Sean O’Riordan: What will the Working Time Directive mean for the Defence Forces?
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The Defence Forces has for decades been excluded from the European Working Time Directive (WTD) and while it seems it will eventually come under the scope of the legislation, there are significant concerns the Government will water it down.
As the so-called Swiss Army Knife of the State, the military has become a multi-functional organisation, from joining peacekeeping missions abroad to responding to extreme weather events at home and offering logistical support to the HSE during the covid pandemic.
Although advised decades ago that the Defence Forces was entitled to come under the auspices of the WTD, successive governments chose to ignore it.
The EU passed the WTD in 2003, stating that no employee should work longer than 48 hours a week and that employees are entitled to an 11-hour break every 24 hours.
It is believed that millions of euros have been saved by the State because soldiers, sailors, and aircrews worked excessive hours and were never properly compensated for it.
These excessive hours, and no official logging of them, were first highlighted as a problem by the Gleeson Commission in 1990.
"Such records would, for example, enable the military authorities to gauge the impact of additional tasks, the need for extra staff and to ensure equity between personnel in the distribution of duties," said the commission in its report.
"The absence of direct evidence for a reasonably long timespan does not, however, detract from the many examples the commission was made aware of where real hardship was attributed to the length of the hours worked."
No proper overtime payments were ever given to Defence Forces members and getting time in lieu has often proved problematic.
The latter issue has, in recent years, led to several successful court cases and settlements, mainly initiated by PDForra, the association which represents enlisted personnel across the Defence Forces.
Tánaiste and Defence Minister Micheál Martin has started to initiate what appears to be the first real attempt to introduce the WTD for our military personnel.
He has previously told the that it will be introduced even in the face of a significant personnel crisis in the ranks.
The Defence Forces should have a minimum of 11,500 personnel, but its effective strength is now little more than 7,600.
Mr Martin said that when he was health minister, he was advised by senior department officials that shortages of healthcare personnel meant that WTD protection could not be provided, but, at the time, he insisted the directive was implemented.
Yet, many in the health professions argue that they are still so short-staffed they work far longer than they should to uphold their principles of caring properly for patients.
However, medical staff are entitled to take industrial action to further their cause while military personnel are prohibited because they swore an oath of allegiance to the State.
The Government can claim that it has increased wages for the ‘lower ranks’ but it does not add up per hour if you are working morning, noon, and night.
Garda members were covered by the WTD just over 10 years ago, with a few derogations ‘for exceptional events’.
Now, PDForra general secretary Gerard Guinan has pointed to a worrying recent ruling in Slovenia, known as the Obrambo Judgment, which he claims could allow the State to water down the benefits of the WTD.
Made by the Slovenia courts and later backed by the EU, the judgment gives broad scope for EU states to determine matters inherent to their own state security and deem them outside of the WTD legislation.
Mr Guinan said this judgment "appears to be a more beneficial position for a state when compared to previous jurisprudence” and, in his opinion, it looks likely “to have let loose a potential for a race to the bottom” when it comes to properly regulating work/life balance for the Irish military.
PDForra has already taken several cases for breaches of the WTD on behalf of its members, against the last two governments and the Department of Defence, all of which were either settled on the steps of the court or successfully concluded through mediation by barristers and solicitors on instruction of both sides.
The first case launched by the representative association was on behalf of soldier Susan O'Donnell, who was unable to avail of her full leave entitlement in 2015.
Her case took an astonishing three years to conclude, and she finally got back her ‘lost days’ and an ex-gratia sum in compensation.
PDForra also took a successful WTD breach in relation to a number of soldiers guarding prisoners in the maximum security Portlaoise Jail.
Mr Guinan said the compensation process could have been settled speedily by direct engagement in the first place by the Department of Defence. The taxpayer is paying for this and should ask why such cases take so long and become more costly.
Mr Guinan said the navy, in particular, is at risk for serious breaches of the WTD, especially as its personnel numbers are depleted.
