Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 363, Mars 2012

1. 723. The complaint dated 4 May 2010 is contained in a communication from the Irish Congress of Trade Unions (ICTU) on behalf of the Irish Airline Pilots Association (IALPA) and the Irish Municipal Public and Civil Trade Union (IMPACT). In communications dated 4 August and 24 May 2011 respectively, the International Trade Union Confederation (ITUC) and the International Transport Workers’ Federation (ITF) associated themselves with the complaint.
2. 724. The Government submitted its observations on 11 July and 26 October 2011 and has forwarded additional information on 7 December 2011 and 5 January 2012.
3. 725. Ireland has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants’ allegations

1. 726. In its communication dated 4 May 2010, the complainant alleges long-standing and continuing violations of Convention No. 98, including acts of anti-union discrimination and interference and the refusal to engage in good-faith collective bargaining on the part of the enterprise, the low-cost airline Ryanair based in Dublin (“the company”). The complainant organization also exposes a number of failures in Irish law in this respect.
2. 727. The complainant states that the ICTU is the representative voice of trade unions in Ireland, with 55 unions affiliated and a total membership of 833,486. The IALPA was formed in 1946 and currently has a total of approximately 1,000 members in at least six different airlines. It is the only trade union representing commercial pilots in Ireland and has members employed by the company. The IALPA is now a branch of IMPACT, which is one of ICTU’s largest affiliates and one of Ireland’s largest public service trade unions, but also represents workers in the private sector, notably in aviation, telecommunications and health.
3. 728. The complainant alleges the following steps taken by the company to deny pilots the right to be represented by the IALPA: (i) certain benefits have been offered subject to the condition that the company remains “union-free”; (ii) the Employee Representative Council (ERC) is a sham which has been established by the company and operates to exclude genuine collective bargaining; and (iii) the company has refused to enter into voluntary bargaining arrangements with the IALPA or its workplace representatives, in the absence of provisions in Irish law promoting collective bargaining.
4. 729. The complainant further alleges that the Government has not taken any measures to guarantee that workers may exercise freely their right to organize and engage in collective bargaining. Moreover, Irish law does not ensure protection against the abovementioned practices nor provides for a procedure to require an employer to recognize a trade union.

Conditional benefits

1. 730. The complainant states that the company requested pilots to participate in mandatory retraining following an upgrade of the Dublin fleet. According to the complainants, unless Dublin pilots signed “an agreement whereby the company paid for it on condition that it was not forced to deal with the IALPA for the next five years”, they were told to pay the training costs themselves, which the company estimated at €15,000. Pilots, other than those based in Dublin, received free training without conditions. A number of Dublin pilots wrote to the company to protest against the terms of the retraining offer and the company justified its policy by referring to a “collective bargaining process”. The complainant indicates that pilots further responded asking for clarification as “to the best of our knowledge there has been no bargaining process with pilots in [the company] for some time. We certainly do not consider the arbitrary imposition of terms on groups of pilots to be any form of collective bargaining”. The complainant expresses concern that it is not unlawful in Ireland for an employer to make terms and conditions of employment conditional on the workers individually or collectively withholding their support for collective bargaining.
2. 731. The complainant further states that the dispute over training allowances was referred to the Labour Court by IMPACT/IALPA in 2004 for investigation under the procedure established by the Industrial Relations (Amendment) Act 2001 (“IRA 2001”) and the Industrial Relations (Miscellaneous Provisions) Act 2004 (“IRA 2004”). The complainant indicates that, while the Labour Court, and then the High Court, ruled that it was a trade dispute over which it had jurisdiction to investigate, the Supreme Court took a different view and quashed the decision of the Labour Court in a decision of 1 February 2007 (Ryanair v. Labour Court [2007] IESC 6). According to the complainants, the Supreme Court held against the jurisdiction of the Labour Court to investigate the case on three grounds: (i) there was no trade dispute; (ii) there was no evidence that the company did not engage in collective bargaining; and (iii) there was no evidence that internal dispute resolution procedures had failed to resolve the dispute.
3. 732. The complainant concludes that the retraining offer made by the company, on the condition that the money would have to be repaid if the company was required to enter into a collective bargaining relationship with a trade union, is an act of anti-union discrimination.

Employee Representative Council (ERC)

1. 733. The complainant organization states that the ERC has been established by the company as a non-union forum for dealing with its employees. In the complainant’s view, the ERC is a sham as it has no constitution, no funds, no members and is wholly dependent on the company. The complainant indicates that, in August 2004, the Dublin representatives of the ERC withdrew “as a result of disillusionment with their impotence and inability to advance the position of the Dublin pilots” and, to the knowledge of the complainant, there has not been any ERC in existence for pilots at the company ever since.
2. 734. The complainant alleges that the ERC has only played a consultative role and is not a trade union, nor a body, that has the capacity to conduct collective bargaining as understood under Convention No. 98. According to the complainant, the company’s attitude towards collective bargaining is revealed by a document supplied by the company to the US Securities and Exchange Commission and referred to by the Labour Court, where it indicated that “although [the company] currently consults with groups of employees, including pilots, through [ERCs] regarding work practices and conditions of employment, it does not conduct formal binding negotiations with collective bargaining units, as is the case with many other airlines”. The complainant acknowledges, however, that, in an affidavit by a company official referred to by the Supreme Court, the company describes its relationship with the ERC as a “continual process” whereby the company negotiates with representatives of its employees “for the purpose of concluding collective agreements which fixes pay and other conditions of employment” and as a system whereby employees, including pilots, elect employee representatives to ERCs and that the various ERCs negotiate directly with the company on an ongoing basis in relation to all terms and conditions of employment.
3. 735. The complainant emphasizes that, under Irish law, employers are allowed to establish staff associations or workplace forums which are given consultation or negotiation rights as an inducement to workers not to support collective bargaining with a bona fide trade union, even though such bodies do not conduct democratic elections or operate under any obligation to consult the workers they purport to represent.
4. 736. The complainant further alleges that the existence of a body such as the ERC gives the company immunity from legal proceedings available in the IRA 2001, section 2(1) of which provides that the Labour Court may only establish jurisdiction over a “trade dispute” if it is satisfied that “it is not the practice of the employer to engage in collective bargaining negotiations in respect to the grade, group or category of workers who are party to the trade dispute and the internal dispute resolution procedures (if any) normally used by the parties concerned have failed to resolve the dispute”. In this regard, the complainant expresses concern at the interpretation of the definition of “trade dispute” and “collective bargaining” made by the Supreme Court in its 2007 decision where it found that there was no trade dispute between the union and the employer.
5. 737. In particular, the Supreme Court ruled that “the Labour Court in considering whether there was a trade dispute should have investigated whether there was internal machinery for resolving the perceived problem and whether that machinery had been exhausted”. According to the complainant, the Supreme Court considered that this precondition of the Labour Court’s jurisdiction had not been met taking the view that the Labour Court had insufficient evidence to conclude that internal procedures had failed to resolve the dispute, even though the pilots had withdrawn from the ERC. The complainant disagrees with this reading of the statute and states that, if a trade dispute can exist only where internal procedures have first been exhausted, it would render the other precondition of the Labour Court’s jurisdiction redundant (see below). Furthermore, as there is no evidence, according to the complainants, that the Dublin pilots ERC was effectively operating at the time of the dispute and that it was mandated to act as an internal dispute resolution procedure, the complainant questions this finding of the Supreme Court.
6. 738. The complainant further indicates that the Supreme Court held that a different definition of collective bargaining applies when it takes place in the absence of a trade union and that “if there is a machinery in [the company] whereby the pilots may have their own independent representatives who sit around the table with representatives of [the company] with a view to reaching agreement if possible, that would seem to be collective bargaining”. The Supreme Court took the view that “just because [the company] may have, from an administrative perspective, organized the elections and may have had a rule against renewal of a term of a representative, which was the case, did not in any way mean that the pilots acting through the committee were doing so anything other than independently”. While insisting that the company was, at best, consulting with its staff through the ERC, but did not engage in collective bargaining as such, the complainant indicates that the Supreme Court found in this respect that “there was insufficient evidence on which the Labour Court would have been entitled to find that the ERCs did not perform the function contended for by [the company]”. Furthermore, the Supreme Court determined that the Labour Court procedure was, overall, fundamentally unfair to the company because no pilot or other employee of the company appeared in Court to support the allegations of the Union. In this context, the complainant expresses deep concern at the Supreme Court’s requirement that employees of a multinational company come forward and publicly give evidence against their employer in a dispute between a trade union and their employer.
7. 739. The Supreme Court concluded that there were no grounds for the Labour Court to conclude that the company did not engage in collective bargaining through the ERC and thus no grounds for the Labour Court to assert jurisdiction. The complainant states that the effect of the decision was thus to prevent the anti-union activities of the company from being challenged before the Labour Court.
8. 740. Finally, the complainant indicates that, since the decision of the Supreme Court, a number of steps have been taken to revive the ERC, steps which reinforce the view of the complainants that it is a sham procedure designed, at least in part, to frustrate trade union activities and that the ERC operation is subject to interference by the employer. As of 23 May 2008, documents were circulated to the Dublin pilots announcing that the re establishment of an ERC to represent Dublin-based pilots was being considered, and that the company had been asked to assist in the election process due to take place between 3 and 6 June. However, according to the complainant, no election took place. One of the candidates wrote to the company to ask when the election would take place (the published schedule having elapsed). The complainant has enclosed the reply in their complaint. Accordingly, the company denied being informed or involved in any way and referred him to the Dublin pilots ERC. The letter states, among others, “we have frankly neither the time nor the interest to engage with you, either on the issue of ERC structures, or any other attempt by you to create further mischief following your union’s total defeat in the Supreme Court, their latest failed attempt to impose union recognition on [the company] ... respect for this company’s constitutional right to deal with its employees directly and without the interference of third parties, such as pilot trade unions”. The complainant organization states that, as far as it is aware, there was no Dublin pilot ERC at this time, the purpose of the elections being to re-establish one. According to the complainant, it is unclear who distributed the documents and was involved in the process but it appears likely that the company was somewhat involved considering that the documents were posted through a secure company website to which only the company has access, that the documents repeatedly mentioned the company, including names of staff in the personnel department, and that elections were to be held on company premises.
9. 741. The complainant states that another attempt to initiate ERC elections was made in late 2008, this time by a number of pilots. Two documents on proposed election procedures were distributed by Captain Goss, a pilot involved in the process and candidate to the previous attempted ballot. According to the complainant, disciplinary proceedings were then initiated against Captain Goss who was charged and fined for “unauthorized use of company pigeonholes” on the basis of the company’s CCTV system. In the meantime, the documents were removed from the pigeonholes of pilots and another letter was circulated to inform pilots that the documents previously distributed had not been sent by the Dublin pilots ERC. With regard to the elections, although nominations were received, the process was aborted in a climate of hostility. Captain Goss wrote to the company on 9 January 2009 to inquire as to how he might communicate with people who claimed to be ERC members or how to contact staff about ERC business, as well as to seek authorization to contact staff via their pigeonholes. The complainant indicates that the response of the Director of the personnel department, dated 3 February 2009, read as follows: “Any distribution [in the pigeonholes] of non-company material (which would include, for example, ERC communications) can only take place via pigeonholes with the company’s prior permission. I note your request for permission to use the crew room mailboxes. Permission is denied. If you have any issues you wish to discuss with the Dublin pilots ERC, then please contact them personally. Communication between Dublin pilots ERC and individual Dublin pilots is a matter for the Dublin pilots ERC and Dublin pilots. This is not something the company is, or should be, involved in, however, we have [sic] and may continue to facilitate ERC communications and/or elections when requested by the Dublin pilots ERC to do so.”
10. 742. The complainant organization further alleges that the operation of the ERC is subject to interference by the employer in multiple ways: (i) the ERC has no formal constitution to which workers have access; (ii) the ERC has no funds other than those provided by the employer to representatives; (iii) the ERC has no resources or access to external sources of support unacceptable by the company; and (iv) the employer appears to have a role in determining when elections will be held, how many elected positions there will be, who may stand for election, who may vote in the election, where voting will take place and who will supervise the conduct of the election. In the complainant’s view, the establishment of the ERC is, therefore, an act of interference by the employer, as the ERC is not a bona fide trade union.

