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Workplace Representation

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

In most cases in Ireland, employees are either represented through their unions, or not represented at all.

 

Some 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, and in the private sector, some organisations have set up works council type bodies on a voluntary basis. However, these bodies are not very common and are often in addition to union representation. There are also so-called “excepted bodies”, which have a right to negotiate but whose members must all be employed by a single employer. (The rules on an excepted body’s right to negotiate were tightened in 2015 – see below.)

 

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 Workplace Relations Commission (WRC), which replaced the former Labour Relations Commission in 2015 . The Code, which is not itself legally binding but whose provisions can be taken into account by the courts, defines employee representatives as individuals "employees of an undertaking or establishment who have been formally designated employee representatives for that undertaking or establishment by a trade union...” and who participate in negotiations. However, the Code also makes clear that the term union also includes excepted bodies.[1]

 

Union representatives are elected by their trade union colleagues at the workplace or appointed by the union 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) which, although they could not compel employers to recognise a union, were intended to require them to improve their employees’ terms and conditions where it could be shown that the union wanted to negotiate but the employer refused, and there was, therefore, no collective bargaining.[2] However, the victory of the airline company Ryanair, in the Supreme Court in 2007, using the argument that collective bargaining had taken place with a committee of employee representatives, made the legislation unusable for the unions.

 

Under pressure from judgements on collective bargaining from the European Court of Human Rights, the government introduced  new legislation (the Industrial Relations (Amendment) Act 2015), which includes a definition of collective bargaining for the first time. To be accepted as collective bargaining under the terms of the Act, it must take place between an employer and a trade union or an “excepted body”. However, an excepted body has to be genuinely independent of the employer, and in judging whether this is the case, the Labour Court can take account of how its members are elected, the frequency of elections, the financing of the excepted body and the length of time it has been in existence.  Where the employer cannot demonstrate that collective bargaining either with a union or a genuinely independent excepted body has taken place, and 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 the Labour Court can act to impose appropriate terms and conditions on the employer. However, in assessing the terms and conditions to be imposed the Labour Court must consider the position at unionised and non-union companies and in comparable companies outside Ireland.  

 

However, although this legislation means that employers may be required to improve the terms and conditions of their employees as a result of a dispute with a union, it does not change the fact that there is no requirement for employers to recognise a union, if they do not wish to do so.

 

The EU directive on information and consultation (2002/14/EC), which gave employee representatives in companies with at least 50 employees the right to be informed and/or consulted across a range of economic and financial issues does not seem to have had a major impact. The Irish legislation implementing the directive, adopted 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 fall-back 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 were already agreements on information and consultation signed before the legislation came into force, they can continue, 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, means that the legislation appears to have had little impact. There was no change in the proportion of employees in workplaces with formal partnership arrangements, between 2003 (before the legislation) and 2009 (after the legislation). In both years the National Workplace Survey estimated it at 16%.[3]

 

There are no recent figures on the extent to which employees are represented at work by unions. 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.   However, these figures relate to 2009, a time when a third of employees (32%) were in unions compared with a quarter (24%) in 2018. It is likely that the proportion of employees in unionised workplaces has fallen to reflect the decline in the number of union members, but there are no statistics to confirm this.

 

Figures from Eurofound’s 2013 European Company Survey show that at that point 28% of establishments in Ireland with at least 10 employees had some form of official employee representation, either through the union or in some other way. The Irish figure is somewhat below the EU28 average of 32%. As elsewhere in Europe, larger organisations were much more likely to have such a structure than smaller ones. The survey shows that 80% of establishments with more than 250 employees had representation, and 52% of those with between 50 and 249 employees. In smaller workplaces in Ireland, those with between 10 and 49 employees, a quarter (25%) had employee representation.[4]

Numbers and structure

 

There is no set relationship between the number of trade union representatives and the number of employees. However, the Workplace Relations Commission’s  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 may sometimes be 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 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, particularly in the private sector (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 fall-back 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 fall-back 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 selection 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 by members at the workplace or appointment by a union official (Sector Organiser). 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 fall-back 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 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”.

 

Training rights

 

The Code of Practice states that, when a representative is appointed, the union “should provide relevant information, advice and training to employee representatives on their principal functions and duties”, and that the employer can provide additional training. It also says that employee representatives should be given “reasonable time off for … training courses which relate to their activities as employee representatives”. However, here, as elsewhere in the Code, no set amounts are stipulated.

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.

[1] Code of Practice on the duties and responsibilities of employee representatives Workplace Relations Commission

[2] Industrial Relations (Miscellaneous Provisions) Act 2004

[3] The National Workplace Surveys 2009, Volume 1, The Changing Workplace: A Survey of Employers’ Views and Experiences by Dorothy Watson, John Galway, Philip J. O’Connell and Helen Russell, National Centre for Partnership and Performance, 2010

[4] Eurofound (2015), Third European Company Survey – Overview report: Workplace practices – Patterns, performance and well-being, Figures for Table 44

L. Fulton (2020) National Industrial Relations, an update. Labour Research Department and ETUI (online publication). Online publication available at http://www.worker-participation.eu/National-Industrial-Relations.