The possibility of industrial action in An Garda Síochána breaks new ground in Garda industrial relations and presents a new challenge to Government pay policy.
The draft deal concluded over the weekend appeared to provide a means of keeping the Garda Representative Association (GRA) within the Lansdowne Road process by offering a series of concessions on long-standing grievances.
The GRA negotiators gained additional pensionable service, worth up to €8,000, a restoration of a €4,000 rent allowance for Garda entrants, and revised arrangements for the blocking of extra overtime hours committed under the Haddington Road Agreement to make for more convenient working.
The long troubled issue of the right of the different Garda associations to engage directly in collective bargaining over pay and conditions, which led to a successful complaint by the Association of Garda Sergeants and Inspectors (AGSI) to the European Social Rights Committee in 2014, was also addressed.
The GRA was to be granted negotiating rights with respect to future public service pay talks, and also given access to the Workplace Relations Commission and the Labour Court.
Ominously for the Government, the AGSI has also now indicated it will consider industrial action due to dissatisfaction with the outcome of talks on the methods to be adopted to fix their future pay by a public service pay commission soon to be established under the Lansdowne Road agreement.
GRA discontent is now focused on the restoration of basic pay sooner than provided for in the Lansdowne Road agreement.
A number of other public service unions have also pressed this issue, but for now remain within the Lansdowne Road process.
Growing militancy
Rank-and-file discontent in the Garda is no doubt being fuelled by pay claims and settlements in recent and ongoing disputes in the transport sector.
Beyond these, discontent and growing militancy reflect a view shared with other public sector workers that they have suffered significant pay cuts and should now enjoy the benefits of economic and fiscal recovery at least as much as other workers across the economy.
While the effective and highly publicised mandate for industrial action represented by the GRA poll of its members may strengthen the hand of negotiators in returning to talks, it does not propel the association to the brink and allows space for further compromise.
The now rejected draft GRA agreement seemed to observers to have been at the margin of what could be offered by the Government.
Government negotiators will be concerned to avoid knock-on consequences for either the Lansdowne Road agreement or for existing special deals concluded with public service groups.
They will also be mindful of not adding any complications to fraught negotiations with the secondary teachers’ union the ASTI, still outside the Lansdowne Road deal.
Pay restoration
The Government is legally constrained by the Financial Emergency Measures in the Public Interest legislation against awarding pay restoration measures to any one category that would not extend to all.
The AGSI’s concerns about the method to be followed in fixing Garda pay will inevitably be viewed by the Department of Public Expenditure in the wider context of finding a modus for determining public service pay that can work across all public service grades and categories.
Attention will now focus on the legality of industrial action by the Garda associations and their activists and members.
Past actions, in particular, the notorious “blue flu” work stoppages in 1998, appeared highly contentious and divisive within the Garda.
More recently, the withdrawal of discretionary flexibilities, such as the use of personal mobile phones, represented a largely symbolic method of protest.
Discipline
Gardaí currently seem to have less compunction about taking industrial action. The law seems clear that it is an offence punishable by significant fines or terms of imprisonment to induce a member of the Garda to withhold his or her service. Such action is also in breach of Garda discipline.
Gardaí are expressly excluded from the criminal and civil immunities enjoyed by other workers contemplating or engaging in industrial action.
The upshot is that Garda association leaders or activists organising industrial action may put themselves beyond the protection of the law and at risk of being disciplined.
A grey and less settled area surrounds whether individual gardaí participating in industrial action may break the law.
Yet the availability of legal restraints on industrial action and their actual use are different things.
The law can be a very blunt and ineffective weapon in industrial disputes.
Any attempt to prosecute or discipline Garda association leaders for orchestrating industrial action, especially when overwhelmingly backed by their members, is likely to backfire and greatly complicate the resolution of the conflict.
The use of legal remedies to preempt industrial action by way of injunction could also end up in contempt of court proceedings against union leaders, and result in the hardening and worsening of industrial action.
While the context was different and is now very distant, an attempt to invoke special legislation to curb strikes in the ESB remains seared in the folk memory of industrial relations.
When this led to picketers being imprisoned for contempt, the strike was only resolved after the employer paid the fines of the strikers and, on some accounts, also paid their taxi fares home from Mountjoy.
With the Garda Commissioner concerned to open a new era in Garda industrial relations and to restore staff morale, she, along with the Minister and Government, is wise to keep the focus on ongoing dialogue and seeking a way out of the most serious series of disputes ever to have engulfed the Garda.
Bill Roche is professor of industrial relations and human resources, College of Business, University College Dublin