Non-recognition of the union for collective bargaining purposes

1. 743. The complainant organization believes that the ERC is an inappropriate body for collective bargaining and should not be permitted to exclude a trade union from bargaining. It alleges that there is a violation of voluntary collective bargaining, since workers are not free to choose their bargaining representatives, and the employer imposes a particular structure of negotiations with persons who have not been selected or elected by the workforce. The complainant further indicates that it remains unclear whether a Dublin pilots ERC has been effectively operating since 2004, as the pilots mentioned above do not seem to have been able to identify ERC representatives, or to contact them, or to have ever been consulted on or informed of ERC activities.
2. 744. In respect of the company’s policy, the complainant alleges that it is widely known that the company has a policy of not negotiating with trade unions (although it does not mean that it will not permit its employees to be members of trade unions). The Supreme Court pointed out in its 2007 decision that it is the company’s “policy to deal only directly with its own employees and not through outside agencies, including unions”. In the complainant’s view, the company is an “aggressively anti-union company, which proudly runs what it considers to be a union-free business”. According to the complainant, pilots at the company are denied the right to be represented by a trade union in grievance and disciplinary matters, to have their trade union make representations and negotiate on their behalf, whether individually or collectively.
3. 745. The complainant also alleges that there is no obligation for the employer to recognize a trade union for the purpose of voluntary collective bargaining under Irish law, and that companies have “a right to operate in a union-free way”. It is not unlawful for an employer to refuse to recognize a trade union for the purposes of collective bargaining regardless of the level of support for the union in question in the workplace. The complainants further note that, under the IRA 2001 and 2004, the Labour Court (when it has jurisdiction) can make recommendations or determinations to resolve disputes but has no power to provide for arrangements for collective bargaining.
4. 746. Finally, the complainant expresses serious concern with regard to the 2007 Supreme Court decision which, in its view, consecrated a new constitutional right for companies to operate free of unions, as illustrated by the following excerpt of the decision: “It is not in dispute that as a matter of law [the company] is perfectly entitled not to deal with trade unions nor can a law be passed compelling it to do so. There is an obvious danger, however, in a non-unionized company that employees may be exploited ... given their purpose [of the IRA 2001 and 2004], they [both IRAs] must be given a proportionate and constitutional interpretation so as not unreasonably to encroach on [the company’s] right to operate a non-unionized company.”
5. 747. According to the complainant, the effect of the Supreme Court decision is to deny employees the right to be represented by the representatives of their choice, whether individually or collectively. While the company is believed to have a constitutional right not to deal with trade unions, there is no countervailing right of citizens to be represented by a trade union in their dealings with the company. The complainant organization insists that collective bargaining should only take place with an independent trade union. It denounces that, currently in Ireland, an employer is free to establish or facilitate the establishment of a “representative” body which has neither members nor resources and to enter into negotiations with this virtual body, thus ensuring that it would not have to deal with trade unions and securing immunity against legislation designed to enable unions to submit grievances against employers who do not recognize a trade union. In the complainant’s view, the provisions of the IRA 2001, as interpreted by the Supreme Court, have become a vehicle for union busting.

B. The Government’s reply

1. 748. In its communication dated 11 July 2011, the Government requested additional time for its submission to be completed due to the change of circumstances arising as a consequence of a recent change in government. The Government informed the Committee that the new Government was committed in its programme “to reform the current law on employee’s right to engage in collective bargaining (the Industrial Relations (Amendment) Act 2011), so as to ensure compliance by the State with recent judgments of the European Court of Human Rights”.
2. 749. In its communication dated 26 October 2011, the Government states that the ICTU complaint deals with the interpretation of the Industrial Relations (Amendment) Act 2001 as adopted by the Supreme Court of Ireland in the case of Ryanair Ltd v. Labour Court [2007] IESC 6 (the Ryanair case). It emphasizes that its submission is a formal legal response to the ICTU’s complaint against the Government of Ireland. The Government does not consider that Ireland is in breach of Convention No. 98 and will explain its position below. Since, at a political level, the Government is involved in an ongoing review of the procedures under the Industrial Relations (Amendment) Act 2001, particularly in the light of the Ryanair case, and cannot pre-empt its outcome, the Government states, however, for the avoidance of doubt, that the Government’s reply should not be taken as an indication that the Government will not be proposing any changes to the current law.
3. 750. The Government contends that the ICTU has fundamentally misunderstood both the import of the Ryanair case and the nature of the procedure before the Committee. In the Government’s view, the Ryanair case turned on the fact that the union involved failed to establish certain factual propositions concerning industrial relations in Ryanair, a failure which does not place Ireland in breach of Convention No. 98. According to the Government, the ICTU appears to use its complaint as an opportunity to re-litigate its dispute with Ryanair, at one point almost inviting the Committee to overturn the judgment of the Irish Supreme Court as an incorrect interpretation of Irish law.
4. 751. The Government underlines that Articles 1–4 of Convention No. 98 do not require the imposition of any obligation on employers to recognize trade unions or to negotiate with trade unions. The Convention aims at, as is clear from Article 4, voluntary negotiation between employers’ and workers’ organizations. This is facilitated by ensuring, through Articles 1 and 2, that workers can be in a position to negotiate voluntarily and freely by adopting machinery to ensure respect for the right to organize, i.e. the right to protection from acts of anti-union discrimination and interference. According to the Government, however, voluntary negotiation cannot be compelled, and nothing in Articles 1–4 seeks to do so.

