Ireland in breach of five provisions of the European Social Charter January 25, 2017Posted by Tomboktu in Collective Bargaining, Council of Europe, Employment Rights, Equality, Women's rights.
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
Ireland breaches human rights laws on workers’ rights January 29, 2015Posted by Tomboktu in Collective Bargaining, Council of Europe, Employment Rights, Human Rights, Ireland, Labour relations, Trade Unions, Uncategorized, Workers Rights.
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.
A list that was mentioned in the Dáil November 18, 2014Posted by Tomboktu in Business, Employment Rights, Uncategorized, Workers Rights.
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Looking through the Committee stage debate in the Dáil on the Workplace Relations Bill earlier this month, I came across the following contribution to the debate by the Minister for Jobs, Enterprise and Innovation. Your task, should you choose to accept it, is to identify which category of people intimately associated with a company is missing from the list in the second sentence.
If there is a breach of duty on the part of a director which causes damage to the company, he can be sued or held liable for damages. Claims can be brought by shareholders, by a financial institution or on a director-versus-director basis.
Those remarks were part of a response to an amendment proposed by Sinn Féin’s Peadar Tóibín. He had support on the point from Fianna Fáil’s Dara Calleary:
Often, company law does not respect the fact that people work in companies.
Tóibín followed that with a broader observation:
Often, we get to a position like this and the Minister will go as far as to say that he understands there is a problem but this is simply not the place to sort it out. We had similar debates when discussing the Companies Bill, and we were told then that it was not the right place to sort it out. Most likely, I will bring in legislation to amend the Companies Bill to deal with this issue if we are not successful here. Perhaps the Minister might indicate his openness – I understand he cannot make a promise based on something he has not seen – to tackle this issue of the corporate veil.
Two things strike me as interesting about the Minister’s response to this issue. First, after over three years in his second stint as Minister in the relevant department (and two and a half years in essentially the same department in the 1990s and I don’t know how long as spokesperson when in opposition), he said:
I am not an expert in the field.
The second striking feature of his explanation is that he came back to the following point on why he would not accept Tóibín’s amendment:
The legal advice is very strongly against it.
And stopped at that. He did not summarise that legal advice or explain what the legal problem is. Parliament, when making laws, should have all the legal information it needs to understand barriers it faces in making those laws. Unfortunately, neither Tóibín not Calleary pushed him on what the legal problem is, although Tóibín did indicate that he is looking to introduce a bill to deal with the problem.
JobBridge and union discipline June 10, 2014Posted by Tomboktu in Austerity, Employment Rights, Trade Unions.
An interesting item in the June 2014 issue of In Touch, the magazine of the Irish National Teachers’ Organisation (INTO), available to read online here.
On page 9, we have the following:
Following extensive consultation with members and discussions at an INTO Branch and District Officers’ Conference on 12 November 2011, the CEC decided at a meeting on 17 November 2011 not to support the JobBridge National Internship Scheme for graduates. The scheme is viewed by INTO as being exploitative of newly qualified teachers.
The union backed that up with a Directive to members “not to participate in the JobBridge National Internship Scheme”.
The article does not clarify what the union means by “participate”. But it has caused problems within the union.
Since May 2013, 28 complaints against 22 members have been received and have/are being processed under Rule 104 and 105 of the INTO Rules and Constitution. These complaints have all been made by members alleging that an identified INTO member breached the INTO directive. In all cases, concilliation was unsuccessfully attempted to bring about a resolution of the matter.
When it was originally issued, that Directive led to queries, and in August 2013 the union’s
CEC confirmed its view to district secretaries […] that the INTO directive on JobBridge applies only to teaching positions within a school, but included posts advertised with other titles that were clearly designed to recruit a qualified primary teacher to a teaching poition.
It is not a good position for a union to be in to have 22 members, even in a large union like the INTO, undergoing a disciplinary process.
What the article does not provide information on is whether the 22 are newly qualified teachers who are alleged to have taken up JobBridge placements or are others such as school principals who are alleged to have recruited or facilitated the recruitment of qualiied teachers into JobBridge placements, or a combination of both.
It would be interesting to see if the directive could have any bite and provide the basis for the union to take legal indistrial action.
