the writer would like to lay down the facts of the case first in order to gain an insight first. Basically the context of this appeal is that Ryanair, the well-known airline company, has a policy of not negotiating with trade unions, a fact of which all employees of Ryanair are obviously well aware. Thisdoes not mean that Ryanair will not permit its employees to bemembers of trade union. Presumably, even if it wanted to achieve that, it knows it cannot do so as freedom of association is guaranteed by the Constitution of Ireland 1937.39 This is where the relevant section 2(1)(a) of the Industrial Relations (Amendment) Act 2001 comes into force and was the act the Labour Court used to initialise proceedings. In Irishlaw the Supreme Court decision in Ryanair Ltd v Labour Court 2007 allowed for Ryanair to appeal the decision of the Labour Court. Here the respondent The Labour Court, and Irish Municipal Public and Civil Trade Union, Notice Party used section 2(1)(a) of the Industrial Relations (Amendment) Act 2001, to demonstrate that the Respondent party Ryanair Limitedto investigate a trade union dispute where it was otherwise not the norm of the employer to engage in collective bargaining negotiations and the internal dispute resolution procedures generally used by the parties.

Section 2(1)(A) of the Industrial Relations (Amendment) Act 2001 provides for;“permits the Labour Court, at the request of a trade union or excepted body, to investigate a trade dispute where the LabourCourt is satisfied, inter alia, that it is not the practice ofthe employer to engage in collective bargaining negotiations and the internal dispute resolution procedures (if any) normally used by the parties had failed to resolve the dispute”

39 Article 40.6.1 (iii) of the Irish Constitution 1937, the right of the citizens to from associations and union.

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In the Labour Court it held against Ryanair that the procedureset out in the Industrial Relations (Amendment) Act 2001 was not followed by Ryanair. Ryanair in their defence did state that in the Miscellaneous Provisions provided for in the Act 2004, even though there was a “trade dispute” in existence, Ryanair argued that it was the practice of Ryanair to engage in “collective bargaining negotiations” and that it had in place internal dispute resolution procedures and that there had not been a failure of those procedures to resolve the alleged dispute.

Ryanair were challenging the decision of the Labour Court not only on the grounds of unfair procedure but also on the grounds of irrationality. According to the judgement in the final decision on the case what Ryanair were essentially doingwas challenging the Labour Court’s interpretation of Section 2(1)(a) of the Industrial Relations (Amendment) Act 2001. In effect they were saying the Labour Court’s decision was wrong and a legal error. In this judgement the Labour Court had failed ontwo points, firstly “the practice of the employer to engage incollective bargaining negotiations” and also in its conclusionthat “the internal dispute resolution of procedures” had “failed to resolve the dispute”. The decision of the Labour court was quashed and an appeal was allowed by Ryanair were they were entitled to a rehearing by the labour court in whichthe labour court would apply the procedures and the law as requested in the final judgement of the case. The Supreme Court found that the Labour Court had erred in law in its construction of the relevant provisions of the 2001 Act and the hearing of the case had been procedurally flawed40. As there was no definition of collective bargaining in the Act, as part of the decision, the Supreme Court found that the Labour Court was in error in utilising the “industrial relations” concept of collective bargaining and that instead, and ordinary “dictionary definition” should apply. To addressthis lacuna, it says, the following definition will apply for the purposed of the Industrial Relations (Amendment) Act 2001 “for the purposes of this Act, collective bargaining comprises voluntary engagements or negotiations between any employer or

40 Brian Sheehan, Collective bargaining will the Court pick up from where itleft off? IRN 26 10 July 2014.

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employers’ organisation on the one hand and a trade union of workers or excepted body on the other, with the object of reaching agreement regarding working conditions or terms of employment or non-employment of workers”.

Another criticism of the 2001 and 2004 Acts are the Labour Courts approach to collective bargaining in that collective bargaining in a non-unionised company must take the same form and adopt the same procedures as would apply in collective bargaining with a trade union. In Geoghegan J. judgement he questions the constitutionality of any possible legislation onstatutory trade union recognition rights, stating

“it is not in dispute that as a matter of law Ryanair is perfectly entitled not to deal with trade unions nor can a law be passed compelling it to do so.”

