Brendan Ogle: I have decided to write this article at this juncture for a number of reasons.
* Firstly, insofar as Irish workers can rely on any meaningful legislative support to protect their collective rights as workers those supports have crumbled into virtual non-existence
* Secondly, we have just had imposed upon us yet another Government that not a single person in the state voted for, with a programme for Government that fails absolutely to provide one iota of additional support for such workers, or even to acknowledge a problem
* And finally, in this neoliberal era the levels of inequality between labour and capital is now so extreme, and the resultant deprivation in a world and nation of such riches so acute, that the Trade Union movement of workers must now fundamentally change approach and take affirmative actions, or stand accused of simply existing to enable our class oppressors continue to trample on working people in the pursuit of extreme greed.
Some International Context
In Philadelphia in the early 1800s a group of skilled shoemakers got together to see if they could get better wages collectively, as opposed to being picked off by their employers one by one.
The employer, when faced with a just demand from workers for basic decency, did what many employers have always done. And still do. They ran for the shelter of the Courts.
In a judgment (Commonwealth v. Pullis, Philadelphia Mayor’s Court (1806)) the Court fulfilled its function and duly obliged the employer, describing workers coming together as a ‘criminal conspiracy’ and collective action as being ‘unnatural’.
I raise this American case because Ireland just loves North America, its culture and it’s ‘freedoms’. The strange thing though is that when it comes to workers and union rights (unions are workers acting collectively) we lag way behind the United States.
Yes, the United States, home of the capitalist system and champion of individualism provides federal support for collective bargaining mechanisms across the private sector, the public sector and particularly strong federal supports in the Railway and Airline industries.
Not only that, but at State level too, 31 out of 50 states provide for some further level of collective bargaining for public employees. The combination of these systems is very far from perfect, and in some cases it is arcane, but the systems and processes do exist. In the United States!
Closer to home, at European Union level, the contrast with Ireland is even more acute. Unlike here countries including: France, Belgium, the Netherlands, the United Kingdom, Spain, Italy. Portugal, Sweden, Luxembourg, Germany and Austria provide for collective bargaining mechanisms as nations at Industry and Company level.
In not doing so Ireland instead puts itself in a basket of nations including: Malta, Latvia, Estonia, Bulgaria and Poland.
Why is this?
Why is it that a nation born in revolution by a once peasant people against an imperial power has, in less than a century, morphed into one where the owners of capital, the privileged successors of those who once ruled over our predecessors, are so blatantly advantaged by our Industrial Relations and Legal system over those who labour for a living?
Before you jump to the conclusion that this must be an exaggeration, and before I explain a little bit about the Irish legal context, bear this in mind. In the United Kingdom (a country now enduring an uninterrupted decade of Conservative rule), and even just up the road in Northern Ireland, there is a statutory basis for compulsory Trade Union recognition and collective bargaining.
Even more pointedly this legislation (Employment Relations Act 1999) was introduced by a Labour Government led by Tony Blair, hardly a Marxist agitator. In fact Blair is someone who is generally considered by those on the left to be a neoliberal and a war criminal and whose Prime Ministership was approved of, and overseen by, no lesser a neoliberal hawk than Rupert Murdoch himself.
Yet even Blair’s Labour introduced Trade Union recognition legislation for firms with more than 20 employees where a simple majority of the relevant workforce wanted it. It may not be fantastic, but when compared to the wasteland that is our ‘Republic’, when it comes to worker’s collective rights, our neighbours are positively egalitarian.
Ireland – A Constitutional and Legislative Framework For Private property
I suppose if you and your predecessors had fought an oppressor for your own land, and had to live, educate and worship in fields and hedges during periods in previous centuries, that when ‘freedom’ finally arrived there was a natural urge to want what you never had before. Property.
And I suppose it was even more the case that those who had acquired property under imperial rule where then more fearful than ever that they might lose it to ‘the common good’.
So, while the Civil War (and the brutal reprisals of those who won it) are rightly described as being about ‘pro’ and ‘anti’ treaty forces facing off on the ‘Northern question’, it is also worth noting that something else was happening too.
The egalitarian revolution espoused so succinctly in the 1916 Proclamation was also slowly being replaced by an effective counter-revolution where ‘God’ and ‘property’ were to be the new totems to be deified, albeit under a new flag.
