The Government’s action plan on collective bargaining will have no impact on the right of employers to refuse on-site access to trade union representatives, the senior legal director with employers representative group Ibec told an industrial relations conference in Dublin.
During a public discussion at the event with Siptu’s new general secretary, John King, on the issue, Pauline O’Hare said the question of access for trade union representatives to workplaces, whether physical or digital, “raises serious constitutional issues, where a company has exercised its right not to engage with the union, or negotiate with the union”.
The action plan, a requirement of the European Union (EU) Directive on Adequate Minimum Wages, requires that the various parties engage on the issue and sets a target on agreement with regard to access by the first quarter of 2028.
“Any initiative, whether in the action plan or not, is subject to all sorts of scrutiny, including legal and constitutional, O’Hare said at the conference held by Industrial Relations News.
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This did not mean the more than 20 proposals and targets set out in the plan, which was published at the start of November, would not be discussed “in good faith by the social partners”, she said but “the Constitution is what it is”.
“We have a voluntarist industrial relations landscape. And if you look at it, there is absolutely no entitlement to a right to access at EU level.”
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She said access was one of the issues that could be the subject of “scrutiny around feasibility” when the various stakeholders engage but “constitutionally, a company has a right not to engage”.
Pressed by the session moderator on whether, given all of that, the code “changes anything” on the issue of access, O’Hare, who has been involved in representing Ibec on this issue over a number of years, said: “Constitutionally, no, it doesn’t. Let’s see like how we roll out the actions around capacity building but no, it doesn’t change anything in terms of their requirement to do anything in that space.”
Speaking to The Irish Times afterwards, King said he was concerned to hear the constitutional rights of employers being raised in the context of the action plan.
“At the end of the day, we have an action plan, and the [Irish] Congress of Trade Unions is engaging with the department as Ibec are on behalf of the employers.
“But the department has a huge role to play here if they want that directive to have meaningful effect in this jurisdiction, to shift the dial on collective bargaining coverage. These issues have to be dealt with, and that means the Government are going to have to bring Ibec back into line on it. The matter has to be dealt with.”
He said a lack of access for union representatives to workplaces into the future would be “unacceptable” but would also highlight a big inconsistency in the industrial relations landscape.
“So within our jurisdiction, workers are constitutionally entitled to join aa trade union, the issue is around collective bargaining.
“But we’ve had a recent decision in the Supreme Court [H.A O’Neil Ltd v Unite the Union and others] that said it is not consistent that people join a trade union for the purpose of wanting to engage in collective bargaining ... but the state denies them the opportunity to exercise that right.”
