The 1990 Industrial Relations Act was the most comprehensive piece of legislation in the area of industrial relations in the history of the state. It has had a profound effect on the ability of trade union members to take effective strike action and many of its ramifications are only now becoming clear. In this article I propose to examine the historical background to the Act, the changes it has brought about and the reasons for its enactment.
Throughout the early years of the state, trade unions operated under 5 old British laws - the Trade Union Acts (1871), (1876) and (1913), the Conspiracy and Protection of Property Act (1875) and the Trades Dispute Act (1906). It was the 1906 Act which extended immunities from litigation to trade unions and effectively conferred the right to take industrial action on workers.
In 1935 a Trade Union Act was passed which allowed unions to own more than one acre of land.
On 30th April 1941, Sean McEntee published the Trade Union Bill (1941) which made negotiating licences obligatory for all unions and established a tribunal which could give exclusive negotiating rights to one or more unions in any particular employment. This Bill followed extensive consultations with William O'Brien of the Irish Transport and General Workers Union (ITGWU), the then president of the Irish Trades Union Congress (ITUC). Despite this consultation however, the ink was barely dry on the bill when McEntee enacted Emergency Powers Order No. 83, forbidding employers from making any pay increases and removing immunities from any strikers seeking pay increases. Unions could negotiate but pay increases were illegal! Workers responded with anger and there followed a 3-month campaign of street protests but despite this the Trade Union Act (1941) passed into law.
However in August McEntee was replaced as Minister by Sean Lemass. Lemass was forced to respond to the workers' demands and he quickly amended the Emergency Powers Order to allow pay rises for certain groups of workers.
Lemass introduced two further pieces of trade union law. The workers did not need a negotiating licence for negotiations with their own employer and put in place appeals machinery on the issue of sole negotiating rights. The Industrial Relations Act (1916) established the Labour Court and set up Joint Labour Committees for "the sweated trades".
In July 1946, in a case taken by the National Union of Railwaymen (NUR), the Supreme Court ruled that the sections of the 1941 and 1942 Acts allowing exclusive negotiating rights were unconstitutional. In 1950 McGilligan, the Minister for Finance, introduced a system of conciliation and arbitration for the Civil Service - where workers were denied access to the Labour Court.
Two Supreme Court cases in the '50s (1954 and 1958) narrowed the definition of the term "worker" as used in the 1906 Act. This had the effect of excluding Public Servants and some other workers from the immunities extended in that Act.
In 1966, Paddy Hillery introduced a comprehensive Trade Union Bill whose main points included:-
- union rules would have to include provisions for a ballot before strike action
- a majority of all workers in a workplace would be required to authorise strike action
- 1906 Act immunities would not apply to unofficial action but would cover all workers involved in official action
- picketing of employers' homes would not be allowed.
This Bill was heavily criticised by the Trade Union movement and Hillery was eventually forced to withdraw it. In doing so, he made a statement which today's union leaders would do well to take note of -
"the only law that will work is that in which trade unions co-operate.'"
The late 1960s saw prolonged industrial unrest, culminating in the craftsmen's dispute of 1968/'69 which at its height included over 30,000 workers and a seven-month bank strike in 1970.
The State had to put an end to this outbreak of militancy and in 1970, following a breakdown in pay talks at the Employer- Labour Conference, the government introduced a bill to curb pay increases. The Irish Congress of Trade Unions (ICTU) responded with a surrender. When a National Pay Agreement -the first of a decade long series- was agreed, the Bill was withdrawn.
The Trade Union Act (1971) amended the rules on negotiating licences and deposits and in 1975 Michael O'Leary introduced a Bill which encouraged amalgamations. During O'Leary's time as Minister, the Unfair Dismissals Act and the Employment Equality Act both became law. The Industrial Relations Act (1976) gave agricultural workers access to the Labour Court.
Throughout the '70s ICTU sporadically lobbied for a change in the law which would give Public Servants the benefit of the 1906 Act immunities.
