Definitive Report - REPORT_NO392, October 2020

1. 678. The complaint is contained in communications dated 4 March, 30 April, 24 October and 14 November 2019, and 17 February 2020 from the Association of Secondary Teachers, Ireland (ASTI).
2. 679. The Government provided its observations in communications dated 27 September 2019, and 27 January and 24 April 2020.
3. 680. Ireland has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 681. In its communications dated 4 March, 30 April, 24 October and 14 November 2019, and 17 February 2020, ASTI explains that it is a registered trade union representing some 18,000 secondary school teachers in Ireland and that it is affiliated to the Irish Congress of Trade Unions (ICTU). It further explains that traditionally, teachers were organized by either ASTI or the Teachers Union of Ireland (TUI), based on which one of the two main types of Irish secondary schools employed the teachers. ASTI traditionally organized teachers exclusively in “Voluntary Secondary Schools” (predominantly secondary schools which are owned by religious congregations and are managed on behalf of these congregations by boards or management), while TUI traditionally organized teachers exclusively in “Vocational Schools” (secondary schools which were established by the State from the 1930s to complement the existing provision and to prepare pupils for the workplace by equipping them with appropriate vocational skills and administered by Education and Training Boards). Since the 1960s–70s, other types of schools have been providing secondary education – Community Colleges, Community schools, Comprehensive schools and Education Together schools – and both unions (ASTI and TUI) have organized teachers in those schools.
2. 682. ASTI indicates that following a severe monetary crisis in 2008, the Government introduced austere fiscal measures through a series of Financial Emergency Measures in the Public Interest (FEMPI) Acts. Among such measures were reduction in public services pay (including that of teachers), the imposition of a pension levy and the freezing of increments. ASTI further indicates that as the financial situation improved, the Government engaged in gradual pay restoration through a series of the following Public Service Stability Agreements (PSSAs) and consequent amendments to the FEMPI Acts:
3. 17. the Croke Park Agreement, 2010-2014;
4. 18. the Haddington Road Agreement, 2013-2016;
5. 19. the Lansdowne Road Agreement, 2013-2018; and
6. 20. the Public Service Stability Agreement, 2018-2020
7. 683. According to the complainant, the reduction in pay and the freezing of increments was initially applied to all public sector workers (including teachers), regardless of which trade union the workers were members. However, by 2013, the FEMPI Acts were reflecting the Government’s cognisance of the fact that different unions might adopt different attitudes/approaches to FEMPI. In this respect, ASTI indicates that the FEMPI Act 2013 differentiated between public servants “to whom a collective agreement relates” and those to whom no such agreement relates, providing that the suspension of increments and pay scales for which that Act provided should apply to the former group “only to the extent specified in the agreement or … with such modifications as are specified in the agreement”. As concerns teachers, this distinction was first drawn in Department of Education and Skills (DES) Circular Letter of 22 April 2016 (CL 0030/2016). According to the complainant, it announced the expiry of increment measures under the terms of the Haddington Road Agreement, stating that no increment would be deferred beyond 1 July 2017, as a result of measures contained in that Agreement, and further went on to state that “incremental progression may … be suspended for certain grades” and announced the suspension of incremental progression for a further year, until 1 July 2018, for “grades not covered” by the PSSAs 2013-2018 (Haddington Road Agreement/Lansdowne Road Agreement). The ASTI alleges that although no distinction was expressly drawn between members of different trade unions in the Circular, incremental progression was to resume on 1 July 2017, for those teachers covered by the Public Service Stability Agreements 2013-2018, whereas for those who were not, incremental progression was to be suspended until 1 July 2018.
8. 684. ASTI indicates that the Public Service Pay and Pensions Act, 2017 subsequently went on to draw a distinction between public servants who are covered by the Public Service Stability Agreement 2018-2020 (“covered public servants”) and those who are not (“not-covered public servants”), providing for restoration – further to the restoration provided for under the FEMPI Act of 2015 – of the basic salaries of public servants, which were reduced by the FEMPI Acts. However, where a recognized trade union, such as ASTI, has not notified Ireland’s Workplace Relations Commission (WRC) in writing of its assent to be bound by the Public Service Stability Agreement 2018-2020, the members of that trade union (and those non-members who are in the same grade or category) are treated as “non-covered servants” (section 3 of the 2017 Act). Non-covered public servants secure the same progression as covered public servants but at a much slower rate. Moreover, such (non-covered) public servants will not receive any incremental increases for the duration of the Public Service Stability Agreement 2018-2020 (i.e. until 31 December 2020) (section 22 of the 2017 Act). ASTI alleges that essentially, teachers/public servants who did not engage in industrial action were “covered”; those who engaged in industrial action were “not covered” – the former were treated more favourable than the latter.
