AN ADJUDICATION REPORT has accused the Department of Defence of operating “secret laws” and for having a “silly and facetious approach” to membership of representative bodies by military personnel. 

The comments by adjudicator Daniel Murphy are contained in a judgment, published on Oireachtas.ie, which examines the employment rights of an officer attached to the Director of Military Prosecutions (DMP).

The military has its own internal discipline and legal system. DMP is an independent body within defence that determines the discipline regime and courts martial system.

Murphy is the designated Adjudicator  under  the  Conciliation  and  Arbitration  Scheme  for  the Defence  Forces. He adjudicates  on  disputes between  the  Representative  Associations and  the  Department  of  Defence. He defines this, in the report as disagreements “between a body representing employees and their employer”.

The issue arose around whether the Director of Military Prosecutions could be a member of the Representative Association of Commissioned Officers (RACO). 

The director is a military officer but they are appointed by Government and are independent of the military chain of command. 

RACO had submitted a claim to the conciliation council on 12 March 2020 – the DOD, referenced as “the official side” in the report, said that they did not believe that the DMP was permitted to be a member of the representative body. 

Murphy found in the report that it was a “considerable pity” that DOD did not consult with RACO at an early stage in the Department’s consideration of the dispute.

“This might very well have resulted in some meeting of minds on the issue. I find it extraordinary that the Department should take the view that ‘there was no role for the Representative Associations in the Terms and Conditions – that was a matter entirely for the Minister with the consent of the Minister for DPER’,” he added. 

Murphy then said that it was: “astonishing that the Department could not see that a prohibition on membership of RACO in the terms and conditions of employment for the Director would be a matter that would strike at the very heart of its representative role and that, at the very least, in the interests of fostering good relations with RACO, common courtesy required consultation with RACO on the matter.

“Incidentally, I fail to see how it could be argued –as the Department does – that it could be unfair to potential applicants from outside the Defence Forces for the Department to have engaged in consultation with RACO on the issue of membership of RACO for the Director.

“This could not possibly have prejudiced the position of potential applicants from outside the Defence Forces.”

The report looked at a number of technical legal arrangements in which the DOD and RACO had agreed to discuss issues – these arrangements included an agreed written undertaking in Defence Forces Regulations documents.

This arrangement was changed by the department at a later stage. Murphy said it was “extraordinary” and described it as a “secret law”. The adjudicator said that the regulations used by DOD were used were not published on the Irish Statute Book website  or Iris Oifigúil “or,  indeed, anywhere at all”.

Facetious

He further said that the Department of Defence acted in “a silly and facetious approach which can only undermine industrial relations”.

Murphy found that there was no evidence that membership of RACO would affect the independence of the law officer. 

The adjudicator found that the prohibition on membership of RACO for the Director of Military Prosecutions “is not reasonable” and that exclusion from membership should be deleted from the terms and conditions.

A DOD spokesperson said: “The Department is currently appealing the Decision of the Adjudicator in this regard. As such, it would be inappropriate to comment on the matter.”

In a statement a spokesperson for RACO said that the ruling “encapsulates the Department’s approach to consultation and engagement”.

“Unfortunately we consistently fall foul of the dominant position of the official side, which is regularly exploited in a heavy handed manner.

“This has adverse consequences for the viability and credibility of the Conciliation and Arbitration Scheme, and only serves to negatively impact the retention of Defence Forces personnel, and capability,” the spokesperson said. 

The RACO statement said that members of the Defence Forces need more developed consultation and engagement with the DOD given their “relatively weakened industrial relations status”

“It is a source of frustration that regular breaches of process can seemingly occur with no consequence or accountability. We will be raising these issues in the upcoming review of the Scheme,” the RACO statement concluded. 

Meanwhile agreement has been reached in a deal to pay a special allowance to members of the Army Ranger Wing. 

It comes after a lengthy campaign by PDFORRA, the group representing non-commissioned members of the Defence Forces.

The successful campaign means that the ARW allowance by more than €200 per month, backdated to October 2021. This represents an increase of around 27% in their special allowance.

The arbitration judgment found that foreign travel for training and nature of the work carried out by the unit required an increase.