In May 1978 Fianna Fail Minister for Labour Gene Fitzgerald began the process which was to finish up with the 1990 Industrial Relations Act by establishing a "Commission of Inquiry on Industrial Relations". However, just over a year later, his plans appeared to be thrown into chaos when ICTU withdrew from the Commission, protesting at the government's continued failure to bring forward legislation to deal with the effects on Public Servants of the 1954/'58 Supreme Court judgements.
The Commission's report was published in 1981 and met with severe criticism. Eventually in 1982 Gene Fitzgerald published the Trade Dispute (Amendment) Act which extended the 1906 immunities to all workers except Gardai and members of the army.
The process of 'consultation' resumed and in 1985 Ruairi Quinn published a "Discussion Document on Industrial Relations Reform' However it was only in 1987 when Fianna Fail returned to government that discussions got under way in earnest. The "Programme For National Recovery" (October 1987) stated on page 27
"The Minister for Labour will hold discussions with the Social Partners about changes in industrial relations"
Within a year Bertie Ahern produced "Proposals for Industrial Relations Reform" which provided the basis for the Industrial Relations Bill (IRB), published in December 1989. This Bill was given almost unanimous welcome by ICTU. Peter Cassells (ICTU General Secretary) was quoted in Industrial Relations News (IRN) No. 47 (14/12/89) as saying that
"....if it worked properly it would make a positive contribution to the development of good industrial relations in Ireland."
With minor amendments, the IRS became the Industrial Relations Act (1990) - the offspring of a decade of 'consultations' and discussions between government, employers and unions.
The 1990 Act repealed the 1906 Trades Disputes Act in its entirety and re-enacted most of its provisions but modified them in such a way as to tilt the legal balance away from workers.
The sections of the Act which are most likely to impinge on workers taking action are:-
and set out its terms of reference.
An "employer" is defined in the Act as
"...a person for whom one or more workers work or have worked or normally work or seek to work having previously worked for that person. "
In most cases, the employer will actually be a company. It would appear from this definition that if a company sacked its workforce and re-opened as a 'new' company, the workers could not picket as they had not "previously worked for" the new company. To my knowledge, this scenario has not yet been tested in court but in a similar case the owners of "Judge Roy Beans" pub/restaurant were granted an injunction restraining picketing in April 1991. Six workers - members of the Irish National Union of Vintners, Grocers and Allied Trades Assistants (INUVGATA) - had been employed by the previous owners of the pub but the new owner - Westman Holdings - claimed that they could not picket because he was not their "employer.
In another development, Michael J. McNamara Builders were granted an injunction. Fourteen members of the Building and Allied Trades Union (BATU) had been let go at one of the company's sites although there was still work for them. The company claimed that there was no hope of the workers being employed again and therefore McNamara could not be defined as their "employer".
There is also some uncertainty about the definition given to a "worker" in the Act. A "worker" is
".....any person who is or was employed..."
This raises doubts as to whether contract workers are covered. Given the growing trend towards personal contracts, this is another issue which could yet end up before the High Court.
"Industrial Action" is defined as
"....any action which affects.....the terms or conditions......of a contract."
This includes all forms of action including overtime bans, works- to-rule etc. and its ramifications only become clear when it is taken in conjunction with the rules on secret ballots, which I will deal with later.
One of the basic principles of Trade Unions has always been that "An Injury to one is an injury to all". However, the Industrial Relations Act rules out any industrial action over an individual grievance, unless exhaustive procedures have first been followed through. These `procedures' can involve use of the Unfair Dismissals Act, the Employment Appeals Tribunal etc. and could take anything from 4 to 6 months. Thus it will be impossible for workers to take quick decisive action in support of a sacked colleague. While the ICTU pamphlet "Industrial Relations Act 1990: A User's Guide" states that
"...it is not possible to predict with certainty how this will be interpreted by the courts."
we all know that the courts do not have a record of intervening on the side of the worker.
This section of the Act will give a free hand to anti- union bosses to ride roughshod over the rights of workers. If a worker attempts to organise his/her colleagues to join a union, the individual can be targeted by the employer and the other workers will be powerless to prevent his/her dismissal. Similarly if an employer changes unilaterally the terms or conditions of one worker's employment and the other employees are prohibited from protesting in any way, a precedent can be established for attacking the rights of all workers in the employment.
