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Workplace Representation

There is no statutory system for permanent employee representation in Ireland. Those who work in unionised workplaces – about half the total – have representation though the union. New procedures have been introduced as a result of the EU directive on information and consultation, but they may not make much difference.

In most cases in Ireland, employees are either represented through their unions, or not represented at all. While only around a third of employees are union members, the 2009 National Workplace Survey, looking at employee responses, found that just under half of all employees (47.3%) were in workplaces where there was a union or staff association presence: 36.3% in the private sector and 87.2% in the public sector.1 The picture provided by the employer part of the survey is compatible with this as it showed that “trade union recognition in the private sector ranges from a low of 22% of employment in financial/insurance/business services to a high of 53% in construction”.2 (See below for an explanation of trade union recognition.)

 

 

Public agencies and state-owned companies have statutory works council type bodies for information and consultation – so-called sub-board structures – as part of a general framework of participation. In the private sector, some organisations have set up works council type bodies on a voluntary basis. These are in addition to union representation in most cases, but they are not very common.

 

 

The current primacy of trade unions as the channel for employee representation is outlined by the official Code of Practice on employee representatives published by the Labour Relations Commission (LRC). It defines employee representatives as individuals "formally designated employee representatives for that undertaking or establishment by a trade union ...”. (The Code of Practice is not itself legally binding but its provisions can be taken into account by the courts.)3

 

 

Union representatives are elected by their trade union colleagues at the workplace in line with the rules and practices of individual unions and agreements between companies and unions. These elected representatives are often called shop stewards, particularly in manufacturing industry, but there are also a range of other names such as union representatives or office representatives.

 

 

Representation through the union depends on the attitude of the employer. While employees have a constitutional right to join a union, it has been determined by the Irish Supreme Court (in 1946) that the employer also has a constitutional right to decide whether or not to deal with them – whether to “recognise” the union as representing the workforce. There is, therefore, no mechanism to compel an employer to recognise the union or to deal with employee representatives.

 

 

In 2001, procedures were introduced (and improved in 2004) allowing a union to take a recognition case to first the LRC, and, if no agreement was reached, to the Labour Court. Employers could not be forced to negotiate with the union, but they could be compelled by the Labour Court to improve their employees’ terms and conditions in a way which took account of the union’s demands.4 However, in 2007, the airline company Ryanair, which did not want to negotiate with the pilots’ union, won a case at the Supreme Court, which indicated a way in which employers could meet the requirement of the legislation without engaging with the unions. This made the legislation unusable for the unions.

 

 

Under pressure from judgements on collective bargaining from the European Court of Human Rights, the government elected in 2011promised to change the situation. In May 2014, it promised legislation to effectively restore the situation to that prevailing before the 2007 judgement, allowing intervention by the Labour Court, where a union can prove that there is a dispute at the company and that a “not insignificant” number of workers wish to be represented by the union. In December 2014, this was approved by the cabinet, with legislation expected to become law by mid-2015. However, even when this legislation comes into force, there will be no requirement for employers to recognise unions, if they do not wish to do so.

 

 

The EU directive on information and consultation (2002/14/EC), which gives employee representatives the right to be informed and consulted across a wider range of issues than is currently the case, has the potential to produce further changes to employee representation in Ireland. Companies with at least 50 employees have been covered by the legislation since March 2008 and larger companies were covered earlier. As yet there is no indication of a significant change. The 2009 National Workplace Survey indicates that the proportion of employees in workplaces with formal partnership arrangements, at 16%, has not changed since a similar National Workplace Survey was carried out in 2003.5

 

 

It is also important to note that this legislation, passed in 2006, does not require all companies covered by it to establish employee bodies for information and consultation. The process only begins if 10% of employees, with a lower limit of 15 and an upper limit of 100, ask for information and consultation rights, or the employer takes the initiative. Negotiations then start between the employer and employee representatives, who automatically include union representatives if the employer recognises unions and they represent at least 10% of the workforce. They have six months to negotiate an agreement, which they can agree to extend for another six months, with fallback arrangements if the negotiations fail. These provide for an information and consultation forum, elected by all employees, which should meet the employer at least twice a year (see below for the issues to be covered).

 

 

Where there are already agreements on information and consultation signed before the stage deadlines (September 2006, March 2007 and March 2008), they can continue in force, provided they meet some basic conditions.

 

 

This fairly complex procedure, in particular the requirement that 10% of employees have to ask for their rights before the process can start, makes it unlikely that large numbers of agreements will be signed in non-union workplaces.