This would mean that Ireland is in a unique position within the Anglo-Saxon industrial relations world41. The United Kingdom, Canada and the United States already have legislationin place which protects employee rights to have unions negotiate on their behalf. Here Ireland stands alone within, EU law and in a broader context International law.

Following on from this judgement by the Supreme Court it caused concern not only for those employed in the legal field but also those involved in Trade Unions and Industrial Relations. In an article by Brian Sheehan titled the “SupremeCourt ruling will affect ‘right to bargain’ he believes this judgment will change Industrial relations law in Ireland by imposing a higher level of judicial procedures42. In effect the decision in Ryanair v Labour Court has changed what the courts have the power to do and not to do in the procedure established by the 2001 Act (as amended in 2004). What the Labour Court recommends under the 2001 and 2004 acts is enforceable by the Court.

41 Michael, Doherty, Union Sundown? The future of collective representation rights in Irish law Irish Employment Law Journal, 4, 4, pp96-102 2007.42 Brian Sheehan, Supreme Court ruling will affect right to bargain.

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As a result of the 2007 Ryanair Supreme Court judgment and thereport by the International Labour Organisation in 2012 in response to a complaint referred to it by ICTU and IMPACT arising from the decision in the Ryanair case. The Governmentresponse to this was to amend the Industrial Relations Acts 2001 and 2004 so as to ensure compliance with the jurisprudence of the European Court of Human Rights. In May 2014 the Minister for Jobs, Enterprise and Innovation, Richard Bruton TD secured Cabinet approval to reform the Industrial Relations (Amendment) Act 2001in order to legislate for an improved and modernised industrial relations framework that will provide more clarity for employers and more effectiveness for workers43. During the drafting of this legislation the Minister consulted with stakeholders from both sides of industry of what they would like to see in terms of outcome. This act aims to provide a clear and balanced mechanism by which the fairness of the employment conditions of workers in their totality can be assessed where collective bargaining does not take place. Below is what the provisions of the Bill include.

The Bill provides for:1. A definition of what constitutes “collective bargaining”2. Provisions to help the Labour Court identity if internal

bargaining bodies are generally independent of their employer

3. Bringing clarity to the requirements to be met by a TradeUnion advancing a claim under the Act

4. Setting out policies and principles for the Labour Court to follow when assessing those workers’ terms and conditions, including the sustainability of the employersbusiness in the long term

5. New provisions to ensure cases dealt with are ones where the numbers of workers are not insignificant

6. Provisions to ensure remuneration terms and conditions are looked at in their totality

7. Provisions to limit the frequency of reassessment of the same issues

8. An explicit prohibition on the use by employers of inducements (financial or otherwise) designed

43 Department of Jobs, Enterprise and Innovation, Government agrees to reform the Industrial Relations (Amendment) Act 2001 to deliver on Programme for Government commitment.

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specifically to have staff forego collective representation by a trade union

9. Enhanced protection for workers who my feel that they arebeing victimised for exercising their rights in this regard by way of interim relief in the case of dismissal.

All of these proposals to the Industrial Relations (Amendment) Act 2001 are part of the Government’s proposal to deliver on the Programme for Government Commitment. When this is enacted thelegislation will be framed in such a way as to comply with constitutional, social and economic traditions as well as international obligations. While also ensuring continued success in attracting foreign direct investment and supportingthe expansion of Irish companies.

The proposal outlined above are designed so Ireland will not be in legal limbo with regards to obeying international law and will be in line with both domestic, European and international law. The Irish government informed the (ILO) Committee that the new Government was committed in this programme and to reform the current law on employee’s right toengage in collective bargaining (the Industrial Relations (Amendment) Act 2012), so as to ensure compliance by the State with recent judgments of the European Court of Human Rights44. The Irish Government does argue that Articles 1-4 of Convention No.98 donot require the imposition of any obligation on employees to recognize trade union or to negotiate with trade union: and says the Convention aims at voluntary negotiation between employer and worker organizations. Article 1-4 of the ILO Convention no 98 allow for the right to organise and collective bargaining, they provide a mechanism for workers toenjoy protections against anti-union discrimination in respectof their employment.45

Finally if Ireland is to ensure compliance with the jurisprudence of the European Court of Human Rights it will

44 Brian Sheehan, ILO committee issues report into complaint against Irish Government, IRN (Industrial Relations News) 14 5 April 2012.45 ILO Convention no 98 Articles 1-4.

