The current issue and full text archive of this journal is available at www.emeraldinsight.com/0142-5455.

htm

ER 34,5

464

Attitudes to employment law and the consequent impact of legislation on employment relations practice
Deirdre Curran and Mary Quinn
National University of Business and Economics, Galway, Ireland
Abstract
Purpose The purpose of this paper is to explore attitudes to employment law and the consequent impact of legislation on Irish employment relations practice. Design/methodology/approach The paper adopts a comparative approach using two separate pieces of employment law governing race equality, and employee information and consultation, respectively. Semi-structured interviews with key informants are the main data source, augmented in the case of the information and consultation legislation by focus groups in individual workplaces. Findings The empirical evidence presented suggests that legislation is not the primary initiator of change. In the case of race equality the market was found to be a key determinant of practice (termed market-prompted voluntarism). However, it is argued that regulation can influence change in organisations, depending on the complex dynamic between a number of contingencies, including the aspect of employment being regulated, the presence of supportive institutions, and organisationspecific variables. Practical implications The comparative findings in this research allow some important inferences to be made regarding the use of law to mandate change in employment relations practice. They, in turn, provide useful lessons for future policy makers, managers, trade unionists and workers. Originality/value This paper is unique in its comparison of two separate pieces of legislation. In both cases considered, the legislation was prompted by EU Directives, and the obligation on member states to transpose these Directives into national law. The findings suggest that readiness for legislation, based on length of national debate and acceptance of the underlying concept, can influence its impact. The concept of equality seems to have gained widespread acceptance since the debate provoked by the 1948 Universal Declaration of Human Rights. However, understanding and acceptance of the concept of employee voice has been much less pronounced in the Anglo-Saxon world. Keywords Ireland, European Union, Legislation, Labour law, Social policy, Employment law, Employment relations, Race equality, Information and consultation Paper type Research paper

Employee Relations Vol. 34 No. 5, 2012 pp. 464-480 r Emerald Group Publishing Limited 0142-5455 DOI 10.1108/01425451211248514

Introduction The purpose of this paper is to explore attitudes to regulation and the consequent impact on employment relations practice. The paper draws on detailed analysis of two pieces of Irish legislation, relating to Oireachtas na hEireann, employment equality and information and consultation (hereafter I&C), respectively. The empirical evidence presented suggests that the nature of the issue, in terms of its broader societal acceptance, is important in determining the degree of impact of legislation providing for it. Consistent with previous research, however, employers tend to resist legislation, even where they support the issue being regulated. The findings also suggest that legislation is not the primary initiator of change and that the market often takes precedent. However, it is argued that regulation is not without influence in organisations, depending on the complex dynamic between

contingencies and the strategic choice reaction to those contingencies by significant actors. It is further argued that the law can provide a supportive framework for change initiated from another source or that it may set parameters for change that is already planned or under way. Institutional structures have a positive impact in terms of education, support, and enforcement, following the introduction of employment law. Literature For most adults, the performance of paid work in the context of an employment relationship provides some degree of personal fulfilment, opportunities for social interaction, and the facility to earn a living wage (McCallum, 2006). The relative power of the employer and the employees, sometimes illustrated by a frontier of control (Goodrich, 1920; Hyman, 1975), is well documented in the academic literature. The state acts as the third force in the employment relationship (Poole, 1980). It can exercise considerable influence, modifying the power of either or both main parties, and may choose to do so to varying degrees, depending on its political ideology and other contextual factors. Legislation is one of the ways the states influence is manifested. While the state undoubtedly has this role, it would be inappropriate to evaluate its role as that of impartial facilitator (Wallace et al., 2004, p. 19). The tendency of any democratic state is to favour the side that offers the most political influence. Consequently, successive Irish governments have upheld the established norms, values and culture of liberal capitalism (p. 19). This idea of political influence determining state approach, and the subsequent impact on the degree of regulation, is illustrated by Salamons (2000) ideal-type descriptors. The two that bear most resonance for the Irish situation are bargained corporatism and market individualism. Bargained corporatism recognises the value of incorporating employers and trade unions into the political decision-making arena where both gain significant influence over economic and social policy. In return the state expects industrial relations stability and negotiated consensus in the national interest. Proposals for statutory regulation are among the many issues that can comprise the negotiating agenda of the social partners. This approach was characteristic of Irelands social partnership model from the late 1980s until the current economic recession. The social partnership processes are currently suspended and, at the time of writing, Ireland is in a transitional period in terms of the state approach. Market individualism, and its modern variant neo-liberalism, has relevance for Ireland because of the dominance of MNCs operating there, particularly those of US origin. In 2010 Ireland was the second-largest net recipient of foreign direct investment from outside the EU. Almost 1,000 foreign-owned companies were operating in Ireland in that year employing over 125,000 people (IDA Ireland). This ideology is characterised by a laissez-faire political ideology coupled with a powerful business lobby and weak trade union influence. The guiding principle is that market forces should determine the operation of the labour market. Under a neo-liberal regime, the state takes a central role in the construction and defence of the free market and one of the consequences is erosion in the scope and impact of employment regulation (Smith, 2009, p. 338). At the level of the workplace, a fundamental aspect of regulation in the employment relationship is the contract of employment. The liberal view of law sees both parties entering into this contract and fixing its terms from an equal position (Fredman, 1997). Thus, the rules of engagement are established between the parties through the mechanism of the contract. Proponents of this view fundamentally question the need

Attitudes to employment law

465

ER 34,5

466

for additional statutory regulation. The liberal perspective results in a voluntarist industrial relations system, in which the role of the state is confined to a behindthe-scenes facilitative role. Differing interests between employers and workers are negotiated primarily through non-legal processes. This view is at odds with a view of the employment relationship as founded on an imbalance of power, where statutory legal regulation is needed to rectify that power inequality. According to Kahn-Freund:
The main object of labour law [is] to be a countervailing force to counteract the inequality of bargaining power which is inherent and must be inherent in the employment relationship (1977, p. 6).

