Inspector of Taxes Association v Minister for the Public Service

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Murphy
• Judgment Date: 24 March 1983
• Neutral Citation: 1983 WJSC-HC 2838
• Docket Number: No. 2846p/1981
• Date: 24 March 1983

INSPECTOR OF TAXES ASSOCIATION v. MINISTER FOR PUBLIC SERVICE

BETWEEN:-

INSPECTOR OF TAXES ASSOCIATION

Plaintiff

- and -

MINISTER FOR PUBLIC SERVICE, IRELAND AND THE ATTORNEYGENERAL

Defendant

1983 WJSC-HC 2838

No. 2846p/1981

THE HIGH COURT

Subject Headings:

CONTRACT: terms

GOVERNMENT: administration

MINISTER OF STATE: contract

1 Judgement of Mr. Justice Murphydelivered the 24th day of March 1983.

2 There is in existence a scheme of conciliation and arbitration the express purpose of which is:-

"to provide means acceptable both to the State and to its employees for dealing with claims and proposals relating to the conditions of service of civil servants and to secure the fullest co-operation between the State, as employer, and Civil Servants, as employees, for the better discharge of public business".

3 Such a scheme has been in existence since the 8th of April, 1950 and its present form represents a version revised as of the 31stwhich did not admit to membership all persons on the grade in respect of which recognition was sought. The claim would likewise be refused on that ground. What the witnesses - and in particular Mr. Fitzgerald - say in relation to this ground is that they looked into the matter and concluded - in my view rightly - that the Inspectors of Taxes properly so called and the Inspectors of Taxes (non-technical) had been appointed to the same grade i.e. the grade of Inspector of Taxes and accordingly the applicants did not qualify for recognition in accordance with established precedent.

4 It seems to me that the decision so made by the Minister represented a proper discharge of any contractural obligation which he owed to the staff association seeking recognition and accordingly that the Plaintiffs claim herein must fail.March, 1976 with some additions and alterations made subsequent to that date. I will refer to this scheme as the "C. & A.Scheme".

5 The original C & A Scheme was not proved in evidence but instead I was referred to an agreed copy of the material parts of the document and reference was made to the decision of Kenny J. in McMahon & Anor. -v- The Minister for Finance & Others (1962 No. 1328P) to explain the history and effect of the conciliation and arbitration scheme. At page one of the transcript of his unreported judgment he comments as follows:-

"After lengthy negotiations the first scheme of conciliation and arbitration for Civil Servants was completed on 8th April 1950: it took the form of an agreement between the Minister for Finance and a number of Staff Associations which represented groups in the CivilService."

6 At page 50 of the transcript he expressed his decision as to the legal nature of the arrangement. I fully concur in the conclusion which he reached and I gratefully adopt the terms in which it was expressed asfollows:-

"I come now to consider the disputed question on the interpretation of the scheme. Throughout the case thePlaintiffs Counsel have referred to it as "a Statutory Scheme" with the implication that it has been confirmed by Statute or that it has in some undefined way the force of Statute. Section 17 of the Civil Service Regulations Act 1956seems to me to be intended to give the Minister for Finance power to make schemes or contracts for the regulation of Civil Service pay: it is a Section which enables the Minister to make schemes or contracts (I think this is what "Arrangement" means) but it does not follow that an arrangement made by the Minister is a "Statutory Scheme" or a "Statutory Arrangement". The scheme is a contract and nothing more".

7 In relation to the present case it seems to me that the salient features of the scheme of conciliation and arbitration included thefollowing:-

8 (1) In accordance with the provisions of clause 4 of the scheme there is excluded therefrom a number of categories of Civil Servants either by reference to specified grades or emoluments. It is agreed that those excluded comprise (among others) Inspectors of Taxes (highergrade).

9 (2) Only Civil Service Staff Associations recognised by theMinisterfor the Public Service for the purposes of conciliation and arbitration are entitled to take part in the operation of the scheme.

