The Ghost of Crisis Past - Social Partnership 2.0 (Pandemic patch)

    Jack Larkin, Pembroke College, University of Oxford.

Social Partnership is on the march again, maybe. Oft-blamed as one of the key contributors to the last economic crisis (unfairly), there is talk in the Pandemic of reviving the idea in a new, jazzy form: social dialogue. Everyone seems to have agreed not to use the actual term ‘social partnership’, and also not to confine the model to grubby wage deals; social dialogue will be more into a holistic approach to how society and government can work together for the common good: a new social contract.

 For some, the green shoots for this new social partnership (for simplicity I’m going to keep using the term) appeared earlier during the pandemic, for example, s. 28 of the Emergency Measures in the Public Interest (Covid-19) Act 2020, which provides for wage subsidies for employees, initially excluded women who were returning from maternity leave. The unions rightly sought to have this changed. The Government admitted the oversight and the Oireachtas amended the Act.

More substantially, the Labour Employer Economic Forum has been pointed to as another example of the idea’s success, as it contributed to the first ‘return-to-work’ policy following Lockdown 1.

For others (read: myself), it’s difficult to see how such examples avoid the elision of ‘social partnership’ with its more anaemic cousins: ‘public pressure’ and the even punier ‘engagement with civil society’. For example, the children’s shoes issue: children’s clothing in general was ‘non-essential’ last October; then it simultaneously became ‘maybe essential but under review’ and ‘absolutely essential, awaiting urgent reform’. Would we say these changes were ‘social partnership’ simply because some social partners were involved?

Moreover, it’s difficult to see how social partnership can be seen to be flowering again in Ireland when one considers the following events, all of which occurred during pandemic. First, the collapse of the Low Pay Commission talks last September, wherein unions were unable to get a mere 20c increase on the minimum age. Second, the looming threats of industrial action by teachers. Third, the State’s demonstrated lack of trust with what workers and employers are spending their welfare supports on. Fourth, the more general criticism, made prominently on this blog, that the State and society often seem to be out of sync in their understanding of what is and is not restricted.

So it’s fair to say that the pandemic has not been Ireland’s moment for a Union Sacrée.

But this piece isn’t about pummelling the concept of social partnership as it’s sometimes (mis)understood. It’s  short piece about what a return of the idea could mean for society and law in Ireland.

But first, some history.

Partnering Down

When the financial music stopped in 2008, the social partners finished dancing too: IBEC was out; ICTU was out; and for the politicians clearing away the broken glass, there was a sense that the model, bargained as it was outside the Oireachtas, was a bit subversive. As Enda Kenny said at the time:

The social partnership model practised by previous governments had become a closed shop, where decisions with national consequences were made behind closed doors by a chosen few, accountable to nobody.

He had a point (ironic as it was from the man who ran the Economic Management Council). For example, the decision to exempt the Public Service Benchmarking Body (responsible for much of research justifying the wage increases under social partnership) from the Freedom of Information Act led to budgetary expenditure which was difficult to scrutinise without the relevant data.

We see now that the social partnership initiatives which survived the crash (or have been set up since) have pleasant names which convey a certain openness: they’re forums, commissions, centres: transparent bodies whose minutes and publications can be read on State websites.

The current momentum following the pandemic seems to be all about intensifying these forums: ramp up the Labour Employer Economic Forum – get the Low Pay Commission talking about the living wage again – have a new code that might sometimes be used at the Workplace Relations Commission.

In the meantime, however, the government is dead against giving any actual substantial legal rights to unions and workers vis a vis collective bargaining and minimum wage entitlements, making  efforts to stymie the current efforts on the European scene for a directive for such rights. Another front in that particular struggle has also opened up in the courts, where an important decision is awaited on collective bargaining rights.

But let’s pause for a moment and summarise what the government position actually is. Their thinking can be followed like so:- ‘we can’t return to the Social Partnership of the past because that lacked legitimacy and accountability – we don’t like the present social partnership-lite because it seems too tepid and shuts out too many voices – however we don’t want to give too much power to the unions legally – so let’s just intensify the existing dialogue structures we have’.

