Informe definitivo - Informe núm. 248, Marzo 1987

1. 36. In communications dated 31 October and 7 November 1986 the Irish Congress of Trade Unions (ICTU) presented a complaint alleging infringement of trade union rights by the Government of Ireland in relation to a dispute concerning teachers' trade unions, and this was supported in a communication dated 11 November 1986 from the International Federation of Free Teachers' Unions on behalf of its affiliate, the Teachers' Union of Ireland. A communication relating to the same dispute dated 5 November 1986 contained a complaint by the World Confederation of Organisations of the Teaching Profession (WCOTP) on behalf of its affiliates, the Association of Secondary Teachers of Ireland and the Irish Teachers' Union of Ireland, and further information concerning the matter was contained in a communication from the WCOTP on 16 December 1986.
2. 37. The Government's reply was contained in a communication dated 15 January 1987.
3. 38. 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). It has not ratified the Labour Relations (Public Service) Convention, 1978 (No. 151) or the Collective Bargaining Convention, 1981 (No. 154).

A. The complainants' allegations

1. 39. The complainants set out in their communications and in documents attached thereto details concerning the course of a dispute over pay increases for teachers and the alleged breach by the Government of ILO instruments in relation thereto, in particular as regards its actions in the period which followed the referral of the matter to arbitration.
2. 40. The complainants indicate that the pay claim was made in 1982 and, after disagreement had been registered in December 1983, was referred to an arbitration board for teachers (established in terms of a "Scheme for Conciliation and Arbitration for Teachers" of 1973) which met on 27 June 1985.
3. 41. An allegation made by the Irish Congress of Trade Unions relates to the refusal of the Government, from August 1985 to March 1986, to appoint a chairman of the arbitration board after the expiry of the term of office of the incumbent on 31 July 1985. It is indicated by the complainant that similar failures to appoint arbitration board chairmen for other areas of the public service were linked in a statement by the Minister for the Public Service on 11 and 23 October 1985 with a condition that agreement should first be reached on a general pay agreement covering 1986 and beyond, and to agreement with the unions on methods of pay determination; while the Minister of Education had suggested in a statement to Parliament on 6 February 1986 that he would recommend the appointment of a chairman only after receiving a commitment from the unions to refer draft proposals for a pay agreement for consideration by their members in the context of negotiations on other public service pay settlements. The ICTU considers that, in refusing to appoint a chairman to the teachers' arbitration board and in seeking to impose preconditions on the appointment, the Irish Government acted contrary to Conventions Nos. 98, 151 and 154 as well as Recommendation No. 163 and the 1966 Guiding Principles concerning the status of teachers; it points out in this regard that it is aware of the fact that the Government has not yet ratified Convention No. 151 but that it had voted for it in 1978 and is considering ratification.
4. 42. The complainants refer to the report of the chairman of the arbitration board on 1 November 1985 (a copy of which is appended to the letter) recommending a 10 per cent increase in teachers' salaries, half to be effective from 1 September 1985 and the other half from 1 March 1986. They point out in this regard that, although the recommendation was only received by the Minister on 5 November, he had already been reported on 20 August as having commented on the outcome of the arbitration, and they regard these comments (which refer to the unilateral announcement by the Government on 14 August of a pay freeze in the public sector) as interference in the arbitration procedure.