10 (3) The scheme does not in express terms confer the right on any Civil Servant or Association of Civil Servants to seek or obtain recognition and the procedures with regard to applications for that purpose appear to be expressed for the greater part in negative or restrictive terms as follows:-

11 (a) Before any Staff Association can be recognised for the purpose of the scheme it must make application for recognition by the Minister for the Public Service.

12 (b) In the case of an association representing departmental classes serving in one Department only the application must be made through the Department in which the classes are serving.

13 (c) Applications for recognition by associations representing classes other than departmental classes must be made to the Department of the Public Service.

14 (d) The application for recognition must be accompanied by a statement signed by the officers of the associationconcerned showing that the association is not affiliated to or associated with any political organisation.

15 (e) Recognition will not be granted ordinarily to any Staff Association associated with any politican organisation.

16 (f) The application must also be accompanied by copies of the rules of the association, particulars of its membership and other "relevant information". Subsequent amendments must likewise be notified to the Minister.

17 (4) The scheme provides for the creation of a General Council. The main features of that Council are as follows:-

18 (a) It is composed of a chairman nominated by the Minister for the Public Service together with not more than five other official representatives as well as a principal staff representative and not more than five other staff representatives.

19 (b) A panel of staff representatives to be formed to which representatives of recognised associations or groups of associations (I take this to mean groups of recognised associations) are appointed which relates the number of representatives to the number of membersin the relevant associations.

20 (b) The function of the general council is to discuss the various matters specified in Clause 23 of the Scheme which include certain matters to which I advert in particular largely because of the terminology used therein:-

21 (I) Principles governing recruitment to general service classes and to professional, scientific, and technical classes common to two or moreDepartments.

22 (II) Claims relating to general service classes and to professional, scientific, and technical classes common to two or more Departments in relation to pay and allowances, overtime rates, subsistence allowances, travelling lodging and disturbance allowances and removal expenses.

23 (III) Principles of promotion in the general service classes and in professional, scientific, and technical classes which are common to two or more Departments

24 (IV) General considerations in regard to the grading of general service classes and of professional, scientific, and technical classes, common to two or more Departments; claims for grading of posts and blocks of work involving general service grades where the changes in grading involved would have service-wide implications.

25 (V) Claims relating to establishment of a proportion of unestablished general service and professional, scientific and technical classes, common to two or more departments.

26 (5) The scheme also provides for the creation of departmental councils and the salient features of that provision are asfollows:-

27 a) Each departmental council consists of a chairman nominated by the Minister having charge of the Department and not more than three other official representatives together with a principal staff representative and not more than three other staff representatives.

28 b) The subject appropriate for discussion by departmentalcouncils include the following:-

29 (i) Principles governing recruitment to departmental classes.

30 (ii) Claims relating to departmental classes only in relation to pay and allowances, overtime rates, subsistence allowances travelling, lodging and disturbance allowances.

31 (iii) Allowances and claims for allowances of purely departmental application payable to general service grades and professional, scientific and technical classes.

32 (iv) Principles governing promotion of members of departmentalclasses.

33 (v) Claim for grading of posts and blocks of work.

34 (6) The other organ created by the scheme of conciliation and arbitration is the arbitration board. The main features relating to the arbitration board are as follows:-

35 (a) It is composed of a chairman: two Civil Servants nominated by the Minister for the Public Service for the hearing of each case and two Civil Servants (or officials) nominated by the staff panel of the general council for the hearing of each case.

36 (b) Whilst the question of arbitration is not in issue in the present proceedings the language used in Clause 58 of the scheme is material and accordingly I quote that clause in full as follows:-

37 2 "58 (l) subject to the remaining sub-paragraph of this paragraph,only such staff claims as are made on behalf of a grade or grades comprehended by this scheme and represented by a recognised staff association are appropriate for reference to the arbitration board.

38 (2) A claim on behalf of a section of a grade may be regarded as appropriate for reference to the arbitration board where:-

39 i (a) (I) Differentiation exists between the conditions of service (excluding duties) of such section and those common to the rest of the grade or

40 (II) The duties of such section are superior in quality to the highest duties appropriate to the grade or

41 (III) The...