From Socialist Voice, January 2006

The case for statutory union recognition

The issue of union recognition has once again come to the fore in the light of the recent dispute at Irish Ferries, where 543 potentially non-unionised eastern European agency crew will be employed directly in place of the previously employed unionised workers, and what might result in a form of effective de-unionisation.
    There has been—as noted in the previous edition of Socialist Voice—a general hardening of employers’ hostility against unions, displayed most obviously in the Irish Ferries case but also in other recent recognition disputes at Ashford Castle and Ryanair. Non-union Ireland continues to grow, particularly among transnationals and in the small-firms sector—areas where unions are finding it difficult to gain recognition. These difficulties have not been helped by the Constitution of Ireland, which, while allowing workers to join a union, places no corresponding compulsion on the employer to actually recognise this. The Industrial Relations (Amendment) Act (2001) and Industrial Relations (Miscellaneous Provisions) Act (2004), while providing options for unions that have been refused recognition by employers, do not deal with union recognition but with disputes over improvements in pay or conditions of employment. The legislation, in fact, explicitly excludes arrangements for collective bargaining. It is unlikely, therefore, to improve union access to work-places where the employers are determined to stay non-union and consequently is likely to have minimal influence in reversing the declining union density in the private sector.

The statutory approach

Issues surrounding recognition should not be underestimated. Recognition is an essential factor in helping unions grow. There is a cause-and-effect dynamic at work here, whereby the more unions gain recognition, the more likely they are to grow.
    The Scandinavian model provides a useful example of this. There the union recognition process involves an uncontested and automatic statutory recognition of a worker’s right to collective representation by a trade union for collective bargaining. While union density has declined throughout Anglo-Saxon economies in the 1980s and 90s, in the Scandinavian countries, where there is an automatic right to be represented, density has increased or, at worst, registered a negligible decrease. The ease with which Scandinavian unions are recognised seems to have contributed to the maintenance of their high levels of union density.
    A slightly different but equally interesting model of statutory procedure exists in Britain under the Employment Relations Act (2000). While this act has its weaknesses, in work-force coverage issues and the time gap between initiating recognition disputes and ballots, the trade unions’ evaluation of the procedures has been generally positive, and surveys carried out by the British TUC have revealed a growth in the number of campaigns to secure recognition as well as a substantial increase in the number of recognition agreements.

The arguments against statutory recognition

There are some, of course, who are legitimately wary of statutory intervention. Historically speaking, there has always been a suspicion of legal interference in industrial relations, with some preferring the so-called “voluntarist” route, whereby unions remain free to regulate the terms of the employment relationship without state interference.
    This is essentially a question of the state and who the state serves, which is an important argument, but it also crucially ignores some basic realities. The government (and indeed the European Union), through different legislation, is consistently intervening in regulating the individual and collective aspects of work as things stand—as in health and safety legislation, for instance. It is simply the case that one should not be opposed to state interference per se—at least certainly not when such legislation can be supportive of your own side’s interests.
    It shouldn’t be a question of intervention or no intervention but of the degree of intervention, in what areas, and for whose interests. A statutory procedure does not impose outcomes on industrial relations in the work-place, because these would still need to be determined by the bargaining power and negotiation skills of the union activists involved. Unions, through representing their workers, still remain free in the voluntarist sense to fight out the terms of employment.
    A second criticism of statutory recognition often cites the case of the United States, where, despite statutory union recognition under the Wagner Act, unions continue to face serious organising difficulties. But a closer examination of the history of the Wagner Act proves otherwise. On its introduction, in 1935, American unions represented only 13 per cent of the non-agricultural work force. In the five years subsequent to the passing of the Wagner Act, which gave American workers the right to organise in trade unions and made it illegal for managements to interfere with that right, union density doubled to 27 per cent and by 1945 reached a peak of 35 per cent. However, the American business class, who were opposed to the act from the outset, pushed, through friends in government, the Taft-Hartley Act of 1947, which, under its “free speech” provision, meant that American employers could actively campaign in union elections and seek to coerce workers away from union membership.
    Of course if statutory recognition is lobbied for, we can expect the usual suspects from IBEC, the PDs and the rest of them who will plead, “But what about the transnationals?”—which will allegedly run scared of such statutory intervention. But what about workers’ rights? And if these Intels and Hewlett-Packards have such wonderful employment practices, making unions irrelevant, as is so often claimed, then what have they to worry about in any case?
    Ultimately, statutory recognition can work. Scandinavia and Britain are good examples of this. The case of the United States is instructive in so far as it points to the importance of political and institutional support in either aiding or constraining the process. But this is very much a question of the labour movement finding the right friends politically, with the courage and conviction to stand up for workers’ rights. But of course that’s another day’s work!

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