The Ryanair case

1. 752. The Government believes that the ICTU adopts a particular reading of the Supreme Court judgment in Ryanair Ltd v. Labour Court [2007] IESC 6, assumes that this precludes any further applications to the Labour Court on behalf of Ryanair pilots and, as a result, concludes that Ireland is in breach of its obligations under Convention No. 98. As such, the entirety of the ICTU case rests on its interpretation of the Supreme Court judgment, an interpretation which, in its view, is entirely flawed.
2. 753. The Government states that, for the purposes of this complaint, the facts must be taken to be those established by the Supreme Court. Ryanair decided to upgrade its fleet of aeroplanes, which required special training of the pilots who were going to fly the new aircraft. Ryanair decided to offer eight senior Dublin-based pilots such training on particular terms and conditions. The Dublin-based pilots who received the offer for retraining were unhappy with some of the terms and conditions and entered into correspondence with the management.
3. 754. According to the Government, the Supreme Court accepted Ryanair’s evidence that, in Ryanair, collective bargaining is a continual process whereby Ryanair negotiates with representatives of its employees for the purposes of concluding collective agreements which fix pay and other conditions of employment. Employees elect employee representatives to ERCs; the various ERCs negotiate directly with the company on an ongoing basis in relation to all terms and conditions of employment. There was an ERC for Dublin-based pilots and it was up to them to elect or appoint pilots to this ERC but, in August 2004, the pilot representatives had withdrawn and no new pilots had been appointed.
4. 755. The Government further indicates that, on 3 November 2004, the President of the IALPA (a branch of IMPACT), himself an employee of Aer Lingus, wrote to the Chief Executive of Ryanair setting out three issues (terms and conditions of employment, aircraft/type variant conversion, and redundancy) in respect of which IMPACT wished to enter into discussions with Ryanair. The Chief Executive refused to engage with the IALPA, stating that the IALPA would not be involved with Ryanair’s internal discussions with their pilots. There was then an exchange of letters between the Labour Relations Commission (LRC) and the Chief Executive, the result of which was that Ryanair would not engage with the LRC.
5. 756. The Government states that, on 19 November 2004, the eight Dublin-based pilots wrote a letter to the management concerning the offer (made on 12 November 2004) of a place on the training course, raising several concerns, including the fact, as they saw it, that the terms of the offer would leave them liable to repay the costs of their training if Ryanair were compelled to engage in collective bargaining with any trade union within five years of their conversion training. They also queried whether there was any disadvantage to their continuing to fly the 200 fleet until such time as they were phased out. Ryanair replied in a letter that is stamped as received by the IALPA on 23 November 2004 denying that the pilots were being asked to sign something outside their control and stating that they were merely being given an offer. The letter agreed to a meeting in relation to additional information sought but insisted on certain deadlines in relation to the conversion; made clear that in the event that the pilots did not accept the offer they would continue to fly the old fleet until phased out; and referred to a collective bargaining process within Ryanair.
6. 757. According to the Government, there then appears to have been a meeting between the pilots and the Chief Executive. On 29 November 2004, the pilots responded by letter. They took issue with the reference to collective bargaining in Ryanair, saying “to the best of our knowledge there has been no bargaining process with pilots in Ryanair for some time”. The Supreme Court interpreted this to refer to the situation which arose as a result of the two pilot representatives resigning from the Dublin pilots ERC. Seven days prior to this letter, on 22 November 2004, IMPACT applied to the Labour Court on behalf of all pilots of Ryanair who were members of the union. These members were never identified during the procedure before the Labour Court or before the High Court and the Supreme Court.
7. 758. As regards section 2 of the Industrial Relations (Amendment) Act 2001, as amended by the Industrial Relations (Miscellaneous Provisions) Act 2004 (hereinafter, the 2001 Act), the Government indicates that this provision grants the Labour Court jurisdiction to investigate a trade dispute, if certain requirements are met. “Trade dispute” is defined in section 3 of the Industrial Relations Act 1946 as “any dispute or difference between employers and workers or between workers and workers connected with the employment or non employment, or the terms of the employment, or with the conditions of employment, of any person”. The requirements that must be met under section 2 of the 2001 Act essentially involve two positive requirements relating to conduct on the part of the employer ((a) and (b)) and two negative conditions relating to conduct on the part of the trade union ((c) and (d)): (a) it is not the practice of the employer to engage in collective bargaining negotiations in respect of the grade, group or category of workers who are party to the trade dispute and the internal dispute resolution procedures (if any) normally used by the parties concerned have failed to resolve the dispute; (b) the employer has not utilized voluntary procedures to resolve the trade dispute; (c) the trade union not acting in such a manner as to frustrate the employers’ efforts to observe a code of practice; and (d) the union not taking industrial action following a reference to the Labour Relations Commission. Section 3 allows the Labour Court to investigate whether those requirements were met, either as a preliminary hearing or as part of the main hearing. The Government concludes that the 2001 Act provides a mechanism for resolving problems between employers and workers where that cannot be done through existing procedures. It also highlights that the Labour Court can issue a recommendation and, subsequently, a binding determination, but cannot direct the employer to engage in collective bargaining.
8. 759. The Government underlines that, under section 2(1) of the 2001 Act, the jurisdiction is to investigate a “trade dispute” – an issue addressed by the Supreme Court, and there are four cumulative conditions for jurisdiction, all of which must be met. Only condition (a) which contains within it two sub-conditions relating to an absence of collective bargaining and the failure of internal dispute resolution mechanisms to resolve the dispute, was at issue. Accordingly, what IMPACT had to establish in order for the Labour Court to have jurisdiction were the following three points: (i) there was a trade dispute; (ii) it was not the practice of Ryanair to engage in collective bargaining in respect of the pilots who were party to the trade dispute; and (iii) the internal dispute resolution procedures (if any) normally used by the parties concerned had failed to resolve the dispute. The Supreme Court held that none of these points had been established. The Government concludes that, since these conclusions and the underlying reasons constitute Irish law and thus the only basis on which Ireland could be said to be in breach of its obligations under Convention No. 98, they must be addressed in detail.
9. 760. Trade dispute. According to the Government, the Labour Court held that the phrase “or difference” was a broader definition of the term “dispute”. The Supreme Court rejected this analysis finding that the Labour Court in considering whether there was a “trade dispute” should have investigated whether there was internal machinery for resolving the perceived problem and whether that machinery had been exhausted. It was not satisfied that this issue was investigated in that way, particularly without evidence from at least one of the employee pilots in dispute. The Government concludes that the Labour Court had not established that there was a trade dispute and therefore had not established its jurisdiction on the first point.
10. 761. Practice of collective bargaining. According to the Government, the Labour Court had given the words of section 2(l)(a) a literal interpretation, the effect of which was that, if a category of employees such as the Dublin-based pilots decided not to engage in collective bargaining negotiations with Ryanair, then, ipso facto, it could not be the practice of Ryanair to engage in collective bargaining negotiations. The Supreme Court considered that this would be inconsistent with the purpose of the Act as it would allow employees to invoke the Labour Court jurisdiction simply by boycotting whatever collective bargaining machinery the company had put in place. It concluded that “practice” means, therefore, in this context that the machinery was in place and not ad hoc, and that the Labour Court’s jurisdiction would only be invoked where collective bargaining arrangements were not in place and the parties are not engaged in talks, which was not the case in relation to Ryanair.
11. 762. The Government further indicates that the Supreme Court proceeded to examine whether the machinery established by Ryanair did involve “collective bargaining negotiations” for the purposes of section 2. It considered that the Labour Court had taken the incorrect approach of interpreting “collective bargaining negotiations” in accordance with the meaning that the term would bear in the industrial relations context, and rejected its conclusion that collective bargaining negotiations under the Act means negotiation with whatever body the group of employees who were party to the trade dispute wish to represent them. The Supreme Court held that the relevant grade, group or category of employees would seem to be the Dublin pilots who may or may not be members of the union, and that the company, as is its right, does not negotiate with the union but claims that it does negotiate with the Dublin pilots via the ERCs and that in so far as that cannot be done at present, it is only because the pilot representatives have themselves withdrawn. The Supreme Court concluded that this may or may not be correct but it has never been properly investigated by the Labour Court whether there were in place adequate collective negotiation procedures (giving an ordinary meaning to that expression) within Ryanair. It thus took the view that, if there is a machinery in Ryanair whereby the pilots may have their own independent representatives who sit around the table with representatives of Ryanair with a view to reaching agreement if possible, that would seem to be “collective bargaining” within an ordinary dictionary meaning, considering that it would be strange to impose definitions peculiar to union negotiations on non-unionized companies.
12. 763. According to the Government, the Supreme Court viewed the notion of independent representatives as crucial to the concept of collective bargaining. When assessing the ERCs in this light, it rejected the suggestion that independence was in any way undermined by Ryanair’s administrative organization of elections to the ERCs and the fact that Ryanair had a rule against renewal of a term for a representative. In understanding the Court’s conclusions on this issue, it is necessary to understand the manner in which the point was litigated. Ryanair’s officers who attended the Labour Court hearing gave evidence that the ERCs performed the function of collective bargaining. No pilots from the company ever gave evidence that this was not the case, either before the Labour Court or before the High Court and Supreme Court. The Labour Court had concluded that Ryanair did not engage in collective bargaining on the basis of arguments made by IMPACT and a number of Ryanair documents that tended to emphasize consultation with staff rather than negotiation with staff, and thus that ERCs were consultative bodies. Ultimately, the Supreme Court’s conclusion was procedural, holding that there was insufficient evidence on which the Labour Court would have been entitled to find that the ERCs did not perform the function contended for by Ryanair, particularly in the absence of evidence from at least one relevant employee of Ryanair. This conclusion was not a definitive determination that the ERCs operated by Ryanair were sufficiently independent as to amount to collective bargaining. Instead, it was a conclusion that there was insufficient evidence before the Labour Court for it to reach an opposite conclusion, in the face of the clear evidence adduced by Ryanair’s officers. The Supreme Court emphasized that the Labour Court did not adopt fair procedures by permitting complete non-disclosure of the identity of the persons on whose behalf the union was purporting to be acting.
13. 764. Failure of internal procedures to resolve the dispute. According to the Government, the Labour Court, when addressing this issue, had relied on the non-functioning of the ERCs. The Supreme Court rejected this fact as a relevant factor in this case. While, in the Labour Court’s view, the matter before it had a bearing on the terms on which all pilots would be offered that training now or in the future. The Supreme Court reasoned that it was unfair and virtually impossible for the Labour Court to make a determination on the issue without ascertaining what pilots were in dispute. It held that the real dispute was related to the eight pilots who were still trying amicably to deal with the company at the stage of the reference to the Labour Court, and that the Labour Court did not have the evidence before it on which it could conclude that the internal procedures failed to resolve the dispute.
14. 765. The Government considers that the Ryanair judgment helpfully clarifies the following aspects of the procedure established under the 2001 Act: (i) the Labour Court cannot conclude that a trade dispute is in existence without first establishing that internal machinery for resolving the perceived problem has been exhausted; evidence from an affected employee is necessary to this end; (ii) the concept of “collective bargaining negotiation” does not require an employer to negotiate with a union of the employees’ choice but rather that the employees have their own representatives who can act independently in the negotiations with the company; the Supreme Court did not establish that Ryanair’s ERC procedure met this test but rather that it was not open to the Labour Court, in the absence of any evidence from an employee of Ryanair, to reject the evidence to opposite effect given by the officials of Ryanair; and (iii) the Labour Court cannot conclude that internal dispute resolution mechanisms have failed to resolve a trade dispute in the absence of evidence from employees to that effect. The Government highlights that the Supreme Court judgment does not in any way preclude persons from making further complaints about Ryanair’s procedures but rather provides guidance on how the different components of section 2 can be established in the future, in keeping with procedural fairness.

