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That new law on working hours… April 30, 2019

Posted by Tomboktu in Business, Collective Bargaining, Employment Rights, Labour relations, Trade Unions, Workers Rights.

Last week, we got two opposing views on whether the changes in the law on working hours are an improvement for workers. (The changes came into force in March.)

On Tuesday, Mandate’s communications officer, David Gibney, had an article on the Irish Broad Left for ‘yes’, and on Friday, two academics at the Kenny Business School in the University of Limerick, Juliet Mac Mahon and Tony Dundon, had an article in the Irish Times for ‘no’. (The article by MacMahon and Dundon does not refer to Gibney’s and the fact that their article was published a few days after his seems to be a coincidence rather than an explicit response to Gibney’s article.)

Labour law September 22, 2017

Posted by Tomboktu in Employment Rights, Labour relations.
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A while ago, in an e-mail conversation with a barrister acquaintance of mine, the question was asked about what the longest act in Irish law is. He did whatever barristers do with their legal databases and came back with two answers: the Taxes Consolidation Act 1997 or the Companies Act 2014, depending on how you measured the length of an act. The main metrics he cited were the number of sections in the act and the number of pages. And, he added, you could get a different answer if you included the schedules in acts. The tax law has 1,104 sections and the companies one has 1,448 sections. A third possibility I would have suggested before he checked is the social welfare legislation — a quick check on the Internet tells me the current main piece of legislation is the Social Welfare Consolidation Act 2005 — but it’s a minnow in comparison: 364 sections.

Of course, today none of these is a standalone act any more. Each of them has accrued deletions, insertions, and rewordings as amending legislation has been passed over the years. But each has a ‘core’ document that you need to start with you have reason to check something.

I was reminded of that fact when I saw the RTÉ headline about a bill on zero-hour contracts. The areas of tax, companies, and social welfare are each complicated systems, but despite the diversity of internal pieces — for instance: income tax, transactions on land, capital gains tax, farming and market gardening, profit sharing schemes, etc. — each constitutes enough of a whole, of parts that belong together, for our governments over the years to put the law on each of them into a single, albeit lengthy, act.

Not so that system which affects the daily lives of the bulk of people in the State: paid labour. It’s not that we don’t have labour laws — we do, but they’re scattered and piecemeal, with separate, standalone acts for each micro-issue: one act for part-time work, another act for fixed-term work, and yet another for working time; one basic act on the establishment of trade unions, and a different act governing how they exercise their roles in society and the economy. (The act that governs wages? Which aspect: payment of, national minimum, agricultural, for merchant seamen?)

There are plenty of laws on paid work. In fact, a schedule in the Workplace Relations Act lists 20 other acts as “Employment Enactments” (and a series of other acts that contain pieces within them that are regarded as part of the corpus of “employment enactments”).

There would be challenges in collating all of the provisions in the scatter of acts (and regulations implementing EU employment laws) into a single document. It would bring to the surface diverging concepts and applications. For example, there are at least four different provisions on victimisation or penalisation — and both terms are used, although the basic concept is the same — with details on the content that differ in a way that does not seem to be based on any underlying logic. But a more fundamental problem is that despite its heft, our employment law is not intended to be a creative or constructive system that defines and sets the boundaries on the key institution of paid labour for an employer. Rather, it is a hodge-podge of responses to problems that have not merely arisen with paid labour, but which have also then been named and recognised — with struggles and violence, as the early history of trade unions demonstrates. No, the problem with labour law is its starting assumption. Deep in the bowels of the philosophy underpinning employment law is a fiction that employment contracts are contracts between equals and that employment laws are needed only to regulate the bits that have ‘gone wrong’ (and have been proven to have gone wrong). Putting all of the sticking plasters for those ills in one act might reveal just how frail that underlying philosophy is.

Not quite the Department for Employment Affairs August 21, 2017

Posted by Tomboktu in Business, Employment Rights.
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In few days, on 2 September, the Department of Jobs, Enterprise and Innovation will officially become the Department of Business, Enterprise and Innovation (PDF here).

The day before that, on 1 September, the ‘labour affairs and labour law’ brief will transfer to the Department of Social Protection (which will become the Department of Employment Affairs and Social Protection (PDF here)).

Well, that’s what the title of the Order signed by the Taoiseach says, but not quite what it does.

The Order has an appendix that lists the pieces of legislation for which responsibility will transfer from the Department of Jobs, Enterprise and Innovation to the Department of Social Protection:

  • Minimum Notice and Terms of Employment Acts 1973 to 2005
  • Protection of Employment Acts 1977 to 2014
  • Payment of Wages Act 1991
  • Terms of Employment (Information) Acts 1994 to 2014
  • Organisation of Working Time Act 1997
  • National Minimum Wage Act 2000
  • Protection of Employees (Part-time Work) Act 2001
  • Protection of Employees (Fixed-term Work) Act 2003
  • Protection of Employment (Exceptional Collective Redundancies and Related Matters) Act 2007
  • Protection of Employees (Temporary Agency Work) Act 2012

This is not all of the law that governs employment and the workplace.

If you want to talk about the ethos and values underpinning Ireland’s approach to workers’ employment rights, then the Industrial Relations Acts 1946 to 2015 and the Trade Union Acts 1871 to 1990 are important. It is those acts that operationalise the minimalist respect for collective bargaining and trade union rights we have in Irish law (though the Supreme Court has a lot to answer for, too), so maybe it shouldn’t be a surprise that somebody drafting the transfer of functions thought it best that they should remain the responsibility of the soon-to-be Department of Business, Enterprise and Innovation.

And despite the seemingly impressive list of employment legislation that is transferring to the new Department Employment Affairs and Social Protection, there’s a catch in the small print. The enforcement of a workers’ rights under those acts is governed by complicated ‘call out’ clauses in those acts that invoke another piece of legislation, the Workplace Relations Act 2015. Quelle suprise: responsibility for its operation remains with the Department of Business, Enterprise and Innovation.

The state agencies to protect workers’ rights set up under Workplace Relations Act are the Workplace Relations Commission and the Labour Court, and in fairness, that act does ensure that they are independent of the department and minister of the day when exercising their quasi-judicial functions when a legal complaint is made by a worker. But the new set up will mean that the department charged with supporting business will retain control of the decisions on the annual budget and the staffing of the body responsible for protecting workers’ rights. And the inspection function that the WRC inherited from the National Employment Rights Agency is not governed by the same quasi-judicial standards on independence.

Finally, along with the backroom say in the operation of the enforcement of workers’ rights, the department will retain its lead role in a few other laws setting out important workers’ rights:

  • Safety, Health and Welfare at Work Acts 2005 and 2014
  • Employment Equality Acts 1998 to 2015
  • Unfair Dismissals Act 1977
  • Worker Participation (State Enterprises) Acts 1977 to 2001
  • Employees (Provision of Information and Consultation) Act 2006

So, the department that is dropping the reference to employment in its title will keep a grip on the key powers and state agencies governing worker’s rights, while the department getting ‘Employment Affairs’ in its title will take on responsibility for, um, what exactly?

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.

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, 2015

Posted 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, 2014

Posted 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, 2014

Posted 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:

JobBridge Directive

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, 2014

Posted 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, 2013

Posted 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.

First, a little over a month of taking office, he told Labour’s Robert Dowds that the issue was the Wilson case.

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, 2013

Posted 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.

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