However, intensifying existing social dialogue structures alone would be a mistake. If policy-makers learn from the discoveries of the pandemic, great progress could be made for both workers’ interests and the rule of law.

 The Opportunities

The Irish Small to Medium Enterprise Association (ISME) didn’t like the old social partnership model. Part of their beef was with the membership – why were they not allowed in? Why did others get the chance to chat to power? Was it a case of elites only talking to other elites?

Tragically for ISME, they continue to mostly huff outside the social partnership cordon of power (Note the latest activities of LEEF in the childcare sphere). Some initiatives have been more broad-minded, such as the National Economic Dialogue, but its scope is limited: NED lasts for 2 days a year and exists primarily to discuss what might go into a pre-budget submission, not the actual budget, with the Chair in 2019 noting that the process did ‘not have identified clear priorities for Budget 2020 and could be viewed as having provided too much sectoral pleading and not enough discussion of the “national interest”.

But it’s not just ISME who remain outsiders. The pandemic has shown that there are a large number of un-unionised, unrepresented workers in Ireland who work in difficult conditions with few rights (think of the early outbreaks in meat factories). Who will speak directly on behalf on these people and convey their grievances?

Moreover, this point cuts both ways: the pandemic has also shown us enormously powerful non-statutory, ad hoc bodies who are deferred to and sometimes treated almost like another constitutional arm (for example, the recent deference to NIAC on the Johnson & Johnson vaccine), which has made others (read again: me) slightly queasy about the constitutional order.

Any re-thinking of a social dialogue model should radically consider who is in and who is out and the kinds of structures for dialogue we put in place. This kind of thinking will have to engage seriously with corporatism and how to emphasise its democratic nature. However, such an approach will have its pay-offs, consider the following example:-

Much has been made of the recent issue regarding religious worship and the movement restrictions, with some arguing that a rule of law violation has been committed by the government in stating that religious restrictions were banned when they weren’t. Indeed IHREC’s recent report pointed to a number of other similar violations, where the law and the government’s commands to the public were out of step.

Regardless of who is actually in the right about these issues, a social dialogue model which had engaged with those to whom these commands were spoken ahead of time might have saved costly litigation, clarified legislation before its promulgation, given a voice to all those affected, and ultimately achieved better compliance.

Such an approach may lead to some unpalatable dialogue - some might baulk at the idea of a minister and an archbishop pre-emptively discussing whether mass might be banned in another lockdown (as opposed to afterwards)– but such are the costs of seriously committing to liberal democracy, wherein many groups are to be given a voice. My point in this regard is that it’s easier to adopt an ex-ante approach of a partnership rather than the inefficient post hoc posture of a unilateral command – when everything is broken, people are angry, and court lists begin to fill up.

This is neither quixotic nor foolish: not foolish because pandemic measures rely on everyone’s constant compliance and so it is wise to make the people both the subjects (and not just the objects) of any measure through partnership and dialogue. It is not quixotic because it has been done elsewhere: social partnership in Austria quickly devised a comprehensive wage subsidy scheme, leading to praise for both its generosity and its maintenance of a relatively low unemployment rate (though there are important differences here, not least that corporatism has been alive and well in Austria since the guilds of the Holy Roman Empire, but I do not have the space right now to say why that’s not a huge problem).

This ghost of a crisis past may flicker away with the news cycle, but if the government is serious about reviving an idea of social partnership, then they first need to be radical about who they are going to talk to.

Jack Larkin is a graduate of Trinity College, Dublin and the London School of Economics. He is currently a Master’s in History candidate at the University of Oxford.

Suggested citation: Jack Larkin, ‘ The Ghost of Crisis Past - Social Partnership 2.0 (Pandemic patch)’ COVID-19 Law and Human Rights Observatory’ (4 May 2021) https://tcdlaw.blogspot.com/2021/05/the-ghost-of-crisis-past-social.html