Numbers and structure

There is no set relationship between the number of trade union representatives and the number of employees. However, the official Code of Practice on employee representatives states that the number of employee representatives should be "reasonable" in the light of a number of factors, such as the size of the workplace, the number of union members and the number of separate unions involved.

The Irish trade union structure means that there is often more than one union in a single workplace, dealing with different grades or occupations. Where this happens, there is usually a joint union committee, with an elected chair or convenor. This is particularly the case in larger state-owned companies.

The new information and consultation legislation passed in 2006 also allows the size of any body set up to deal with information and consultation to be negotiated. But under the standard rules, which come into effect if there is no agreement, the information and consultation forum should have between three and 30 members.

Tasks and rights

The lack of a statutory framework means that there is no precise schedule of the tasks and rights of employee representatives, which applies across the country. Typically a shop steward will have at least two roles: representing the union to members and potential members at the workplace; and taking up members' concerns with the employer both on an individual and collective basis.

The work on behalf of the union includes distributing union material, putting up notices on behalf of the union, collecting union subscriptions, ( if they are not collected by the employer,) and recruiting new union members.

 

A second key part of the work on behalf of the members is taking up individual grievances, and representing employees in difficulties with the employer, for example in disciplinary cases, although in particularly complex or serious cases the local representative will often be helped by a full-time official of the union.

Union representatives may also be involved in collective bargaining, although key elements have until recently been decided at national level (see section on collective bargaining).

The extent of information and consultation rights, under the 2006 legislation, is initially a matter for agreement between the employer and employee representatives. However, the fallback provisions if there is no agreement require the employer to provide information on the “recent and probable development” of the company’s business and to inform and consult on issues connected to employment, particularly where jobs might be threatened. This includes current redundancies and transfers. If there is no information and consultation agreement, and no information and consultation forum has been set up under the fallback procedure, then the union should be consulted on these issues. If there is no union, those facing redundancy or transfer are instead represented by “a person or persons chosen by such employees from among their number to represent them”.

Election and term of office

The procedures for the election of trade union representatives are regulated in union rulebooks and in the agreements reached between the company and the union. The rules of the largest Irish union SIPTU provide either for election or appointment by the local union group (branch). The official Code of Practice recommends that employee representatives should normally have a minimum of one year's service with their employer before being elected and that their appointment should be confirmed in writing "by the union to the employer".

The arrangements for choosing employee representatives to receive information and be consulted under the 2006 legislation are, in the first instance, to be agreed. If there is no agreement then the fallback procedure provides for an election where all employees vote. All employees with at least one year’s service can stand as candidates, and candidates must be nominated either by a recognised union or at least two employees.

Protection against dismissal

The Code of Practice says that employee representatives should not be dismissed, be unfairly selected for redundancy or suffer other discrimination because of their status or activities, unless the union has been consulted in advance. If they are dismissed under these circumstances without consultation with the union the courts will normally order their re-instatement.

An employee exercising information and consultation rights under the 2006 legislation also has protection against unfair treatment.

Time off and other resources

There is no legal entitlement to a set amount of time off for employee/union representatives to undertake their duties. However, the Code of Practice says that they should be given the time off "necessary ... for carrying out their functions" and "reasonable limits may be set". Often time off arrangements will be regulated in an agreement with the employer but where this is not the case employee representatives should ask for permission beforehand. Time off should include time for trade union meetings and training, which relate to their activities as employee representatives. The Code of Practice also says that pay for time off should be agreed with the employer in advance.

In practice the extent of paid time off varies greatly from organisation to organisation. Where there are a large numbers of employees and the union is well organised, one or more trade union representatives may be completely released from normal duties. But in other cases time off may be very limited.

On facilities, the Code of Practice recommends that employee representatives should have "reasonable access" to workplaces where they have members, a place to put up trade union notices, an opportunity to collect subscriptions from members and to distribute union material to members. They should also have access to the appropriate level of management. How this works in practice will vary from workplace to workplace. The Code recommends that management and unions should try to reach agreement on exactly what facilities are necessary.

An employee exercising information and consultation rights under the 2006 legislation also has the right to “reasonable facilities, including time off”, although this is subject to the “needs, size and capabilities of the organisation concerned”.

Representation at group level

Just as there is no statutory structure for employee representation at workplace level so there is no structure at higher levels of the group. Meetings of employee representatives at group level are on a voluntary basis at the initiative either of the union or the employer. The situation varies from case to case, but they will almost certainly meet if collective bargaining is conducted at a group level.

L. Fulton (2015) Worker representation in Europe. Labour Research Department and ETUI. Produced with the assistance of the SEEurope Network, online publication available at http://www.worker-participation.eu/National-Industrial-Relations.