By the time the new, and current, Constitution of 1937 was adopted the job had been done and the interests of Religion and Property were given elevated Constitutional protection. The conservative counter-revolution had triumphed over the ideals of Connolly and the Irish Citizen Army, and it still does to this day.
You doubt me?
On 10 January 2017 High Court Justice Paul Gilligan ordered an admitted trespass in an empty building (Apollo House) to be ended, putting occupying homeless people out on the streets in mid-Winter.
In explaining his decision Justice Gilligan espoused his admiration for the occupation but, saddled with decades of Irish legal precedent, stated that in law the case was not about vulnerable homeless people but was in fact about ‘property rights’.
Having done so he went on to outline how the court did NOT want to give the impression that it would take ‘a benevolent attitude’ in cases where buildings or public buildings are occupied illegally. Heaven forbid!
Irish workers fighting for their collective rights fare no better than the evicted residents of the previously empty, and now demolished, Apollo House.
At the point where the collective rights of workers come face to face with private property rights it is invariably the property rights of the citizen, as opposed to the common good of the impacted workers, which triumphs.
Those who framed the 1937 Constitution would be very pleased.
And so the argument for collective bargaining legislation here is dismissed and we on the left are told (and it would appear generally accept) that it cannot happen unless there is a Constitutional Referendum to specifically provide for it.
Yes, there may well be a Constitutional right of ‘association’ that provides us with a right to join a Trade Union together with an express right to join and form Unions, but the Courts quickly met this by ascribing an implied equal and opposite right of disassociation.
In effect this means, for example, that it doesn’t matter how many Apple employees join a Union, Apple (even as a multi-national corporation here in Ireland mainly to avoid paying the taxes that would be payable elsewhere) has a Constitutional right to say ‘no, thank ya kindly, yee ha’ and just keep on doing whatever it is they do unencumbered by any collective rights for their workers.
If you don’t want companies like Apple to have such rights it requires a referendum, and if you want a referendum it requires a Government to call one.
Yet there has never been a progressive, let alone a ‘left’ Government in the history of the state, so it’s no surprise that workers collective interests have never been given any significant import by any Government during our century of right wing rule. There has been no effort whatever to bring forward such a referendum. It’s just not on the agenda.
Tax avoidance measures for capital though? No problem, sign em up!
And still it gets even worse.
In the absence of collective bargaining legislation allowing workers and their representative organisations to engage in a process of setting pay and conditions bi-laterally with employers the state has, on occasion, provided for statutory wage setting mechanisms such as ‘Registered Employment Agreements’, ‘Joint Labour Committees’ and ‘Sectoral Employment Orders’.
These mechanisms have each been intended to provide for minimum standard terms and conditions in certain sectors for employees and employers amenable to working through what is often described as the states ‘refined’ Industrial Relations machinery.
The premise upon which this machinery is built is that the entire system is ‘voluntarist’, in other words nobody can be compelled to engage, treat, negotiate or contract with anybody else.
For every ‘right’ to do something, somebody else has an equal and opposite ‘right’ not to do it, and so the system is voluntary. This leaves all provisions of these mechanisms open to challenge, usually through the Courts.
Furthermore, it has long been an argument of some employers that the right to Union access to their property is a breach of their property rights helpfully enshrined in Article 43 of the Constitution.
We heard echoes of this even during the current pandemic. Trade Unions argued that for workers to return safely to work in sectors such as Construction and Hospitality and Tourism it required a volume of workplace inspections that Trade Union trained representatives could assist with.
This common sense measure, which was clearly not only in the public interest but in the interests of public health, was repelled by those arguing that such inspections were a breach of their property rights and therefore could not be provided for by Government.
This has been an argument against a Trade Union ‘right to access’, common and necessary in many modern and progressive jurisdictions, long before the current pandemic.
Even where property rights are not relevant the Constitution nevertheless provides fertile ground for those wishing to usurp workers collective rights. Registered Employment Agreements were rendered unconstitutional in 2015 and the in a recent Judgment the High Court has now also struck down Sectoral Employment Orders as being unconstitutional.
The reasons?
An article of the Constitution inserted to protect national sovereignty (Article 15.2.1) has now been interpreted and re-interpreted according to the doctrine of legal precedent, to have a ‘policies and principles’ test as an ‘implied’ term (it’s not written in the Constitution).
