Trade Union Recognition: A Defence of the Irish Regime in Light of British Failings

• Author: Louise McCormack
• Position: Senior Sophister LLB candidate at Trinity College Dublin
• Pages: 155-169

© 2020 Louise McCormack and Dublin University Law Society

TRADE UNION RECOGNITION: A DEFENCE OF THE

IRISH REGIME IN LIGHT OF BRITISH FAILINGS

LOUISE MCCORMACK*

Introduction

According to Metcalf, ‘recognition is the fulcrum on which [union]

membership moves’.

1

This assertion is somewhat misguided. While

recognition imposes an obligation on an employer to meet with union

representatives, it does not entitle a union to any substantive outcomes -

an employer may simply choose to ignore all representations made. This

begs the question: what use is recognition if it cannot guarantee tangible

results? Rather than campaigning for recognition and the procedural

entitlements it generates, unions should be focusing on the development

of a framework which promotes meaningful collective bargaining and

effective dispute resolution. Although recognition is not necessary for the

implementation of such a framework, almost all Western democracies and

liberal-market economies, with the exception of Ireland, remain wedded

to the idea of mandatory trade union recognition.

The rationale behind the Irish regime stems from the abstentionist

teachings of Otto Kahn-Freund who believed that utilitarian laws were not

the most effective means of redressing the imbalance in power inherent in

the employer-union relationship. He advocated for a system of ‘collective

laissez-faire’, also known as voluntarism.

2

The voluntarist approach is

characterised by a lack of positive legislative intervention. Parties are

encouraged to conclude their own agreements; agreements which, as a

result of their mutual and forthcoming conclusions, are the ‘most likely to

be successful and suited to the needs of the enterprise’.

3

Machiavelli famously posited that ‘[t]here is no need of legislation

so long as things work well without it, but, when such good customs break

* Louise McCormack is a Senior Sophister LLB candidate at Trinity College Dublin. The

author would like to thank Professor Gerry Whyte and the Editorial Board for their

assistance with this article.

1

David Metcalf, ‘British Unions: Dissolution or Resurgence?’ (1991) 7(1) Oxford Review of

Economic Policy 18, 25.

2

Otto Kahn Freund, Labour and the Law (2nd edn, Stevens and Sons 1977).

3

Board of Trade (UK), Fairness at Work (Cm 3968 1998) [4.10].