Proponents of this view recognise an active role for the state and give priority to legislation in managing the employment relationship. Such regulation can impact on a range of individual and collective aspects of employment, including employee voice and employment equality. In Ireland, since the late 1960s, the employment relationship has been gradually but profoundly changed by a series of legislative provisions emanating in parallel from the bargained corporatist approach at national level and from EU-led initiatives. This regulatory framework limits the power of management by granting the employee a number of statutory employment rights and imposing corollary obligations on the employer (Butler, 1997, p. 377). The American influence is also strong in Ireland, as a result of the large number of American MNCs on which the Irish economy heavily relies. Thus, the employment relationship in Ireland has become less subject to the outcomes of voluntarist processes and more to the influence of national and EU regulatory initiatives. Over the last three decades, union density has reduced significantly, estimated in 2007 as 31.5 per cent from a high of 62 per cent in 1980 (Roche, 1997). Whilst the unions view of regulation has mollified considerably from their traditional antipathy, it is noteworthy that very many employers continue to resist it as an unwelcome and unnecessary burden on business and as an inhibitor of competitiveness. Indeed in a survey of private sector employers in Ireland, almost 70 per cent identified labour regulation and legislation as a source of some or intense pressure on the business (Watson et al., 2009, p. 54). The imbalance of power referred to earlier can be more pronounced in certain employment situations, making the need for regulation more acute. While employment law offers protection to all workers it provides the chief defence for non-union workers not covered by collective bargaining agreements (Pollert, 2007, p. 110). However, Pollert also claims that in reality legal instruments are often weak and less effective than they should be. She argues that in the UK, in particular, employment rights are weak in two respects. They are weak substantively, in terms of minimalist interpretation [of EU Directives], and weak procedurally in terms of monitoring, access to support and enforcement. Employers adherence to proper procedure and knowledge of employment legislation is poor, especially among small firms (2007, p. 113). Smith and Morton (2006) undertook an examination of labour law in the UK since the election of New Labour in 1997 and concluded that the thrust of government intervention is designed to improve labour-market efficiency (p. 403). They argue that the Labour government was heavily influenced by lobbying from employer bodies such that new regulations, whether of domestic or European origin, were subjected to a minimalist interpretation. Hickland cited in Dobbins (2008) claimed that in the case

of the transformation of the I&C Directive in Ireland, the Government, employers and the state development agencies colluded [y] to ensure a law that would placate inward investors (IRN). Dickens (2002) claims that where UK employers have resisted the imposition of new EU-originated regulation the state has adopted a social partnership approach to their implementation. Such was the case, for example, in the transposition of the EU I&C Directive into UK law. As a consequence enforcement in terms of knowledge, access, and sanctions remains an issue (Smith and Morton, 2006, p. 411). They conclude that the managerial prerogative which enjoyed such dominance in the 1990s has resurfaced anew and that: Employment rights are diluted by their limited scope, difficulty in access and weak sanctions (2006, p. 411). Hall (2006) in his assessment of the impact of the ICE regulations in the UK noted the very few reported instances of employee challenges under the law. He speculates that this may reflect union ambivalence to the regulations or that the required 10 per cent workforce threshold is simply too high a hurdle to jump (2006, p. 470). Hall concludes that:
[y] if employees find it difficult to pull the trigger, the scope for unilateral management action or for doing nothing remains wide (p. 470).

Attitudes to employment law

467

Despite a view of the law as primarily facilitating the market, and of employer interests being given privileged hearing (Dickens, 2002, p. 625), benefits can accrue for workers also, and the law can promote change that might not otherwise have occurred. Thus, the mere existence of regulations may spur employers or workers to take action and create what Hall (1994, p. 104) refers to as legislatively-prompted voluntarism. Dickens (2007) draws on the example of the pay equality legislation in the UK which had the effect of narrowing the gender pay gap and has driven changes in employers pay structures, and approaches:
Legislation is not restricted per se to behavioural compliance it can play a role in bringing about changed understandings, values and attitudes (2007, p. 487).

OSullivan and MacMahon (2010) claim that equality legislation has been effective in Ireland in encouraging employers to develop policy and provide training, even if the primary motivation was to form a defence against potential claims of discrimination. Kochan et al.s (1986) strategic choice framework can be drawn upon to explore the impact of the law. They argue that industrial relations systems in general, and the employment relationship in particular, cannot be understood in isolation at the level of the firm. In this framework, the employment relationship is mediated by variables in the external environment, including characteristics of the product and labour markets and state ideology and by internal environmental characteristics such as the history, strategy, structure and values of the organisation. The strategic choice reactions of the key players to environmental variables, including legal enactment, determine industrial relations structures and outcomes at workplace level. Gollan and Wilkinson (2007) emphasise that small firms have particular challenges in implementing the ICE regulations in the UK. Union status and sector (whether public or private, manufacturing or service) are two other characteristics deemed by Gollan and Wilkinson to be relevant in terms of degree of impact of the regulations. At the level of the workplace HR policies and the level of trust in management are important variables (Gollan and Wilkinson, 2007, p. 1156).

