From Socialist Voice, June 2006

New employee consultation law
no substitute for union muscle

The Employees (Provision of Information and Consultation) Act (2006) is soon to be transposed into Irish law. Based on an EU directive of 2002, the act is designed to set out minimum rights by employees to information and consultation but is a very timid approach to dealing with the growing representation gap in many work-places.
    However, at a surface level this is something of a new departure for Irish industrial relations, given that under the voluntarist system we were one of the few EU member-states without a generally applicable system of information and consultation through works councils or similar bodies established by law or by central collective agreement.
    At one level, the introduction of this legislation can be viewed receptively as offering new possibilities to trade unions—primarily in helping to secure a strong foothold in already unionised companies but also in providing an opportunity for gaining some influence over collective representative structures in non-unionised work-places.
    However, in transposing the directive into law, the government has, not surprisingly, adopted a minimalist interpretation of the provisions. The American Chamber of Commerce in Ireland—which represents the interests of large US-owned transnational corporations in Ireland—together with the organised business interests in IBEC, has left its imprint on the act and has minimised any potential for encroachments on management prerogatives. This is largely due to the fact that many employers were afraid that the original EU directive could potentially open the door for de facto union recognition in previously non-union firms.
    However, in looking at the minimalist provisions it is clear that the bosses had little to fear. The government’s minimalist interpretation of the directive is most obvious in the provision that an information and consultation body, rather than requiring employers to provide workers with an automatic right to such a body, can be set up in a work-place only if 10 per cent of the workers call for it. Clearly it will take a brave and determined group of workers, particularly in non-union companies, to call for such a body. For a start, they are likely to face various hurdles when attempting to trigger the procedures and may have to fight to secure information and consultation rights.
    Many trade unionists are also of the view that there is no provision in the legislation for satisfactory protection or redress for an employee who is victimised as a result of having sought the establishment of such structures in their place of employment.
    In the main, however, few employers are likely to volunteer to introduce such arrangements, unless they can perceive an advantage in so doing; and outside the trade union “heartlands,” workers in non-union firms may be largely unaware of these new rights, so making the act something of a lame duck.
    Employers might be quick to embrace the structures for information and consultation, however, in non-unionised sites or in partially unionised sites (for example where there are union members but recognition has not been granted), or in unionised sites where the employer wants to bypass the unions. The act raises the possibility of non-union consultation forums ending up in competition with trade union structures, particularly in sites where unions are hoping to organise. In fact the new act disconnects union-based structures from the representative structures of information and consultation, giving statutory support to a second channel of communication, from which trade unions are excluded, even where they are recognised or have members.
    For many non-union workers, these types of bodies are in any case a poor substitute for a trade union voice. Effective sanctions, such as the ability to use industrial action against the company and other forms of resolute activity to put muscle behind workers’ collective voice, are completely absent. Indeed such bodies are frequently constructed and controlled by employers, largely as a means of stonewalling potential unionisation, and have little or no independent power to protect workers’ rights.
    At a time when a recent UCD study has shown that non-union employees would be prepared to join a trade union to such an extent that this would ultimately translate into a union density of up to 71 per cent—twice the present level—those who are interested in enhancing workers’ rights and representation might be better off looking elsewhere than the new act.


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