9. 685. The complainant indicates that under the PSSAs, an additional 33 hours per annum were required of teachers to “facilitate, at the discretion of the management, school planning, continuous professional development, induction, substitution and supervision (including supervision immediately before and after school times)” (“the Croke Park hours”). ASTI further indicates that in May 2016, its members voted “not to fulfil the Croke Park hours” and to engage in industrial action with effect from 11 July 2016.
10. 686. Against the background described above, ASTI considers that an explicit distinction was drawn between its members and those of the TUI in the DES Circular Letter of 4 July 2016 (CL 0045/2016). ASTI explains that the TUI is a registered trade union, also affiliated to the Congress, which represents 15,000 teachers and lecturers engaged in the secondary, higher and further education. ASTI submits that by virtue of this Circular Letter, only TUI members were to receive the payroll adjustments provided for in the PSSAs, which included a gross additional payment of €1,952 integrated into salary and the restoration of incremental progression together with protection against compulsory redundancy. ASTI explains that this is because the TUI had agreed to be bound by the relevant PSSAs and as such were deemed to be encompassed by its terms. However, insofar as ASTI members were concerned, incremental progression was suspended, they did not receive a “moiety” which was paid to teachers who were covered by the Lansdowne Road Agreement, and they were deprived of alleviation measures which were applied to other teachers who lost pensionable salary both through the FEMPI Act 2013 pay reduction and the withdrawal of the supervision and substitution allowance under the Haddington Road Agreement, any beneficial measures introduced following a review of usage of the Croke Park hours to take place in the 2016–17 school year, improved fixed-term and part-time arrangements which had been conferred on teachers in 2015, protection against compulsory redundancy and entitlements to “ex-gratia” payments in redundancy situations.
11. 687. ASTI refers to a decision of the Labour Court in which a representative of the DES informed the Court that CL 0045/2016 “was issued in haste, four days following the rejection of the [Lansdowne Road] by ASTI” (Dublin and Dun Laoghaire Education and Training Board v. Flynn PWD 1825). According to ASTI, the Labour Court decision confirmed that non-TUI members (unless they were employed in a “TUI only school”) and ASTI members who had fully complied with the terms of the Lansdowne Road Agreement were prevented from benefiting from the provisions of CL 0045/2016.
12. 688. On 10 June 2017, ASTI members voted to suspend the industrial action. Consequently, since that date, they have been treated as “covered public servants”. Thus, as of that date and insofar as ASTI members were concerned, incremental progression was restored, as was the “moiety” which was paid to teachers who were covered by the Lansdowne Road Agreement and alleviation measures which were applied to other teachers who lost pensionable salary both through the FEMPI Act 2013 pay reduction and the withdrawal of the supervision and substitution allowance under the Haddington Road. Other beneficial measures introduced following a review of usage of the Croke Park hours to take place in the 2016–17 school year, improved fixed-term and part-time arrangements which had been conferred on teachers in 2015, protection against compulsory redundancy and entitlement to “ex-gratia” payments in redundancy situation (per CL 0045/2016) were all implemented for ASTI members. However, ASTI members are subjected to continuing disadvantage, insofar as their incremental dates are concerned.
13. 689. ASTI indicates that in May 2017, the DES addressed “[a] specific question…raised in relation to increment payment dates in future years and specifically whether these would revert to a teacher’s original increment dates”. The DES noted the position which had been set out by ASTI representatives in a discussion at that time and stated that, “while the question [did] not fall to be considered at [that] point, it would fall to be considered in the context of the ASTI’s formal entry to the applicable collective agreement”. In other words –unless and until ASTI signs up to a national collective agreement, e.g., the Public Service Stability Agreement 2018-20, nothing will be done to ameliorate the long-lasting effects of this extraordinary imposition.
