Attitudes to employment lawand the consequent impactof l.docx

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 organisation-
specific 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
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
The current issue and full text archive of this journal is
available at
www.emeraldinsight.com/0142-5455.htm
Employee Relations
Vol. 34 No. 5, 2012
pp. 464-480
r Emerald Group Publishing Limited
0142-5455
DOI 10.1108/01425451211248514
464
ER
34,5

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
state’s 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 Salamon’s
(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 Ireland’s 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
465
Attitudes to
employment law
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 behind-
the-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
466
ER
34,5
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).
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).
O’Sullivan 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).
467
Attitudes to
employment law
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
Colvin’s (2003) argument that the influence of the law is
“filtered through and
influenced by the organization’s own strategic orientation in
regard to its employees”
(2004, p. 603). In Dicken’s 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 non-
union 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
468
ER
34,5
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 country’s
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).
Numbers employed
Organisation Total In Ireland Multi-national/ownership Union
status Sector
InsuriCo 300,000 800 MNC
French
Unionised Financial services
CompuCo 145,000 4,000 MNC
USA
Non-union Hi-tech manufacture
TechCo 60 45 Irish based and owned Non-union Hi-tech
development
DistribuCo 15,000 12,000 Irish based and owned Unionised

Wholesale distribution
Table I.
Details of the case study
organisations
469
Attitudes to
employment law
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 ICTU’s 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
InsuriCo CompuCo TechCo DistribuCo
Management Interview with
communications
manager (reporting
to the HR director)

Interview
with HR
director
Interview with
HR consultant (independent
and employed two days per
week) and interview with
operations manager
Interview with
general manager
with responsibility
for HR
Employee
representative
Interview with
senior union
representative
(SIPTU)
Interview with
non-union EWC
representative
No employee
representative in place
Interview with
senior union
representative with
Mandate (only
union)

Employees Focus group of six
employees across
departments on site
Focus group of
12 employees
across
departments on
site
Focus group of eight
employees across
sections of the site
Focus group of nine
employees across
sections of the site
Total
number of
participants 8 14 10 11
Table II.
Details of respondents at
each organisation
470
ER
34,5
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 isn’t 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 didn’t entirely win that
argument (IBEC representative).
ISME’s 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,
Ireland’s 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 Authority’s
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. “It’s an extra bit in
our armoury but it’s
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,
471
Attitudes to
employment law
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:
It’s 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 I’m only here for
two-three years, it’s really not worth my while (Mandate
interviewee).
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 Patrick’s 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 we’re 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
472
ER
34,5
“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).
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 ICTU’s 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 it’s 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 people’s 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
473
Attitudes to
employment law
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 ICTU’s
work on race equality has

been as part of its work in relation to all nine discriminatory
grounds. For example, ICTU’s
(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).
474
ER
34,5
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 CIF’s
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 employee’s race, colour,
nationality [y].
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.
475
Attitudes to
employment law
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 it’s 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 it’s not a “them and us” it’s an “us and us”
and that’s the way it’s moving
forward (Employee, InsuriCo).
Information Direct consultation Representative consultation
Bi-annual strategy roll-out
Intranet
E-notice boards
E-newsletter
Manual notice boards
Letter from CEO
Shop-floor engagement
Employee survey
Team meetings
Focus groups (issue based)
Performance management system

Suggestion scheme
Coffee with the MD
Social events
Management/union meetings
Local partnership groups
European works council
Table III.
Examples of the types of
mechanisms employed
across the companies
476
ER
34,5
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 Hall’s (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 Pollert’s 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
477
Attitudes to
employment law
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 Morton’s 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 Hall’s (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
Dickens’s (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.
478
ER
34,5
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.
O’Sullivan, 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.
479
Attitudes to
employment law
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 worker’s 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., O’Connell, 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:
[email protected]
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:
[email protected]
Or visit our web site for further details:
www.emeraldinsight.com/reprints
480
ER
34,5

Attitudes to employment lawand the consequent impactof l.docx

Recommended

Recommended

More Related Content

More from ikirkton

More from ikirkton (20)

Recently uploaded

Recently uploaded (20)

Attitudes to employment lawand the consequent impactof l.docx