The strength of trade unions has always lain in their cohesive, collective nature. Trade unionists have never conceded the existence of 'individual' cases but have operated on the basis of unity being strength. Section 9(2) of the 1990 Act could prove to be the weapon with which anti-union bosses will divide and conquer us.
Section 11 of the Act introduces a number of changes to the laws regarding picketing. Section 11(1) states that it is lawful for workers
"...acting on their own behalf or on behalf of a trade union.....to picket.....a place where their employer works or carries on business..... "
Section 11(3) says that
".....it shall be lawful for a trade union official to accompany any member of his union...."
on a picket. A "trade union official" is defined in Section 11(5) as
".....any paid official of a trade union or any officer of a union or branch of a union..."
This has the effect of limiting picketing to employees of a particular company (and their officials). It rules out solidarity picketing even by members of the same union. Its consequences will be felt most severely in small workplaces and in employment's where only a minority of workers are union members. Take for example the "Japan" boutiques dispute which lasted for over 5 months (January - May 1993). For most of the dispute there were only two strikers who had to maintain a picket on two shops (on Henry St. and in the ILAC Centre) for six days a week, including late opening hours. In this dispute, because of the determination of the workers involved, the picket was maintained. Some branch officers of the union concerned - Irish Distributive and Administrative Trade Union (IDATU) - did give tremendous support on the picket line but the law prevented rank-and-file trade unionists from IDATU or other unions from picketing. If the type of picket line support that had been organised for the Dunnes Stores anti-apartheid strike, for example, could have been used the strike would have been won in a matter of weeks.
In the past, solidarity picketing has proved most useful to workers fighting for union recognition. Since the passing of the 1990 Act, there have been several strikes against viciously anti-union bosses. These have included Letts fish processors in Wexford, Nolan Transport in New Ross and Pat the Baker in Dublin. In all of these cases, the workers on strike have had to fight with one hand tied behind their backs because of the legal obstacles to the organisation of mass pickets which could have shut down the union busters.
Under the 1906 Trades Disputes Act there was no distinction drawn between primary and secondary picketing. All that was required was that the picket be in contemplation or furtherance of a trade dispute. While it is true to say that the courts took a very limited view of what was permissible, the new Act goes much further. Section 11(2) permits secondary picketing
".....if, but only if, it is reasonable for those who are so attending to believe.... that that employer has directly assisted their employer....for the purpose of frustrating the strike...."
This Section of the Act makes it practically impossible for strikers to mount a legal secondary picket. How can you prove that the second employer has "directly assisted" your employer? And how will you prove that he/she has done so for the express purpose of "frustrating the strike"?
ICTU's "User's Guide" says (Page 20)
"The mere fact that employees of another company are passing the picket line in order to carry out work for the employer in dispute would not in itself leave that company open to secondary picketing."
If these workers are doing work which is normally done by them, their employer could not be said to be attempting to "frustrate" the strike Furthermore, employers who take up extra business as a result of a strike by supplying the customers of the employer in dispute cannot be targeted. Unless you can prove that your boss has asked the second employer to supply his/her customers, it would not be "direct assistance".
One of the groups of workers who will feel the effects of this section of the Act most severely will be the tens of thousands of workers - mainly women - who are employed in the contract catering and cleaning services. Take for example the University College Dublin (UCD) cleaners' dispute in the mid-'80s. The contract company with which the workers were employed was replaced. The workers picketed UCD demanding to be taken on by the new contractor. If a similar scenario were to take place now, the workers would not be allowed to picket their place of employment (UCD). This would be secondary picketing because the workers' place of employment is not
"...the place where their employer works or carries on business...." (Section 8)
Further UCD could not be said to have
"..assisted the employer.....for the purpose of frustrating the strike."
So in fact, a group of workers faced with this situation would have no legal way in which to fight for the retention of their jobs.
