From Socialist Voice, December 2008

State collusion with employers dilutes employees’ rights

The EU directive on information and consultation for employees was first raised by the European Commission in 1995 and was then formally launched as a legislative proposal in 1998. The directive formally became EU law in March 2002.
     However, the final Irish legislation was not transposed until 2006. Of interest is the fact that the Irish legislation was not agreed under “social partnership,” and there is now no mention of it in Towards 2016. Instead, the Government took submissions from various groups and then drafted the legislation. The resulting Employees (Provision of Information and Consultation) Act (2006) is widely viewed as a minimalist transposition of the EU directive. In particular, information and consultation rights are not automatic: 10 per cent of the work force must apply to “trigger” them, unless an employer voluntarily concedes. (See Socialist Voice, June 2006.)
     Recent research undertaken at NUI, Galway, into the transposition of the directive, however, finds that the Government, acting in collusion with employers’ associations and state development agencies, worked behind the scenes from 1998 to ensure that the law would placate international investors. The Irish Congress of Trade Unions was excluded from this process.
     The entire purpose of this exercise was to reformulate the Employee Information and Consultation Directive so that the legislation would not impinge upon the interests or prerogatives of managements.
     An indication of this is how Intel lobbied and met the Government on several occasions, suggesting numerous amendments to the legislation. The central message being articulated by US transnationals and their representatives was that inward investment would be significantly affected if such a “bad” piece of legislation ended up on the statute book.
     Of course there is a certain paradox in this, in that unions themselves were uncertain whether the legislation would be an opportunity to open up vistas of influence in non-union firms or a threat, as a form of union substitution by employers.
     Notably, however, employers and the Government were concerned that nothing in the directive would “cut across HRM [human resources management] practices of the Irish operations of US multinationals and thus damage FDI [foreign direct investment].” (Source: Department of Foreign Affairs, 1998.) An undated report by the Department of Enterprise, Trade and Employment revealed that the Government was “uncompromisingly” opposed to the directive from the beginning and sought a text that “permits us to do our own thing.” This report claims that the text the Government wanted was a weakened version, with significant changes that would appease the FDI lobby.
     The report summed up the Government’s strategy for dealing with enquiries on the topic by saying that they were “kicked into touch; ditto on parliamentary questions,” which “has helped limit discussion.”
     Before the publication of the draft EU directive, the Government urged that action be taken to contact the president of the European Commission and the Social Affairs Commissioner of the time; a handwritten internal note states that “there is good reason for contacts now with Commissioner Flynn and President Santer to advise prudence in relation to the proposed measures.”
     In the month before the publication of the draft directive an option was proposed to the Secretary-General of the Department of Enterprise, Trade and Employment, which was “to make clear representation to Commissioner Flynn that an initiative would not be helpful particularly as regards FDI. But bear in mind that the Commissioner already knows this; that it may emerge later that the Irish government made such overtures and that this will not help the partnership process.”
     Later in the same document the view is again expressed that it “will not help the partnership process, if the extent of opposition was publicly known.”
     In the light of this, the Government sought policy amendments to the directive in private while at the same time publicly promoting “partnership” at the company level.
     Later correspondence by the Department of Enterprise, Trade and Employment from 2001 reveals that the Government, in alliance with the governments of other countries, claimed to have secured “key concessions on the content of the Directive in 2001 as relayed in meetings with employer groups.” Among these are: “We have achieved some key improvements . . . a change from an absolute right being conferred to a right which is only conferred when a group of workers elect to claim the right . . . the requirement for enterprises to report on the ‘probable economic and financial situation’ of enterprises has been replaced by ‘probable economic situation’ only. This reduces the level of financial reporting obligations in the Directive.”
     This last point was specifically emphasised as a concern at a meeting between the Taoiseach, the Tánaiste and IBEC, at which it was stated that “the culture of multinationals must be respected and that prior consultation on financial decisions was not acceptable.” Further meetings were held with the US Chamber of Commerce in Ireland, Intel, and the Irish Management Institute, with the Tánaiste frequently assuring a meeting with the management of six transnationals that the Government was on their side and noting, “We have achieved some improvements.” Indeed, only days after political agreement was reached on the directive in 2001 the Tánaiste met Intel to update them on concessions that had been secured.
     The frequency of meetings with employers’ groups was in stark contrast to the number held between the department and the ICTU. The first was in 2003―almost four-and-a-half years after the directive was published. Indeed the department as far back as 2000 was aware that “outright opposition will put the government in conflict with the ICTU.” Instead the Government pursued a strategy of “no overt opposition . . . keeping a low profile at home.”
     In summary, the report demonstrates the influence and power of FDI companies in Ireland and their influence on political structures. Indeed IBEC and other employers’ groups had achieved considerable orientation of the contents of the bill long before the ICTU was asked for its views.

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