Prior to 2007 trade unions were able to rely on the Industrial Relation Acts to seek legally binding orders from the Labour Court, against non-unionised employers, who refused to engage in collective bargaining.  However, in 2007 the Supreme Court held that an employer 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 2015 Act changes this position.  Although Irish employers are still not obliged by law to engage in collective bargaining with workers, if they don’t engage, a legally binding order can be sought from the Labour Court.     

 

Changes in Collective Bargaining  

 

It is anticipated that the Act will result in a substantial increase in the referral of trade disputes to the Labour Court and non-unionised employers therefore face the risk of orders imposing employment terms.  The power of the Labour Court to investigate a referral under the Act exists where it is not the practice of the employer to engage in collective bargaining negotiations.

 

The Act introduces a new definition of collective bargaining, which comprises voluntary engagements or negotiations by an employer with either a trade union or an “excepted body”. In addition, any engagements or negotiations must have the object of reaching an agreement on wages or other conditions of employment. A trade dispute cannot be referred to the Labour Court where an employer engages in such collective bargaining. 

 

The “excepted body” must be independent and not under the control of the employer.  The burden of proof rests with the employer to show that such an “excepted body” exists. 

 

Also, the Labour Court cannot investigate a trade dispute where there is an insignificant number of employees involved, taking into account the total number of workers employed by the employer in that particular category.

 

The Labour Court can examine the remuneration and conditions of employment of the employees involved in the dispute. Significantly, the Court must now consider comparisons in both unionised and non-unionised employment in determining the adequacy of employees pay and conditions. The Act also provides that, in making a recommendation, the Labour Court must have regard to the long term sustainability of the employer’s business. 

 

The Act does not require an employer to recognise or to negotiate with trade unions. However, Trade unions are now in a position to refer valid trade disputes with non-unionised employers to the Labour Court. 

 

The Act is a major development for non-unionised employers and restricts their ability to disregard pressure from trade unions.