The recent Labour Court decision in the Freshways case means that unions are basically back at the table in organisations where employers do not recognise unions. 

This was not the case until the Industrial Relations (Amendment) Act 2015 came into effect. Prior to this a 2007 Supreme Court judgment in respect of  Ryanair dispute significantly limited the jurisdiction of the Labour Court under the industrial relations legislation. The Supreme Court ruled that where an employer already negotiates with staff groups which were not trade unions those employers would be be excluded from the jurisdiction of the relevant industrial relations acts. 

The 2015 act was then enacted to try and clarify the Ryanair decision and define what was meant by this negotiation with staff groups or 'excepted bodies'. In Freshways the employer had a staff representative group with whom it submitted it negotiated. It gave evidence that it had even negotiated a pay increase with the staff group in recent times. The Labour Court found that the staff representation group was not an excepted body for the purposes of the legislation and was purely a group for information and consultation but not negotiation. This type of forum is extremely common in large organisations that don't recognise unions. The decision effectively means that it will be extremely difficult for an employer who engages with these groups to argue that they are not covered by the 2015 act. This means that if you are an employer who does not engage with a union but engages with a staff group, your organisation could still be subject to the jurisdiction of the Labour Court under the 2015. That jurisdiction is far reaching - Labour Court recommendations can be turned into binding determinations if not followed and so can be enforced in the civil courts. 

What did this mean for Freshways? The Labour Court recommended pay increases of €2.10 per hour in three phases over an 18 month period. It also recommended the introduction of a sick pay scheme (10 days paid sick leave) and further recommended an additional days’ annual leave for employees reaching over 5 years’ service. The Labour Court also recommended that grievance and disciplinary procedures be introdiced whereby employees would be entitled to trade union representation and recourse to the WRC. This last recommendation goes beyond the current Code of Practice and is surprising to say the least. 

Ultimately the Ryanair decision has been completely reset and we are back to the regime which existed in 2001 whereby employers may be forced to deal with trade unions in a situation where they don't recognise the trade union.