And what if an employer hires a self-employed contractor to do some of the work normally carried on by workers on strike? Because this person is self-employed, he/she cannot be picketed as he/she does not fall within the definition of "employer" in Section 8 of the Act.
Trade unionists have always shown solidarity with workers on strike by refusing to handle scab goods (blacking). While the legal position on blacking has been somewhat unclear since the Talbot case in April 1981, nevertheless - before the 1990 Act - most unions would instruct their members not to handle goods from a company in dispute. The new Act appears to make things more difficult. Section 12(c) makes it illegal to interfere with
"...the trade, business or employment of some other person, or with the right of some other person to dispose of his capital or his labour as he wills."
This section of the Act was used in the River Valley Product' dispute (February 1991). The strikers' union SIPTU instructed its members in Roches Stores and Quinnsworth not to handle River Valley produce. The company sought, and were granted, an injunction rest-raining the union from interfering in their business
"...in any mode whatsoever."
The effects of this are quite serious. For example, in the Pat the Baker strike, it is not legal for the union to issue leaflets calling on the public to boycott the company's products as this would constitute an interference in their trade. Indeed Pat the Baker have threatened SIPTU with legal action over the "Use your Loaf" leaflets even though these leaflets do not directly call for a boycott.
However while blacking has been made more difficult by the 1990 Act, it is by no means impossible. The secret is to look on blacking as "industrial action". ICTU's "User's Guide" states
"A refusal to handle goods or services (a blacking) in support of other workers on strike, would be regarded as industrial action and before a union could instruct its members to take such action, it would have to have a ballot of those likely to be called upon to support it."
Therefore, in relation to the Pat the Baker case, there is nothing to prevent the two main unions which organise Quinnsworth and Crazy Prices workers - SIPTU and IDATU - from organising a ballot of their members in these shops and campaigning vigorously for a vote in favour of blacking Pat the Baker produce. Provided the rules for balloting and serving of notice are adhered to (see below) a complete and legal boycott of the scab bread could be organised in the space of two weeks.
Section 14 of the 1990 Act represents perhaps the most gross intrusion in internal trade union affairs ever. Not alone does it lay down strict guidelines on the holding of secret ballots before any form of industrial action - no matter how minor - but it also requires that these procedures be written into rule books. Any union which failed to amend its rules to incorporate Section 14(2) of the Act by July 1992 stood to lose its negotiating licence.
Section 14(2) (a) states
".....the union shall not organise, participate in, sanction or support a strike or other industrial action without a secret ballot, entitlement to vote in which shall be accorded equally to all members whom it is reasonable at the time of the ballot for the union concerned to believe will be called upon to engage in the strike or other industrial action."
This provision is taken almost word-for-word from Thatcher's infamous anti-trade union legislation and was described by none other than the current Minister for Enterprise and Employment, Ruairi Quinn, as "Ceausescu-land" when the Act was being discussed in the Daîl.
Nobody appears to know how this "entitlement to vote" should be "accorded equally to all members". If a ballot is taken after a meeting, have you afforded their `equal entitlement' to those members who couldn't be bothered turning up at the meeting?
Neither is it clear in all cases who should be balloted. Speaking at a conference organised by the Irish Society for Labour Law in July 1991, UCD lecturer Tony Kerr said
"The inclusion (in the ballot) of persons who it is not reasonable to believe will be called upon (to take part in the action) will invalidate the ballot as will the non-inclusion of those whom it is reasonable to believe will be called upon."
Where should the line be drawn? In employments such as Irish Rail, for example, will it be necessary to ballot all rail workers on something which might be a minor local dispute? And then will all rail workers have to take action for fear that otherwise the ballot will be declared invalid?
This provision will almost inevitably lead to a greater use of postal ballots as it will be argued that this is the only way to ensure that all members get their 'equal entitlement' to vote. Workers will vote at home, without hearing the arguments for and against - a total negation of all democratic principles and of collective participation in trade union affairs, leading to isolation and lack of confidence.
Section 11(2)(b) raises more worries. The union must take
"...reasonable steps to ensure that every member entitled to vote in the ballot votes without interference from, or constraint imposed by, the union or any of its members, officials or employees..."
