Staff associations are commonly viewed as a moderate alternative to representation via an ‘external’ trade union and are frequently used as a means of forestalling unionisation. They can also be viewed as being more attuned to the enterprise-specific needs of employees and a reflection of a preference for cooperative employee relations. However, like liquorice allsorts, they come in a variety of shapes and sizes and operate under different degrees of employer control.

For example, whilst many operate with encouragement from and the active participation of management, this contrasts with those that are associate members of the Irish Congress of Trade Unions (ICTU) (e.g. the Hospital Consultants and Specialists Association, the Permanent Defence Forces Other Ranks Representative Association (PDFORRA)). Then there are others that are full members of the ICTU (e.g. the Association of Higher Civil and Public Servants, the Prison Officers’ Association);  whilst some have merged with or affiliated to trade unions (e.g. the Irish Aviation Executive Staff Association, the Medical Laboratory Scientists Association).

Then there are those staff associations that even periodically threaten or deploy industrial action measures to progress their agenda (e.g. the Garda Representative Association, the Association of Secondary Teachers in Ireland). Indeed, the established status of some such associations in the public sector is evident from the fact that as far back as 1977 – courtesy of an agreed recommendation via the General Council of the State’s Conciliation and Arbitration scheme for civil servants -  arrangements were put in place ‘to enable the ordinary membership subscriptions of certain staff associations to be deducted from the pay of members’.

Key Characteristics

Many organisations have staff associations in place to represent employee interests. Whilst similar to what trade unions offer, the vast majority differ significantly in their structure, power and effectiveness. That is, most staff associations, employee forums or staff representative groups operating across the private sector  are primarily concerned with the workplace they operate within, have limited legal powers (e.g. no right to strike) and are subject to varying levels of management influence (occasionally) at the expense of employee preferences. It is also apparent that such staff associations are frequently established to forestall unionisation initiatives (e.g. CityJet) and to cool threats of industrial action (e.g. Siemens).

Despite not being in possession of officially issued negotiation licenses, most of these staff associations engage in collective bargaining, as recently evidenced by the staff association at the North Midlands Credit Union. Furthermore, when this bargaining fails, staff associations can (and do) contest issues with their employers via third parties, including the Labour Court (e.g. FBD Field Staff Association, MIMA (Cadbury’s) Staff Association, Trinity College and Library Staff Association, Guinness Staff Association – now the Guinness Staff Union).  Should a third party fail to settle matters, it is not unheard of for an association to take industrial action (e.g. the Garda Representative Association’s ‘blue flu’) or to threaten such action (e.g. the Psychiatric Nurses Association, the Medical Laboratory Scientists Association).

In contrast, the standard scope of such ‘in-house’ associations across the private sector is well reflected in one Staff Representative Group’s (SRG) constitution, stating that: ‘It is intended that the SRG will:

• enable all employees to contribute to the prosperity, future success and development of the organisation;
• promote mutual trust and co-operation between the organisation and its staff; and
• negotiate on terms and conditions of employment with a view to reaching agreement’.

More extensively, the Irish Stable Staff Association commits to serving staff needs: ‘From housing challenges to mental health issues, from medical card application to mortgage re-finance and from addiction challenges to reunification visa applications …’.

However, most associations across the private sector, like the aforementioned SRG, tend to commit to consultation on matters such as: ‘business strategy and targets; business performance; business development/new products and marketing updates and initiatives’. Further reflecting this Group’s constrained circumstance,  the same constitution includes the standard stipulation that whilst: ‘The SRG will represent all staff and represent the interests of employee categories throughout the organisation, excluding management, the SRG meetings with management will be chaired by the General Manager’.

Notably, a legal dimension is also introduced here, via an obligation on the staff  representatives to ‘sign off’ on the constitution, by including a provision that: ‘This agreement forms part of the employee's contract of employment as a collective agreement dealing with collective bargaining, communications and information provisions as set out in this document’.