ER 34,5

468

Dickens (2004) identifies the market context of the organisation and the preferred management style as additional factors that influence the impact of law. She cites Colvins (2003) argument that the influence of the law is filtered through and influenced by the organizations own strategic orientation in regard to its employees (2004, p. 603). In Dickens review of 30 years of equality legislation in the UK, she emphasises the importance of the wider context (including broader social policy and political context) in determining the impact of equality legislation at the level of the workplace (2007, p. 485). Smith and Morton believe that only workers collective power can counter the power of employers and give substance to statutory employment rights (2006, p. 414). Regarding the implementation of the I&C Directive in the UK, Gollan and Wilkinson claim:
[y] the Directive could easily result in weak employer-dominated partnerships and nonunion firms using direct communications and information [y] while marginalizing collective consultation (2007, p. 1152).

Dickens also argues that a broader approach than mere formal regulation needs to be adopted to bring about significant change in workers experience. A strategic tripod of legal regulation, social regulation and the business case is likely to provide a sounder basis for supporting equality action than balancing on a single pole (1999, p. 16). Key points emerging A review of the literature in this area reflects a number of key themes. First, the imbalance of power in the employment relationship dictates the need for regulation of some aspects of employment. However, acceptance of this need varies with individual perspective, state ideology, and from issue to issue. Second, Ireland has moved away from a voluntarist tradition towards a more regulated context due to a combination of an evolving state ideology, a reduction in collectivism, and increased pressure from the EU. Third, employers resist regulation as an unwelcome burden on business and a threat to their prerogative. Finally, the actual impact of law on workplace behaviour is likely to be moderated by a combination of factors which may include the subject of the law itself, institutional support structures, collective worker power, and receptive employer and employment contexts. Research approach and data collection This paper is based on detailed analysis of two pieces of employment legislation in the Republic of Ireland: race equality legislation and legislation governing I&C. While the Irish Employment Equality Acts (Oireachtas na hEireann, Employment Equality Act, 1998 and Equality Act, 2004) address nine different discriminatory grounds, it was decided to focus on the specific ground of race equality rather than attempting to address all nine grounds covered by the Acts. This created a clearer focus for the empirical research while still allowing examination of important issues concerning the legislation. The second case focuses on the Oireachtas na hEireann, Employees (Information and Consultation) Act (2006) (hereafter I&C Act). The race equality study was based on data collected in semi-structured interviews in ten representative organisations, five representing employers and five representing workers. Organisations active in economic sectors with high migrant worker density were selected for interview, due to presenting the best opportunities to identify what

practices relating to race equality existed. On the employer side, interviews were carried out in the Irish Business and Employers Confederation (IBEC, 2009) which reaches into all sectors of the economy, and in four other organisations representing employers in each of the construction, hotel, health service, and small and medium business sectors (ISME). On the union side, an official of the Irish Congress of Trade Unions (ICTU), the umbrella body for unions in Ireland, and officials of four individual trade unions were interviewed. The unions included a general, retail, banking, and nursing union, all unions with anticipated high migrant worker participation1. The interviewees all had specific responsibilities for equality in their organisations, either as specialists, or as part of generalist roles. The fieldwork was conducted in 2009, some ten years after enforcement of the Oireachtas na hEireann, Employment Equality Act (1998) and five years after its relatively minor amendment in 2004. In the case of the I&C Act, semi-structured interviews were again the primary data collection method. Interviews were held with four representative organisations, two employer organisations and two unions, to access the macro-level institutional perspective. IBEC and the ISME were again selected as were ICTU and the countrys largest union, Services, Industrial, Professional and Technical Union (SIPTU). Interviewees were either I&C specialists or generalists whose remit included I&C. In addition to these interviews, more detailed studies were carried out in four individual companies, enabling a range of micro-level experiences to be probed. The four companies selected varied in size, sector, and ownership and included both unionised and non-union companies (see Table I). Within each company, a HR manager and an employee representative, where such a person existed, were interviewed and a focus group of employees was conducted. In one company there was no formal employee representative. In another company QJ;the only elected employee representative was the European Works Council nominee. In the remaining two companies elected union representatives were interviewed. The employee focus groups were comprised of employees chosen by management to represent the main categories of non-managerial workers. The limitation of allowing management to select the participants for the focus groups is acknowledged. However, access to employee respondents was dependent on management discretion and approval. The researchers did stipulate that between six and 12 non-management participants were required, representing all of the main employee groups on site. Details of all of the participants in the case of the I&C regulations are included (see Table II).

Attitudes to employment law

469

Organisation InsuriCo CompuCo TechCo DistribuCo

Numbers employed Total In Ireland Multi-national/ownership Union status Sector 300,000 145,000 60 15,000 800 4,000 45 12,000 MNC French MNC USA Irish based and owned Irish based and owned Unionised Non-union Non-union Unionised Financial services Hi-tech manufacture Hi-tech development Wholesale distribution Table I. Details of the case study organisations

ER 34,5

InsuriCo

CompuCo

TechCo

DistribuCo Interview with general manager with responsibility for HR Interview with senior union representative with Mandate (only union) Focus group of nine employees across sections of the site

Interview Management Interview with with HR communications manager (reporting director to the HR director)

470

Employee Interview with representative senior union representative (SIPTU) Employees

Interview with HR consultant (independent and employed two days per week) and interview with operations manager Interview with No employee non-union EWC representative in place representative

Table II. Details of respondents at each organisation

Total number of participants

Focus group of six Focus group of Focus group of eight employees across 12 employees employees across sections of the site departments on site across departments on site 8 14 10

