The Impact of Social Partnership and the Industrial Relations Act on Irish Workers Rights 2020, and the need for the leadership of the Trade Union movement to immediately accept and address the failings of past decisions - radically reform and reconstruct its thinking and approach, ratify and endorse new organised steps and measures to realign workers throughout the country and begin a process of restoring the years of lost ground pertaining to workers rights, in both a strong presence on the ground and the achievement of proper legislation to protect the very future of the movement - has now become an integral and essential necessity.
The alternative is to continue with and be part of a failed process, whereby Congress and the trade union leadership in the eyes of the majority of the rank and file, and indeed the greater public have become nothing more than another arm of the state, all too willing to endorse and support what has now become an endless reduction in prior achieved and hard fought rights.
Furthermore, in their actions they have fully bought into and promoted a system that actually weakened the resolve of the membership on core issues. And using the principals of facilitation and mediation at every turn actually defeated the original stand made on any issue. In return at almost every test, what was believed and packaged to be a great success has been struck down on numerous occasions as repugnant to the constitution, and has actually proved worthless.
It is important to remember that trade unions are presently obliged to operate within a restrictive legal and constitutional framework partly of their own making, The buy-in at Bertie's behest by the then and subsequent trade union leadership into the social partnership model brought about what can only be the described as a slow growing cancer to the movement: three decades of centralised wage agreements that effectively removed the power of the worker from the shop floor to the ivory towers of the so called people who knew best. Industrial peace was promoted and the unions became the free HR department of the employer. Low tax policies and small pay awards became the norm and were packaged and sold to the members as the wise leaders' answer to all.
With the low taxes came the underfunding and privatisation of our essential services like health, transport, education, water and of course, housing. The Unions after buying into and recommending the process found themselves defending and actually guarding the partnership on behalf of the other so called partners. They now found themselves telling members want they could not do on a daily basis. The rot had set in. But rather than pulling the plug, the leadership had become too friendly with their new found friends, too comfortable sitting in the soft chairs in the big plush offices. They had long forgotten the long, nasty, hard fought battles it took for them and their like to get to even be sitting at that table.
Add to this lovely mix, that after all those years of so called partnership the trade union movement have still to this day not achieved proper legislation on mandatory collective bargaining rights. Some partnership?
The industrial Relations Act and all of its amendments has consistently being sold as another prize for the benefit of workers,. Yet when it has been tested within the judicial arena if has failed at all the important hurdles - REOs were deemed to be unconstitutional, Registered Employment Agreements’, ‘Joint Labour Committees’ and ‘Sectoral Employment Orders’. all have been found to be unconstitutional.
The constant tinkering at the Act in its present format is nothing more than a window dressing exercise for a failed entity, Furthermore, to take it a step further, any collective agreement in any employment naturally falls under the same remit. The freedom of contract and freedom of association as defined, and now consistently upheld in the Supreme Court and the High Court, clearly leaves the option open for employees who are non-union - or other, and who were never part of a process of discussion and agreement, and never balloted on acceptance - to freely challenge any enforcement of such a collective agreement within their contract of employment and terms and conditions as being unconstitutional. It is worth noting to date no collective agreement has been challenged to the High Court, mainly because the in-house agreements generally ensured improved terms and conditions. However in recent years it has become too often that the terms of new collective agreements actually reduced the terms and conditions. Not too long I think before we see a High Court challenge from a grouping of disgruntled employees.
Why you might ask does the trade union movement find itself in such a quagmire? Quite simply that in spite of this great partnership, and great friendship between the government, the employers and Congress - and indeed the leadership of all the big unions - over decades now and with all the might and strength of our great membership and leadership, we have failed to have mandatory collective bargaining legislation drawn up, and passed in Dail Eireann.
Our present whole labour legal legislation is based on a voluntary buy-in. And in all those decades the might of the trade union movement on this island has not yet managed to influence any government to have a mandatory collective bargaining trade union act, created in legislation, placed before, voted on, and passed in Dail Eireann.
Rather the present wisdom coming from the marble halls of Congress and indeed the major union block to the most recent High Court finding went as follows: the government must appeal this decision to the Supreme Court and put a stay on the High Court decision; we must now ballot all of our members for impending industrial action, was the war cry from some of our leading lights.
Let us just for one minute examine this light bulb response from our highly paid leaders, none of which will be actually impacted by the High Court decision in their take home pay.
The High Court decision ruled out the Sectoral Order because it was repugnant to the Constitution, in that decisions by a minister or the Labour Court could not interfere with the protections of freedom of association and freedom of contract as protected and guaranteed under article (Article 15.2.1).
Now a quick chat with any young barrister who has just left the Kings Inn on his way to carve out a well heeled life on other people’s problems, you can be told a couple of things very smartly: any appeal of a High Court decision on a decision of repugnancy of the Constitution will have very little hope of success. Furthermore, it will probably take two years to hear. And, more importantly, no stay can be put on a High Court decision because of the finding of an infringement of constitutional rights.
The actual only way to overcome the ruling is by way of referendum. Some chance of that happening.
So the question must be asked - just what games are the brains of the trade union movement playing with the membership? Then we have the ballot the members for industrial action war cry, just for what? To march the troops up to the top of the hill, then be referred to the WRC to mediate and facilitate for what? And on what? And achieve actually what? Because the minister, the Labour Court and the WRC still will be without the authority to enforce anything that infringes on the protected rights of the Constitution. Some plan all right.
England has the Employment Relations Act 1999, introduced by a Tony Blair-led government which introduced Trade Union recognition legislation for firms with more than 20 employees where a simple majority of the relevant workforce wanted it. France, Belgium, the Netherlands, Spain, Italy. Portugal, Sweden, Luxembourg, Germany and Austria all provide for collective bargaining machinery as nations at all levels. Serious questions must be asked of our leadership when we find ourselves in this present position.
It is often said Unions are only as good and as strong as the members; fair comment would be the national membership have become too complacent and accepted a lackluster ageing leadership who have become far too comfortable in their plush surroundings. The restrictive democratic process of the trade union model indeed has also certainly played a major part in what the movement has become. Also any discerning voice, even when it made sense, was quickly silenced and shunned in a totally negative fashion.
This cannot be allowed to continue, A complete root and branch overhaul of the movement in its entirety is now required. The membership must stand up and be counted and demand this takes place in an open and transparent way, and quickly if the movement is to survive.
The elephant in the room has to be tackled. Draft legislation has to be prepared, The Trade Union Act, 2020, enshrining the trade union right to access and representation of choice, and ensuring the legitimacy of collective agreements is not open to endless challenge. If a referendum is required to support this act, so be it. At least then when we march the troops to the top of the hill, we have a plan. Furthermore, a plan we will not mediate backwards on. Whatever action is required it must take place to achieve the goal.
Governments and Employers were never the workers friend. It was naïve to ever think otherwise. It is time we returned to the founding principles of Connolly and Larkin. Their aims and wishes are still unfinished business. Let us together as a movement again make them proud.