Daryl D'Art BL

The Irish Human Rights and Equality Commission last December published a research paper which found there is no constitutional bar in Ireland to the introduction of a right to collective bargaining.

However, Daryl D’Art BL has suggested the report contains “serious failings”, in particular by not dealing explicitly with union recognition — which he describes as an “interdependent and inextricably interlinked” issue.

His critique has been published in the latest edition of Administration, the journal of the Institute of Public Administration of Ireland (IPA).

Mr D’Art wrote: “Union recognition, a prerequisite to collective bargaining is never mentioned or considered. For the report, it seems, union recognition is a concept that dare not speak its name.”

He also argues the research paper does not engage enough with recent judgments of the European Court of Human Rights (ECtHR), including the landmark judgment in Demir and Baykara v Turkey, which the paper only mentions in passing.

“In a radical departure from its previous case law, the ECtHR now holds that freedom of association encompasses not only the right to form and join unions, but a concomitant and indivisible right to union recognition and collective bargaining,” Mr D’Art said.

He added: “From the ECtHR perspective, the old dispensation which separated the right to form and join unions from the right to union recognition and collective bargaining has no longer any legal validity.”

While acknowledging that the Irish Constitution does not have to be read in line with ECtHR case law, he suggested it still “may place the Irish judiciary under some obligation to modify or alter their long-held position separating the right to associate in unions from a corresponding right to recognition”.

The paper’s failure to tackle the question of union recognition could have the unintended consequence of depriving workers of a right to recognition identified by the ECtHR, he concluded.