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comply with the above articles and adjust the proposed 2012 Act accordingly so as to modify their laws to match but not completely change domestic law just as the UK government did in the case of Wilson v Palmer.46 It can also go one step further and assimilate into Irish statutory law what is expressly allowed for in the Lisbon Treaty the EU Charter of Fundamental Rights which is now essentially a part of EuropeanLaw. Article 28 provides for a “Right of Collective bargaining and action”. Given that European law in the futurecould take precedence over domestic law, it will remain interesting to see if the Labour Court will take action and refer the proposed Industrial Relations Act 2012 to the European Courtof Justice for clarification as to what the EU position is on trade union recognition and how this will effect Irish law in conjunction with our Constitution.

46 [2003] IRLR 128

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Bibliography:

Journal Articles

Michael Doherty, ‘Union Sundown? The future of collective representation in Irish law, Employment Law Journal, 4, pp96-102 2007

K.D Ewing and John Hendy QC, ‘The Dramatic Implications of Demir v Baykara in Institute of Employment Rights Law Update, October 2009

Brian Sheehan, ‘ILO Committee issues report into complaint against Irish Government, Industrial Relations News IRN April 2012

Brian Sheehan, ‘Collective Bargaining will the Court pick up where it left off? Industrial Relations News IRN July 2014

Online Journals and Articles

Brian Sheehan, ‘Supreme Court ruling will affect right to bargain’ http://eurofound.europa.eu/observatories/eurwork/articles/supreme-court-ruling-will-affect-right-to-bargain-law>accessed 1 December 2014

Department of Jobs, Enterprise and Innovation, Government agrees to reform the Industrial Relations (Amendment) Act 2001to deliver on Programme for Government commitment http://www.djei.ie/press/2014/20140513.htm>accessed 1 December2014

Websites

http://conventions.coe.int/treaty/en/treaties/html/163.htm

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http://www.echr.coe.int/Documents/Convention_ENG.pdf

www.ILO.org http://www.ilo.org/dyn/normlex/en/f? p=NORMLEXPUB:12100:0::NO::P12100_INSTRUMENT_ID:312243

www.irishstatutebook.ie

http://www.irishstatutebook.ie/2001/en/act/pub/0011/

http://www.irishstatutebook.ie/2012/en/act/pub/0032/index.html

http://www.legislation.gov.uk/ukpga/1978/44/contents

http://www.legislation.gov.uk/ukpga/2004/24/contents

Newspaper Articles

Keith Ewing, ‘Court ruling challenges Ryanair Victory’ The Irish Times (Dublin, July 2010)

List of Cases

Wilson and Palmer v United Kingdom [2003] IRLR 128

Demir and Baykara v Turkey (2009) 48 EHRR 54

Ryanair Ltd v Labour Court [2007] 4 IR 199

Lists of Statutes/legislation

Industrial Relations Acts, 1946-1990

Industrial Relations (Amendment) Act 2001, 2004

Industrial Relations (Amendment) Act 2012

Employment Protection Consolidation Act 1978

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Employment Relations Act 2004

EU Legislation

Convention for the Protection of Human Rights and Fundamental Freedoms 1950 also known as the European Convention on Human Rights or ECHR

Article 10 of the European Convention of Human Rights

Article 11 of the European Convention of Human Rights

Article 14 of the European Convention of Human Rights

Article 41 of the European Convention of human rights

European Social Charter

Article 5 of the European Social Charter

Article 6 of the European Social Charter

European Union Charter of Fundamental Rights

Article 11 of the European Union Charter of Fundamental Rights

Article 12 of the European Union Charter of Fundamental Rights

Article 28 of the European Union Charter of Fundamental Rights

The Vienna Convention

Article 11 of the Vienna Convention

International Legislation

International Labour Organisation Convention

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ILO Convention No 98

Article 6 of the ILO Convention

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