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

AuthorLouise McCormack
PositionSenior Sophister LLB candidate at Trinity College Dublin
Pages155-169
© 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].

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