14. 690. According to ASTI, in November 2017, a commitment was secured from the DES to enter discussions on the issues of increments before any potential ballot that would formally draw ASTI into such an agreement. Therefore, its members would know, while they are balloting, what the arrangements regarding the incremental dates would be if they accepted the agreement. However, it was subsequently clear that it would only be in the context of formal entry into an agreement such as the Public Service Stability Agreement 2018-20 that the outcome of such negotiations would be implemented. According to ASTI, the DES has subsequently indicated that if ASTI were to ballot to enter the Public Service Stability Agreement 2018-20, it would engage with the ASTI but could not give any promise that there would be any incremental date restoration for the duration of the Agreement (i.e. before 31 December 2020) as no more money would be made available during this Agreement, but that the Department was not ruling out final resolution of the issue in the longer term.
15. 691. ASTI also alleges that on 3 February 2019, the Prime Minister had publicly acknowledged that the Government penalized ASTI members because they “pulled out of the Agreement, went on strike and as the result of that they didn’t get the benefits of the pay agreement”. The complainant points out, by way of example, that the consequences of the strike by nurses (who, like the teachers, are public servants to whom the above legislative acts apply) was not dealt with in the same manner, as the Government did not consider stopping the pay increments to sanction the nurses’ trade union for going on strike.
16. 692. ASTI concludes that the favourable treatment afforded to TUI is not based on any objective criteria other than a desire to punish ASTI for exercising its right not to be forced into agreeing to be bound by a national agreement which it believed to be inimical to the interests of teachers. It believes that the reason ASTI members were treated as “not-covered public servants” from 11 July 2016 was because of its engagement in industrial action. ASTI believes that by placing the TUI at such an advantage to ASTI, the Government has influenced the choice of teachers regarding the trade union to which they intend to belong, since they would undeniably want to belong to the trade union they perceive as being best able to serve their interests even if their natural preference would have led them to join, or remain in, ASTI for occupational, political, social or other reasons. The complainant alleges that there is ample evidence to support this allegation. Between 1 January and 10 June 2017, 1,235 ASTI members resigned from their union membership; at least 1,059 of whom sought, and were admitted into, the TUI membership (subsequently, 121 re-joined ASTI). ASTI considers that the motivating factor explaining change of trade union membership was clearly the financial incentives offered in CL 0045/2016. ASTI alleges that the loss of subscription income from January 2017 until 13 June 2019, amounted to a financial loss of €606,700. The complainant indicates that it wrote to the ICTU complaining that the TUI breached the terms of the ICTU Constitution, and that its complaint was upheld by the Disputes Committee of the ICTU. ASTI considers that the change in membership between two trade unions is entirely due to the actions of the Government, which provided financial and other incentives for teachers to leave ASTI and join the TUI. It points out that a number of teachers who resigned from their ASTI membership have specifically cited the reason for leaving the union as the withdrawal of the arrangements regarding the transition from fixed-term contracts to contracts of indefinite duration (CID). The complainant refers to CL 0045/2016, which provided for the withdrawal of CL 0024/2015 (according to which teachers on fixed-term contracts could transition to CIDs after two years) in respect of teachers not covered by the Lansdowne Road Agreement. The withdrawal of these arrangements meant that ASTI members reverted to being governed by the provisions of the Protection of Employees (Fixed-Term Work) Act 2003, which provides for a four-year period transition.

B. The Government’s reply

1. 693. In its communications dated 27 September 2019, and 27 January and 24 April 2020, the Government provides the following observations on the allegations in this case.
2. 694. At the outset, the Government emphasizes that it places considerable emphasis on industrial relations; that it has provided a legislative framework for industrial relations processes for many decades; and that it has a long history of public service collective bargaining resulting in a succession of collective agreements, many of which pre-date the financial crisis. The Government points out that it is an accepted principle of participation in the various partnership agreements that in order to avail of the benefits of a collective agreement, one has to be a party to the agreement. Thus, it is well understood by the public service unions that being outside of a public sector agreement is likely to place their members at a financial disadvantage, since the very nature of national collective agreements is that there are no alternative routes to securing benefits which are equal to or greater than those provided for by the agreement. The Government explains that the most important aspect of Ireland’s partnership agreement model is that each national collective agreement is concluded under the aegis of the State’s industrial relations machinery and, as such, is negotiated and ultimately agreed between public service unions, employers’ representatives and the Government. The model does not operate to allow the State to simply present participants with a series of options on a “take it or leave it” basis; instead, all parties negotiate the terms of such agreements and understand that compliance with national collective agreements provides the exclusive route to achieving the benefits provided for by such agreements.
