Supreme Court dismisses appeal as Labour Court misapplied Iarnród Éireann v. Holbrooke regarding collective bargaining practice.

THE SUPREME COURT

Appeal No. 377/2005

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

BETWEEN:

RYANAIR LIMITED

APPLICANT/APPELLANT

AND

THE LABOUR COURT

RESPONDENT

AND

IRISH MUNICIPAL PUBLIC AND CIVIL

TRADE UNION (IMPACT)

NOTICE PARTY/RESPONDENT

JUDGMENT of MR. JUSTICE FENNELLY delivered the 1st day of February, 2007.

I fully agree with the judgment that has been delivered by Geoghegan J. I write only to explain that I also am of opinion that the

Labour Court has misunderstood part of the reasoning in my judgment in Iarnród Éireann v. Holbrooke [2001] 1 IR 237.

The Labour Court relied on this judgment as an alternative to its principal conclusion that it is not the practice of Ryanair to engage in

collective bargaining negotiations in respect of the relevant grade, group or category of workers. What it said was that, even if it was

the practice of Ryanair to engage in such collective bargaining negotiations, it, the Labour Court, “would hold that any such body

could not lawfully do so in respect of the group of pilots who are party to the instant dispute.”

It must first be recalled that what the Labour Court had to be satisfied of was that:

“it [was] not the practice of the employer to engage in collective bargaining negotiations in respect of the relevant grade,

group or category of workers who are parties to the trade dispute…”

The Labour Court cited the following passage from my judgment in Iarnród Éireann v. Holbrooke:

“At this point it is important to note that the definition of an excepted body is one which ‘carries on negotiations for fixing

wages …’ (my emphasis), whereas, as in this case, it cannot actually carry on such negotiations where the employer

refuses to negotiate. ………

As I see it, the issue is whether a body can claim that it ‘carries on negotiations’ (noting the use of the present tense)

where patently it does not and cannot do so because the employer refuses to negotiate.”

Patently, the employer in the present case has not stated that it refuses to negotiate and the Labour Court does not claim that it

has. However, its decision says:

“It is clear from this judgment that a body of persons can only be an excepted body if the employer consents to

negotiate with the body. By parity of reasoning, if an employer wishes to negotiate with a group of its own staff rather

than through a trade union, but the employees are unwilling to negotiate on that basis, they cannot be an excepted

body.”

Those statements are not justified by the cited passages in my judgment in Iarnród Éireann v. Holbrooke. As I explained at page 245

of the judgment, “the legislative intent was to relieve against the obvious hardship which would have resulted from depriving

employees in small firms of the right to negotiate directly their pay and conditions of work with their employer.” Without the provision

for “excepted bodies,” it would have been unlawful for a group of employees to negotiate with their own employer. The first sentence

in the quoted passage from the Labour Court decision is puzzling. A body cannot be excepted unless it negotiates. It cannot

negotiate with the employer without the latter’s consent. The second sentence seems to be to the same effect. But I do not see

how either sentence justifies the conclusion reached by the Labour Court that “any such body [apparently an excepted body of

pilots] could not lawfully do so in respect of the group of pilots who are party to the instant dispute.” This, with respect, is circular

reasoning. If any group of pilots is willing to negotiate with Ryanair, it being accepted that Ryanair is willing to negotiate, it follows

that that group is an excepted body. Thus, there would be no illegality.

To be fair to the labour Court, I should cite the intervening passage, from which it appears to deduce this conclusion. It is as follows:

“If…… there is an excepted body comprising pilots employed by Ryanair, membership of the body could only be voluntary

and could not extend to those who do not wish to be members. It seems equally clear from the plain wording of Section

6(3)(h) of the Trade Union Act, 1941 that such an excepted body could only lawfully negotiate on behalf of its own

members and no other employees. On the uncontradicted submission of IALPA those pilots which it represents do not wish

to be represented in negotiations with their employer other than by their trade union. On that account they could not be

realistically described as members of an excepted body constituted for the purpose of negotiating directly with Ryanair

and any such body could not lawfully engage in collective bargaining on their behalf.”

Again, this passage seems open to the charge of circularity. I leave aside the question of the sufficiency of evidence, which has been

dealt with in the judgment of Geoghegan J. The Labour Court uses the unwillingness of those pilots who are members of IALPA to

negotiate directly, in order to reach the conclusion that it would be unlawful for Ryanair “to engage in collective bargaining

negotiations…” It does so in reliance on the pilots’ wish to be represented by a trade union, when Ryanair’s acknowledged policy is not

to negotiate with a trade union. The essential step in the reasoning is the statement that the pilots “could not be realistically

described as members of an excepted body…” But the question before the Labour Court was whether it was the practice of Ryanair to

engage in collective bargaining. The conclusion of the Labour Court would implicitly oblige the company to negotiate with a trade

union. Even though it says it is willing to engage in collective bargaining, it is said that it could not lawfully do so, because the

employees do not consent.

Iarnród Éireann v. Holbrooke involved an attempt by a group of employees to compel their employer to negotiate with them and/or a

Trade Union which did not have a negotiating licence. The employer refused. In the present case the employer has refused to

negotiate with a trade union but maintains that it is willing to negotiate with the employees.