A shock to the system: sectoral bargaining under threat in Ireland

Alan Eustace

doi:10.1177/20319525211000360

Abstract

In Náisiúnta Leictreach Contraitheoir Éireann v Labour Court, the Irish High Court struck down as unconstitutional a key component of Ireland’s industrial relations system for the third time in recent years. The Court determined that the extension of collective agreements erga omnes breaches the constitutional prohibition on the delegation of legislative power. This note explains the background to that decision and critiques the Court’s reasoning from the perspective of a ‘labour constitution’ model of labour law, and in light of international and European legal principles. The decision appears to misunderstand the place of collective bargaining at a sectoral level within European internal market and competition law. It also seems to rule out any form of meaningful participation by workers, employers and their representatives in collective bargaining on a sectoral basis or through dedicated industrial relations machinery. According to the vision of Irish constitutional law put forward in this case, decisions relating to the administration of production and economic life more broadly must be reserved to the legislature. This is a significant loss for the autonomy of the social partners and represents an impoverished understanding of democracy and legitimacy within the constitutional order, and risks leaving Ireland even more of an outlier in Europe than it already is on the issue of sectoral collective bargaining.

Highlights

There are ‘older constitutional currents’ underlying modern labour law,1 according to which labour law should give workers a role in administering the productive process and the economy1
For scholars in this tradition, labour law should support participation by workers and their representatives in economic and productive decision-making for two reasons: first, as instrumental to securing better material protections for workers; and second, to recognise the agency of workers, an inherent benefit of participation
It seeks to position the employment relationship within a ‘democratized economy . . . governed by capital and labour acting together in furtherance of the public good.’7 The democratic credentials of labour law and industrial relations come from the participation of workers, employers and their respective organisations in decision-making; this gives such decision-making machinery constitutional legitimacy within the

Summary

Introduction

There are ‘older constitutional currents’ underlying modern labour law, according to which labour law should give workers a role in administering the productive process and the economy. In declaring the legislative framework for mandatory sectoral collective agreements unconstitutional, the Court favoured a model of constitutionalism that reserves the legitimacy to govern economic life to legislative organs of the state, at the expense of workers’ and employers’ representative organisations. This undermines the autonomy of both those economic actors and dedicated administrative bodies in the sphere of industrial relations, revealing a potential source of tension between labour law and constitutional law over the legitimacy of social partnership. It will explain the case at hand and situate it in international context, before turning to the fallout from the decision and anticipated future developments

Background

68. For example

Findings

Conclusion