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Commentators have argued that the effect of this legislation is to force employers to recognise trade unions against their will as there appears to have been a move away from the traditional voluntarist approach to negotiations with trade unions towards a compulsory approach. Two recent cases involving Ashford Castle and Ryanair demonstrate that certain employers intend fighting this move “tooth and nail” and are prepared to go as far as taking judicial review proceedings to challenge the Labour Court’s decisions made under the legislation. On its face, the legislation only applies where other avenues for resolution have been exhausted. The Labour Court can only investigate trade disputes in certain circumstances and these are set out in section 2 of the 2001 Act as amended. It can only investigate where it is satisfied that :- It is not the employer’s practice to engage in collective bargaining negotiations in respect of the particular category of workers which are party to the trade dispute, and where the internal dispute resolution procedures (if there are any) normally used by the parties have failed to resolve the dispute. The employer has failed to observe a provision in the Code of Practice on Voluntary Dispute Resolution specifying the period of time for doing anything or any agreement by the parties extending that period of time. The dispute has been referred to the Labour Relations Commission for resolution in accordance with the provisions of the code and no further efforts on the part of the Commission will advance the resolution of the dispute. The trade union has not acted in a manner which has frustrated the employer in observing a provision of the code of practice and The trade union has not had recourse to industrial action after the dispute in question was referred to the Commission. There was an analysis of these requirements in the Labour Court’s determination in the case involving Ryanair. These are the prerequisites for the Labour Court having jurisdiction to deal with a matter. However, once it decides that it has jurisdiction it exercises certain powers. It can make a recommendation giving its opinion in relation to a claim and where appropriate its view as to the action that should be taken. It cannot give a recommendation in respect of collective bargaining. Where a dispute that is the subject of a recommendation has not been resolved it can at the request of the trade union and following a review by the Labour Court make a determination. If that determination is not complied with, the trade union can apply for enforcement of it by the Circuit Court. In that context, the employer has no right to be heard by the Circuit Court. The Ryanair case provides an interesting analysis of the jurisdictional and substantive powers of the Labour Court in this regard. Trade Dispute The Labour Court applied the definition of trade dispute in the Industrial Relations Act 1946. This includes not just a dispute but “a difference”. It found that a difference existed between the pilots who were represented by a trade union and Ryanair concerning their terms and conditions of employment and that this difference constituted a trade dispute for the purposes of the Act. Collective Bargaining Ryanair submitted that it engaged in extensive collective bargaining with its employees. The Court found that on analysing the situation that it consulted with its staff but it did not engage in collective bargaining within the meaning of the Act. Internal Procedures Although Ryanair has certain internal procedures, these were not found to be operative in the circumstances. It is the decision on jurisdiction in this matter that has been challenged by Ryanair. However, this decision has to be seen against the background of recent High Court cases involving Ryanair and a number of their pilots. The Ashford Castle case went further in that the employer (Ashford Castle) had submitted to the Labour Court that its recommendation was granted on unsound and incomplete information. The Court said that if that was the case it could make an appropriate modification to its determination. The view of a number of commentators is that the High Court and the Supreme Court would be reluctant to overturn such determinations because the Labour Court is a specialist Court in this area. Conclusion The legislation does not go as far as requiring that an employer must recognise a union. However, it is a tool in the armoury of unions. It will be interesting to see the outcome of the High Court challenges to these determinations.

 

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