The questions again remain unanswered. What constitutes "interference or "constraint"? Where does "recommendation" end and "interference" begin? It is not inconceivable that some judge will at some stage rule that a Committee recommendation to vote for or against a particular proposal represents "interference". The legal profession must be rubbing their hands in glee at the prospect of the number of days in court that this provision is likely to give them. Interestingly, there is no onus on the union to ensure that those voting are protected from "interference" or intimidation by the employer!
If a group of workers does manage to make their way through these legal minefields, Section 14(2)(c) has another surprise in store for them. This gives the Executive Committee of the union
"...full discretion in relation to organising, participating in, sanctioning or supporting....industrial action notwithstanding that the majority of those voting in the ballot...favour such....action."
So, the Union Executive is put above the democratically expressed wishes of the membership and is given a legal right (written into the union rule book) to overturn a majority decision in favour of action.
Having jumped through the secret ballot hoops and successfully negotiated the hurdles of the Executive Committee, the workers are now ready to take their industrial action? Not yet. In all cases 7 days notice must be given. Again this applies to all forms of action - even those which are taken to protect the health or safety of workers. The possibility of taking immediate decisive action is ruled out and the employer is given plenty of time to prepare his/her strike-busting tactics. Even workers whose work environment is dangerous or unhealthy will have to go through all the procedures before taking any form of protest action.
The circumstances in which the ICTU All-Out picket can be granted is also tightened up considerably. If an application is made for an All-Out, all of the unions involved must be balloted. If a majority of all the votes cast are in favour of supporting the strike ICTU sanction the All-Out. However, even where workers vote to support a strike, their union may not sanction such support without first getting sanction from ICTU. The previous freedom to take supportive action outside ICTU's All-Out arrangements is gone.
There is considerable confusion as to the consequences of a union's failure to abide by the rules on secret ballots. Section 14(3) of the Act states that the rights conferred through the secret ballot provisions
"...are conferred on the members of the trade union concerned and on no other persons."
ICTU's "User's Guide" (page 29) says that this means that
"An employer could not obtain an injunction or recover damages merely on the grounds that a ballot was not conducted. Neither could an employer challenge the outcome of a ballot or the manner in which the ballot was conducted."
If a union failed to comply with the ballot rules, only a member of the union could take legal action. This interpretation was also given on at least two occasions by Bertie Ahern during the Dail debate on the Act.
However in April 1993 the High Court granted an injunction to Irish Rail restraining National Bus and Rail workers Union (NBRU) pickets
"....because there has not been a proper ballot conducted."
While this was an interim interlocutory injunction and as such sets no precedent, it nevertheless raises alarming worries. The NBRU has lodged an appeal but, once again, it has been demonstrated that trade unionists should put no faith in the 'impartiality' of the courts.
Section 19 of the Act supposedly restricts the right of employers to obtain injunctions. ICTU's "User's Guide" (page 32) claims that
"....it does seem probable that it will be more difficult for employers to obtain court injunctions than heretofore."
The Act does say that an employer cannot apply for an ex-parte injunction (without the union being present in court) provided a secret ballot has been held and 7 days notice given. It goes on to state that an injunction will not be granted
"....where the respondent establishes a fair case that he was acting in contemplation or furtherance of a trade dispute."
However, as UCD law lecturer Tony Kerr has pointed out
"...it is increasingly apparent that the ingenuity of counsel in discovering new questions for the courts to decide has not abated."
Once the employer raises any doubt as to whether there is a "trade dispute" as defined in Section 8 of the Act, an interim/interlocutory injunction will nearly always be granted pending a full hearing of the action, which could take several weeks, or even months.
What is clear is that there are a lot of grey areas in the law on injunctions and in weighing up the 'balance of probabilities' very few judges will err on the side of the unions.
Part 3 of the Act establishes the Labour Relations Commission; (LRC), whose functions include the provision of a conciliation service an industrial relations advisory service and
"....to prepare codes of practice relevant to industrial relations".
While these "codes of practice" are not legally binding, they are admissible in evidence in the Labour Court, High Court etc. and will be used in deciding the issue. In January 1992, in the wake of the previous year's ESB strike, the LRC produced a code of practice for `essential services'. This is still being "considered" by ICTU and the Irish Business and Employers confederation (IBEC).
This essentially amounts to a long-drawn out process whose only aim is to prevent effective strike action. It is a direct attack on the right to strike and as such should be rejected outright by the unions involved.
Overall the Industrial Relations Act (1990) represents a savage attack on the trade union movement. In April 1990 - in one of the very few attacks on it by trade union leaders - it was described by Greg Maxwell, then General Secretary of the Union of professional and Technical Civil Servants (UPTCS) as the worst dilution of workers' rights in the history of the state.
"If enacted it will be a victory for extreme employers' views and the most explicit statement of anti-union ideology embodied in law in this country."
Many trade unionists and commentators have quite rightly asked why ICTU so meekly accepted this legislation, and continue to implement it unquestioningly. In order to answer this question, I feel we must first appreciate why a change in the law was deemed necessary. After all, the 1980s had seen a dramatic fall-off in the level of industrial struggle and in 1989 - the year in which the Bill was published - the number of 'days lost' through industrial action hit a record low of 45,854.
As I pointed out earlier, the Act came about as a result of over a decade of "consultation". In the words of Kevin Duffy, Assistant General Secretary of ICTU (Nov. 1992)
"There was extensive tripartite discussion involving the ICTU, Government and the Employers Organisations before this legislation was passed. A process of negotiation took place."
We all know that most employers would be only too delighted to see all industrial action made illegal. Government, too, would not be opposed to this idea. But the 1990 Act can only be really understood if it is taken as a supplement to government economic policy. In order to make the economy "attractive" to foreign investors it is necessary for government and employers to be able to point to industrial "peace". Thus one of the reasons put forward in the PNR for changing the law was
"...to help create conditions for employment - generating investment."
Because Fianna Fail had chosen the path of 'social partnership' to tame the unions, they decided not to follow Thatcher's example of declaring war. Instead, through involving them in the 'decision - making process', they very cleverly got the ICTU leadership to agree to voluntarily disarm its membership.
Union leaders were prepared to go to any lengths in order to maintain their supposed position of influence.
Another factor which contributed to the apparent meekness of the ICTU leadership was their embracing of 'New Realism'. They do not see themselves as leading workers in a fight for their rights - that, they say, is an outdated view of trade unionism.
Modern trade unionism, they say, is about providing 'services' for members - credit cards, financial packages, insurance schemes and the like. They view their role as being that of mediator/referee - making a few strong public statements now and again to keep the workers happy but doing everything possible to make sure that 'economic stability' - whether it be local or national - is not threatened. Thus for example, SIPTU's advertisement in the January 1991 issue of "Management" - magazine of the "Irish Management Institute" - under the heading "Resolving Conflict is our Business". In this context the Industrial Relations Act assists them in their task of keeping the members under control.
The ICTU (with the help of government and employers) have pulled off a massive con. They knew quite well what they were doing when they connived with the government to foist this Act on us. Shop stewards and rank-and-file activists should not accept this.
We must campaign against this attack on our rights and for repeal. Above all, we must support any group of workers who take action defiance of the Act or who are victimised by it.
Where workers come into conflict with the law, the law must be defied and those workers must know that they will have the full support of all trade unionists.
Kevin Duffy may be of the view that the Act
"....has not made a great deal of difference to the conduct of disputes and it has certainly not created any insurmountable difficulties" (Nov. 1992)
but rank and file activists who believe that the lessons of 1913 still hold true today know that this is undiluted nonsense.
Motions should be proposed at all union branches demanding a campaign for repeal of the Act. Realising that ICTU - joint architects of the Act - cannot be relied on to lead such a campaign, it must be built from the bottom by making contact with other branches and with workers at the cutting edge of the struggle who have felt the full effects of the Act.
Remember the Industrial Relations Act will only be operable if workers and trade unions co-operate with it.