The current complaint

1. 766. Regarding the statement that the complaint relates to a number of steps taken by Ryanair to deny pilots the right to be represented by the IALPA within the meaning of Convention No. 98, the Government finds the formulation telling for two reasons: (i) it is unclear what the ICTU understands by the “right to be represented” given that it cannot be referring to a right to have Ryanair negotiate with pilots through the IALPA (as Articles 1–4 seek to protect voluntary negotiation); and (ii) the focus of the ICTUs’ complaint being Ryanair rather than Ireland, it is not sufficient for the ICTU to identify anti-union positions adopted by Ryanair and then jump to the conclusion that Ireland is in breach of its obligations. Ireland has established industrial relations machinery for the purposes, inter alia, of meeting its obligations under international law, and only if that machinery has been used and definitively found wanting could the ICTU claim that Ireland is in breach of its obligations under the Convention.
2. 767. The first concern in the complaint relates to the issue of retraining pilots and “the provision of benefits which were tied to a condition that the company should remain ‘union free’”. As seen above, this was the issue that was percolating among pilots immediately prior to and after IMPACT’s application to the Labour Court pursuant to section 2 of the 2001 Act. According to the Government, however, this was not at issue in the Ryanair case and it is quite possible that such conditions might be unenforceable, as a matter of Irish law. In its view, Ireland cannot be held to be in breach of the Convention on account of a position adopted by a particular employer, the legality of which has not been determined by the Irish Courts. Further, the ICTU does not identify any Article of the Convention that is engaged by this behaviour.
3. 768. The second concern relates to the claiming that ERCs are a sham and operated to exclude genuine collective bargaining. The Government believes that the analysis contained in the complaint, according to which the Supreme Court’s finding that Ryanair may have had a rule against the renewal of a term for a representative does tend to reveal a level of interference with the affairs of the ERC by the employer which undermines any suggestion that this was an autonomous organization which was free from interference in its “establishment, functioning or administration” (Convention No. 98, Article 2), is premised on the mistaken assumption that the ERCs are in fact workers’ organizations for the purposes of the Convention. In the Government’s view, Ryanair’s position is not to negotiate with trade unions, and the Convention, in its recognition that collective negotiation must be voluntary, respects this right; Ryanair does engage in discussions with its employees through its own ERCs, which do not amount to workers’ organizations and are therefore not subject to Article 2 of the Convention.
4. 769. The third concern relates to the lack of steps available in Irish law to encourage the company to enter into voluntary bargaining arrangements. The ICTU takes issue with Ryanair’s union-free business model and the fact that Irish labour law does not provide an automatic statutory right to be accompanied by a trade union official at internal disciplinary or grievance hearings held by an employer, nor a right to make representations to an employer through one’s union, nor a right to be represented by this trade union in matters relating to their employment. The Government criticizes in this regard that the ICTU identifies no provision of the Convention that is breached, which in its view, is presumably because, while the true import of the Convention relates to voluntary collective bargaining, what the ICTU seeks is compulsory collective bargaining. Regarding the concern expressed by the ICTU about the possible crystallization of an emerging constitutional right to operate a non-unionized company, the Government states that it derives from a questionable interpretation of the judgment of the Supreme Court and is clearly premature in the context of the current complaint.
5. 770. The Government observes that the complaint notes the procedure under the 2001 Act as a valuable provision that might be said to be consistent with the State’s duty under Article 4 of the Convention but that is rendered ineffective by the Supreme Court decision in the Ryanair case: “[I]n practice, a well-intentioned provision has become a vehicle for union busting. This is because the Supreme Court has held that an employer who engages with a body such as the Ryanair ERC is an employer who, for the purposes of the 2001 Act, engages in collective bargaining negotiations. So, not only is Ryanair not required by Irish law to permit pilots to be represented by the trade union of their choice, by establishing the ERC it has an immunity from Labour Court proceedings applicable to employers who do not recognize a trade union.” In the Government’s view, this displays a fundamental misunderstanding of what the Supreme Court decided. The Supreme Court did not conclusively determine whether Ryanair’s ERCs were such as to remove Ryanair from the remit of the 2001 Act. Rather the Court identified a criterion of independence and then held that, in the particular case and on the basis of the factual evidence put forward by Ryanair and the lack of factual evidence put forward by IMPACT, it was not open to the Labour Court to come to the conclusion that it reached. Moreover, in a wholly unexceptionable part of its judgment, the Court held that employees could not create jurisdiction for the Labour Court through the tactic of failing to engage with the internal collective negotiation machinery of the company. Explicitly leftover by the judgment is the question of whether Ryanair’s ERCs are sufficiently independent. The Government considers the ICTU submission wholly untenable as it asks the Committee to make a determination about Irish law on the basis of factual assertions that have never been proved; given that, if those factual assertions had been proved before the Irish courts, the ICTU might not actually object to the position in Irish law.
6. 771. Regarding the ICTU’s view that it is an alarming position for the Court to take, effectively to require employees of a multinational company to come forward and publicly give evidence against the employer in a dispute between a trade union and their employer. Noting that this is the first point in the complaint at which it is alleged that the Supreme Court judgment is inconsistent with the Convention, again without citing any of its Articles, the Government submits that, for the reasons advanced in the judgment, it is not tenable for a legal system to operate on the basis that factual propositions can be taken as established without direct evidence.
7. 772. The complaint then lists a number of developments in industrial relations at Ryanair since 2007, and this account begins with the assertion that the effect of the Supreme Court decision “was thus to prevent the anti-union activities of Ryanair being challenged before the Labour Court”. However, in the Government’s view, this is a clear misreading of the judgment, which was much more restricted. The Court did not assess how Ryanair conducts its business and reached no conclusion that disputes at Ryanair could not, in the future, be referred to the Labour Court.
8. 773. It is claimed that Article 1 is breached by Ryanair’s acts of anti-union discrimination in so far as an offer of retraining was made to pilots on condition that the money would have to be repaid if the company was required to enter into a collective bargaining relationship with a trade union. According to the Government, this is a complaint about Ryanair not about Ireland, which has put in place a system for dealing with trade disputes at companies where collective bargaining has failed to take place. In its view, an attempt was made to utilize this system, which failed because IMPACT could not establish certain factual propositions.
9. 774. The complaint then contends that Article 2 is breached by an act of interference by the employer in workers’ organizations. In this regard, the contention appears to be that there has been interference in the ERC and that the union is wrongly excluded from the procedures under the 2001 Act. Again, however, this is a complaint against Ryanair, not a complaint against Ireland. It is also wrongly premised on the assumption that ERCs are workers’ organizations.
10. 775. The complaint then contends that Article 3 is breached because Ireland has failed to take steps to establish machinery for the purposes of protecting the right to organize as protected by Articles 1 and 2. However, in the Government’s view, Ireland has provided such a procedure under the 2001 Act, whereby, since the Convention explicitly does not require compulsory negotiation with trade unions, those employers who do not engage in collective bargaining may end up with a binding determination about the terms and conditions of employment in their company. The Government believes that the failure of IMPACT to access the procedure in one case, on account of a failure to prove certain facts, does not amount to a breach of Article 3.
11. 776. Finally, the complaint contends that there has been a failure to promote the principle of voluntary collective bargaining as required by Article 4 and that Irish law is in breach of Article 4 of the Convention because Ryanair’s ERCs cannot conclude collective agreements. According to the Government, the complaint relies in this regard on the non binding Collective Agreements Recommendation, 1951 (No. 91), rather than the binding Convention, in order to avoid the Convention’s requirement that the collective bargaining be voluntary. In its view, Ireland has not breached Article 4 and, moreover, a positive and aspirational duty of the type found in Article 4 cannot be considered breached by reference to the idiosyncratic facts of one particular case. Ireland has, in general, taken many steps to promote collective bargaining and, indeed, for many years has operated a system of social partnership in which trade unions play a significant role, unparalleled in most other countries. The Government concludes that there is no substance to the ICTU’s complaint that Ireland has failed to promote collective bargaining by reason of the outcome to the Ryanair case.

