Abstract

The European Organisation of Military Associations recently lodged a complaint on behalf of one of the two Defence Forces representative associations in Ireland, to grant full trade union rights for that organisation, arguing that the prohibition against military representative associations from joining umbrella unions, was arbitrary in nature, and more specifically, that it breached a number of articles of the European Social Charter, namely: the right for representative bodies to join an umbrella union; the right to take part in collective bargaining over pay; and the right to take collective action such as strike action.

In a decision that may have implications for other European military representative associations, the European Committee of Social Rights, which monitors compliance with the Charter, recognised the unique role of the military in society, but found that armed services representatives may have the right to join national umbrella unions and to take part in collective bargaining over pay and conditions.

Introduction

The European Social Charter (the “Charter”) is a Council of Europe treaty that guarantees fundamental social and economic rights as a counterpart to the European Convention on Human Rights, which refers to civil and political rights. The Charter is justifiably regarded as the Social Constitution of Europe and represents an essential component of the European human rights architecture. The European Committee of Social Rights (the “Committee”) monitors compliance with the Charter. One of the mechanisms utilised by the Committee to monitor compliance is through collective complaints lodged by the social partners and other non-governmental organisations.

The European Organisation of Military Associations (“EUROMIL”), is a European non-governmental organisation which is entitled to lodge complaints to the Committee. EUROMIL recently lodged a complaint on behalf of one of the two Defence Forces representative associations in Ireland, namely the Permanent Defence Forces Other Ranks Representative Association (“PDFORA”) (the other representative association being “RACO”, the Representative Association of Commissioned Officers). EUROMIL launched a complaint against Ireland to grant full trade union rights for PDFORA, arguing that the prohibition against military representative associations from joining umbrella unions, such as the Irish Congress of Trade Unions (“ICTU”), was arbitrary in nature, and more specifically, that it breached the following Articles of the Charter:

  • Article 5 – the right for representative bodies to join an umbrella union;
  • Article 6.2 – the right to take part in collective bargaining over pay; and
  • Article 6.4 – the right to take collective action such as strike action.

Irish Law

The Industrial Relations Act 1990 (the “Industrial Relations Act”), at Section 8, defines a “worker” as not including, inter alia, a member of the Defence Forces, therefore effectively disentitling absolutely, that category of personnel, from certain rights and entitlements flowing from provisions thereof regarding trade disputes and industrial action.

The conduct, conditions and service of all Irish Defence Forces personnel are subject to the Defence Act 1954 (as amended).

PDFORA was established under the Defence (Amendment) Act 1990 (the “Defence Act”), as a representative association, but has never been permitted to achieve trade union status.

Section 2(1) of the Defence Act:

… the Minister (for Defence) may provide by regulations for the establishment of an association or associations (in this Act referred to as an “association”) for the purpose of representing members of such rank or ranks of the Defence Forces as may be specified in the regulations in relation to matters affecting their remuneration and such other matters as the Minister may specify in the regulations, but excluding matters relating to any operation and the raising, maintenance, command, constitution, organisation and discipline of the Defence Forces under the Principal Act and offences in relation to the Defence Forces and military property under that Act.

(2) An association shall represent under subsection (1) of this section only members of the association.

(3) An association shall be independent of and shall not, without the consent of the Minister, be associated with or affiliated to any trade union or any other body.

(4) A member shall not become or be a member of a trade union, or of any other body (other than an association), which seeks to influence or otherwise be concerned with the remuneration or other conditions of service of members.

Accordingly, PDFORA were not permitted to sponsor or resort to any form of public agitation as a means of furthering claims or for any other purpose whatsoever.

As an alternative to the trade union and industrial dispute mechanisms enjoyed by “workers”, as defined by the Industrial Relations Act, the Defence Act established a Conciliation and Arbitration Scheme (“CAS”), the purpose of which is to provide a means for relevant parties to determine claims and proposals relating to remuneration and conditions of service. However, EUROMIL contended that that system was not working as originally intended, in that decisions get postponed perpetually or never resolved at all. Furthermore, it was argued by EUROMIL that an alternative scheme, the Labour Relations Commission (now assumed under the Workplace Relations Commission), offered a fairer and more independent resolution scheme, but was unavailable to certain categories of workers, namely members of the Defence Forces, Gardai and prison services.

The Right to Join an Umbrella Union

Section 2 of the Defence Act provides that a military representative association must be independent and shall not without the consent of the Minister of Defence be associated with or affiliated to any trade union or other body. Furthermore, it provides that “a member shall not become a member of a trade union, or of any other body (other than an association), which seeks to influence or otherwise be concerned with the remuneration or other conditions of service of members.”

Article 5 of the Charter reads:

“All workers and employers have the right to freedom of association in national or international organisations for the protection of their economic and social interests”, however, these rights are restricted pursuant to “the protection of public interest, national security, public health, or morals” (Article G).

EUROMIL maintained that prohibiting military representative associations from becoming affiliated to umbrella unions has the effect of preventing them attend the national negotiations such organisations conduct on pay and conditions within the public service sector.

