The Gazette 1980

GAZETTE

JULY-AUGUST 1980

The Social Charter does not provide a very effective

enforcement machinery but the Commi t t ee of

Independent Experts examine the question of enforcement

every two years: See e.g.

Council of Europe, Committee

of International Experts on the European Social Charter

Conclusions I

Strasbourg 1969-'70 (First Report):

Council of Europe, Committee of International Experts

on the European

Social Charter Conclusions

Strasbourg 1971 (Second Report). A crucial point in

relation to Article 6 was made in the Committee's first

report:

'. . . The Committee examined the compatibility with

the Charter of a rule according to which a strike

terminates the contracts of employment. In

principle, the Committee takes the view that this is

not compatible with the respect of the right to strike

as envisaged by the Charter. Whether in a given

case a rule of this kind constitutes a violation of the

Charter is, however, a question which should not be

answered in the abstract, but in the light of the

consequences which the legislation and industrial

practice of a given country attaches to the

termination and resumption of the employment

relationship. If in practice, those participating in a

strike are, after it termination, fully reinstated and if

their previously acquired rights, e.g., as regards

pensions, holidays and seniority in general, are not

impaired, the formal termination of the contracts of

employment by the strike does not, in the opinion of

the Committee, constitute a violation of the Charter':

First Report,

39.

The Irish Government, as a signatory to ILO

Conventions no. 87 and 98, is bound to observe their

U P T 0

4 Q1% INTEREST

provisions and not to introduce legislation contrary to

them. It would be contrary to Article 8(2) of ILO

Convention no. 87 to interpret the contrary or negatitve

element in Section 5(2) as implying an exclusion of

jurisdiction. The Committee on Freedom of Association

set up by the Governing Body of the ILO has laid down

and acted upon the principle that 'the right to strike is

generally admitted as an integral part of the general right

of workers and their organisations to defend their

economic interests'.

The Committee believes in the need

to protect a right to strike, albeit subject to limitations. In

this context, the right appears to mean the opportunity for

workers, subject to conditions, to participate in strike

action without being prejudiced as a consequence upon

their return to work.

In the light of constitutional and international law

obligations, it is submitted that the jurisdiction of the

Unfair Dismissals Act could not be excluded in the event

of dismissal of all the workforce for taking part in strike

action. Section 6(1) would apply and each dismissal be

deemed 'for the purposes of the Act to be an unfair

dismissal unless, having regard to all the circumstances,

there were substantial grounds justifying the dismissal'.

The employer could adduce, in support of the dismissal,

any of the reasons set out in Section 6(4) of the Act,

although in view of constitutional and international law

implications it may be virtually impossible for an

employer to justify dismissal in these circumstances.

Further support may be derived for this interpretation

if one considers section 6(2)(a) of the Unfair Dismissals

Act under which the dismissal of an employee is deemed,

for the purposes of the Act, to be an unfair dismissal if it

results wholly or mainly from the employee's

engaging in activities on behalf of a trade union or

excepted body under the Trade Union Acts, 1941 and

1971, where the times at which he engages in such

activities are outside his hours of work in which he is

permitted pursuant to the contract of employment

between him and his employer so to engage.' If an

exclusion of jurisdiction were read into the contrary

implied presumption in S.5(2) a serious conflict could arise

where an employer dismissed all the workforce some or

every one of whom belonged to a trade union (as defined

in the Act) for participating in strike or other industrial

action (say) outside of their working hours. One of the

reasons not regarded as valid for termination of

employment under ILO Recommendation no. 119 (para.

3(a)) is 'participation in union activities outside working

hours, or, with the consent of the employer, within

working hours'. In this contcxt, it is worth noting that the

ILO Committee of Experts'

Report

in 1974 (Report III:

Termination of Employment

Int. Lab. Conf., 59th Sess.,

1974) noted that 'The legislation in several countries

refers expressly to participation in strikes as an activity

for which termination is unlawful'. (Para. 46).

Apart from its presumptions, further interpretative

difficulties arise in relation to section 5. The terms used

therein, such as 'strike' and 'industrial action', are

assigned specific meanings. In particular, the definition of

'industrial action' narrows the scope of the section's

effectiveness.

Strike or other industrial action in Section 5(2)

A strike is essentially a collective rather than an

individual activity and involves a complete stoppage of

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