A further dimension of staff associations is raised by the reputable UK-based Institute for Employment Studies, as it extols the merit of a ‘mixed model’ of a staff forum and union working well together and as an ‘ideal way’ of ensuring that all employees in an organisation can express their views, experiences and ideas for solving problems and improving the organisation and the working lives of its staff. Evidence of this approach may be seen at Mondelez (i.e. Cadbury chocolate manufacturers).

Legal Obligation to Consult

Of course, staff representative bodies are typically established for specific purposes. One such purpose is to  comply with statutory information and consultation obligations. In 2001, two statutory instruments (SIs) introduced a form of obligatory consultation in transfer of undertaking (SI 487/2000) and employment protection (SI 488/2000) (i.e. collective redundancy) situations. 

Both instruments provided for employers without unions or staff associations to consult in certain situations with ‘a person or persons’ chosen by the employees ‘from amongst their number’, with access to a third party in the event of a dispute in respect of the extent or substance of the alleged consultation. This obligation has featured at third part fora hearings, with one instance in respect of a collective redundancy giving rise to the determination that an employer’s duties in this regard: ‘go beyond information. The employer must tell the employees what is happening and why, but then must discuss it. Discussion must be with the employees in a collective sense’ (PEI/2003-PE44/2003).

Ryanair and the Supreme Court

Probably the most consequential role played by a staff association (or employee forum) in Irish industrial relations transpired at the Supreme Court in 2007, when Ryanair successfully (albeit temporarily) avoided IMPACT’s (now FORSA’s) incursions, in a union recognition dispute. In this instance, Ryanair argued that their existing employee forum was an ‘excepted body’ under the Trade Union Act 1941, thus having the right to negotiate wages and employment conditions. Researchers at the University of Limerick (UL) subsequently explained that an ‘excepted body’ exists or is established at the behest of an employer, is employer-specific and doesn’t require a negotiation licence. Nor does it require the consent of the covered employees or undertake a formal application or verification process to enable its establishment.

As confirmed in the aforementioned Supreme Court decision, such an employee body – even if established by the employer – is an ‘excepted body’ that can conduct collective bargaining negotiations. Notably, the UL research led to the conclusion that an ‘excepted body’ is one ‘established, dominated and controlled’ by the employer. Undoubtedly this issue will feature in the imminent process designed to give effect to the Government’s recently issued ‘Action Plan’ to promote collective bargaining.

Similar to Ryanair’s sorry saga, just last year Decotek Automotive adopted the standard stance in such scenarios,  arguing that it was fully committed to engaging with all employees directly ‘and are demonstrating this position by introducing a Staff Association to represent them’. In the course of a Labour Court hearing, the company’s spokesperson added that it had ‘a right not to recognise unions for collective bargaining’ and was choosing ‘to exercise that right’. In line with precedent, the Labour Court recommended that the company recognise SIPTU, albeit under Section 20 (1) of the 1969 Industrial Relations Act, which is not legally binding on the employer (LCR23011).

What Is An ‘Excepted Body’?

The legal status and interpretation as to what exactly constitutes an ‘excepted body’ resurfaced recently, when the staff associations in the Defence Forces (i.e. PDFORRA and RACO) were told (initially) by the Official Side – in advance of negotiations about derogations from the working time Directive - that it was unsure as to whether they are ‘excepted bodies’, as defined under the 1941 Trade Union Act. Both associations successfully insisted that they are ‘excepted bodies’, as they deal with only one employer and represent the vast majority of personnel within their respective ranks. Section 24(4)(c) of the Organisation of Working Time Act, 1997, which implements the aforementioned Directive into Irish law, states that the body negotiating a derogation agreement has to be either: ‘the holder of a negotiation licence under the Trade Union Act, 1941, or .. an excepted body within the meaning of that Act which is sufficiently representative of the employees concerned’. An ‘excepted body’ is defined in the latter enactment as a body of members who are employed by the same employer and conduct negotiations on behalf of its own members (but no others) on wages or other employment conditions.