Would you want to set up FairPhone? January 14, 2014Posted by Tomboktu in Choice, Community, Employment Rights, Environment, Ethics, FairPhone, Human Rights, Technology, Workers Rights.
Who in their right mind would want to set up FairPhone? Obviously you can check out their site to find out who actually did set it up as a Dutch social enterprise, but would you want to?
Park, for a moment, the ‘fair’ bit and think about what is involved setting up a company to make a new smartphone. Smartphones are complex products, with chips, capacitors, resistors, glass, sensors, casings, displays, batteries, cameras, speakers, antennae, sockets and other bits and pieces that I don’t know about. And you’d need software. You would also need to design all of this, or get people to do that for you, and to set up or find a factory to make it.
If you did do it, you would be going into a market with big brands like Samsung, iPhone, Sony, Nokia, HTC, and so on, so you would need a pretty strong selling point to attract customers from the products offered by those heavy-hitters.
Collective confusion December 3, 2013Posted by Tomboktu in Collective Bargaining, Employment Rights, Human Rights.
In the Irish Times on Friday morning, Stephen Collins told us
Plans to introduce compulsory collective bargaining for all companies in the State will be announced tonight by Tánaiste Eamon Gilmore at the opening of the Labour Party national conference in Killarney.
The ICTU’s legal and legislative officer, Esther Lynch, tweeted on Friday that the “devil will be in the detail” but still felt able to declare “Really welcome announcement on progress towards securing proper respect for human right to collective bargaining”.
In the evening, what Eamon Gilmore actually said must have been a disappointment to her:
Labour agreed in the Programme for Government to reform the current law on employees’ rights to engage in collective bargaining, so as to ensure State compliance with the judgements of the European Court of Human Rights. And I am glad to say that Government will begin the process of legislating for that commitment in the coming weeks.
She would realise that enusring compliance with the European Court of Human Rights will not be a major change. The minister responsible for this change will be Richard Bruton, and he has twice told the Dáil what the gap in the Irish law is.
The ECHR judgment found that under United Kingdom law at the relevant time it was possible for an employer effectively to undermine or frustrate a trade union’s ability to strive for the protection of its members’ interests. Accordingly, the ECHR concluded that, by permitting employers to use financial incentives to induce employees to surrender important trade union rights, the UK had failed in its positive obligation to secure the enjoyment of the rights under the European Convention for the Protection of Fundamental Rights and Freedoms.
He confirmed that in June that year to Fianna Fáil’s Willie O’Dea:
The compliance with the European Court of Human Rights judgment arose out of a judgment in the United Kingdom where, to paraphrase, a court judged that employers were giving priority to people who were not members of a trade union and in certain circumstances were deemed to have been victimising those who opted to join a trade union. The court found that the British law in that case was in contravention of human rights. The issue has arisen to proof our legislation against any similar frailty. This is my understanding of the matter.
Important as that is, it is a long way from what Stephen Collins reported on Friday morning.
I would love to know the story behind the differences between the front-page story in Friday’s Irish Times and the actual speech delivered on Friday night.
Was Collins given a dud briefing on Thursday, or did he misunderstand a reference in his pre-conference briefing to the Strasbourg court’s ruling, or did his report provoke contact between Richard Bruton — the minister responsible for the planned legislation — and Gilmore, leading to a change in the line by the time the speech was delivered on Friday evening? I don’t know which of those three possibilities — Collins spouting garbage, Collins being fed garbage, or Gilmore climbing down — is worst.
FairPhone June 11, 2013Posted by Tomboktu in Community, Economics, Employment Rights, Environment, Ethics, Human Rights, Technology.
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[WorldByStorm suggested today that I move this up from a comment to a full post. I’ve uodated it because the time reference in the original is now out of date.]
Last year, I mentioned (in passing) that when I when I first bought a mobile phone, I made a point of buying from a telecoms company that recognises their workers’ union. I did not mention then that I had also done some research to see if I could buy a model that reflected my concerns — where the minerals are from, or union recognition for the people who make the actual phone.
So, I was pleased to see fairphone.com opened their new phone to pre-purchase.
On June 5 they hit their target of 5000 orders in order to go into production, and there are two days left to order one of the first batch.
