The Industrial Relations (Amendment) Act 2015 (“the 2015 Act”) came into effect on 1 August 2015.  The 2015 Act significantly changes the existing industrial relations landscape in Ireland.

Irish employers are not obliged by law to engage in collective bargaining with workers.  However, where an employer does not engage in collective bargaining, the 2015 Act establishes an improved framework for workers who seek to enhance their terms and conditions of employment.  It also provides for the creation of Registered Employment Agreements and Sectoral Employment Orders, the original system for which was struck down by the Supreme Court. 

Changes to Collective Bargaining

The Industrial Relations (Amendment) Acts 2001 and 2004 already provide for the investigation of trade disputes by the Labour Court where employers do not engage in collective bargaining.  The 2015 Act amplifies this mechanism for workers.

In 2007, the Supreme Court held that employers could not be brought before the Labour Court as part of a trade dispute where they had a practice in place of engaging in negotiations with groups of non-unionised workers.   

The Supreme Court commented on the absence of a legislative definition of collective bargaining and the 2015 Act inserts such a definition as follows:

“…voluntary engagements or negotiations between any employer or employers’ organisation on the one hand and a trade union of workers or excepted body to which this Act applies on the other, with the object of reaching agreement regarding working conditions or terms of employment, or non-employment, of workers.”

The Labour Court must consider whether collective bargaining (as defined) is taking place before it can investigate a particular trade dispute. 

An Employer must also show that the employee group with which it negotiates is truly an excepted body as defined in the 2015 Act.  If an employer can demonstrate these factors the trade dispute should fall outside the scope of investigation by the Labour Court.

Under the 2015 Act the Labour Court may decline to investigate a trade dispute which it has already investigated within the last 18 months, or where the number of workers concerned is insignificant in relation to the total group of workers.  The Labour Court can now look to comparators (both unionised and non-unionised) when making a decision about workers’ terms and conditions. 

Once the Labour Court has determined that it has jurisdiction to investigate, given the wide definition of a trade dispute, virtually any aspect of worker terms and conditions of employment can be examined.  The Labour Court may issue a recommendation and/or determination.  If an employer does not comply with the determination, a trade union may apply for an order which will bind an employer to carry out its terms.

Unfair Dismissal and Interim Relief

Protection has also been increased for a worker who claims that he/she has been dismissed from their employment wholly or mainly as a result of:

• being a member of a trade union which requests an investigation of a trade dispute by the Labour Court;
• being in the employment of the employer concerned in the grade, group or category to which the trade dispute relates; and
• having provided evidence or other information or assistance in relation to the request made to the Labour Court.

In the event of a claim for unfair dismissal on any of the above grounds, the individual may apply to the Circuit Court for interim relief pending the hearing of his/her unfair dismissal claim. 

Registered Employment Agreements and Sectoral Employment Orders

The 2015 Act provides for a new system of Registered Employment Agreements (“REAs”) and Sectoral Employment Orders (“SEOs”) the previous system for which was struck down by the Supreme Court in 2013. 

Employers and workers in a particular organisation may agree minimum rates of remuneration and conditions of employment and apply to have that agreement registered with the Labour Court as an REA.  Whilst the agreement will be binding between the employer and the workers, it will not apply across the sector in question. 

A trade union representing workers in a particular sector may request the Labour Court to examine the terms of their remuneration, sick pay and/or pension scheme.  The Labour Court may make a recommendation to the Minister for Jobs, Enterprise and Innovation and the Minister, if satisfied to do so, may confirm the recommendation as a SEO. SEOs will have sector-wide application (in relation to remuneration, sick pay and/or pension schemes) and contracts of employment for workers within these sectors will be deemed to reflect what is provided for by the SEO. 

Recommendations for Employers

It is likely that the introduction of the 2015 Act will result in an increased level of trade disputes being referred to the Labour Court.

• Where a workplace is unionised and collective bargaining takes place, employers should consider whether these negotiations satisfy the requirements of the 2015 Act.
• In non-unionised workplaces employers should look at the adequacy of any existing arrangements in place to negotiate with employees in respect of collective terms. Existing staff bodies/forums should be assessed in light of the 2015 Act and the changes to the definition of excepted bodies. 
• Where there are no mechanisms in place to enable negotiations with employees on collective terms, employers may want to think about whether such a mechanism should be introduced in their workplace. 

Contributed by Alicia Compton & Nuala Clayton