jump to navigation

Legal ruling on collective bargaining in Ireland on its way September 27, 2018

Posted by Tomboktu in Council of Europe, Workers Rights.
add a comment

A legal decision on collective bargaining for freelance workers in Ireland has been reached in Strasbourg (although under an outdated rule on the publication of the rulings, it will not be made public for a few months).

As it happens, the government changed the law in the two years since the case was lodged, but the legal ruling should be decided on the situation when the case was lodged.

The background to the case is that the Competition Authority prohibited freelance workers and employers from negotiating collective agreements. In August 2016, Congress lodged a case alleging that this situation was a breach of the workers’ human rights under the European Social Charter, the social rights counterpart to the European Convention on Human Rights (PDF, 93 pages, here).

The government’s main plank in its defence submission (available here) was that the law had been changed, but the European Committee of Social Rights, the legal body that determines if the Charter has been breached or not, has regularly ruled that its decisions are based on the situation at the time a complaint is made and not on changes governments make to law, policy or practice after a case has been lodged.

Ibec intervened in the case via its European representative body, the International Organisation of Employers (available here). In a bizzare approach, Ibec also argued that Ireland is in breach of the European Social Charter, but because the law was reformed in 2017 to protect freelance workers without Ibec being consulted.

A question that students of European human rights law will be watching for is whether the legal ruling focuses narrowly on the specific facts in Ireland or if the European Committee of Social Rights uses the opportunity to expand the European jurisprudence on collective bargaining rights more generally. And if it has used the opportunity to develop its jurisprudence, it will be interesting to see if it does so in a way that challenges EU law on workers’ rights.

Ireland in breach of five provisions of the European Social Charter January 25, 2017

Posted by Tomboktu in Collective Bargaining, Council of Europe, Employment Rights, Equality, Women's rights.
4 comments

Ireland is in breach of five human rights provisions under the European Social Charter, the Council of Europe announced today.

Breaches were found on workers’ rights and on the rights of people with disabilities. The findings were announced by the European Committee of Social Rights, an independent body set up to assess legal compliance with the human rights in the Charter.

Ireland breaches the right of workers to earn their living in an occupation they freely enter in for three reasons:

  • the maximum compensation in discrimination cases (other than gender discrimination) is too low to make good the loss suffered and to be dissuasive;

  • foreign workers can face discrimination in getting employment in the public service;

  • army officers cannot resign their commission early unless they repay part of the cost of their education and training, and the decision to grant early retirement is left to the discretion of the Minister of Defence, which could lead to a period of service which is too long.

Ireland also breaks workers’ rights because it does not guarantee that overtime work must be paid at a higher rate.

Migrant workers’ rights are breached because the fees to obtain work permits are excessive, the Committee ruled.

The Committee also found that the length of time after recruitment during which a worker can be dismissed is too long. Under the Unfair Dismissals Act, workers are protected against dismissal in limited circumstances during their first year with an employer.

People with disabilities are denied access to technical aids, communication, transport, housing as well as to culture and leisure activities, the Charter’s supervisory body found. This breaches the right of people with disabilities to integration and participation in the life of the community under article 15.2 of the Charter.

The European Charter of Social Rights is the counterpart to the European Convention on Human Rights. Ireland was previously found to be in breach of the Charter because of the extent of the ban on Garda representative bodies taking part in industrial relations procedures, including pay negotiations and membership of Congress. The Government has announced that it will publish a bill to rectify this breach.

Ireland was found to be in conformity with 11 other provisions that were ruled on today. Among these is an article on the right of men and women to equal opportunities. The Committee deferred decisions on five other provisions because the government had not provided enough information for the Committee to assess the situation.

The situations in 34 countries were examined by the Committee. The Committee in particular expressed its concern on equal opportunities between men and women as well as on the protection against discrimination due to disability and in employment due to sexual orientation.