And at the weekend just gone, they were working on aspects of the design their second phone.
The ethos is summed up in the invitation to the group of designers who participated in that workshop:
FairPhone was created because most people have no idea where the component parts of their mobile phone come from, how they are manufactured, and by whom. Bas: “Mobile phones are part and parcel of a complex economic and political system. We want to make this system visible to everyone. We do that by manufacturing the FairPhone, which unravels that system step by step.”
They recongise that their product is far from perfect — the rights of the workers is not secured through union recognition — but it’s better than any other phone I know of. Worth a look, I would suggest.
Ireland breaches European human rights laws on workers rights January 30, 2013Posted by Tomboktu in Employment Rights, Human Rights, Workers Rights.
Ireland has been found to be in breach of eight European requirements on employment rights (pdf here). A total of 11 breaches of the Revised European Social Charter were itemised by the Council of Europe in legal findings published on Tuesday (29 January). The Charter is a sister human rights treaty to the European Convention on Human Rights (pdf).
The findings were made by the European Committee of Social Rights, an independent legal body set up to judge state’s conformity with the Charter.
In addition to finding that Ireland is breaching European human rights law, the Council of Europe watchdog indicates that it doubts that the State is properly implementing its legal duty to strive for full employment, and echoes an OECD report that Ireland’s performance on assisting people with job searches in ineffective. The Committee took note of the OECD’s findings that a quarter of people eligible for help from FÁS were never referred to it and that Irish spending on labour market policies relies on job creation schemes that have been judged to be ineffective. However, the Committee decided to defer coming to a legal finding of compliance or breach until the Government provides more information.
The Employment Equality Act was found to to be incompatible with the human rights standard because the maximum compensation that can be awarded is not sufficiently dissuasive and may not be enough to make good the loss a person suffers. The law was changed in 2011 to raise the amount to €40,000. Only the provisions on gender discrimination, where the upper limit does not apply, are found to meet the standard required.
Most of the shortcomings highlighted in the legal report concern the rights of non-EU workers. Ireland has been found to discriminate illegally against those workers in relation to their access to vocatonal training, their access to vocational guidance, the length of their residency requirements for access to higher education, and their access to further or continuing education.
Fees levied by Ireland for work permits were found to be excessive. At the time the Committee assessed the situation, they ranged from €500 to €2,250 (in the case of a person renewing a permit for five years).
A rule requiring both Irish and non-Irish people to be resident in a local authority area for a year before they are eligible for a maintenance grant for vocational training was also found to be a breach of the European Social Charter.
Ireland was also found that the rights of all newly employed workers — both Irish and non-Irish — is breached because they are not protected under the Unfair Dismissal Acts in their first full year in any employment. “The Committee considers that one year period of exclusion is manifestly unreasonable”, the report says. It also finds that excluding workers who have reached the normal retiring age from the protection of the Unfair Dismissals Act goes beyond what is permitted in European human rights law.
The European Committee of Social Rights also finds that employment rights of army officers is breached. Officers may not seek early termination of their commission unless they repay to the state at least 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. The human rights watchdog find that this could lead to a period of service which would be too long to be compatible with the freedom to choose and leave an occupation.
The Committee found Ireland to be in conformity with six provisions, and deferred reaching a conclusion in the case of six other provisions because the Government had not provided enough information to enable the Committee to assess if the State is meeting its obligations.
The findings were made in the annual reporting procedure under the Revised European Social Charter. A quarter of the 31 articles of the Charter are examined each year, in thematic clusters. The next report will examine Ireland’s situation in relation to health, social security and social protection.
Ireland ratified the Charter thirteen years ago. Unlike the European Convention on Human Rights, the European Social Charter does not provide individual redress, but collective complaints from trade unions, employers’ bodies and European NGOs can be heard by the European Committee of Social Rights.
Compliance… August 20, 2012Posted by WorldbyStorm in Employment Rights, Gender Issues.
There’s not a lot that genuinely leaves me open mouthed, but this does. A film has been made of the ordeal suffered by a McDonald’s employee after a prank phone call purporting to be from a police officer, an ordeal that included physical and sexual assault and long lasting trauma.