5. 43. The complainants go on to state that in February 1986 the Government used its power as the Government to set aside the outcome of the collective bargaining process which had been arrived at for teachers, by amending the award of the teachers' arbitration board through a resolution adopted by Parliament at its instance. In terms of the modification thus introduced, the salary increase was to be paid in three equal instalments, one on 1 December 1986 and the others on 1 December 1987 and 1 July 1988, respectively.
6. 44. In this regard, the complainants point out that when introducing these changes, the Government had in its resolution referred to paragraph 46(1) of the Scheme for Conciliation and Arbitration for Teachers which contained a provision making such modification by the Government possible. The ICTU considers that, in amending the arbitration award to teachers and in the manner in which it conducted the subsequent industrial dispute (q.v.), the Government acted contrary to the ILO instruments already mentioned.
7. 45. The WCOTP, in its communication of 5 November 1986, states that the stipulation enabling the Government to modify the arbitration award which is contained in paragraph 46(1) of the Scheme of Conciliation and Arbitration for Teachers must be looked upon as not in accordance with an effective machinery for the settlement of disputes between teachers' unions and the Government. In information communicated on 16 December, it adds, on the basis of a memorandum which it encloses from the Irish National Teachers' Organisation (INTO), that this "doomsday clause" was designed to protect the sovereignty of Parliament in the event of a major national crisis; the clause allowed a government which might find itself in dire financial circumstances to ask the Parliament to vote down an arbitration award. The memorandum points out that when such a crisis had existed in 1956-57, INTO had been persuaded not to pursue a claim through conciliation and arbitration on the ground that if the Parliament were obliged because of dire financial circumstances to set aside the award, the conciliation and arbitration machinery would be seriously undermined. It is further pointed out that no Irish Government has sought to set aside a teachers' arbitration award since the establishmnent of the teachers' conciliation and arbitration machinery in the early 1950s.
8. 46. The complainants also state, in relation to the reference by the Government in its resolution to the financial implications of the arbitration award, that it is unacceptable that the Government continue to act as a party to the dispute while the final decision on the matter rested with the legislature.
9. 47. Turning to the events following the alteration of the arbitration award by Parliament, the complainants state that the Government challenged the right of the teachers' unions to undertake industrial action and refer to a special broadcast on national television in April 1986 in which the Prime Minister portrayed the dispute as a constitutional crisis. They go on to point out that in March and April 1986 the Department of Education threatened to withdraw from the teachers' unions the facility of deducting trade union subscriptions at source; threatened not to pay the salaries of teachers during the summer vacation; and set out, inter alia, through advertisements, to hire unqualified persons as superintendents and examiners to undertake work in relation to the conduct of public examinations which would normally be undertaken by teachers.
10. 48. In support of their allegations, the complainants refer to ILO instruments, the WCOTP stating that the Irish Government has obviously not acted in the spirit of Convention No. 98, and the ICTU citing an extract from the Declaration of Philadelphia as well as Articles 4 of Convention No. 98, 8 of Convention No. 151, 5 d) and e) of Convention No. 154 and Paragraph 6 Recommendation No. 163 in elaboration of its view that the circumstances outlined reveal an approach that is totally contrary to the spirit of ILO Conventions and Recommendations on collective bargaining. The ICTU also provides detailed citations from the Guiding Principles of the 1966 ILO Recommendations concerning the status of teachers.