3. 695. The Government indicates that following the global economic downturn, it was required to undertake a series of budgetary and fiscal measures to address the serious economic decline. From 2007 to 2010, there was an 11 per cent reduction in real GDP, a 23 per cent decline in investment, and a 7 per cent reduction in personal consumption. Unemployment grew from 5 per cent in 2008 to 15 per cent in 2012. By the end of 2009, the Government’s general gross debt reached 66 per cent of the GDP. It was estimated that the ratio would be 95 per cent of the GDP at end of 2010. The extent of the disturbance to the national economy was such that the Government had to avail itself of a financial assistance programme established by the European Union and the International Monetary Fund (IMF) with funding provided by the European Financial Stabilisation Mechanism, the European Financial Stability Facility, bilateral lenders and the IMF. As a condition of that financial assistance programme, and in order to reduce its indebtedness, it was necessary for the Government to achieve further significant savings in its expenditure on remuneration and in its expenditure on public service pensions as a contribution to the reduction of the national shortfall between revenue and expenditure.
4. 696. The severity of the situation also required the introduction, by way of legislation, of a series of amendments to the terms of public service employment contracts, which was unprecedented in the history of the State. This legislation comprised of a number of Acts of Parliament – initially, the FEMPI Acts and subsequently, the Public Service Pay and Pensions Act 2017. The objective of the FEMPI legislation was initially to reduce expenditure in order to maintain international confidence, to protect credit ratings, as well as to take urgent steps to restore the State’s competitiveness and make savings on both direct and indirect expenditure on remuneration.
5. 697. Parallel to the FEMPI and the public service pay legislation, the changes required by the fiscal policy and structural reform measures in terms of public service pay were also progressed by the Public Service Agreements 2010-2020. Public service unions, such as ASTI, concluded a series of collective agreements with the Government. In recognition of the fact that these public service unions had positively engaged in a collective agreement with the Government (and where such an agreement was registered with the Labour Relations Commission (LRC)), members of the signatory public service unions were subject to more favourable terms and conditions than the baseline provisions included in the FEMPI legislation, which applied to all other public servants. In total, the Government and public service unions (including ASTI) entered into a series of four sequential public service agreements effective from 2010 to 2020. Taken together, the four collective agreements have had the effect of contributing to the improvement of the State’s finances by both amending existing contractual arrangements by way of collective agreement and addressing the benefits associated with public service employment. The Government explains that the four agreements are as follows:
   • The Public Service Agreement 2010-2014 (the “Croke Park Agreement”), which provided for the introduction and operation of pay rates and flexibilities in the delivery of public services in lieu of reductions in public sector pay rates, among other provisions.
   • The Public Service Stability Agreement 2013-2016 (the “Haddington Road Agreement”) subsumed the Croke Park Agreement and introduced a series of pay-related measures including a freeze on increments.
   • The Public Service Stability Agreement 2013-2018 (the “Lansdowne Road Agreement”) extended Haddington Road and commenced the process for the partial restoration of public service pay.
   • The Public Service Stability Agreement 2018-2020, which replicated the terms of earlier agreements and continued the process of restoring public service pay.
6. 698. The Government understands that the ASTI’s allegation primarily concerns the Lansdowne Road Agreement, which took effect in May 2015 and was a renegotiation of the existing Haddington Road Agreement. While ASTI members did not accept the Lansdowne Road Agreement, as a member organization of the ICTU, which voted to accept the Agreement, ASTI was initially covered by that Agreement and bound by ICTU’s collective decision-making.
7. 699. The Government explains that as part of the Croke Park Agreement, ASTI agreed to increase teachers’ working hours by 33 hours per year without any change in remuneration (“the additional hours”). In contrast, the working hours of other public servants increased by an average of 101 hours. Following the 2013 renegotiation of that agreement (Haddington Road Agreement), ASTI agreed to a further increase of six hours under the supervision and substitution scheme with the removal of the allowance associated with these hours.
8. 700. The Government points out that the Public Service Agreements and legislative measures operated in tandem. Thus, in order to give effect to certain provisions of the Haddington Road Agreement, the Government introduced the FEMPI 2013, which provided, in particular, for the application of an increment freeze and suspension of pay scales applying to public servants (section 7(1)) and for the possibility of a collective agreement registered with the LRC operating to exempt public servants who fell within the scope of the collective agreement from that provision (section 7(5)).