Irish Business and Employers Confederation’s (IBEC) observations

1. 777. Furthermore, the Government forwards information in relation to the complaint, which was communicated by the Irish Business and Employers Confederation (IBEC).
2. 778. IBEC stresses that it does not represent the position or interests of Ryanair, the specific enterprise subject of the complaint. However, as the national representative body of Irish employers and as a national social partner, it is keen to ensure that all relevant information is made available to the Committee. The IBEC strongly refutes the allegation that Ireland is in breach of Convention No. 98. There is a highly developed body of legislation in place in Ireland, in addition to constitutional law, which gives effect to the principles outlined in the Convention.
3. 779. The IBEC states that the main grievances appear to arise from the dispute with Ryanair – grievances which already have remedies under current Irish law, provided the claims can be substantiated. The ICTU complaint neglects to outline many of the statutory measures and remedies available to workers in Ireland which are well known and widely utilized by workers and unions within the established industrial relations framework in Ireland. This raises questions as to why these measures have not only not been utilized by the complainants but also why these measures have not been mentioned in the complaint submitted.
4. 780. IBEC submits that, rather than a concern about Ireland’s compliance with Convention No. 98, the complaint is an attempt to revisit the facts of an individual case which has already been determined by the Supreme Court, and to extend the meaning of the Convention far beyond the interpretation of the Committee in previous cases. Finally, the criticisms of the Supreme Court decision suggest that the complainants object to the application to employers of Article 6 (right to a fair trial) of the European Convention on Human Rights (ECHR).
5. 781. With reference to Article 1 of Convention No. 98, IBEC indicates that, in Ireland, workers enjoy the strongest possible legal protection against acts of anti-union discrimination. The Constitution of Ireland, specifically article 40.6.1, guarantees liberty for the exercise, subject to public order and morality, of the right of the citizens to form associations and unions. This constitutional right of association, which has been bolstered by a range of legislative measures outlined below, does not, however, imply any duty on the employer beyond respecting that right in itself. It does not extend to obliging the employer to negotiate with any association which may be formed by employees. The absence of a legal obligation to engage with a particular trade union, or indeed any union, is entirely consistent with ILO Conventions on freedom of association. In particular, IBEC notes that, as previously enounced by the Committee, the principle of free and voluntary collective bargaining, the voluntary negotiation of collective agreements, and therefore the autonomy of the bargaining partners, is a fundamental aspect of the principles of freedom of association. IBEC submits that the acknowledgement of Ryanair’s “right to operate a non unionized company” by the Supreme Court is entirely consistent with the above. In its view, the ICTU complaint seeks to undermine the voluntary nature of collective bargaining as enshrined in the Convention.
6. 782. Regarding the allegation that it is not unlawful in Ireland for an employer to make terms and conditions of employment conditional on the workers individually or collectively withholding their support for collective bargaining, IBEC states that this assertion is untrue. The Industrial Relations Act 1990 (Code of Practice on Victimisation) (Declaration) Order 2004 specifically prohibits any adverse or unfavourable treatment arising from an employee’s membership or non-membership, activity or non-activity on behalf of a trade union or an “excepted body”. This also applies to any other employee in situations where negotiating arrangements are not in place and where collective bargaining fails to take place. Examples of adverse treatment referred to in the statutory instrument include acts of omission or commission, including an employee suffering any unfavourable change in his or her conditions of employment or acts that adversely affect the interest of the employee. Part 5 of the Code outlines the procedure for addressing complaints of victimization, and provides redress including compensation of up to two years’ remuneration in respect of the employee’s employment, and a direction that the conduct complained of must cease.
7. 783. Concerning the allegation that it is not unlawful in Ireland for an employer to establish a staff association or workplace forum which is given consultation or negotiating rights as an inducement to workers not to support collective bargaining with a bona fide trade union, IBEC indicates that, in any case, where inducements are offered with a view to discouraging particular trade union membership or activity on the part of an employee, that employee may have recourse to the remedies provided by the 2004 Order referred to above. However, there is nothing in Convention No. 98 (or in any ILO Convention) which prohibits the establishment of staff associations or workplace forums. Indeed, an employer may be required, for example by EU Directive, to establish such associations or forums.
8. 784. As regards the allegation that it is not unlawful in Ireland for an employer to establish a staff association or workplace forum which does not conduct democratic elections or operate under any obligation to consult those workers it purports to represent, IBEC states that staff associations and workplace forums established pursuant to the EU Directives referred to above, as transposed into Irish law, are governed by certain statutory requirements with regard to the appointment of employee representatives. By way of example, the Employees (Provision of Information and Consultation) Act 2006 requires that employees’ representatives be elected, or otherwise be appointed by the employees “... and the basis on which that appointment is made may, if the employees so determine, be such as agreed by them with the employer”. The aim of these provisions is to ensure that “the representatives are democratically elected or appointed by the employees and are representative of them”. It is a criminal offence for an employer to fail to arrange for the election or appointment of employees’ representatives as required by the legislation. Such associations are also required to consult on certain matters as prescribed in the relevant legislation, and failure to do so is also a criminal offence. Possible sanctions on conviction include a fine of up to €30,000 or imprisonment for a term not exceeding three years. If such associations do not engage in a genuine practice of collective bargaining, and where a trade dispute arises, it is open to a trade union or “excepted body” to call upon the Labour Court to investigate the trade dispute pursuant to the provisions of section 2 of the 2001 Act.
9. 785. With respect to the allegation that it is not unlawful in Ireland to refuse to recognize a trade union for the purposes of collective bargaining, regardless of the level of support for the union in question in the workplace, IBEC indicates that this is accurate. However, the complaint fails to mention that there is nothing in international law, or any ILO Convention, which requires Ireland to legislate for mandatory recognition of a trade union for collective bargaining purposes. The ILO’s approach, in particular, acknowledges that countries have discretion as to how they arrange industrial relations. IBEC submits that the Committee also supports the philosophy that collective bargaining must be voluntary to be properly effective, and that legislation which compels mandatory conciliation runs contrary to the Convention. The ICTU complaint states that an employer’s right not to recognize a trade union is “in clear breach of international law”, but fails to identify any specific law which Ireland has breached. As to the reference in the complaint to a case decided by the European Court of Human Rights, the IBEC states that the Court refused to find that the freedoms enshrined in Article 11 of the ECHR extended to requiring contracting States to legislate for mandatory collective bargaining or trade union recognition, and found that the absence of an obligation on employers to engage in collective bargaining did not give rise to a violation of the Convention.
10. 786. Concerning the alleged absence of a legal requirement that workers be entitled to trade union representation in the context of individual grievance and disciplinary issues, the IBEC states that there is nothing in Convention No. 98 that suggests the introduction of such a requirement. Under Irish law, if an employer refuses to allow representation, or places practical obstacles in the way of employees securing appropriate representation, the Labour Court may intervene, as it has done on many occasions, to ensure compliance with the Code of Practice on Grievance and Disciplinary Procedures, which includes as examples of “employee representative”, “a colleague of the employee’s choice and a registered trade union”. Failure to allow for appropriate representation may also result in a challenge to the compliance of the process with the principles of natural justice and fair procedures as protected by the Constitution of Ireland, 1937. Finally, the Irish Employment Appeals Tribunal is likely to find that any dismissal based on deficient procedures, including the absence of proper representation, is unfair, as they are empowered to do under section 5 of the Unfair Dismissals (Amendment) Act 1993.
11. 787. IBEC draws particular attention to other measures which Ireland has put in place to give effect to the additional protection provided in Convention No. 98 against acts of anti-union discrimination. Section 6 of the Unfair Dismissal Act 1977 provides that where a dismissal is caused wholly or mainly by such membership or activity, it will automatically be deemed to be unfair, and may result in the employee being reinstated in his or her position with the employer, or being awarded damages at a level of up to two years’ remuneration. There are severe penalties for penalization of employee representatives, including the prohibition of dismissal or any unfavourable change to his or her conditions of employment or any unfair treatment, or any other action prejudicial to his or her employment. Any breach of these provisions constitutes a criminal offence under Irish law.
12. 788. With regard to acts of interference as referred to in Article 2 of Convention No. 98, under Irish law, trade unions enjoy generous protection against such interference, as compared with other countries. Unions enjoy wide discretion as to how ballots for industrial action are conducted under section 14 of the Industrial Relations Act 1990, which provides no remedy to an employer who may harbour a suspicion that the ballot has been conducted in an undemocratic way. Trade unions in Ireland are given a free hand in the exercise of their functions as compared with other jurisdictions. IBEC submits that acts of interference, if properly raised under the 2001 Act, and supported by adequate evidence, would result in a decision that the employer was not engaging in bona fide collective bargaining, and leave that employer open to the rigours of that Act. This mechanism, along with the Code of Practice on Victimization, addresses the issues raised in the complaint with regard to acts of interference.
13. 789. With reference to Articles 3 and 4 of Convention No. 98, IBEC indicates that, in Ireland, an extensive framework has been established for the orderly conduct of industrial relations, with a range of statutory bodies created to this end, including the LRC and the Labour Court. The LRC was established by the Industrial Relations Act 1990 and offers a range of services to all Irish workplaces preventing and resolving workplace disputes and disagreements involving groups of workers, individual workers, employers and their representatives. The primary services include: advisory services; conciliation; workplace mediation; Rights Commissioner Service (investigation of grievances and claims); and training. The Labour Court was established in 1946 and since then has played a major role in dispute resolution in Ireland. It is an independent body consisting of representatives of employers and workers participating on an equal basis, which operates as an industrial relations tribunal and issuing recommendations setting out its opinion on the dispute and the terms on which it should be settled. Ultimately, however, responsibility for the settlement of a dispute rests with the parties. The role of the Labour Court in dispute resolution is to act as a court of last resort. In other words, local dispute resolution arrangements in the company or organization, and the other dispute resolution machinery of the State (LRC, Rights Commissioner Service) should have been fully utilized before a case comes before it. The Labour Court investigates disputes by requiring the parties to a dispute to provide it with written submissions of their positions in relation to the dispute and, subsequently, to attend hearings. The structures described above, including the ability to conclude collective agreements which may be given legal effect, illustrate the extent to which Ireland has given effect to Articles 3 and 4 of the Convention. However, the industrial relations system in Ireland respects the diversity of arrangements of information and consultation, negotiation and collective bargaining which employers and their employees may wish to reach. This is entirely consistent with the principles of Convention No. 98.
14. 790. The IBEC emphasizes that the main issue which gave rise to the decision of the Supreme Court in the Ryanair judgment was the absence of any evidence adduced by the union in support of its allegations. The judgment in Ryanair provides a legal analysis of just a small part of the statutory framework designed to support the orderly conduct of industrial relations and collective bargaining in Ireland – the 2001 Act. Certain preconditions are required before the Court can be considered to have jurisdiction to conduct an investigation under the Act. The Supreme Court found that the preconditions listed above had not been satisfied in this particular case and that it was difficult to see how the Labour Court could arrive at any conclusion without hearing evidence from at least one relevant employee from Ryanair. According to IBEC, the judgment then gives useful guidance as to what constitutes collective bargaining, in that a practice of collective bargaining would require that there be some machinery in place for that purpose, and that such arrangements could not be “ad hoc”. While the presence of independent employee representatives was deemed significant for genuine collective bargaining to be considered to take place, it was disputed that Ryanair’s role in facilitating the election of these representatives operated, in itself, to undermine the independence of the representatives.
15. 791. However, in IBEC’s view, the judgment is not a definitive description of collective bargaining with which all relevant bodies must now comply. The complaint initiated by the union against Ryanair failed by reason of the complete absence of evidence to support the claims. Ryanair, or any other employer, is not now “immune” from proceedings under the 2001 Act. It remains open to a trade union or excepted body to challenge the practices within the company in the event of a trade dispute. However, the Labour Court must be satisfied that the preconditions in section 2 are met. Any applicant will also have to support its claim with evidence.
16. 792. IBEC concludes that the main grievance is against an individual private company, Ryanair, rather than against the Government of Ireland. The complaint fails to identify any breach of Convention No. 98, or any other Convention or principle of international law, on the part of the Government. Ireland has a highly-advanced, well-resourced system in place to promote collective bargaining and to prohibit anti-union discrimination. A range of statutory protections are available to workers who believe that they have been dismissed or otherwise disadvantaged by reason of their trade union membership or activity, and there are penalties in place for employers in this regard. The offer of incentives to abandon these entitlements is prohibited by legislation. There are also legal and industrial relations consequences for employers who fail to engage in any practice of bona fide collective bargaining. However, there is nothing in the Convention which supports the ICTU’s interpretation that collective bargaining can only be with an independent trade union. IBEC thus invites the Committee to reject the complaint and find that Ireland is not in breach of Convention No. 98.