B. The Government's reply

1. 49. In its communication of 15 January 1987, the Government, after pointing out that it has not ratified Conventions Nos. 151 and 154, provides information concerning the 1973 Conciliation and Arbitration Scheme for Teachers (the text of which it appends to its reply) and, in particular, on the composition of the arbitration board to which disputes may be referred. This comprises all the parties to the Scheme, i.e. the teachers' representatives and representatives of various educational authorities, as well as of the Ministries of Education and the Public Service and an employer and an employee member of the labour court; the chairman is an independent person, normally a senior counsel. The chairman of the board submits a report of its findings on a claim to the two ministers, who in turn submit it to the Government.
2. 50. On the question of the alterations made to the award, the Government draws attention to two clauses in the Scheme: a) clause 2 is designed to preserve the Government's liberty of action and states that the Scheme "does not imply that the Government have surrendered or can surrender their liberty of action in the exercise of their constitutional authority and the discharge of their responsibilities in the public interest"; b) clause 46 states that the Government will either within three months of the receipt of a report from the ministers give immediate effect to the findings of the Board or, after the expiration of that period, introduce a motion in Parliament proposing rejection, modification or deferment of the finding (emphasis added) . The Government points out that the Scheme does not specify the circumstances in which these courses of action may be taken.
3. 51. The Government goes to to indicate that, in proposing the modifications in the payment of the award, it had to take into account the annual cost involved at a time of serious economic and budgetary difficulty. Furthermore, it had sought, unsuccessfully, through a series of four talks with the teachers' unions between 2 and 15 January 1986, to secure agreement to arrangements on the phasing of the payments (which were the same as those proposed to other unions representing non-manual workers in the public service).
4. 52. The Government points out that it is correct that this is the first time it has sought to modify an arbitration award in respect of teachers with the approval of Parliament, but states that in doing so it was acting strictly in accordance with the terms of the Scheme, as agreed with and signed by the unions concerned. It states further that the fact that this power has been so rarely invoked is an indication of its reluctance to modify independent adjudications in the collective bargaining area and of its wholehearted commitment to that process.
5. 53. The Government concludes its reply on this aspect of the allegations by summarising the position: it disputes the contention that it had set aside the arbitration award; states that it was in fact prepared to accept the recommendation subject to a modification in the dates on which it was to be implemented; that it had been reluctantly forced to exercise its rights under paragraph 46 of the Scheme by the very serious budgetary situation facing the country, and had then only done so after the breakdown of talks with the unions in which it had attempted to reach a negotiated agreement containing arrangements which were the same as those subsequently accepted by other public service unions.
6. 54. On the subject of the reappointment of the chairman of the teachers' arbitration board, the Government points out that there is nothing in the Scheme which requires such a chairman to be in office continuously, and that there have in fact been a number of occasions since 1973, when the Scheme came into operation, when there have been intervals between one period of office and the next. In the past these had entailed periods of seven, four and two months.
7. 55. The Government states that it had announced in October 1985 its intention in principle to reappoint the outgoing chairman, and that the period between the expiry of his term of office on 31 July 1985 and his reappointment on 29 May 1986 had not interfered with the progress and processing by him of the teachers' pay claim. This claim had been heard on 27 June 1985 and the chairman's findings were sent in draft to the secretary of the arbitration board on 1 August; the arbitration report was signed by him on 1 November 1985. There had only been one minor claim outstanding and the interval had not had the effect of either depriving the teachers' unions of the arbitration findings or of delaying the issue of such findings on any substantial matter.
8. 56. In this regard, the Government also refers to its desire to engage in discussions and negotiations with the teachers' unions and with civil service unions with the aim of reviewing the existing machinery for conciliation and arbitration. It states that the other unions had agreed to enter such negotiations, but the primary concern of the teachers' unions had been with their special pay award and they had engaged in industrial and political confrontation which disregarded the terms of their agreed conciliation and arbitration scheme.
9. 57. In elaboration of this, the Government states that, in terms of paragraph 46 of the Scheme, the Government could take up to three months from the date of receipt of the report of the arbitration board chairman's findings (i.e. 5 November 1985) to provide its response, and that during this period it was entitled to the benefit of the safeguards contained in paragraph 7 of the Scheme. This paragraph provides that, during the period in question, no form of public agitation shall be sponsored or resorted to by any of the parties to the Scheme in furtherance of its case nor shall any of the parties move any outside body to make representations on its behalf. The unions had, in contravention of the provision, engaged in industrial action, including a one-day strike on 15 October and had enlisted the support of the ICTU and the WCOTP in an effort to compel the Government to implement the arbitration award without modification.
10. 58. The Government goes on to state that the check-off facility (which, it states, is an administrative arrangement, not a contractual agreement), was not withdrawn from the teachers and denies any threat by the Department of Education to do so. It also denies any threat by the Department not to pay the salaries of teachers during the summer vacation.
11. 59. As regards the advertisements for the hiring of superintendents and examiners, the Government indicates that these were placed after a period of industrial action had been undertaken following the passage of the resolution in Parliament in February; in addition to work stoppage, this action had involved a threat by the teachers of non-cooperation in the supervision, etc. of examinations (work which teachers were not contractually obliged to undertake and for which they received extra pay). This, if implemented, would have been the action which would have had a most serious impact on the examinations. The Government had found it necesary to make contingency plans, in the form of advertisements for a reserve pool of examination staff, but had deferred action pending a decision at the teachers' annual conferences which had taken place between 1 and 3 April 1986. These had in fact decided to ballot members on the matter of co-operation with the running of examinations, and the advertisements had appeared on 4 April so that suitably qualified people would be available if the teachers decided to discontinue their voluntary participation in the examination system. In the event, it had not proved necessary to make use of the reserve pool of supervisors and examiners, as negotiations had taken place between the Ministers of Education and the Public Service and the unions, the outcome of which were proposals for the settlement of the dispute which had been accepted following a ballot on 19 May 1986.