I have to note as well the gendered aspects of this. In the series of so-called ‘prank calls’ those who were assaulted in this way (and to my mind it is an assault) were female. That is telling in and of itself in terms of the demands placed and the expectations of those who they were placed upon in terms of unable to seek support or expect any to be forthcoming. And indeed in terms of what was thought appropriate on the part of those who colluded whether willingly or otherwise in these events.
Then there’s the issue of authority whether seen or unseen. Those who were involved did so at the behest of a supposed police officer. That too is replete with various expectations, meanings and obeisance to power (scroll down the comments here for some disturbing but not unexpected anecdotes about abuses of power, sexual humiliation and gender). There’s more in terms of how some of those who were involved colluded with the person who made the original call. For them it appears that this was all the excuse they needed to act in truly vile ways however patently absurd the actions they were ordered to undertake.
As I’ve noted previously, workplaces are often run in incredibly dictatorial and unthinking ways where those in management and above are gifted extraordinary latitude. I’ve never seen a range of behaviours as bad as those described here, but I’ve seen pretty bad behaviours from management and bosses, bullying, insults, abuse of power. And what’s telling is how often this is rationalised – a few weeks ago I was discussing the issue of overtime. I’ve seen excessive demands put upon workers time and again. And the stick is not that hard to find.
In the real life incident as Slate notes:
If you’ve watched the 20/20 interview with the real-life Becky, Louise Ogborn—along with the accompanying surveillance footage—you know that the movie is no fantasy. Ogborn says that she begged her supervisor to let her go to the police station instead of submit to a strip search, but that she was ignored—and that ultimately she feared losing her job. When asked why she never tried to run away, she said, “I wanted to so bad,” but “I couldn’t bring myself to humiliate myself worse than I already was.”
That’s an extreme – the fear of losing a job leading even in the face of such egregious demands, but it is an extreme on a continuum of behaviours that almost all of us will be able to identify. And it is notable that in the court case subsequently taken by Ogborn – the worker who was the victim of this assault – against McDonalds, the company argued as part of its defence that ‘(4) the victim did not remove herself from the situation, contrary to common sense’.
Any of us who have any experience of low wage jobs will know the hollowness of that particular observation.
And the point is that whether at the hands of a sociopath who would make such a call, or management who would comply with such calls or more generally in profoundly negative work places there’s something about an area that given its centrality to our daily lives is curiously under thought through and which in some respects remains a realm apart where we must go, some of us at least, with no guarantee that the manner in which we are treated conforms with even minimal standards of human interaction.
In an age of austerity you can bet it isn’t getting any better either.
Profits Before Pay February 20, 2012Posted by Tomboktu in Business, Economy, Employment Rights, Inequality, International Finance.
This evening I listened to an interesting and informative programme in BBC Radio 4’s Analysis series, ‘Profits Before Pay’. The audio is available here.
The programme blurb from the BBC web site
It may come as no great surprise that many of us have experienced a wage squeeze, while the cost of living has gone the other way, since the financial crisis of 2008. However, as Duncan Weldon, a senior economist at the Trades Union Congress, points out, wages for most people in the UK began stagnating years before the crisis.
We tend to think of the early 2000s as a time of relative wealth: house prices were rising, credit flowed easily, the government introduced a generous tax credit scheme and people generally felt better off. But Duncan Weldon argues these masked the reality of what was going on.
Work done by the think tank The Resolution Foundation, which focuses on those on low and modest incomes, shows that there was almost no wage growth in the middle and below during the five years leading up to 2008 and yet the economy grew by 11% in that period. Others also point out that the share of the national income which goes into wages, as opposed to profits, has been decreasing since the mid-1970s. The argument is that less of the economic pie is going into the pockets of ordinary workers.
What is also clear is that a disproportionate amount of the economic wealth has been going to those at the top. The earnings of the richest few per cent have increased rapidly in the UK since the 1980s and that pattern accelerated in the last ten years. In the United States that process began earlier and has been more extreme.
Some economists argue that this is not a problem in itself as taxation, for example, helps to re-distribute the money to the less well off or those with disadvantages.
In Analysis Duncan Weldon asks why wages stopped rising in the years before the crash and what was the driving force for the squeeze?