The navy should have an absolute minimum of 1,094 personnel. Currently, the effective strength is little more than 700 and ships have not been able to go on patrol for several days this year as a result of them not having specialists onboard.
“Let’s look at what it [the Obrambo Judgment] potentially allows the State to do to members of the naval service,” said Mr Guinan.
“Members serving afloat are required on normal sailing plans to sail for 160 days. If we concede that they work 16-hour days [it could strictly be deemed 24] this would result in a working time of 2,560 hours over the 160 days. But remember there are 365 days in the year.
"The remaining time could then be divided into the following: You take 43 days leave from the remaining time and that leaves 162 days.
"Divide that period by seven to get the number of weeks, which equals 23. The Department of Defence has conceded that personnel on a normal week work 40 hours. Multiply 23 weeks by 40 hours and this gives a grand total of 3,480 hours worked in a year.”
Mr Guinan said that the maximum permissible working time under the WTD is 48 hours by 48 weeks, which equates to 2,304 hours in a year.
“Our members at sea work more than 1,100 hours above that number and 1,920 hours more than most public servants.”
He has repeatedly said it is not morally right for successive governments to use their dominant position to take advantage of his members, primarily because Defence Forces personnel are bound by the oath not to take any form of industrial action.
Mr Guinan fears the Government will continue to use this leverage to exempt the Defence Forces from any “reasonable” implementation of the WTD to provide military personnel with the work/life balance afforded to the rest of the country’s public servants.
This same fear is held by Raco, the association which represents around 1,100 of the country’s military officers.
Commandant Martin Ryan, who is president of the officers’ association, said the one way to stem the ongoing exodus of highly trained personnel is to introduce the WTD properly in the Defence Forces, because if implemented properly, it will provide personnel with a better work/life balance.
He, too, is worried about derogations being imposed to exclude certain duties from the legislation applied to military personnel.
“Having a personnel shortage is not a reason not to introduce the WTD," said Comdt Ryan. "Gardaí have been compliant with it for the last 10 years. We are the only State employees not compliant with it. The Defence Forces have the lowest employment rights in the State, which if anything means we should be looked after even better.”
Mr Martin has said he wants to get the WTD introduced soon, but this has been talked about by his predecessor, Simon Coveney, and if the Government continues to delay, it will only make the personnel retention crisis worse, said Comdt Ryan.
Several other nations in the EU have already introduced the WTD for their military, with a positive benefit, especially in terms of keeping experienced personnel in the job.
Comdt Ryan said a number of meetings have taken place between the two representative associations, senior military management, and Department of Defence officials on the implementation of the WTD in recent weeks, acknowledging that Mr Martin wants a resolution to it.
The officer said there are some minimum requirements to get this over the line, which include compensatory time off for additional hours worked above and beyond the call of duty, and the introduction of additional welfare-enhancing measures in all of the country’s military installations and for those serving on overseas missions.
He said that the Defence Forces still does not record the number of hours its personnel work and this must be rectified because not having a defined working week “automatically puts people at a disadvantage”.
“It’s a basic employee right to know what your working hours are and be able to show it.”
Comdt Ryan said that while there have been welcome improvements to the pay of lower ranks, it is still inadequate for the number of hours they have to work.
“There's no doubting that over the years there has been a lot of free labour given by Defence Forces personnel. People have been willing to do this but they should be adequately paid for it.
"The Government has played with Defence Forces members’ hours for a long time and this had been aided and abetted by military management and the Department of Defence.
“They have been expected to do all this extra time and haven’t even been properly appreciated or compensated.”
The officer acknowledges that the relevant parties are now coming to the table to discuss the implementation of the WTD, but maintains this should have happened at least 10 years ago — around the time the gardaí got it.
“If it had been introduced 10 years ago we would now be in a much better place than we are now [in terms of personnel numbers].
"But I am much more hopeful that it will hopefully be introduced in the near future and done in a way that it will make us an employer of choice again,” said Comdt Ryan.