Notably, when hearing the aforementioned Ryanair case, the Labour Court decided that the company’s Employee Representation Committee (ERC) was not an ‘excepted body’ or collective bargaining unit as defined in law.  As the employees concerned didn’t want to be represented by the ERC, it was deemed that it did not have the status of an independent excepted body. However, the Supreme Court subsequently held that insufficient evidence was presented to support this contention and that an ‘excepted body’ can be established by the employer, as long as it exhibits a degree of ‘independence’, has a system of elections and is part of an internal bargaining system that is ‘fair and reasonable’.

However, in 2015, the Industrial Relations (Amendment) Act introduced a new definition of an ‘excepted body’, as a: ‘body that is independent and not under the domination and control of an employer or trade union of employers, all the members of which body are employed by the same employer and which carries on engagements or negotiations with the object of reaching agreement regarding the wages or other conditions of employment of its own members’. This revision related to the vexed question of the right to bargain and union recognition, prompting the Labour Court – in the first case dealt with under the revised law – to conclude that though the employer (i.e. Freshways) engaged in bargaining with its staff representative group, it did not fall within the definition of an ‘excepted body’ under the new Act (LCR21242) . Notably, the 2015 Act lists a number of factors to be considered when reaching such a conclusion (e.g. the establishment, functioning and administration – incl. elections, funding, bargaining record and duration of existence - of the alleged ‘excepted body’).

Staff Association’s Constitution

For the purpose of meeting legal obligations under the Employees (Provision of Information and Consultation) Act 2006 - see Code of Practice on Employee Involvement in the Workplace - IBEC advised members in 2007 that when establishing an Employee Representative Forum, consideration should be given to the ‘constitution/charter’ of such a body. This should address matters such as its role and operating procedures; membership (incl. a management representative) and members’ elections/appointments, roles, training, protections, facilities and  rules relating to chairmanship, confidentiality, agendas, dispute resolution, expert inputs, minute taking and sharing etc.

This advisory checklist is similar to the more longstanding ‘Duties and Responsibilities of Employee Representatives’ Code of Practice (that also extends to representatives operating in ‘excepted bodies’). This Code provides for representatives’ protection and facilities, that are designed to help them carry out their duties in an ‘effective and constructive manner’. It lists the principal duties and responsibilities of employee representatives, their election, the protections afforded in respect of their status or activities as employee representatives, the facilities to enable them to carry out their functions as employee representatives promptly and efficiently, time off for relevant duties, training, access to members and management, due/subscription collection arrangements, notice board access and usage etc.

Indeed, a scan of an array of such constitutions of Staff Associations/Employee Representative Fora across the private sector reveals that these checklists are commonly adhered to with appropriate provisions, whilst in the public sector arrangements along similar lines (i.e. providing for facilities, leave, office resources, notice board usage etc.) can be traced back to 1980 – see Circular 14/1980.

Conclusion

In conclusion, it is clear that staff associations and equivalent classifications like Employee or Staff Representative Fora are here and are here to stay. They play an important role in enabling an employer to avail of a collective channel of communication and consultation with staff, help to meet legal obligations and keep the necessity for or threat of trade union incursion at bay. 

However, in a fluid political and legal environment nothing is certain. This is apparent both from opinion polls taking the public’s temperature as to their political preferences and exchanges between and commitments made by the social partners and Government in respect of the aforementioned ‘Action Plan’ on collective bargaining. So, at least for now, it would seem judicious for employers to ensure that such fora are appropriately established and supported, enabling them to engage with their employers in what Government agencies describe as an ‘effective and constructive manner’.

Dr. Gerry McMahon is a former lecturer at TUD and Adjudicator at the WRC. He is the MD at Productive Personnel Ltd., specialising in H.R./Employee Relations consultancy and training assignments. E-Mail: ppl1gerry@gmail.com