The resolution of the Irish Ferries dispute in December 2005 removed a major obstacle to partnership talks getting underway. Before entering the talks the unions secured personal guarantees from Taoiseach Bertie Ahern that their concerns about displacement of jobs and exploitation would be given priority attention. But the GAMA and Irish Ferries disputes had brought into sharp focus the complex set of labour relations issues that now existed in an Ireland of open borders. The unions made the issues of employment standards, compliance and enforcement in the labour market the central demand in the negotiations.
While there was a common thread of exploitation of vulnerable migrant workers connecting the cases featured here, there was a particular commonality between the Irish Ferries case and Laval and Viking in that employers were seeking to use EU law to help them replace EU-15 workers with lower-paid EU-10 workers. It has been argued that it was the peculiarities of maritime law which enabled the action of the employers in two of these cases and the peculiarities of the Nordic countries’ collective bargaining arrangements in the other. Thus, some would argue that these cases in isolation, do not necessarily herald the beginning of widespread social dumping (Donaghey and Teague 2006). However the Irish trade unions believed that they did do just that and observed that:
they [the unions]… had to make a working assumption that, if not addressed, it was only a matter of time before we had another Irish Ferries situation, albeit on land. Without a robust legal and enforcement architecture to deal with it our evaluation was that such a dispute would release very damaging racial and social tensions (Begg 2007).
Following the decision to re-enter partnership talks, formal negotiations began in February 2006. The outcome of these negotiations, Towards 2016, in June of that year was seen at the time, particularly within the trade union movement, as a ground breaking development in trade union effectiveness within social partnership, incorporating government commitments to embrace a robust legislative framework, increased standards for employment protection and a new designated enforcement agency
The key employment protection provisions of Towards 2016 were:
The establishment of the National Employment Rights Authority (NERA) with an increase to 90 in the number of Labour Inspectors
The Revenue Commissioners, Social Welfare and NERA to collaborate in joint investigation units to target serious abuses of employment standards;
The tax system to be reformed to prevent workers from being forced into bogus self-employed status to allow employers to avoid pension contributions etc.;
Employers to be obliged to keep accurate employment records in a prescribed format for inspection by the Labour Inspectors;
The Minister for Enterprise, Trade and Employment to have new legislative powers to allow him to publish the outcome of investigations like the GAMA case;
A new Employment Rights procedure to be established to allow easier access to Dispute Resolution Services and with the facility to award compensation where rights are denied.
Penalties for non-compliance in all areas of employment to be increased as follows:
On summary conviction - €5000 in the District Court and/or imprisonment,
On indictment – penalties up to €250,000 and/or imprisonment.
The Irish trade union movement saw the successful negotiation of these measures as representing “the single biggest leap forward in social policy initiated in Ireland” (Begg 2007). The Employment Law Compliance Bill, 2008 was published in March 2008 and was to provide the legislative framework for the implementation of the provisions of Towards 2016. In introducing it, Micheal Martin, Minister for Enterprise, Trade and Employment said: “this is the most significant single piece of legislation introduced in the employment rights area in recent years. It is a comprehensive package and a firm indication of this government’s commitment to the principles of social partnership” (DETE 2008). However, in the end, the Employment Law Compliance Bill as agreed, was never enacted, despite a commitment to do so by the end of 2008. It lapsed on the dissolution of Dáil Éireann on the 1st of February 2011. NERA was established and eventually had its complement of 90 staff, but it was never placed on a statutory footing and other than that, to quote SIPTU’s Jack O’Connor: “There were nine legislative changes committed to (under Towards 2016) and all of them, without exception, were reneged upon” (Interview, 2012). MRCI’s Siobhán O’Donoghue (while very much of the view that there was little that happened within social partnership to benefit migrant workers) believed that: “The thing that would really have made a huge difference was the Employment Law Compliance Bill. We campaigned very hard on that but nothing happened and it’s gone now, we know it’s gone” (Interview 2012).
The issue of temporary agency workers (TAWs) was not covered by Towards 2016 and was one of major concern to the unions. In the first quarter of 2005 the CSO estimated that there were 27,000 TAWs employed in Ireland, 2% of the total workforce. SIPTU believed this to be a significant underestimation and stated that employment agencies were proliferating and agency personnel continued to be used by employers, thus circumventing the conditions of the direct employment contract that the new agreement required. It pointed out that there were “as many as 520 employment agencies currently licensed to operate in Ireland, as well as unlicensed operators and off shore agencies” (SIPTU 2007; Ruhs, 2005). The formal review of Towards 2016 provided for the introduction of the Employment Agency Regulation Bill (to replace the 1971 Employment Agency Act) before the end of 2008. It proposed that employment agencies located in Ireland, or operating within Ireland, be licensed in Ireland, abide by a code of practice and be liable for prosecution for transgression. This Bill also lapsed on the dissolution of the Dáil in February 2011 and agencies continue to be regulated under the 1971 Act. The review also committed to the transposition into national law of the new EU Directive on Equality of Treatment for Temporary Agency Workers, which was to take place by the end of 2011. It was actually transposed into Irish law in May, 2012. Under the Directive agency workers are entitled to pay and conditions equal to those of direct employees from day one of starting work. A flexibility clause is included in the legislation for some industrial sectors which enables employers in those sectors to negotiate with trade unions to try to introduce a phase-in period before full rights are received.