11

Initial fieldwork was carried out after the publication of the I&C Directive and during the period before the publication of the related Irish Bill. Thus in this case, although the European I&C Directive had been in place for a number of years, the transposition legislation was extremely new at the time of the research. The same four companies were revisited on publication of the I&C Bill to establish what, if any, changes were planned or had been implemented in anticipation of the legislation. The focus of the follow-up phase was on changes in attitudes at management level, and in voice practice at workplace level as a result of the incoming regulations. Consequently it was deemed sufficient to interview the HR manager only, on the follow-up visit as they were best placed to communicate changes in voice attitudes and practices at the organisational level. All of the interviews conducted were recorded and transcribed. The interviews varied in length from 40 to 90 minutes. A thematic analysis was conducted of responses to the questions posed, which were designed to address the research question and informed by key themes from the literature. Findings After presenting some general views on regulation, the findings are presented under two headings: attitudes to the concept and the relevant legislation, and the current state of play in relation to practice. General attitudes to regulation Unions believed that workplace regulation generally was essential because of the inherently exploitative nature of work (ICTU representative). In ICTUs view, the law regulates for minimum standards and it was up to unions to push for improvements after that. ICTU observed that, were it not for the EU, Ireland would have very low levels of employment regulation. ICTU believed that the American Chamber of Commerce was very influential in the determination of business-related policy in

Ireland, and that the state was faced with an on-going conflict between meeting its obligations as an EU member state and as host to a large American MNC sector. The employer view was that employment is over-regulated, placing an unreasonable burden on employers and rendering organisations less competitive. As a result employer bodies have resisted regulation and have lobbied heavily against it at both national and EU levels:
Our view would be that there is enough regulation in business generally and that this isnt an area, in our view, that should be subject to further regulation and we argue that quite strongly. We argued it at national and EU level but ultimately we didnt entirely win that argument (IBEC representative).

Attitudes to employment law

471

ISMEs view is that regulation places a particular burden on small business, and that enforcement decisions fail to take account of their particular circumstances and were therefore excessively harsh in their impact. Attitudes to the concept and the relevant legislation Attitudes to race equality. There was no questioning, across the respondents, of the rightness and need for race equality both in employment and in society generally. This was evidenced by both union and employer involvement with the Equality Authority, Irelands national body charged with promoting equality. Both ICTU and IBEC have had two nominees each on the Board of the Equality Authority since its establishment. Board membership was valued by both sides. National partnership agreements have used the institutional framework and expertise of the Equality Authority to make progress on various initiatives related to equality, including race equality. All of the union and employer organisations, with the sole exception of ISME, participate in various initiatives with the Equality Authority within the national partnership framework. At an operational level, contact with the Equality Authority for support and advice is regular and is evaluated positively. The IBEC interviewee drew attention to huge overlaps with different projects that we work with them on; for example, IBEC was working on an Integrated Workplace project with the Authority at the time of the interview. Other employer organisations have drawn on the Equality Authoritys expertise in producing policies and codes of practice or best practice guides. ISME was again an exception and has had little contact with the Authority. Attitudes to race equality legislation. All the union interviewees felt that it was important to have anti-discrimination law. Its an extra bit in our armoury but its really how you go about using it, what leverage you can use (Mandate interviewee). All interviewees showed a high level of awareness of the current legislation on race discrimination. ICTU had met with the Department of Justice, Equality and Law Reform before the amending legislation (Equality Act, 2004) was drafted and submitted a paper outlining proposed amendments. Both IBEC and the Construction Industry Federation (CIF, undated), as the two largest employer organisations in the country, were also consulted about the legislation. A number of concerns regarding limitations of the Irish legislation were noted by ICTU and some other unions. They included concerns about certain exemptions from the discrimination legislation, the absence of class actions from Irish law, the absence of proactive equality obligations from the legislation, and the belief that positive action ought to be more strongly mandated. In terms of the workings of the legislation,

ER 34,5

concern was expressed over the length of the complaints process in practice, with the suggestion of a fast-track through the process for migrant workers:
Its a lengthy process and it can be quite intimidating for people [y] in the retail sector we have a lot of people coming to us complaining of discrimination [y] you would [y] go through their case with them and explain to them the process and really how long that process is going to take and invariably people turn away and say well Im only here for two-three years, its really not worth my while (Mandate interviewee).

472

In contrast with unions, none of the employer organisations suggested any changes to the legislation. The IBEC interviewees felt that engraining an equality culture that embraces the spirit of the law was needed, not more law. The ISME interviewee believed that while the legislation offers protection to employees, it is onerous on small businesses citing as an example a specific fear that employers may have to provide employment documentation in employees native languages. ISME observed that this may even encourage wariness of employing non-Irish employees. Civic initiatives for integration, such as activities associated with St Patricks Day celebrations, were considered more useful than further legislation. A number of employer organisation interviewees also stressed that their members tend to be more affected by the labour market, by cultural and social developments and the need for taking actions to deal with them, rather than legislation. IBEC felt that while the Acts have generally been useful, changes in society had been more important. The IHF interviewee believed that most initiatives to date were [labour] market-driven at the time and suggested that it may be timely to re-emphasise the issues involved. The CIF interviewee believed that labour shortages after 2004, rather than the legislation, were the main explanations for the low levels of discrimination in the construction industry. A number of interviewees from union and employer organisations expressly noted that the increased importance of race as an issue in recent years was caused by the increased number of migrant workers, rather than the law per se. For example, the recruitment of non-national union officials by SIPTU was an attempt to engage with increased numbers of members and potential members from outside Ireland. Attitudes to employee I&C. Union interviewees viewed employees as key stakeholders in organisations and believed they should have an opportunity to input their views about the shape, nature, and future of their workplaces:
What were seeking are mechanisms that allow employees to analyse information, for that information to be supplied in good time to allow them to analyse it, support to assist them in analysing it and then to offer their views on the information presented and for those views to be taken into account (ICTU representative).