C. The Committee's conclusions

1. 60. The Committee notes that the dispute concerning teachers' salaries and the manner in which the claim in respect thereof was dealt with, was settled some six months before the complaints were submitted. The complainants have, however, raised a number of questions concerning the collective bargaining machinery in force for teachers in Ireland and the way in which this was implemented in relation to the dispute, as well as in respect of a number of other actions taken by the Government in the course thereof.
2. 61. The machinery in question was established by agreement between the relevant Irish teachers' trade unions and the Government and is embodied in a document dated 9 October 1973 known as the "Scheme of Conciliation and Arbitration for Teachers" (hereinafter referred to as the "Scheme"). It is understood to contain similar provisions to those in force in relation to other public employees.
3. 62. In relation to the present case, the two aspects of the Scheme which require consideration both relate to the arbitration procedure which it sets up, the Government's powers in relation thereto and the ways in which they were exercised. Specifically, they concern a)the failure to appoint (or reappoint) the independent chairman of the arbitration board provided for in the Scheme between the expiry of his term of office on 31 July 1985 and May 1986. During this period the dispute continued and involved, inter alia, industrial action by the teachers because of their dissatisfication with b)the decision of Parliament on the motion of the Government to modify the award made by the arbitration board.
4. 63. As regards the first of these matters, it would appear from the information before the Committee that the chairman of the arbitration board was in office at the time of the hearing of, and deliberation on, the teachers' salary claim which had been referred to it, and that the draft report of the board (which was not changed when it appeared in final form) was submitted on the day after the expiry of his appointment. It would also seem that the (by then, former) chairman only signed the report on 1 November 1985, some three months after he had vacated office. The Committee does not consider it appropriate to address itself to questions concerning the exact timing of these events, as they have a bearing only on purely formal aspects of the status of the arbitration board's report, and not to the substantive content of its award which has not been placed in doubt. The Government has, moreover, explained that gaps have occurred on at least three occasions in the past between the appointment of persons to preside over the arbitration board, though it does also indicate that the period here at issue was also used to propose discussions with public service unions, including the teachers' unions, with a view to revising the schemes for conciliation and arbitration applicable to them. With the teachers' dispute continuing at the time and involving industrial action, such discussions did not prove possible, but there is no evidence before the Committee to suggest that the vacancy in the office of the chairman of the arbitration board in any material way impeded the activities of that body, in relation to the pay claim in dispute - on which it had already made its recommendations in the form of an award - or in any other way. The fact that the award had already been made by the time the Minister of Education made a reference on 20 August 1986 to the Government's pay freeze and its likely effect on the ability to meet the award also leads the Committee to the view that this statement was not designed to influence the outcome of the arbitration proceedings. The Committee accordingly concludes that the allegations relating to the delay over the appointment of the arbitration board's chairman and an attempt to influence the award do not require further examination.
5. 64. The other aspect of the case arising from the Scheme concerns the modifications made in the arbitration board's award by Parliament in February 1986 on the proposal of the Government. It is alleged that this action reflects on the effectiveness of the machinery for collective bargaining and the extent to which such machinery is in conformity with ILO principles on freedom of association. In addition, it is claimed that the particular provision under which the Government acted has not been used for about 30 years, and that the Government's resort to its use in 1986 on the basis of budgetrary and economic policy considerations is unacceptable because it is also a party to the dispute. For its part, the Government has disputed the claims that it set aside the arbitration board's award, pointing out instead that its action was directed to an alteration thereof, and that this was in any event based on a specific option open to it in terms of the provisions of the Scheme. The Committee notes in this regard that, in describing the background to these provisions, one of the complainants refers to the fact that they were designed to reserve to the Government powers which might be used in times of economic crisis. It also notes that, although the provision in question was not brought into play over a considerable period, the Scheme establishing the conciliation and arbitration procedures was drawn up and agreed to voluntarily by the teachers' unions, and that all parties to the dispute availed themselves of the opportunities which it provided. It is, therefore, of the view that neither the Scheme as a whole nor the Government's resort to the particular provision enabling it to propose modfications in the award of the arbitration board, are in breach of ILO principles concerning collective bargaining and concludes that this aspect of the case also does not require further examination.
6. 65. The complainants have also made three other allegations regarding the conduct of the Government during the course of the dispute, namely that the Government threatened the removal of check-off facilities for unions, that teachers were threatened with non-payment of salaries during vacations and that attempts were made by the Government to recruit replacements for teachers who were, as part of their industrial action, refusing to supervise and mark examinations. The first two allegations are denied by the Government, which also points out that the check-off facility was an administrative arrangement and not a contractual entitlement. In relation to the third allegation, the Government states that it did place advertisements for the recruitment of persons to perform the functions normally done on a voluntary basis by teachers, as part of a contingency plan to cope with disruption to the examination system, but that no such recruitment had in fact taken place. The Committee thus notes that the information before it in relation to the first two of the above allegations is contradictory, while that concerning the third does not indicate any breach of the principles of freedom of association. In the circumstances, it concludes that no purpose would be served by a further examination of the three allegations referred to in this paragraph.