Are Garda members breaking the law by striking on Friday?
The legal scenario for Garda members withdrawing their service or striking, call it what you will, is dealt with in the Garda Síochána Act, 2005.
It states: “A person is guilty of an offence if he or she induces, or does any act calculated to induce, any member of the Garda Síochána to withhold his or her services or to commit a breach of discipline.”
On summary conviction the maximum sentence is imprisonment for a period up to 12 months and/or a fine up to €3,000.
Conviction of the crime on indictment is punishable by a prison term up to five years and/or a fine up to €50,000.
But what about gardaí simply taking part in a strike?
Individual Garda members participating in an industrial action are not covered by the legislation.
However, they can be disciplined internally for being absent from their posts without reason.
They could also be disciplined for refusing to obey the order issued by Garda Commissioner Noirin O’Sullivan yesterday to be available for work on Friday.
But those who framed the provisions in the Garda Síochána Act, 2005, clearly believed by making it illegal to organise a withdrawal of service the possibility Garda members would participate in such an action was ended before it began.
So the law makers got it wrong?
Well, in the past, the provisions making it illegal for anyone to induce others to withdraw service have had a cooling effect.
They have dissuaded the leadership of the Garda Representative Association (GRA) and the Association of Garda Sergeants and Inspectors (AGSI) at different times not to go down the road of organising a withdrawal of service.
The associations are staff representative bodies rather than trade unions, so the Garda going on strike has never really arisen before or been regarded as a scenario in need of tighter and more comprehensive legislation.
Garda members must also take an oath to remain apolitical when joining the force.
So all of that history, specifically the fact the associations are not trade unions, has meant Garda strikes just haven’t been an issue down the years.
What’s different this time?
In a nutshell; Garda members are more militant and unhappy than ever having endured eight years of pay cuts.
There have been a number of processes under which they believed they would secure pay increases. But this has not happened and they have essentially run out of patience.
They feel unless they force the issue they will be left waiting for years before they see any real pay restoration.
And the planned withdrawal of service this coming Friday for 24 hours from 7am - 7am and for the three remaining Fridays in November represents them “forcing the issue”.
But if it’s illegal to induce others, how is this going ahead?
The GRA and AGSI have been quite clever about this. When they held their annual conferences in spring it was all about the need for pay restoration and how they were going to put pressure on Government to have some of their pay cuts restored.
Motions were passed to mandate the executives of the organisations to take all steps necessary up to and including industrial action to have pay restored.
However, the nature of that industrial action was not set out in any great detail at the time.
And since then as their efforts to have their pay restored have come to nothing, we have crept closer to an industrial action.
Both organisations held special one-day delegate conferences in Athlone and Tullamore and when they emerged from these conferences they announced the members had decided to withdraw their service on the four dates proposed.
So the GRA and AGSI leadership have broken the law?
Their legal advice is that they have not. They have been very careful all along to stress that the withdrawal of service is a personal decision for every one of their members.
The president of AGSI, Antoinette Cunningham, has said, for example, that she and the other leaders of the association "haven't had to induce anyone" such is the level of anger.
They have also been careful to have their one-day conference behind closed doors so that no one or two people could be identified as ringleaders inducing everyone else.
They also have not held any strike ballots and engaged in other similar behaviour.
In essence, they have been careful to act in a way that does not identify any one of them publicly as having behaved in a way that “induced” any other member.
And they believe by being very careful in this way they have essential circumvented the legislation. But they have stressed that they’ve warned all their members they could be disciplined within the Garda organisation for not turning up to work.
But they believe that is the only possible outcome for them or their members; being internally disciplined.
Does that mean anyone who isn’t in work on Friday will be disciplined?
They can be disciplined, but that doesn’t mean they will be.
If this dispute is resolved, and it will be eventually, nobody in Garda Headquarters or in Government will want to draw this out by starting disciplinary procedures against thousands of gardaí.
There is also a practical difficulty in taking action against so many people; it would take years and huge resources to do that.
So they’re going to get away with it?
Probably. The leadership of the associations have made it as hard as possible for anyone with a mind to pursue them on the charge of inducing gardaí to withdraw their service to prove that charge.
And prosecuting them in the courts would create a toxic chasm between the Garda and Government that would last for generations.
And it would simply take too long to discipline everyone.