All union interviewees believed employees should, by right, be involved in the making of management decisions. While acknowledging that to some extent this has been achieved at national level through social partnership, unions believed that I&C regulations should facilitate its transfer to the level of the workplace where, for the most part, it still had to happen. Unions advocated the use of both direct and representative mechanisms for informing and consulting employees. They believed that mechanisms should be put in place for determining whether consultation was genuine, honest, and meaningful and that employees should be in a position to get advice on any propositions they are being consulted about (ICTU representative). The core issues in regard to representation were independence, expertise and resources (ICTU representative). Unions recognised that

more is better in terms of numbers of mechanisms. They acknowledged that any package of mechanisms needed to suit the circumstances of the organisation. Congress believed that for the process to be meaningful it could not rely on a direct-only approach. Employer organisations also favoured the concept of I&C but varied in their understandings of and engagement with the issue. They tended to prefer less formal methods and put a lot of emphasis on the value of shop-floor engagement. In terms of specific mechanisms, IBEC also held the view that what was required was a mix appropriate to the particular circumstances of the business. Employers representatives favoured direct I&C mechanisms but accepted that individual companies may introduce indirect structures, either to comply with impending legislation and/or as part of a strategy to avoid unions. Management interviewees in the four individual companies shared a preference for terms such as communication and involvement over terms such as participation and joint decision-making. The terminology reflected underlying positions regarding acceptable levels of employee influence. All the parties were well versed in the benefits and barriers to employee voice mechanisms and the perceived benefits were believed to far out-weigh the barriers:
They [employees] are better informed about what they are doing, and the consequences of what they are doing. Employees are more aligned with what the organisation is trying to achieve. The organisation is more productive, more efficient and more competitive as a consequence of that (IBEC representative).

Attitudes to employment law

473

Although the management representatives in all cases claimed that employee voice was valued and regarded as legitimate, in two of the companies, employees perceptions of what took place in relation to employee I&C differed substantially from what management had indicated. Attitudes to I&C legislation. Three of the four companies were largely unaware of the details of the proposed legislation. When they were briefed, they were not overly concerned, believing themselves to be at least broadly compliant in this area. Management at the remaining company, however, were strongly opposed to the introduction of regulation and were particularly concerned that it could lead to unionisation by the back door:
I have serious reservations about it [proposed legislation] especially regarding employee representatives. One thing that needs to be very clearly understood by the government when drafting the legislation is that in a multi-business company like [CompuCo], representation needs to be localised because it would be artificial otherwise (HR manager).

From ICTUs viewpoint, the issue of independent representation was an important determinant of the impact of regulation in this area:
Because of the imbalance of power in most organisations, if you consult people on an individual basis its more theoretical than practical. Direct, on its own, is simply not meaningful. As part of the social consensus there is a requirement to consult people about decisions that affect them. Matters that impact on peoples lives or their futures should not be at managements absolute discretion (SIPTU representative).

Another issue was that employees right to be informed and consulted was not automatic. Rather, the process had to be triggered by a request from 10 per cent of employees. ICTU also expressed concern regarding monitoring and enforcement of the regulations, arguing the proposed penalties for non-compliance were wholly

ER 34,5

474

inadequate. The maximum penalty requires a conviction and they observed that convictions under labour legislation are extremely rare in Ireland. ICTU believed there was a need for a national body to support companies in complying with the law, performing a similar role to that of the Equality Authority in relation to race equality. IBEC interviewees, on the other hand, felt that regulation in this area was neither necessary nor appropriate, and were critical of other European countries with this type of regulation. A major concern was that the regulations may impact on MNC decisions to invest in Ireland and IBEC was anxious for maximum flexibility to be maintained, rather than a prescriptive model or approach. A critical issue, according to employer bodies was that, obligations are not put on employers that they cannot deliver on (ISME representative). It was pointed out that SMEs are unlikely to have specialist human resource departments and therefore, implementing regulations becomes a bureaucratic exercise in small enterprises. Relief was expressed that the government had gone for a minimalist interpretation of the Directive, believing it could have been a lot worse. IBEC was concerned that individuals in organisations might use the regulations to delay decision making and tie a management team up in knots, perhaps for reasons of personal grievance. While there are penalties for non-compliance by a business IBEC noted the absence of penalties for pursuing spurious claims against employers. Another practical difficulty was the potential cost to the employer of experts brought in by employees, as permitted by the Act (IBEC interviewee). IBEC and ISME believed there was a need for training for management and employees in effective I&C. Costs could include interpretation of the legislation, advice, setting up procedures, and trips to the Labour Court (ISME representative). Confidentiality had a particular significance for SMEs. There was little evidence in the companies studied of planned or actual change as a result of the legislation. However, in one company, where management had previously resisted representative mechanisms of employee voice, a strategic decision had been taken following publication of the I&C Bill to introduce an employee representative forum. This decision resulted directly from the prospect of regulation and was intended as a proactive pre-emptive step attributed directly to the anticipated regulations. Management believed that the regime they now had in place more than adequately fulfilled their obligations as outlined in the regulations:
This [introducing a representative mechanism] is not something the global management were in favour of [y] . I had to put forward a justifiable case, both strands of which were based on inevitability. Given what was happening in [CompuCo] Europe it was only a matter of time before staff in Ireland and the UK started to demand similar provisions for I&C. Irish/UK staff became aware of these provisions through their involvement on EWCs. Secondly, I was aware of the I&C Directive and the possible implications of that and was keen to take a proactive approach (Employee Relations Director).

State of play regarding practice Race equality. Consistent with the structure of Irish employment equality legislation, which identifies nine unlawful discriminatory grounds, most of ICTUs work on race equality has been as part of its work in relation to all nine discriminatory grounds. For example, ICTUs (2004) Resource Manual on equality legislation explains the provisions of the legislation, including those concerning race. The preface states:
Congress believes in equal rights for all workers and is committed to combating all forms of discrimination and promoting equality [y] Congress places great emphasis on supporting our affiliate trade unions in representing the interests of a very diverse membership (p. 1).