Ryanair’s observations

1. 793. Lastly, the Government forwards information in relation to the complaint from the enterprise concerned, Ryanair. The company denounces that no effort has been made to establish the accuracy of the factual basis upon which the alleged conduct of Ryanair was advanced.
2. 794. The company indicates that article 40 of the Irish Constitution guarantees every citizen of Ireland the right to freedom of association. Both EU and Irish legislation also protect workers from acts of anti-union discrimination, acts of interference by employers and any acts which deny the principle of voluntary collective bargaining. The enterprise claims that during its 28 years of operation, it has never been found in breach of this constitutional freedom and the relevant legislation and has fully respected the rights of its employees to join (or not join) unions.
3. 795. According to the company, while a number of employees are members of trade unions, the overwhelming majority in various work groups (pilots, cabin crew, engineers, etc.) freely participate in direct collective bargaining between themselves and the airline. This collective bargaining takes the form of multi-year pay and benefits agreements negotiated by the ERCs which are directly elected and/or appointed by the employees in each section, and then voted on in secret ballots by all members of each group. In the case of pilots, there is a pilot ERC appointed by the pilots at each of Ryanair’s 45 bases and these ERCs have been in place since the early 1990s. The enterprise states that the Dublin pilot ERC negotiated pay and working conditions directly with Ryanair in 1997, 2000, 2007, 2009 and again in 2011, and that these multi-year pay agreements were voted on by the Dublin pilots in a secret ballot, with substantial majorities in favour of these agreements.
4. 796. The company underlines that collective bargaining arrangements in the United Kingdom were, in 2001, the subject of a campaign by the British Airline Pilots Association (BALPA) seeking recognition for collective bargaining purposes in Ryanair. The pilots participated in a secret ballot, in which less than 20 per cent voted in favour of the recognition claim and 80 per cent preferred to continue their successful collective bargaining through ERCs directly with Ryanair.
5. 797. In the company’s view, from 2004 to 2007, the IALPA, IMPACT and the ICTU sought to exploit the then new 2001 Act to collapse the Dublin pilots ERC, in order to claim that there was a “trade dispute” which could be referred to the Labour Court for investigation, to persuade the Labour Court that, because the Dublin pilots had collapsed the Dublin ERC, it was “not the practice of the employer to engage in collective bargaining negotiations” and, accordingly, to make the Labour Court impose mandatory trade union recognition upon Ryanair and all of its pilots. This matter was subsequently investigated and considered by the Supreme Court of Ireland, which found that it was the practice of the enterprise to engage in collective bargaining, that its multiplicity of ERCs did constitute an accepted body for the purposes of collective bargaining, and that the attempt by the IALPA/IMPACT/ICTU to collapse the Dublin ERC in order to exploit a loophole in the Irish legislation (to impose union recognition) should not be allowed to detract from the well-established collective bargaining mechanisms which existed in the company.
6. 798. In the enterprise’s view, the complaint is inaccurate, seeks to clearly and deliberately mislead by omitting relevant and more up-to-date facts and makes false and defamatory allegations against the company, given that the Supreme Court of Ireland has found that the enterprise does recognize the right of all of its employees to join trade unions and fully engages in collective bargaining with its pilots through the sophisticated and extensive ERC structures which are accepted bodies, and that there was no failure of internal procedures to resolve this dispute. According to the enterprise, no evidence of union resistance activity has been submitted by the complainant, and the withdrawal from the Dublin ERC in 2004 was found to be a ruse by the Dublin pilots and their union to exploit the 2001 Act, since the ERCs for non-Dublin pilots and all other groups continued to operate effectively and successfully both before, during and after 2004. The company further submits that its pilots continue to participate actively in these collective bargaining negotiations and on every occasion, over the past 15 years, where there has been a secret ballot, they have approved and endorsed these negotiations and the pay and conditions improvements directly negotiated by their ERCs. Following the Supreme Court decision, the Dublin pilots ERC reformed and re-engaged in collective bargaining with the airline which led to successful pay and condition agreements being concluded in September 2007.
7. 799. Ryanair believes that the ruling of the Supreme Court clearly disproves the false claims made in this complaint, and proves that Ryanair complies with the constitution and laws of Ireland (and the EU), and continues to negotiate successfully with its pilots and cabin crew in a process of collective bargaining on rates of pay and conditions. The Irish Supreme Court has identified that there is a right, under the Irish Constitution, to non-recognition in relation to union representation. Such an entitlement to non-recognition is enshrined in itself in article 11 of the ECHR. As there is no factual basis for this complaint, it should be immediately dismissed.