The Irish Government argued that the restrictions on military representative associations, namely PDFORRA and RACO from affiliating with umbrella unions do not amount to a breach of Article 5 of the Charter, in light of the trade union prerogatives that are afforded to them and the unique nature of the military and its role in maintaining national security and public order. The Irish Government contended that members of a union may act collectively or on the instruction of union officials and as such may give rise to a rival source of authority or allegiance. This, according to the Irish Government, conflicts with the chain of command within the military, being particularly acute in circumstances where the body in question is a civilian congress of unions, whose members are not subject to military law and discipline if they engage in industrial action.

While acknowledging the unique role of the military in society, the Committee did not consider a complete ban on affiliation as being necessary or proportionate, in particular as the restriction has the factual effect of depriving military representative associations of an effective means of negotiating the conditions of employment on behalf of their members, in so far as national umbrella unions possess significant bargaining power in such negotiations.

The Right to Engage in Collective Bargaining

Article 6 of the Charter provides that all workers and employers have the right to bargain collectively. However, restrictions on this right are permissible if necessary for the protection of public interest, national security, public health, or morals (Article G).

EUROMIL argued that military representative associations are unable to participate in national pay agreement discussions and have no bargaining rights regarding general pay increases as these are negotiated by umbrella unions, such as ICTU, on behalf of all public servants. The negotiated outcome, however, is binding on military representative associations. The views of the military representative associations are consulted in a parallel process, into which, according to EUROMIL, the Irish military representative associations have effectively no input.

The Irish Government stated that EUROMIL’s allegation that military representative associations are unable to take part in national pay agreements is incorrect, and that non-affiliation with umbrella unions has not resulted in military representative associations being afforded less effective means of negotiating conditions on behalf of their members, in the context of public sector agreements such as the “Haddington Road Agreement.” The Irish Government maintained that the criticisms made of the conciliation and arbitration Scheme were factually inaccurate and unmerited, maintaining that CAS provides a range of consultation and engagement mechanisms for Defence management to discuss with representative associations matters within their scope of representation.

The Committee took note that while the military representative associations are consulted in a parallel process to the public service agreements, they are not however directly involved in the negotiations as they are not affiliated to any umbrella union. It noted that little information had been provided on this parallel process and how the Irish Government effectively ensures meaningful consultation as opposed to a mere hearing. Therefore, the Committee could not conclude that the military representative associations are meaningfully consulted over pay during discussions on public service agreements.

The Right to Strike

EUROMIL alleged that there was a violation of Article 6.4 of the Charter on the grounds that members of the Irish Defence Forces are prohibited from striking. It accepted that the prohibition is provided for by law, but disputed that it, in reality, had a legitimate aim, namely public security or maintenance of national security.

EUROMIL maintained that there was no pressing social need for such a blanket prohibition, and that a right to strike could be permitted subject to certain conditions and limitations, ensuring national security.

The Irish Government maintained that a prohibition on strikes by members of the Defence Forces pursues the legitimate aim of seeking to maintain public order, national security and the rights and freedoms of others by ensuring that the Defence Forces remains fully operational at all times. The Irish Government noted that, industrial action such as a strike, on the part of military personnel, has the capacity to disrupt vital operations or threaten national security. Members of the Defence Forces may be called upon, at the direction of the Irish Government, to take on duties and to cross picket lines in circumstances of strikes in essential services or in situations of public protest and unrest. The Defence Force plays a unique role in assisting the Civil Power and Civil Authority and a right to strike could therefore potentially disrupt vital operations, such as the air ambulance service or in the provision of fire services and ground ambulance crew.

The Committee observed that the right to strike is intrinsically linked to the right to collective bargaining, as it represents the most effective means to achieve a favourable result from a bargaining process. It is therefore of specific relevance to trade unions. Consequently, restrictions on this right may be acceptable only under specific conditions.

The Committee further noted that most Council of Europe states prohibit members of the armed forces from striking (except for Austria and Sweden). Therefore, and having regard to the specific nature of the tasks carried out by members of the Defence Forces, the extraordinary circumstances of members of the Defence Forces, who operate under a system of military discipline, the potential that any industrial action could disrupt operations in a way that threatens national security. The Committee agreed with the Irish Government in that there is a justification for the imposition of the absolute prohibition on the right to strike set out in Section 8 of the 1990 Industrial Relations Act. It was held that this statutory provision is proportionate to the legitimate aim pursued and, accordingly, can be regarded as necessary in a democratic society.

Conclusion

That any European military representative associations will ever have the benefit of full privileges afforded under the typical domestic trade union and industrial relation mechanisms, is highly unlikely. In this instance, the Irish Government stated that it engages with military employees in the determination of pay and terms and conditions in the military context in several ways, inter alia through Public Sector Agreements and the CSA for members of the Defence Force. However, the Committee held that there is a violation of Article 5 of the Charter on grounds of the prohibition against military representative associations from joining national employees’ organisations and that having regard to the essential role of pay bargaining for the purposes of Article 6, the Committee considered that there is insufficient access of military representative associations to pay agreement discussions.

That member of the Defence Forces will ever have a right to strike, like their Austrian or Swedish counterparts, is also highly unlikely. It is widely accepted that an absolute prohibition on striking, by members of the Defence Forces, is necessary in a democratic society and is proportionate in the light of other collective bargaining mechanisms available to the military which have been highlighted in these proceedings.