All ICTU training courses have an equality dimension reflecting the legal requirements. The Executive Council of ICTU is briefed on legal developments and there are a number of equality-related committees. ICTU has also passed a range of relevant motions at delegate conferences. ICTU and individual unions have also taken some initiatives targeted specifically at race and racial diversity, for example, ICTU (undated) has produced a publication entitled Guidelines for Combating Racism and Planning for Diversity. ICTU has also worked closely with the Equality Authority and IBEC on Anti-Racist Work Week (Equality Authority, 2007) and its successor, the Integrated Workplaces project, subtitled An action strategy to support integrated workplaces. Individual unions have also introduced various structural initiatives supporting race equality. A number of unions have introduced or are in the process of developing either general equality policies or specific policies on race equality. Mandate, the bar, and retail workers union translated union documentation into six languages, although this is considered financially unsustainable in the future. IBOA, the bank officials union, held an equality conference with workshops on racial equality. Structural initiatives included Mandate forming links with several NGOs supporting migrant workers. SIPTU created a new diversity advisor and trainer role and hired non-Irish officials to improve services to non-Irish members. The Irish Nurses Organisation (INO) created an Overseas Section to cater for its international membership. Like the unions, most of the actions on race equality reported by employer organisations were part of an agenda relating to equality or anti-discrimination more broadly. The starting point for all employer organisations was promotion of grievance procedures and other general problem solving policies. These were seen as the best means of resolving problems that arise in relation to breach of equality rights. However, they also all reported more proactive initiatives, taken either by themselves or by individual member companies in areas specifically related to race equality. IBEC hadproduced a document for member companies entitled Cultural Diversity in Business: Guidelines for Addressing Discrimination and Promoting Integration in Workplaces. Anti-discrimination policies also feature in CIFs model equality policy, which includes a commitment:
[y] to implementing positive action and providing a work environment which promotes equality for existing and prospective employees, free from discrimination [y] All employment decisions will be based on merit, qualifications and abilities [y] and will not be influenced or affected by an employees race, colour, nationality [y].

Attitudes to employment law

475

ISME makes member firms aware of the law, provides templates for policy, advises on obligations and how to meet them, and helps with issues as they arise. They run briefing sessions and provide training to members where equality is part of the agenda and race is one of the nine grounds of equality legislation. Three of the employer organisations reported initiatives by member companies in English language training, including some open to employees families. Some structural initiatives by employers were also identified. IBEC had established a Diversity Working Group where members can discuss various issues related to employment of migrant workers. IBEC was also:
[y] talking to member companies about the business case for diversity and equality [y] about setting up local networks [y] looking at maybe mentoring between companies who are more established in integrating their workplaces and member companies who are more new to it [y] (IBEC interviewee).

The hotel industry had established a Diversity Awards Scheme, which rewarded individual hotels for good diversity practices.

ER 34,5

476

I&C. While there were examples of union/employee involvement in the design and implementation of various mechanisms in the individual companies studied, all of the mechanisms were introduced as a result of management initiatives. Individual employers had developed packages of mechanisms over time, designed to fit their needs and differing according to size, nature of the business, characteristics of the workforce, union/non-union status, ownership and the impact of voice champions, among other variables. More substantively, the companies differed in relation to the scope of the various mechanisms, both in terms of the type of issues for discussion and the stage in the decision-making process at which discussions began. In two companies, employee voice was generally only activated after decisions had been made by management. In the other two companies, employees were more likely to be consulted earlier in the decision-making process. Much of the scope of the mechanisms used was limited to information only. One company involved employees in both higher-level decisions and earlier in the decision-making process than the other three. In each case the informal channel of targeted and unscheduled discussions on the shop floor was active and effective for information and direct consultation purposes, although to varying degrees:
Management operate an open door policy. Everyone knows each other so a lot of communicating happens informally on the work floor. Very little is treated as confidential and usually its a matter of when to tell rather than if (HR consultant).

All of the companies demonstrated well-established bundles of practices, varying between nine and 19 individual mechanisms for informing and/or consulting employees. In two of the companies, such mechanisms were integrated with each other and with some other human resource policies and practices. By contrast, in another company mechanisms were sometimes overlapping or even conflicting in their operation. The balance of direct vs representative mechanisms varied between the companies, although in general the balance tipped towards direct forms (see Table III). In two of the companies, management, unions, and/or employees accounts of the nature, scope, and effectiveness of mechanisms in place were similar while in the other two there was a significant perception gap between the perspective of management and that of unions/employees. A recurring theme across the companies was the importance of particular individuals to the success of employee voice initiatives, particularly senior figures in management and union ranks:
A few years ago dialogue was non-existent. The merger was a big turning point. The new CEO has an influence through his personality. The previous CEO was the total opposite them and us. Now its not a them and us its an us and us and thats the way its moving forward (Employee, InsuriCo).