9. 701. The Government explains that the Haddington Road Agreement also provided for a mechanism to resolve disagreements. The parties recognized the importance of stable industrial relations and the maintenance of a well-managed industrial relations environment. They therefore agreed to refer their disputes to the LRC, the Labour Court, or other agreed machinery. In particular, the parties agreed not to have recourse to strikes or other forms of industrial action. Accordingly, once a representative organization, such as ASTI, engaged in industrial action and failed to apply the dispute resolution procedures provided for in the relevant Public Service Stability Agreement, then members of that organization were considered to have breached the Agreement and were no longer eligible to benefit from it. Any preferential regime envisaged by the Agreement no longer applied to them.
10. 702. The Government indicates that in May 2016, following rejection of a number of opportunities to engage in negotiation of matters in dispute with the DES and other employer representatives, ASTI members voted to stop providing the “additional hours” as of 11 July 2016. As a result of the threatened industrial action, in early July 2016, officials of the DES and the Department of Public Expenditure and Reform (DPER) met with ASTI and offered to delay the implementation of the measures associated with ASTI’s withdrawal from the agreement in order to allow ASTI further time and space to consider its position and for further engagement on the issue. This offer was rejected and ASTI reiterated its decision to withdraw from the Agreement. Nonetheless, throughout August 2016, DES and DPER officials repeated their offer to ASTI representatives for the union to suspend its decision to withdraw from the Agreement and proposed that the DES would suspend the implementation of the measures in dispute. In fact, throughout May and June 2016, the Minister for Education reiterated his invitation to ASTI to discuss issues of mutual concern on several occasions, including via the parliamentary process, by correspondence and at meetings between the parties. The Minister again repeated this offer in correspondence to the ASTI President in September 2016. Yet again, these repeated offers were refused and ASTI proceeded with industrial action. The Government points out that at all times ASTI was notified by the relevant departments of the implications of its decision and the fact that the envisaged industrial action would result in the loss of benefits accruing under the Public Service Agreement in force. Thus, the State did all within its ability to ensure that ASTI had a clear understanding of the consequences of its decision to repudiate the terms of the relevant Public Service Agreement.
11. 703. The Government indicates that notwithstanding the attempts by the State to appeal to ASTI, the latter issued a directive to its members to cease providing “additional hours” with effect from 11 July 2016. Given the position adopted by ASTI, the DPER wrote to the Workplace Relations Commission (the successor body to the LRC) advising that since ASTI had not confirmed that its members would cooperate under the Lansdowne Road Agreement, it was understood that it had ceased to operate within the agreement as of 1 July 2016 and that section 7(1) of FEMPI 2013, which prescribed an increment freeze for all public servants not covered by a collective agreement, would apply to its members by default. The Government further indicates that on 14 July 2016, the DES issued CL 0045/2016 outlining the benefits arising from the Lansdowne Road Agreement and related reform measures, which would no longer apply to ASTI members who had withdrawn from the Public Service Agreements.
12. 704. The Government indicates that as ASTI suspended its industrial action on 10 June 2017, its members were considered once again to be in compliance with the provisions of the Lansdowne Road Agreement. Thus, ASTI members could enjoy the benefits of the Public Service Agreements from that date onwards.
13. 705. The Government points out that at all times it has been entirely objective and treated ASTI, while it was bound by the Lansdowne Road Agreement, in the same way as any other union that committed to that Agreement. When ASTI withdrew from that Agreement, it was equally treated in the same way as any other non-party union, that is, in accordance with the provisions of the applicable legislation, that is, FEMPI 2013. The Government further points out that it did not treat more favourably the members of TUI over the members of ASTI. When ASTI unilaterally decided to withdraw from the collective agreement, it did so in the clear knowledge that the default position would be the application of section 7 of FEMPI 2013 to reduce pay and related benefits for public servants. The Government considers that ASTI was fully aware that its unilateral step would result in its members no longer receiving the benefits prescribed by the relevant collective agreement in contrast to the TUI, whose members would continue to enjoy the benefits of that Agreement given that they remained subject to its terms.