The full text of the Conclusions 2016 for Ireland are here (PDF, 42 pages): hudoc.esc.coe.int/app/conversion/pdf?library=ESC&id=CR_2016_IRL_ENG&filename=CR_2016_IRL_ENG.pdf

Whose hypocricy? May 17, 2016

Posted by Tomboktu in Council of Europe, Ethics, Human Rights, Inequality, Travellers, Uncategorized.
1 comment so far

This morning’s editorial in the Examiner opines on yesterday’s judgement in the case taken by the Irish Traveller Movement about Traveller accommodation. The headline announces “Relationship made toxic by hypocrisy – Travellers in society“, and you would be forgiven for thinking that the hypocrisy of the State would be questioned in it. But no.

Just yesterday, the European Committee of Social Rights found that local authorities do not provide enough accommodation for Travellers and that many halting sites are in a poor condition. Many halting sites are in a pitiful, unacceptable condition but that raises a question — how did those sites become so dilapidated? What condition were they in when they were handed over to the residents?

Clearly, the writer did not check the documents on the case. Here are extracts from the evidence that the Irish Traveller Movement presented in its complaint (34-page PDF here. The quotation is from pages 30 and 31, and I have removed the paragraph numbers and the footnote references.)

the land used for sites is often not entirely suitable for housing: ‘near industrial estates (Cork and Kilkenny); near a factory (Wexford); near a used or disused dump (Cork North and Clare); by a river (Carlow and Waterford); with sewage and water contamination problems nearby (Roscommon); with unsafe gas levels (Limerick); near a dual carriageway (Cork North) or motorway (Cork South).’ These locations result in rat infestation, flooding and problems with water sanitation. ‘There is at least one death directly related to the dangerous quality of the site: the death of a child, from a rock fall on the site located beside a cliff. That site has been officially condemned but not yet closed and an extended family is still in residence there

ITM reports a worrying trend very recent years in relation to an increase in the installation of CCTV cameras on halting sites. There have been a number of reports of CCTV cameras being installed recording children as they play and looking into caravans, there is concern in relation to child protection issues resulting from the collection of the images of children and unwarranted interference with private and family life.

The threat of fire, aggravated by overcrowding and the presence of a locked height barrier at many of the sites to which families do not have a key, is also notable. While limited numbers of local authorities provide keys to the height barrier to residents a significant proportion do not: ‘While a number of returned surveys stated specifically that in instances where families do not have a copy of the key to the barrier, emergency services had access to a master key. However, another survey said the barrier had been broken by emergency services to gain access, raising questions about the availability of a master key.’

No mention of any of these “not entirely suitable” conditions by the Examiner.

Ireland breaches human rights laws on workers’ rights January 29, 2015

Posted by Tomboktu in Collective Bargaining, Council of Europe, Employment Rights, Human Rights, Ireland, Labour relations, Trade Unions, Uncategorized, Workers Rights.
3 comments

Ireland fails to meet nearly half of its legal obligations on workers’ rights under European human rights law.

Legal conclusions (45-page PDF here) by the European Committee of Social Rights concerning workers’ rights were published by the European Committee last week. The  Committee assesses compliance with the Revised European Social Charter.

The findings show Ireland is not in conformity with the human rights requirements on workers’ rights in 10 out of the 22 provisions that Ireland has ratified. Ireland is in conformity with 11 of those provisions, and the government did not provide enough information for the legal situation on the remaining ratified provision on labour rights to be assessed.

The 22 individual provisions are spread across eight articles in the European Social Charter, which is the main sister instrument to the European Convention on Human Rights. The provisions that were examined govern standards in just conditions of work, fair remuneration, workers organising, collective bargaining, worker participation in determining and improving working conditions and working environment, dignity at work, protection of workers’ representatives in their workplaces, and information and consultation in collective redundancy procedures.

Ireland’s minimum wage rates were found to breach European human rights standards because people on the lower bands did not earn enough to have  decent standard of living, which is defined as half of the average net wage in the State.