This means that the manner by which our Oireachtas, which constitutionally has ‘sole and exclusive power of making laws for the State’, has to abide by this judicially created test can be constitutionally challenged by anyone.
In the instant case the Oireachtas enactment of Registered Employment Agreements and Sectoral Employment Orders has now been successfully challenged by a loose band of small and barely identifiable electrical contractors seeking to get out of meeting the minimum terms and conditions due to their employees in the sector covered by the agreements and orders.
And so it is that, as a matter of Constitutional framing, judicial interpretation and the legislature refusing to address the issue, we have no collective bargaining legislation or rights.
And, as a result of these challenges framed within this Constitutional paradigm workers don’t now have these secondary, and much inferior, wage and condition setting mechanisms either.
Finally, if you were wondering about Joint Labour Committees? Employers have an effective veto on taking part in them anyway which the legislature is failing to address. It’s all ‘voluntarist’ after all!
A Desert For Workers’ Rights – But Where To Now?
The next time you hear somebody giving out about Unions in Ireland it is no harm to be aware of the Constitutional and Legal framework within which those our Trade Unions operate.
I have always been a critic of the disastrous three decades of ‘social partnership’, a period of effective centralised wage setting that ran from 1987 to 2008.
It made unions and workers soft by promising industrial peace, it turned many unions into ‘a workers Policeman’ telling workers what they couldn’t do instead of what they could do, and it did so in return for limited pay awards and agreed low tax policies from Government.
The worst effect of this period was that these low tax policies were spread to the Corporate sector, indeed they were specifically targeted in that way, to create our tax-haven economy.
Moreover, the lost taxes simply took much needed money out of our essential public services like health, education, water, transport and housing. This made workers and their families relatively poorer in real terms and subject to all sorts of charges is areas that should have been funded from the public purse in that public interest.
Even the workers who got more take home pay lost out from the dismantling of public services and the accruing costs passed on to them as a result. So suffice to say I oppose the concept, or any potential return to it.
But, in the absence of the sort of collective rights workers need, the Trade Union movement has a major difficulty.
If you accept, as I think many do, that workers acting collectively is a necessary antidote to rampant greed and inequality, how does it occur within the current Constitutional and Legislative framework?
To me the clear answer is to enact legislation to put collective bargaining and a Trade Union right to access on a legislative footing and, if workers choose to join unions in exercise of their constitutionally protected choice to do so, then that choice should have some legislative import. If, in turn, that requires a Constitutional referendum to address the misuse of property rights being used to subvert the common good, then the time to start building for it, and calling for it, must be now. Nothing else is working.
Remember:
* Social Partnership was an unmitigated disaster that debilitated workers and unions and ultimately played a dreadful role in increasing economic inequality and has resulted in unacceptable levels of deprivation
* In the absence of collective bargaining legislation, alternative wage and conditions measures are not constitutionally robust within the current constitutional framework and interpretation
A Fairer Balance
Workers are not partners with bosses, but where workers are strong then it is in employers interests to treat them with respect. That in itself delivers greater equilibrium into the employment relationship which increases wage share, thereby addressing inequality.
The best employments, and many of the most successful businesses, understand this dynamic and the mutual interest that can be served by collective bargaining. Those that oppose it support the complete control of capital over labour, and seek to protect the resulting and societally detrimental imbalance between the parties.
That imbalance leads to greed and abuse on the part of capital, and it leads to uncertainty, precariousness, poor conditions, unsafe work, low pay and a race to the bottom for labour. The cost to society in terms of inequality, deprivation and just plain decency is horrendous.
It’s time we as workers and as Trade Unionists started, and pushed, a conversation.
If we want a better fairer society we need a greater balance and improved rights for workers in Ireland. It wasn’t supposed to be like this.
Those that struck for freedom in 1916 were not seeking the freedom to avoid paying taxes and to indulge in greed and selfishness for the successors of the elites that they sought to replace. They wanted to do a lot more than change a flag.
Our economic inequality as a society is intrinsically linked to the lack of rights that collective labour has over uncontrolled and unregulated capital.
It will only be fixed when we address the elephant in the ‘Green’ room.
This article was originally published in ‘Broadsheet’ on July 22nd 2020.
ENDS