14. 706. The Government reiterates that as a simple proposition of industrial relations, it must be the case that those unions which choose not to comply with collective agreements are not entitled to benefit therefrom. It considers that it has acted in an entirely objective manner. The legislative framework provided by the FEMPI Acts, and in particular FEMPI 2013, is generally applicable and not directed at any particular union. Similarly, the Public Service Pay Agreements provide for a framework, which public sector unions can agree to opt into. Neither the legislation nor the collective agreements themselves constitute either a direct or indirect attempt to influence workers in their choice of a particular trade union. The Government considers that ASTI’s contention that the negative consequences for its members of its decision to opt out of the Lansdowne Road Agreement constitute a form of inappropriate direct or indirect Government influence in the choice of trade union is entirely misconceived. The Government points out that no direct or indirect attempt to influence trade union choice of workers arises in this case: the benefits of the Public Service Agreements are only available to those compliant with the relevant agreement; when organizations fall outside the scope of the relevant agreement, they necessarily fall outside the scope of exemptions provided for by FEMPI legislation.
15. 707. The Government also points out that ASTI fails to identify any statutory or contractual provision that would entitle its members to receive retrospectively the benefit of pay increments which it would have received were it not for ASTI’s decision to withdraw from the Lansdowne Road Agreement in the 2016–17 period. The Government states that ASTI’s claim appears to be that a union which does not embrace a collective agreement should not, as a result, be at any disadvantage. The Government considers that treating ASTI members as if they were at all times compliant with the relevant collective agreement and, in particular, had worked the “additional hours” when they did not, would be unfair and would in effect undermine the State’s ability to engage effectively with trade unions in the context of collective bargaining and the State’s entire collective bargaining regime would be rendered ineffective.
16. 708. Regarding the example of a dispute involving a nurses’ organization referred to by ASTI to support its allegation, the Government observes that these two situations are not comparable. ASTI withdrew from the Lansdowne Road Agreement without operating the dispute resolution procedure provided therein. By contrast, the nurses’ union in question did not withdraw from the Public Service Stability Agreement 2018-2020. Rather, it cooperated with the dispute resolution procedure (involving the Labour Court), as per that Agreement. The Government concludes in this respect that this allegation is misconceived and unsubstantiated, as ASTI refused to engage with the dispute resolution process provided for by the Lansdowne Road Agreement. According to the Government, ASTI chose not to comply with the relevant agreements and consequently was not entitled to benefit from the more generous provisions provided therein.
17. 709. The Government considers that while ASTI is now in compliance with the Public Service collective agreements, it has not identified any basis for its contention that it is or was somehow discriminated against in a manner that constitutes a breach of the ILO Conventions by reason of the fact that, for a given period it did not benefit from the preferential regime provided for by the agreement it had withdrew from. The Government considers that the fact that ASTI members left their union and joined the TUI is not evidence of discrimination prohibited by the ILO Conventions. Rather, it reflects the freedom of choice of individual trade union members to join a union, which benefitted from a preferential regime such as that which was enjoyed by the TUI. It points out that it did not provide any incentives for individual teachers to join the TUI as opposed to ASTI. The preferential regime provided for by the Public Service Agreement framework was open to the members of any union, which agreed to its terms.
18. 710. The Government indicates that ASTI’s suggestion that there is a material difference in wording between FEMPI 2013 and the DES CL 0045/2016 is misconceived. The Circular referred to “covered” grade. However, the Circular clearly referred to the extent to which a public servant was “covered” by a collective agreement (the Lansdowne Road Agreement at the time). There is no material distinction between the language of FEMPI 2013 addressing public servants “to whom a collective agreement relates” and the reference in the Circular to “covered grade”. The Government points out that while it is true that a distinction was drawn by the Circular between public servants (in this instance, teachers) who engaged in lawful industrial action and those who did not, it explains that this is because ASTI, by electing to choose the route of industrial action breached the relevant collective agreement and knowingly brought its members outside the scope of the Agreement.
19. 711. The Government considers that ASTI’s complaint should be dismissed for the reasons outlined above.

C. The Committee’s conclusions

1. 712. The Committee notes that this case concerns allegations that the Government influenced the choice of teachers as to which union they should join or in which union they should remain by according favourable treatment to another union. It observes that the information provided by the complainants and the Government with respect to the legislative framework and events leading to the complaint can be summarized as follows.