C. The Committee’s conclusions

1. 800. The Committee notes that this case concerns allegations of acts of anti-union discrimination and the refusal to engage in good faith collective bargaining on the part of the enterprise Ryanair, as well as the allegations of a failure of Irish labour legislation to provide adequate protection against such acts of anti-union discrimination and to promote collective bargaining.
2. 801. The Committee notes from the allegations that, according to the complainant, the company: (i) requested Dublin pilots in 2004 to participate in a mandatory retraining following a fleet upgrade. The Dublin pilots were told that they could either meet the €15,000 training costs themselves or sign “an agreement whereby the company paid for it on condition that it was not forced to deal with IALPA for the next five years”; and (ii) established the Employee Representative Council (ERC) as a non-union forum for dealing with its employees, which is a sham and wholly dependent on the company; moreover, the company has refused to enter into voluntary bargaining arrangements with IALPA.
3. 802. The Committee further notes the complainant’s allegation that: (i) the ERC has no formal constitution to which workers have access; (ii) the ERC has no funds other than those provided by the employer to representatives; (iii) the ERC has no resources or access to external sources of support unacceptable to the company; (iv) the ERC has no members; and (v) the employer appears to have a role in determining when elections will be held, how many elected positions there will be, who may stand for election, who may vote in the election, where voting will take place and who will supervise the conduct of the election. The Committee notes that, according to the complainant, since August 2004, there has not been any ERC in existence for pilots or, at least, the ERC has no longer been effectively operating. The Committee notes the allegations that, on the occasion of an unsuccessful attempt in 2008 to revive the ERC, the company was involved in various election arrangements (time and place of ballot, eligibility to vote, voting system, auditing etc.), which the company subsequently denied.
4. 803. As regards the refusal to enter into collective bargaining with IALPA, the Committee notes the complainant’s allegations that the ERC operates to exclude genuine collective bargaining; that workers are not free to choose their bargaining representatives and the employer imposes a particular structure of negotiations with persons who have not been selected or elected by the workforce; and that the ERC has only played a consultative role and is not an appropriate body to conduct collective bargaining as understood under Convention No. 98. According to the complainant, pilots at the company are also denied the right to be represented by a trade union in grievance and disciplinary matters, to have their trade union make representations and negotiate on their behalf, whether individually or collectively.
5. 804. Furthermore, the Committee notes that, while the Labour Court (and then the High Court in appeals) ruled that it had jurisdiction to investigate the dispute over training allowances, the Supreme Court quashed the decision on the grounds that neither of the three criteria required under section 2(1) of IRA 2001 was met: (1) there was no trade dispute; (2) there was no evidence that the company did not engage in collective bargaining; and (3) there was no evidence that internal dispute resolution procedures had failed to resolve the dispute. In particular, the Committee notes that, according to the Supreme Court, the Labour Court had not adequately investigated the company’s contention that its ERCs represent a forum for collective bargaining negotiations. The Committee notes that the complainant expresses serious concerns at the implications of this decision denouncing that: (i) the company’s anti-union activities cannot be challenged before the Labour Court, since the existence of a body such as the ERC gives the company immunity from legal proceedings under the IRA 2001; (ii) employees of a multinational company are required to come forward and publicly give evidence against their employer in a dispute between a trade union and their employer; and (iii) companies are granted a new constitutional right not to deal with trade unions, whilst there is no countervailing right of citizens to be represented by a trade union in their dealings with the company. The Committee notes the complainant’s view that the provisions of the IRA 2001, as interpreted by the Supreme Court, have become a vehicle for union-busting.
6. 805. The Committee notes that the Government considers that Ireland is not in breach of Convention No. 98, that the ICTU’s interpretation of the Supreme Court judgment is flawed, that its criticisms of the judgment are unacceptable and that the ICTU has misunderstood the nature of the procedure before the Committee as it appears to use its complaint as an opportunity to relitigate its dispute with the company. The Committee notes that, according to the Government: (i) the Supreme Court held that none of the points IMPACT had to establish in order for the Labour Court to have jurisdiction had been established; this conclusion was procedural in that there was insufficient evidence to justify the Labour Court’s conclusions, particularly in the absence of any evidence from at least one employee of the company; (ii) the Supreme Court established that the concept of “collective bargaining negotiations” does not require an employer to negotiate with a union of the employees’ choice but rather that the employees have their own representatives who can act independently in the negotiations with the company; the Supreme Court did not establish that the company’s ERC procedure met this test but rather that the Labour Court could not reject the evidence to the contrary given by the management, in the absence of any evidence from an employee of the enterprise; the Supreme Court also rejected the suggestion that the independence of the representatives was undermined by the company’s administrative organization of elections to the ERCs and its rule against renewal of a term for a representative; (iii) the Supreme Court judgment does not in any way preclude persons from making further complaints about any anti-union activities and procedures of the enterprise; the Supreme Court merely struck down the Labour Court decision due to insufficient evidence but did not assess how the company conducts its business; (iv) regarding the alleged breach of Article 1 through the “provision of benefits which were tied to a condition that the company should remain ‘union free’”, this matter was not at issue in the case before the court and it is quite possible that such conditions could be unenforceable, as a matter of Irish law; Ireland cannot be held to be in breach of the Convention on account of a position adopted by a particular employer, the legality of which has not been determined by the courts; (v) as to the alleged breach of Article 2 through an act of interference by the employer in the ERC which is a sham and operated to exclude genuine collective bargaining, the complaint is wrongly premised on the assumption that ERCs are workers’ organizations; thus, Article 2 according to which such organizations must be autonomous and free from interference in their “establishment, functioning or administration” would not apply; (vi) with respect to the alleged breach of Article 3 through the failure to take steps to establish machinery for the purposes of protecting the right to organize under Articles 1 and 2, such a procedure is provided under the 2001 Act; the inability of IMPACT to access the procedure in one case, on account of its failure to prove certain facts, does not amount to a breach by Ireland of Article 3; (vii) as regards the alleged breach of Article 4 due to the lack of steps available under Irish law to encourage the company to enter into voluntary collective bargaining arrangements, the ICTU takes issue with the lack of an automatic statutory right for workers to be accompanied by a trade union official at internal disciplinary or grievance hearings held by the employer and of a right to make representations to an employer through one’s union or to be represented by the trade union in matters relating to their employment; the ICTU seeks compulsory collective bargaining and relies on the non-binding Collective Agreements Recommendation, 1951 (No. 91) to avoid the Convention’s requirement that collective bargaining be voluntary; position of the company is not to negotiate with trade unions, and the Convention, in its recognition that collective negotiation must be voluntary, respects this right; Ireland has not breached Article 4, and, has, in general, taken many steps to promote collective bargaining; (viii) regarding the denounced requirement of employees of a multinational company to publicly give evidence in a dispute between their employer and a trade union, it is not tenable for a legal system to operate on the basis that factual propositions can be taken as established without direct evidence; (ix) the complaint is wholly untenable as it asks the Committee to make a determination about Irish law on the basis of factual assertions that have never been proved; and, if those factual assertions had been proved before the Irish courts, the ICTU might not actually object to the position that would have been taken under Irish law; (x) it is not sufficient to identify anti-union positions adopted by a company and then conclude that Ireland is in breach of its obligations; Ireland has established industrial relations machinery for the purposes, inter alia, of meeting its obligations under international law, and only if that machinery has been used and definitively found wanting could it be claimed that Ireland is in breach of its obligations.
7. 806. The Committee notes from the information forwarded by the Government that the employers’ organization concerned, IBEC, shares the Government’s position and, in addition, states that: (i) the main grievances arising from the dispute with the company already have remedies under Irish law provided the claims can be substantiated; (ii) the complaint neglects to outline many of the statutory measures and remedies available to workers in Ireland; (iii) as regards Article 1 of Convention No. 98, workers enjoy strong legal protection against acts of anti-union discrimination, granted under article 40 of the Constitution of Ireland, the Industrial Relations Act 1990 (Code of Practice on Victimization) (Declaration) Order 2004 and the Unfair Dismissal Act; the assertion that it is not unlawful in Ireland for an employer to make terms and conditions of employment conditional on the workers individually or collectively withholding their support for collective bargaining is untrue; (iv) with regard to Article 2, under Irish law, trade unions enjoy generous protection against acts of interference; if properly raised under the 2001 Act and supported by adequate evidence, such acts result in a decision that the employer was not engaging in bona fide collective bargaining; however, there is nothing in any ILO Convention which prohibits the establishment of staff associations or workplace forums; indeed, an employer may be required by an EU Directive to establish such bodies; (v) as regards Articles 3 and 4 of Convention No. 98, an extensive framework has been established for the orderly conduct of industrial relations, with a range of statutory bodies created to this end, including the LRC and the Labour Court; however, the industrial relations system in Ireland respects the diversity of arrangements of information and consultation, negotiation and collective bargaining; there is nothing in any ILO Convention which provides that collective bargaining can only be with an independent trade union or which requires to legislate for mandatory recognition of a union for collective bargaining purposes; the acknowledgement of the company’s “right to operate a non-unionized company” by the Supreme Court is entirely consistent with the voluntary nature of collective bargaining as enshrined in the Convention; (vi) the company in this case, or any other employer, is not now “immune” from proceedings under the 2001 Act, and it remains open to a trade union or excepted body to challenge the practices within the company in the event of a trade dispute; however, the preconditions in section 2 must be met and any applicant will have to support its claim with evidence; (vii) the main grievance is against an individual private company rather than against the Government of Ireland, and the complaint fails to identify any breach of Convention No. 98 or any other Convention or principle of international law, by the Government.