Information Bi-annual strategy roll-out Intranet E-notice boards E-newsletter Manual notice boards Letter from CEO

Direct consultation Shop-floor engagement Employee survey Team meetings Focus groups (issue based) Performance management system Suggestion scheme Coffee with the MD Social events

Representative consultation Management/union meetings Local partnership groups European works council

Table III. Examples of the types of mechanisms employed across the companies

Conclusions It would appear that the substantive issue that is the subject of employment legislation has an influence on its impact at workplace level. The empirical evidence shows that while the principle of race equality has wide acceptance, the concept of I&C is more contentious. Racial equality has incontrovertible status as a fundamental principle in civilised societies. As far back as 1948, the Universal Declaration of Human Rights enshrined the principle and civil rights movements worldwide furthered its acceptance over the past 60 years. By contrast, interviewees had clearly differing positions on the concept of employee voice. While there was apparent acceptance of a general notion of voice, the nature, depth, and scope of I&C available to employees was disputed, with a clear distinction between unions and employees on the one hand and employers on the other. Workers access to I&C is not perceived as a fundamental right in the same way that race equality is. Associated with this, the concept of I&C has not enjoyed the same level of exposure in political, media, or public discourse as has race equality. The conclusion here is that the nature of the issue, in terms of its broader societal acceptance, is important in determining the degree of impact of legislation providing for it. The second conclusion is that, consistent with Dickens (2004), Gollan and Wilkinson (2007), and Kochan et al.s (1986) framework, internal and external contingencies influence the impact of the legislation on workplace practice. In the case of race equality the make-up of the labour market was the most striking contingency. Changes to the labour force since enactment of the Oireachtas na hEireann, Employment Equality Act (1998) have been very substantial. From a barely visible minority of workers in the mid-1990s, non-native Irish workers had increased to approximately 12 per cent of the Irish workforce by 2007 (Central Statistics Office (CSO), 2008). Labour shortages combined with substantial immigration provided an added impetus to workplace integration and acceptance of racial diversity. Employers and unions alike attributed many of their voluntary initiatives to structural changes in the workforce. It was explicitly pointed out that workplace changes in relation to race equality came about less as a result of the legislation than from labour market developments. Labour market needs are very influential in bringing about change, and may accelerate or emphasise change that supports or advances the intentions of law. This could be termed market-prompted voluntarism, a parallel of Halls (1994, p. 110) legislatively prompted voluntarism. In the case of the second piece of legislation, there was empirical evidence to suggest that access to I&C was influenced by a range of organisational contingencies including size, ownership, nature of the business, and union recognition. There were indications that a complex dynamic between these contingencies and the strategic choice reaction of significant actors in an individual firm can prompt genuine engagement with employee voice, resulting in significant potential for influence. A third conclusion from this research is that institutional structures may have a positive impact on change following introduction of employment law. This is consistent with Pollerts contention that legislation is typically weak procedurally in terms of mechanisms for monitoring, access to support and enforcement (2007, p. 113). Institutional support for race equality and I&C, differed significantly. The Equality Authority works towards the elimination of discrimination in employment, promotion of equality of opportunity, and provision of information to the public on the workings of the legislation (s.39, Oireachtas na hEireann, Employment Equality Act, 1998). The umbrella employer and union organisations were board members. National partnership agreements were used to establish an interlocking framework that drew the Authority

Attitudes to employment law

477

ER 34,5

478

and the social partners into structures that in turn promoted integration and supported action against workplace racism. Advice, education, training, and a degree of monitoring were available through the Equality Authority. No parallel national structure was established to actively promote employee I&C. The issue of employee I&C had not featured prominently on the agenda of any of the social partnership agreements. This may partially account for the evidence of limited change subsequent to the Act in this case and supports Smith and Mortons view that enforcement in terms of knowledge, access, and sanctions remains an issue (2006, p. 411). The fourth conclusion is that employers resist legislation, even where they support the issue being regulated. Their resistance is likely to be lessened, but not eradicated, if the specific aspect of employment which is the subject of regulation gains their support, but their resistance is likely to be strong and unrelenting if it does not. In spite of the wide acceptance of the concept of race equality noted above, all employer interviewees resisted the suggestion of further regulation, strongly suggesting voluntary initiatives to further promote race equality. Employers and their representatives resisted even more strongly the introduction of legislation relating to I&C. In this case, the consensus view was, in line with the liberal view outlined by Fredman (1997), that this aspect of employment should not require legal regulation and consequently, they had resisted its regulation from the outset. Irish employers are a powerful lobby group. Employers of American origin, in particular, contribute very substantially to the Irish economy. There is an underlying fear, frequently articulated, and confirmed by Hickland cited in Dobbins (2008), of frightening such employers away because of excessive legislation. Thus the state approach in Ireland appears consistent with a neo-liberal ideology as described by Smith (2009). The overall conclusion of this research is that the law is not the primary initiator of change but that it can act as a contributory factor depending on a range of contingencies. Although this conclusion is somewhat conditional, there is evidence to suggest that, consistent with Halls (1994) notion of legislatively prompted voluntarism, the imminence or presence of regulation may be sufficient to promote some degree of action. However, in the case of race equality in particular, market prompted voluntarism proved the stronger force for charge. There is also evidence supporting Dickenss (1999) contention that the presence of law combined with other variables, such as employer receptivity, collective worker power, and favourable workplace contexts, can deliver significant change in workplace practice.
Note 1. Trade union interviewees were from ICTU, SIPTU, IMPACT, a public sector union, INO, Irish Bank Officials Organisation (IBOA). Employer organisation interviewees were from IBEC, ISME, Health Services Executive Employers Association (HSE-EA), Irish Hotels Federation (IHF) and CIF. References Butler, N. (1997), Statutory employment protection, in Murphy, T.V. and Roche, W.K. (Eds), Irish Industrial Relations in Practice: Revised and Expanded Edition, Oak Tree Press, Cork, pp. 377-405. Central Statistics Office (CSO) (2008), Quarterly National Household Survey, CSO. Construction Industry Federation (CIF) (undated), Model Equality Policy, Construction House, Dublin.