A further illegality was found because the Payment of Wages Act does not place an absolute limit on the total amount of deductions from wages by an employer and because the Government failed to show that the act is applied in practice in a way that preserves workers’ means of subsistence. “Situations in which the portion of wages remaining after deductions may not be adequate to ensure the subsistence of workers and their dependants may consequently still exist”, the Committee found.

The lack of domestic laws requiring overtime work is paid at a higher rate than basic pay was also found to be a breach of the Charter. The Committee was told by the Government that overtime rates are negotiated at the level at which basic pay and conditions of employment are normally settled — meaning in an individual firm or across an industry or sector. No evidence was produced to show how this works in practice, despite the Government being asked to provide the information following a previous assessment of the legal situation in 2007.

Curiously, although the European Committee did refer to the Haddington Road Agreement for the public and civil service in assessing other aspects of the Charter, it did not mention that Haddington Road breached European human rights law on overtime because it required certain categories of worker to provide the first hour of overtime not only without a higher rate of pay, but without any pay. That part of the Haddington Road Agreement expired in 2014.

The European Committee identified three ways in which Irish law on sacking workers breaches human rights requirements. The notice period in the Minimum Notice and Terms of Employment Act are inadequate. The Committee said that this illegality was identified as far back as 1973. It also said that the scope of the illegality on this point has been expanded since Ireland was last assessed because the law on minimum terms was extended to cover civil servants. A third breach was found concerning instant dismissal of a worker for misbehaviour. The European Committee found that the standard that is contained in Irish law is too weak, and that instant dismissal can be justified only in cases of “a serious offence” and not the lower threshold of “misconduct” set out in the Minimum Notice and Terms of Employment Act

In examining the situation here on working time, the European Committee warned the government that contracts where workers must be available for work but are later regarded as resting if they were not actually given work are illegal under human rights law. It asked the government to give the Committee information on the rules that apply to on-call service when Ireland next reports on the right to just conditions of work. However, the Committee did have enough information to find that Ireland’s laws do not conform to the human rights standard on hours of work because it allows workers in the merchant shipping sector to work 72-hour weeks.

A separate breach was identified by the European Committee because there are inadequate safeguards in Ireland to prevent people working for more than twelve consecutive days without a rest period.

A number of Irish rules on trade unions were found to be illegal under the Revised European Social Charter. Although some forms of closed shops have been unconstitutional since the 1960s, the European Committee found that the right to freedom of association was not fully protected because pre-entry closed shops and post-entry closed shops when they apply to newly recruited employees are not definitively illegal.

Irish laws on the licensing of trade unions breach human rights law in a number of ways. The Unfair Dismissals Act is inadequate because does not protect workers from being sacked for trade union activity if the union does not have a negotiating license. Another breach is that under Irish law a trade union that does not have a license — and the union’s officials and members — can be sued by an employer, and an employer can sack all employees in an unlicensed union for taking part in a strike.

The ban on the garda staff associations such as the AGSI and GRA from joining Congress was also found to be a breach of human rights law, re-iterating a finding in 2014 in a case take by the AGSI (42-page PDF here). A number of other specific breaches of human rights law for gardaí from the AGSI case were also found to be still relevant in the new conclusions, including the complete ban on any Garda ever striking.

Although the Safety, Health and Welfare at Work Act 2005 applies to all workers, Ireland does not conform to European legal standards because the government did not show that workers exposed to occupational health risks are entitled to appropriate compensation measures such as reduced working hours or additional holidays.

The conclusions were published last week, some time after the work on drafting them and equivalents for 40 other countries had been completed.  In the intervening period, the legal findings of the European Committee for Social Rights were described as “non-binding” by the Minister for Defence in the Dáil. It will be interesting to see if they European Committee responds to that attack when it next publishes conclusions or a decision on a case from Ireland.

The Revised European Social Charter contains 31 articles and under the reporting procedure, the European Committee of Social Rights states’ compliance with approximately a quarter of the articles each year.

Although the 2014 conclusions on labour rights were published by the European Committee last week, the Irish Congress of Trade Unions has not publicly responded to the findings.

%d bloggers like this: