The Gazette 1980

JULY-AUGUST 1980

GAZETTE

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'. 13 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. 14 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). 15 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

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 II 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 m 4 Q1% INTEREST

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