2. 713. To address the 2008 financial crisis, the Government introduced certain measures, which included reduction in public service pay, the imposition of pensions levy and the freezing of increments through the Financial Emergency Measures in the Public Interest (FEMPI) Acts. The initial FEMPI Act 2009 was amended several times between 2009 and 2015 to reflect the evolving economic situation and to link the measures under the Act with the collective agreements in force, which operated in tandem with the legislation. The FEMPI Act 2013, provided, for instance, for an increment freeze and suspension of pay scales applying to public servants (section 7(1)) and a possible exemption from this rule for public servants covered by a collective agreement registered with the Labour Relations Commission (LRC) (section 7(5)). Thus, the FEMPI Act 2013 differentiated between public servants “to whom a collective agreement relates” and those “to whom no such agreement relates”.
3. 714. In this respect, four agreements were concluded between the Government and the public sector unions between 2010 and 2018 – the Public Service Stability Agreements (PSSAs), which accorded to its signatories certain preferential, or additional rights, as compared to the FEMPI Acts. The Committee notes that under the PSSAs, starting with the first, that is, the Croke Park Agreement (2010-2014), an additional 33 hours per annum was required of teachers to “facilitate, at the discretion of the management, school planning, continuous professional development, induction, substitution and supervision”. The Haddington Road Agreement (2013-2016), subsumed the Croke Park Agreement and introduced a series of pay-related measures including a freeze on increments, while the Lansdowne Road Agreement (2013-2018), which entered into force in May 2015, extended the Haddington Road Agreement and commenced the process for the partial restoration of public service pay. The Public Service Stability Agreement 2018-2020 replicated the terms of earlier agreements and continued the process of restoring public service pay. The Committee notes from the four PSSAs, that the parties recognized the importance of stable industrial relations and the maintenance of a well-managed industrial relations environment to minimize disputes. The parties agreed to refer their disputes to the dispute resolution procedures (LRC, the Labour Court, or other agreed machinery) and not to have recourse to strikes or other forms of industrial action. The Committee understands that ASTI was initially covered by the first three Agreements due to its affiliation to the ICTU, a party to the PSAAs.
4. 715. The Public Service Pay and Pensions Act, 2017, went to draw a distinction between public servants who are covered by the Public Service Stability Agreement 2018-2020 (“covered public servants”) and those who are not (“not-covered public servants”), providing for restoration – further to restoration provided for under the FEMPI Act of 2015 – of the basic salaries of public servants, which were reduced by the FEMPI Acts. Non-covered public servants secure the same progression as covered public servants but at a much slower rate. Moreover, according to section 22 of the Act, non-covered public servants will not receive any incremental increases for the duration of the Public Service Stability Agreement 2018-2020 (i.e. until 31 December 2020).
5. 716. As concerns teachers specifically, the above instruments were further complemented by CL 0030/2016 of 22 April 2016 and CL 0045/2016 of 4 July 2016 by which the DES notified the managerial authorities of recognized primary, secondary, community and comprehensive schools and the chief executives of education and training boards of certain matters arising out of Agreements. CL 0030/2016 announced the suspension of incremental progression until 1 July 2018, for “grades not covered” by the PSSAs 2013-2018 (Haddington Road Agreement/Lansdowne Road Agreement), whereas incremental progression was to resume on 1 July 2017 for those teachers covered by these Agreements. CL 0045/2016 outlined the benefits arising from the Lansdowne Road Agreement and related reform measures and made a distinction between teachers covered and not covered by the Lansdowne Road Agreement.
6. 717. The Committee notes that in May 2016, ASTI members voted not to fulfil the additional 33 hours provided by the Agreements in force as from 11 July 2016, thereby effectively engaging in an industrial action. By virtue of that industrial action, ASTI was considered to be no longer covered by the Lansdowne Road Agreement, its members’ incremental pay progression was suspended, they did not receive a “moiety” which was paid to teachers covered by the Lansdowne Road Agreement and they were deprived of other alleviation and beneficial measures.
7. 718. On 10 June 2017, ASTI members voted to suspend the industrial action. Consequently, and as of that date, ASTI members were treated as public servants covered by the Lansdowne Road Agreement: the incremental progression was restored for the ASTI members, as was the “moiety” and other alleviation measures and benefits. However, insofar as the incremental payment dates were concerned, ASTI members were in a different situation than members of the unions who never withdrew from the Agreement. The situation was not resolved under the latest Agreement, which is currently in force and gave rise to the complaint.
