From Socialist Voice, January 2008

Legislation and trade unions: A brief history (part 2)

In part 1 we saw how collective labour law is used by the state to circumvent workers’ organisations. We now turn to individual labour law and in particular the law governing dismissals.
    Forest [1980] argues that “individual employment law is every bit as political as its collective counterpart.” “Throughout most of history, the regulation and control of labour has proved to be one of the darkest and most controversial episodes of our legal heritage” [Eardly, 2002].
    Individual employment rights can appear to be pro-worker, but the consequence can weaken workers’ propensity to organise collectively and thus render them vulnerable to the forces of capitalism in the long term. This arises because workers may oppose collective action if all other alternatives are not exhausted, e.g. the referral of a dismissal to the Employment Appeals Tribunal. As willingness to engage in collective action over an issue is not a storable commodity, it frequently withers with the passage of time.
    Unions, therefore, can be caught in a dilemma. They support legislation that facilitates their right to exist, bargain, and strike [McIlroy, 1988]; beyond that, however, a reliance on the law, McIlroy [1988] contends, “could sap union independence and . . . if the state played too great a role in providing rights for workers they might question the rationale for union membership.”
    Francis D. Murphy [1999], as Supreme Court justice, asserts similar views to McIlroy’s. “The position is now, ironically, that individuals have obtained as a result of the activities of their trade unions rights and protections which make it less important for them to depend upon the loyalty and solidarity which had been the hall mark of trade unionism.”
    Historical evidence of such a paradox exists. According to Redmond [1999], it has “taken a long time for the law codes anywhere to recognise that a man’s [sic] work is akin to his property.” This was first ratified by the International Labour Organisation in 1963, when that organisation put forward the concept that unfair dismissals should be subject to legislation [von Prondzynski and McCarthy, 1989]. Ironically, the ILO was established after the First World War to offer workers an “alternative to Bolshevism” [Murry, 2003].
    American unions in the 1980s, and 77 per cent of affiliates to the TUC in Britain during the 1960s, criticised the prospect of legal employment protection, because it could undermine the attraction of trade unions [Dickens et al., 1985]. Butler [1998] notes that when the Unfair Dismissals Act (1977) was introduced in Ireland there were similar criticisms and that “the introduction of a right of an individual employee to sue his particular employer and claim a remedy for unfair dismissal has shifted dismissal from being a collective to being an individual issue.”
    Dickens et al. [1985] concur and state: “Industrial action has an immediacy which statutory procedure lacks and offers the chance to impose workers’ definitions of ‘fairness’ or to negotiate such definitions rather than accept those of a ‘reasonable’ management backed by law. If successful, it results in re-employment.”
    Lockton [1996] submits that the reason for the introduction of unfair dismissal legislation in Britain was that by 1970 “there were a great many unofficial strikes, many of which were in protest against dismissals.” In Ireland similarly the debate in 1977 was not about the state’s obligations under its membership of the ILO but the fact that 25 per cent of strike days in the years previously were due to strikes arising out of dismissals in the preceding years [Redmond, 1999].
    The state’s intention in reducing industrial unrest by enacting the Unfair Dismissals Act was successful. In a comparison of strikes over dismissals in the nine years before and after 1977, Murphy [1989] shows that official strikes fell by 23 per cent and unofficial strikes by 35 per cent.
    Until the enactment of the Industrial Relations Act (1990) a union had the freedom to decide to contest a disputed dismissal by collective industrial action or an individual referral under the Unfair Dismissals Act. The presence of this freedom to engage in industrial action provided some restriction on employers in arbitrarily dismissing workers. The legislation now requires that agreed procedures for dealing with individual disputes, including dismissals, have been resorted to and exhausted.
    In some cases it can be more than a year before the procedure is exhausted, and the dismissed worker has the common law duty to mitigate their loss by seeking other employment in the meantime. This time lag, and frequently the fact that the dismissed worker has secured other employment, severely curtails the possibility of any collective action from their colleagues when eventually procedures are exhausted.
    Furthermore, when we consider these cut-price dismissals as an employer’s tactic for curtailing or even eliminating union activity in the first place, Kelly [1998] has argued that the “repression of potential or actual union activists can also be critical in demobilizing workers and despite a law prohibiting [the] discipline and dismissal of employees on grounds of union activity, there is some anecdotal evidence that in industries such as hotels and catering union activists have been illegally dismissed . . .”
    Is it any wonder that Peter Cassells, as general secretary of the ICTU when the Industrial Relations Act (1990) was enacted, observed that “trade unionists don’t like dealing with the law . . . Laws which claim to protect workers may in reality restrict them” [ICTU, 1990].
[JC]

References

Butler, N., Notes on the Unfair Dismissals Act, Dublin: UCD Press, 1998.
Dickens, L., et al., Dismissed: A Study of Unfair Dismissal and the Industrial Tribunal System, Oxford: Basil Blackwell, 1985.
Eardly, J., Bullying and Stress in the Workplace, Dublin: First Law, 2002.
Forest, H., “Political values in individual employment law,” Modern Law Review, vol. 43, no. 4 (July 1980), p. 361–380.
Irish Congress of Trade Unions, Industrial Relations Act (1990): A User’s Guide, Dublin: ICTU, 1990.
Kelly, J., Rethinking Industrial Relations: Mobilization, Collectivism and Long Waves, London: Routledge, 1998.
Lockton, D. J., Employment Law, London: Macmillan, 1996.
McIlroy, J., Trade Unions in Britain Today, Manchester: Manchester University Press, 1988.
Murphy, F. D., Foreword in C. Maguire, Trade Union Membership and the Law, Dublin: Round Hall/Sweet and Maxwell, 1999.
Murphy, T., “The impact of the Unfair Dismissals Act (1977) on workplace industrial relations” in Industrial Relations, Dublin: Department of Industrial Relations, UCD, 1989.
Murry, A., A New Labour Nightmare: The Return of the Awkward Squad, London: Verso, 2003.
Redmond, M., Dismissal Law in Ireland, Dublin: Butterworth, 1999.
Von Prondzynski, F., and McCarthy, C., Employment Law in Ireland, London: Sweet and Maxwell, 1989.

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