From Socialist Voice, April 2007

Supreme Court judgement in breach of ILO conventions

As the British Marxist Gerald Cohen explains, modern state institutions are driven towards the defence of private property; and it is this rationale that provides the state elites with both their main policy direction and their determinant ideological disposition.
     Undoubtedly, the judiciary and the courts have long performed an explicit role in realising these efforts. Since the inception of trade unionism the judiciary has played a malign role in the active repression and emasculation of such bodies.
     The recent Supreme Court judgement in Ryanair v. Labour Court has once again illustrated the inherent class prejudice of the Irish judiciary and its antipathy towards independent trade unionism. Attention in particular needs to be paid to its interpretation of what is an “excepted body” under the Trade Union Act (1941), which has significantly negative consequences for the recognition of trade unions.

The Ryanair dispute

In the Ryanair case the Labour Court decided that the company’s employee representation committee (ERC) for pilots was not an excepted body as defined in the 1941 act. It found that, as the employees apparently didn’t want to be represented by the ERC but by the trade union Impact, the ERC could not have the status of an independent excepted body or collective bargaining unit.
     The Supreme Court, however, found that not enough evidence was presented to support the union’s case. It argued that if these internal councils were formed under the same rules that guide the establishment of works councils, under the EU information and consultation directive, they would pass the test of being “fair and reasonable.”
     Where such a staff council does exist, the Supreme Court is clear: it is not enough for the employees who may have already operated the machinery of that council to simply walk away and say they don’t want to operate it any more.

Excepted bodies: no autonomy, no power

Under the Trade Union Act (1941) an excepted body is defined as “a body all members of which are employed by the same employer and which carries on negotiations for the fixing of wages or other conditions of employment of its own members (but no other employees).” Under the Supreme Court judgement, an excepted body has been interpreted to include the following criteria:
    (1) it was established at the behest of the employer;
    (2) it does not (unlike trade unions) require a negotiation licence;
    (3) it does not require the consent or participation of the company’s employees;
    (4) the withdrawal of employees has no impact on the continuing existence of the entity;
    (5) it can carry on collective bargaining negotiations with its progenitor employer.
     An excepted body, therefore, is one that is entirely a product of the employer, usually used as a union substitution device. As an instrument for maintaining and improving the conditions of employees’ working lives, its weaknesses are manifest. Workers’ representatives—regardless of whether they are elected by their fellow-workers or are appointed by the management—are employees of the undertaking. They cannot act with the same level of independence or freedom as union officials, because they are dependent on the company for their job and pay. Such company unions are notoriously a poor substitute as an effective check on employers’ power.
     Workers’ interests at work can be effectively guaranteed only through the right to exercise collective power through independent organisation. Without the ability to put concerted activity and muscle behind its collective voice, excepted bodies remain hollow shells.

In breach of ILO and freedom of association

Of particular interest is the fact that the International Labour Organisation, under Convention 98, considers any workers’ organisation established under the control and domination of the employer as an interference with the right of freedom of association.
     The ILO declares that the independence of trade unions is a prerequisite of effective collective bargaining. As a result, whatever individual or collective negotiations go on within an excepted body, these cannot constitute collective bargaining.
     The Supreme Court’s interpretation is therefore very much at variance with ILO standards, standards that the Irish government formally accepted in 1955. There is therefore a strong case for the Irish labour movement taking a complaint to the ILO Committee on Freedom of Association on the grounds that the Irish government and judiciary are acting in breach of Convention 98.

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