8. 719. The Committee notes ASTI’s allegation that by being subjected to continuing disadvantage compared to members of the TUI, its members are being punished for their participation in an industrial action. ASTI explains that the legislation and the CLs made a distinction between teachers/public servants who did not engage in industrial action and thus “covered” by an agreement and those who engaged in industrial action and thus “not covered” by an agreement – the former were treated more favourably than the latter. ASTI alleges that the Government has thereby influenced teachers’ choice regarding the trade union to which they wish to belong, since they would undeniably want to belong to the trade union they perceive as being best able to serve their interests. According to ASTI, between 1 January and 10 June 2017, 1,235 members resigned from their association and at least 1,059 of those sought and were admitted into TUI membership. This resulted in financial loss for the union. ASTI considers that such discrimination by the Government is contrary to freedom of association and the effective recognition of collective bargaining.
9. 720. The Committee notes the Government’s explanation that any difference in treatment between ASTI and the other unions which at all times remained bound by the PSSAs is entirely due to the decision of ASTI to withdraw from the Agreement and instead, to subject themselves to the provisions of section 7(1) of FEMPI Act 2013. The Government asserts that once a representative organization, such as ASTI, has engaged in industrial action and failed to apply the dispute resolution procedures provided for in the relevant PSSA, then members of that organization are considered to have breached the Agreement and are no longer eligible to benefit from it. Any preferential regime envisaged by the Agreement no longer applied to ASTI following its action. The Government points out that at all times ASTI was notified by the relevant departments of the implications of its decision and the fact that the envisaged industrial action would result in the loss of benefits accruing under the PSSA in force. Thus, the State did all within its ability to ensure that ASTI had a clear understanding of the consequences of its decision to repudiate the terms of the relevant PSSA.
10. 721. The Government further points out that at all times it has been objective and treated ASTI, while it was bound by the Lansdowne Road Agreement, in the same way as any other union that committed to that Agreement. When ASTI withdrew from that Agreement, it was equally treated in the same way as any other non-party union, that is, in accordance with the provisions of the applicable legislation – the FEMPI Act 2013. Once ASTI fell outside the Lansdowne Road Agreement, its members necessarily lost the benefit of the exemption from the statutory increment freeze. The Government also points out that ASTI fails to identify any statutory or contractual provision that would entitle its members to receive retrospectively the benefit of pay increments which it would have received were it not for ASTI’s decision to withdraw from the Lansdowne Road Agreement in the 2016–17 period. The Government considers that treating ASTI members as if they were at all times compliant with the relevant collective agreement and, in particular, had worked the “additional hours” when they did not, would be unfair and would in effect undermine the State’s ability to engage effectively with trade unions in the context of collective bargaining, rendering the State’s entire collective bargaining ineffective.
11. 722. The Committee recalls that it has always considered that agreements should be binding on the parties. Mutual respect for the commitment undertaken in collective agreements is an important element of the right to bargain collectively and should be upheld in order to establish labour relations on stable and firm ground. [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 1334 and 1336].
12. 723. The Committee understands that once ASTI withdrew from the collective agreement in force, legislative provisions of FEMPI Act 2013 became applicable to its members, which made a distinction between public servants covered by an agreement and those not covered by one. This situation was at all times objectively known to the parties; CL 0045/2016 had only clarified application of this distinction in the education sector following ASTI’s withdrawal from the Lansdowne Road Agreement by virtue of an industrial action. The Committee sees no discriminatory action on the part of the Government in this respect and therefore cannot conclude that the withdrawal of ASTI members from their membership and their decision to join the TUI can be attributed to the Government.
13. 724. The Committee notes ASTI’s indication that while the rights of its members under the PSSA were restored once they were again covered by the PSSA as from 10 June 2017, the incremental dates were not restored retroactively. The Committee understands that restoration of the incremental date, thereby creating a situation as if ASTI had never withdrawn from the agreement, would have placed its members in a situation equivalent to the situation of members of other unions, which had remained continuously bound by the terms of the PSSAs. The Committee considers that in the absence of an agreement between the parties to that effect, the fact that ASTI members did not receive retroactive benefits in the form of the restoration of incremental dates, is not a violation of ASTI’s collective bargaining rights.
14. 725. Furthermore, while the Committee’s competence to examine allegations is not subject to the exhaustion of national procedures, it notes that the PSSAs provide for a dispute resolution procedure regarding matters covered by the Agreement in force. The Committee observes that the complainant did not resort to these procedures to address the issues relating to the application of the PSSA to which it is now a party.
15. 726. For the reasons outlined above, the Committee considers that this case does not call for further examination.