8. 807. The Committee notes from the information forwarded by the Government that the company concerned adds that: (i) article 40 of the Irish Constitution and both EU and Irish legislation protect workers from acts of anti-union discrimination, acts of interference by employers and any acts which deny the principle of voluntary collective bargaining; (ii) during its 28 years of operation, the company has never been found in breach of the relevant legislation and has fully respected the rights of its employees to join (or not join) unions, and the complainant has submitted no evidence of union resistance activity; (iii) while some employees are members of trade unions, the overwhelming majority of workers in various categories freely participate in direct collective bargaining between themselves and the airline, which results in multi-year pay and benefits agreements that are negotiated by ERCs directly elected and/or appointed by employees and are then voted on in secret ballots by all members of each group; (iv) the Dublin pilot ERC negotiated pay and working conditions directly with the company in 1997, 2000, 2007, 2009 and again in 2011, and these multi-year pay agreements were voted on in secret ballots with substantial majorities in their favour; (v) from 2004 to 2007, IALPA, IMPACT and ICTU sought to exploit a loophole in the then new 2001 Act by collapsing the Dublin pilots ERC to persuade the Labour Court that it was “not the practice of the employer to engage in collective bargaining negotiations”; the Supreme Court came to the opposite conclusion finding that the company’s multiple ERCs did constitute an accepted body for the purposes of collective bargaining, and that there is a right, under the Irish Constitution, to non recognition in relation to union representation.
9. 808. The Committee first wishes to point out that it has not been called upon to reconsider the interpretation of the Irish law by the Supreme Court of Ireland but rather to ensure respect for the principles of freedom of association. It is in this spirit that the Committee sets out the considerations below.
10. 809. The Committee notes the seriousness of the alleged practice whereby a company would offer certain benefits to pilots subject to the condition that the company remains “union-free”, and notes that the Government and the enterprise concerned confine themselves to indicating, respectively, that this allegation has not been at issue before the courts and that no evidence of union resistance activity has been adduced. The Committee recalls that, as regards allegations of anti-union tactics in the form of bribes offered to union members to encourage their withdrawal from the union and the presentation of statements of resignation to the workers …, the Committee has always considered such acts to be contrary to Article 2 of Convention No. 98, which provides that workers’ and employers’ organizations shall enjoy adequate protection against any acts of interference by each other or each other’s agents in their establishment, functioning or administration [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 858]. The Committee considers that the alleged offer of conditional benefits by the company provided that it would not be required to enter into a collective bargaining relationship with the union, if true, would be tantamount to employer interference in the right of workers to form and join the organization of their own choosing to represent their occupational interests. As the information available is insufficient to determine whether such an act occurred and, if it occurred, whether it would have been considered to be contrary to Irish law if proven, the Committee requests the Government to ensure that the protection available against anti-union discrimination would adequately cover such acts including through a thorough review of the protective measures with the social partners concerned.
11. 810. The Committee further notes the serious allegation that the company has established a sham ERC and has significantly interfered in its operation with a view to precluding the union from collective bargaining. The Committee notes that this allegation has been indirectly examined by the national judiciary, including the Supreme Court, in the framework of the procedural decision as to whether the Labour Court has jurisdiction to deal with the matter, in particular as to whether the machinery established by the company did involve “collective bargaining negotiations”.
12. 811. In this respect, the Committee notes that, according to the Supreme Court, the term “collective bargaining negotiations” should not be interpreted in line with its meaning in the industrial relations context but rather in an ordinary dictionary meaning as it would be strange to impose definitions peculiar to union negotiations on non-unionized companies, and “if there is a machinery in [the company] whereby the pilots may have their own independent representatives who sit around the table with representatives of [the company] with a view to reaching agreement if possible, that would seem to be collective bargaining”. In addition, the Supreme Court found that “just because [the company] may have from an administrative perspective organized the elections and may have had a rule against renewal of a term of a representative, which was the case, did not in any way mean that the pilots acting through the committee were doing so anything other than independently”. The Supreme Court concluded that there were no grounds for the Labour Court to conclude that the company did not engage in collective bargaining through the ERC and thus no grounds for the Labour Court to assert jurisdiction. The Committee also notes that the Supreme Court, observing that it is the company’s “policy to deal only directly with its own employees and not through outside agencies including unions”, held that: “It is not in dispute that as a matter of law [the company] is perfectly entitled not to deal with trade unions nor can a law be passed compelling it to do. There is an obvious danger, however, in a non-unionized company that employees may be exploited. With a view to curing this possible mischief, the Industrial Relations Acts, 2001 and 2004 were enacted. Given their purpose, they must be given a proportionate and constitutional interpretation so as not unreasonably to encroach on [the company]’s right to operate a non-unionized company.”
13. 812. In this regard, the Committee wishes to recall that Article 2 of Convention No. 98, ratified by Ireland, establishes the total independence of workers’ organizations from employers in exercising their activities; accordingly, since the creation of works councils can constitute a preliminary step towards the setting up of independent and freely established workers’ organizations, all official positions in such councils should, without exception, be occupied by persons who are freely elected by the workers concerned [see Digest, op. cit., para. 404]. As regards the specific acts allegedly undertaken by the company concerned and the overall allegation of an anti-union climate due to a determination by the enterprise not to engage in collective bargaining with a workers’ organization, the Committee takes due note of the indication of the Government and of IBEC that the company concerned is not immune from future complaints under the 2001 Act since the Supreme Court has not conclusively determined that there is a practice of collective bargaining in the enterprise but has rather concluded that the evidence to the contrary was insufficient. In view of the seriousness of the allegations as regards the extent of interference on the part of the employer, the Committee requests the Government to carry out an independent inquiry without delay into the alleged acts of employer interference in order to establish the facts in this specific case and, if necessary, to take the necessary measures to ensure full respect of the principles of freedom of association. It requests the Government to keep it informed of the outcome of such inquiry.
14. 813. With regard to the enterprise’s refusal to enter into discussions with IALPA preferring the ERC mechanism and the “right to operate a non unionized company”, the Committee firmly recalls that direct negotiation between the undertaking and its employees, by-passing representative organizations where these exist, might in certain cases be detrimental to the principle that negotiation between employers’ and workers’ organizations should be encouraged and promoted. The Workers’ Representatives Convention, 1971 (No. 135), and the Collective Bargaining Convention, 1981 (No. 154), also contain explicit provisions guaranteeing that, where there exist in the same undertaking both trade union representatives and elected representatives, appropriate measures are to be taken to ensure that the existence of elected representatives is not used to undermine the position of the trade unions concerned [see Digest, op. cit., paras 945 and 946]. The Committee invites the Government to review the mechanisms available with the social partners concerned with a view to promoting machinery for voluntary negotiation between employers’ and workers’ organizations for the determination of terms and conditions of employment.
15. 814. In light of the above, and noting with interest the Government’s statement, contained in its communication from 11 July 2011, that the administration is committed in its Programme for Government to reform the current law on employees’ right to engage in collective bargaining (the Industrial Relations (Amendment) Act 2011) so as to ensure compliance by the State with recent judgments of the European Court of Human Rights, as well as the Government’s subsequent indication that its reply should not be taken as an indication that the Government will not be proposing any changes in the framework of the ongoing review of the procedures under the Industrial Relations (Amendment) Act 2001, particularly in the light of the Ryanair case, the Committee invites the Government, in full consultation with the social partners concerned, to review the existing framework and consider any appropriate measures, including legislative, so as to ensure respect for the freedom of association and collective bargaining principles set out in its conclusions. In this regard, the Committee recalls that Article 4 of Convention No. 98, ratified by Ireland, provides that measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements. The Committee firmly believes that the right to bargain freely with employers with respect to conditions of work constitutes an essential element in freedom of association, and trade unions should have the right, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those whom the trade unions represent [see Digest, op. cit., para. 881]. Moreover, the Committee recalls that the Collective Agreements Recommendation, 1951 (No. 91), defines the term “collective agreements” as all agreements in writing regarding working conditions and terms of employment concluded between an employer, a group of employers or one or more employers’ organizations, on the one hand, and one or more representative workers’ organizations, or, in the absence of such organizations, the representatives of the workers duly elected and authorized by them in accordance with national laws and regulations, on the other. The Recommendation, just as Article 4 of Convention No. 98, emphasizes the role of workers’ organizations as one of the parties in collective bargaining: only the Recommendation refers to representatives of unorganized workers and grants them a role in collective bargaining solely when no workers’ organization exists.