Dickens, L. (1999), Beyond the business case: a three-pronged approach to equality action, Human Resource Management Journal, Vol. 9 No. 1, pp. 9-19. Dickens, L. (2002), Individual statutory employment rights since 1997: constrained expansion, Employee Relations, Vol. 24 No. 6, pp. 619-37. Dickens, L. (2004), Problems of fit: changing employment and labour regulation, British Journal of Industrial Relations, Vol. 42 No. 4, pp. 595-616. Dickens, L. (2007), The road is long: thirty years of equality legislation in Britain, British Journal of Industrial Relations, Vol. 45 No. 3, pp. 463-94. Dobbins, T. (2008), Government and employers colluded to dilute consultation law, report claims, Industrial Relations News, No. 42, 18 November. Equality Authority (2007), Anti Racist Workplace Week Information Booklet, Equality Authority. Fredman, S. (1997), Women and the Law, Oxford University Press, Oxford. Gollan, P. and Wilkinson, A. (2007), Implications of the EU information and consultation directive and the regulations in the UK prospects for the future of employee representation, International Journal of Human Resource Management, Vol. 18 No. 7, pp. 1145-58. Goodrich, C. (1920), The Frontier of Control, Bell & Sons Limited, London. Hall, M. (1994), Industrial relations and the social dimension of European integration: before and after Maastricht, in Hyman, R. and Ferner, A. (Eds), New Frontiers in European Industrial Relations, Blackwell, Oxford, pp. 336-58. Hall, M. (2006), A cool response to the ICE regulations? Employer and trade union approaches to the new legal framework for information and consultation, Industrial Relations Journal, Vol. 37 No. 5, pp. 456-72. Hickland, E. (2008), cited in Industrial Relations News article Government and employers colluded to dilute consultation law, report claims, IRN 42, 18 November 2008. Hyman, R. (1975), Industrial Relations: A Marxist Introduction, Macmillan, London. IBEC (2009), Cultural Diversity in Business: Guidelines for Addressing Discrimination and Promoting Integration in Workplaces, IBEC, Dublin. ICTU (2004), Resource Manual Employment Equality Acts, 1998 and 2004, ICTU, available at: www.ictu.ie/download/pdf/equalitymanual.pdf (accessed 3 June 2009). ICTU (undated), Guidelines for Combating Racism and Planning for Diversity, ICTU, Dublin, available at: www.ictu.ie/download/pdf/congress_anti_racism_resource.pdf (accessed 3 June 2009). Kahn-Freund, O. (1977), Labour and the Law, 2nd ed., Stevens & Sons, London. Kochan, T.A., Katz, H.C. and McKersie, R.B. (1986), The Transformation of American Industrial Relations, Basic Books, New York, NY. McCallum, R. (2006), Justice at work: industrial citizenship and the corporatization of Australian labour law, Journal of Industrial Relations, Vol. 48 No. 2, pp. 131-53. Oireachtas na hEireann, Employees (Information and Consultation) Act (2006), Irish Statute Book, Office of the Attorney General. Oireachtas na hEireann, Employment Equality Act (1998), Irish Statute Book, Office of the Attorney General. Oireachtas na hEireann, Equality Act (2004), , Irish Statute Book, Office of the Attorney General. OSullivan, M. and MacMahon, J. (2010), Employment equality legislation in Ireland: claimants, representation and outcomes, Industrial Law Journal, Vol. 39 No. 4, pp. 329-54. Pollert, A. (2007), Britain and individual employment rights: paper tigers, fierce in appearance but missing in tooth and claw, Economic and Industrial Democracy, Vol. 28 No. 1, pp. 110-39.

Attitudes to employment law

479

ER 34,5

480

Poole, M. (1980), Management strategies and industrial relations, in Poole, M. and Mansfield, R. (Eds), Managerial Roles in Industrial Relations, Gower, London, pp. 39-94. Roche, W.K. (1997), Pay determination, the state and the politics of industrial relations, in Murphy, T.V. and Roche, W.K. (Eds), Irish Industrial Relations in Practice, Oak Tree Press, Cork, pp. 145-227. Salamon, M. (2000), Industrial Relations: Theory and Practice, 4th ed., Pearson Education Limited, Harlow. Smith, P. (2009), New labour and the commonsense of neoliberalism: trade unionism, collective bargaining and workers rights, Industrial Relations Journal, Vol. 40 No. 4, pp. 337-55. Smith, P. and Morton, G. (2006), Nine years of new labour: neoliberalism and workers rights, British Journal of Industrial Relations, Vol. 44 No. 3, pp. 401-20. Wallace, J., Gunnigle, P. and McMahon, G. (2004), Industrial Relations in Ireland, 3rd ed., Gill & Macmillan, Dublin. Watson, D., Galway, J., OConnell, P.J. and Russell, H. (2009), The Changing Workplace: A Survey of Employers Views and Experiences, Economic and Social Research Institute, Dublin. Further reading Department of the Taoiseach (2006), Towards 2016: Ten-Year Framework Social Partnership Agreement 2006-2015, Government Publications, Dublin. Dickens, L. (2008), Legal regulation, institutions and industrial relations, unpublished IRRU research paper, University of Warwick, Warwick. European Commission (2000), Charter of Fundamental Rights of the European Union, (2000/C 364/01) European Commission, Brussels. European Commission (2002), Directive on Employee Information and Consultation, (2002/14/EC) European Commission, Brussels. Sutton, J.R., Dobbin, F., Mayer, J.W. and Scott, R.S. (1994), The legalisation of the workplace, American Journal of Sociology, Vol. 99 No. 4, pp. 944-71. About the authors Deirdre Curran is a Lecturer in Industrial Relations and Human Resource Management at the J.E. Cairnes School of Business and Economics, National University of Ireland Galway. Deirdre Curran is the corresponding author and can be contacted at: deirdre.curran@nuigalway.ie Mary Quinn is a Lecturer in Industrial Relations and Human Resource Management at the J.E. Cairnes School of Business and Economics, National University of Ireland Galway.

To purchase reprints of this article please e-mail: reprints@emeraldinsight.com Or visit our web site for further details: www.emeraldinsight.com/reprints