In a non-enforceable decision, the European Committee of Social Rights (the "Committee") recently concluded that the Irish Defence Forces are entitled to greater industrial relations rights.

The Committee concluded that the Irish State had violated Article 5 (the right for representative bodies to join an umbrella group) and Article 6.2 (the right to take part in collective bargaining over pay) of the European Social Charter (the "Charter"), but that the State had not violated Article 6.4 of the Charter (the right to take collective action such as strike action).

The complaint, European Organisation of Military Associations (EUROMIL) v Ireland, taken by EUROMIL on behalf of PDFORRA and RACO (the Irish Defence Forces representative bodies) is similar in construction to the recent complaint taken by the European Confederation of Police (EuroCOP) against Ireland on behalf of the Association of Garda Sergeants and Inspectors (AGSI). We wrote in December 2016 about the impact of the EuroCOP decision on possible industrial relations legislation for An Garda Síochána. (The Garda dispute - what might possible legislation look like?)

European Social Charter

The Charter is a Council of Europe treaty relating to social and economic rights, such as employment, health and education. It was ratified by Ireland in 1964, together with an amended Charter in 2000. As we noted in our EuroCOP article, the Charter exists in a slightly unusual space legally: the Charter and decisions made under it are stated to be binding on member states, however decisions are not directly enforceable in the domestic legal systems of member states and there is really no enforcement mechanism other 'naming and shaming' at a European level.

The Garda dispute and follow-on Murphy Report in 2017 make it clear that the Committee is lacking in enforcement mechanisms and that legally, conclusions do not have to be followed. The Department of Defence is due to review the current Defence Forces Conciliation and Arbitration Scheme (C & A Scheme) in 2018, and reacted to the Committee conclusions by noting that the conclusions will be given consideration in the 2018 review.

Committee Conclusions

The conclusions by the Committee are similar to those in the EuroCop complaint, namely concluding that Ireland is in violation of Articles 5 and 6.2 of the Charter. These conclusions envisage PDFORRA and ROCA being allowed to affiliate with the Irish Congress of Trade Unions (ICTU). ICTU has stated that PDFORRA could be affiliated to it, but with conditions imposed by the Irish State if necessary.

The Committee also concluded that there was no reason for the "practical exclusion of the armed forces from the scope of direct pay negotiations" and that the Irish State should allow access to direct pay negotiations.

However, the Committee concluded differently from the EuroCop decision regarding Article 6.4 and the right to take collective action. While holding that Ireland had violated Article 6.4 in the EuroCop complaint, it held that Ireland had not violated Article 6.4 in the EUROMIL complaint. The legislation prohibiting the right to strike for the Defence Forces comes from section 8 of the Industrial Relations Act 1990. The Committee concluded that "there is a justification for the imposition of the absolute prohibition on the right to strike… the statutory provision is proportionate to the legitimate aim pursued and, accordingly, can be regarded as necessary in a democratic society". It was also noted that all Council of Europe member states other than Austria and Sweden prohibit their armed forces from striking. This conclusion means that the same issues experienced during the Garda dispute in 2017, and the potential drafting of national legislation to allow for limited strike action rights for the Gardaí, will not be in contention for the Defence Forces in the same manner.

Implementation in Ireland

The Department of Defence has made it clear that it will take account of the Committee conclusions as part of its 2018 review of the C & A Scheme and it is therefore unlikely that any further Irish State action will follow in 2018 to implement the Committee conclusions. The Department appointed a chairperson for the review in January 2018 with a report deadline of 6 months. It remains to be seen how the report will deal with the Committee's conclusions.