Strike action may be problematic for gardaí but it is easy to have sympathy for them and they will change the industrial relations landscape, writes Eddie Keane
ON Wednesday afternoon the Garda Representative Association took the unprecedented step of issuing a statement declaring that its members must take industrial action up to and including a unilateral withdrawal of services.
Except for the famed “Blue Flu” day in 1998, when more than 5,000 members of the force missed work claiming to be sick, a mass withdrawal of services by gardaí has never occurred in Ireland.
The primary reason why gardaí have never taken the drastic step of withdrawing their services/going on strike is that many believe such an action to be illegal. Although there is no strict prohibition on members of the gardaí taking industrial action, a combination of Irish statutes effectively put both the leaders of the GRA, and the members, in a situation where they run the risk of being prosecuted or disciplined for their actions.
The Garda Siochana Act 2005 specifically provides in section 59 that: “A person is guilty of an offence if he or she induces, or does any act calculated to induce, any member of the Garda Síochána to withhold his or her services or to commit a breach of discipline.” While this section was originally aimed at members of the public who might try to dissuade a garda from fulfilling their duty, it could also be applied to the GRA leadership. As it stands, the issuing of Wednesday’s statement could be viewed as an act “calculated to induce” a member to withdraw their services.
If that view was taken, the leaders of the GRA would be in serious danger of being prosecuted, with possible penalties of a fine of up to €50,000 and/or up to five years imprisonment. As to whether or not prosecutions would take place would ultimately be a decision for the Director of Public Prosecutions.
Individual members of the gardaí who partake in the withdrawal of services may also find themselves in a difficult situation. Any withdrawal of services could lead to a disciplinary action against the individual garda under the Garda Síochána (Discipline) Regulations 2007.
A garda could, in particular, be charged with failure to promptly “carry out any lawful order or to do any other thing which it is his or her duty to do”. The process for this is somewhat different in that the control of the process is in the hands of the Garda commissioner. Upon receiving a report of a serious breach of discipline, the Garda commissioner would appoint a senior officer to investigate the allegation.
If it is found there is a case to be answered, the commissioner would appoint a “board of inquiry” to investigate the matter and arrive at a decision as to whether or not a sanction should be imposed and the extent of the sanction. These sanctions can range from dismissal to reduction of pay for a period of not more than four weeks.
An important point to note is that, in arriving at their decision, the board of inquiry can take into account the garda’s record of service, previous conduct and circumstances of the garda and, crucially, “any other relevant matter”. Therefore, whether or not an individual garda is sanctioned would depend on many factors.
How members of the gardaí could be in a situation of being punished for attempting to improve their pay and conditions is due to the nature of Irish industrial relations. While there is no such thing as a right to strike in Ireland, Section 9 of the Industrial Relations Act 1990 provides immunity for some trade unions and their members from being prosecuted for anything in relation to a properly organised strike.
This is effectively one of the statutory embodiments of the civil right to take industrial action in furtherance of pay or working conditions. However, this immunity from prosecution, while available to most public servants, is denied to members of the gardaí and Defence Forces.
It is easy to have sympathy for members of the gardaí in this situation, especially when they don’t have the benefit of an independent commission to determine their pay and conditions. Essentially, their hand is weakened considerably when it comes to negotiating pay and conditions. The usual reason given for this exclusion is that the role of the gardaí is so essential to public safety that they cannot be allowed to withdraw their services. However, in recent disputes involving health professionals and other providers of essential services, a “skeleton crew” system was organised to deal with emergency situations. Therefore, the risk to public safety could be minimised, without severely restricting the rights of gardaí.
With so much at stake for both sides, it is difficult to predict how this dispute will end. One thing is for sure, when the dust settles, the GRA will have broken new ground in the Irish industrial relations landscape.
Eddie Keane is a lecturer in employment law at the University of Limerick
Possible strikes on the horizon
- Conall Ó Fátharta
Upcoming strikes by Dublin Bus staff have been suspended after a breakthrough in talks at the Workplace Relations Commission.
Following marathon talks, staff are to be balloted again on a document negotiated by management and unions over the last number of days.
It is understood the deal offers workers a 3.75% increase on pay each year for the next three years — amounting to an 11.25% increase. Unions had looked for a 15% pay increase — nearly double the 8.25% recommended by the Labour Court.
The suspension of industrial actions means that buses will now be running in the capital for this weekend’s All-Ireland final replay between Dublin and Mayo.
The Association of Secondary Teachers Ireland is balloting its 18,000 members for industrial action, up to and including strikes, over the pay of those who have entered the profession in the last five years.
The Department of Education reached agreement with the Irish National Teachers’ Organisation and Teachers’ Union of Ireland on salary increases for recent entrants to reflect the amounts lost when qualifications allowances were lost from 2012. But the ASTI remains outside the Lansdowne Road Agreement and is insisting that full pay equality is restored, including reversal of the 10% cut to salary scales of all those who started teaching since 2011.
A separate ASTI ballot, the result of which is also due in mid-October, could see hundreds of secondary schools close as members are being asked to stop doing substitution work.
The possibility of power cuts coming into the winter months has also increased as 1,300 staff at the ESB are set to be balloted for industrial action up to strike.
Members of the Technical Engineering and Electrical Union (TEEU), who represent the staff at the utility, have twice rejected a proposed agreement which would see pay increases of 5.5% over two years as well as a lump sum payment of €2,750. That is in addition to a 2% increase paid last year.
The rejection is in spite of the fact that the other unions which, together with the TEEU, make up the ESB group of unions, have all accepted the agreement.
© Irish Examiner Ltd. All rights reserved