McKenzie & Permanent Defence Forces Other Ranks Representative Association v Min for Finance and Others
| Jurisdiction | Ireland |
| Judge | Mr Justice John Edwards |
| Judgment Date | 30 November 2010 |
| Neutral Citation | [2010] IEHC 461 |
| Court | High Court |
| Date | 30 November 2010 |
[2010] IEHC 461
THE HIGH COURT
Between
DEFENCE ACT 1954 S18
DEFENCE (AMDT) ACT 1990 S2
DFR S6 REG 19
DFR S6 SCHED III
DFR S6 SCHED PART A
DFR S6 SCHED PART B
DFR S6 REG 24
CONCILIATION AND ARBITRATION SCHEME FOR MEMBERS OF THE PERMANENT DEFENCE FORCE UP TO AND INCLUDING THE RANK OF COLONEL ART 2(1)
CONCILIATION AND ARBITRATION SCHEME FOR MEMBERS OF THE PERMANENT DEFENCE FORCE UP TO AND INCLUDING THE RANK OF COLONEL ART 3
DEFENCE ACT 1954 PART IV CHAPTER IV
DEFENCE ACT 1954 S97
DFR S3 PARA 72(1)
DEFENCE ACT 1954 S97(1)
DEFENCE ACT 1954 S97(2)(D)
PAYMENT OF WAGES ACT 1991 S5
STATUTORY INSTRUMENTS ACT 1947
NATIONAL UNION OF RAILWAYMEN v SULLIVAN & ORS 1947 IR 77
DFR S6 REG 24(2)
DFR S6 REG 24(3)
DFR SCHED III PART B (R)(2)
CIVIL SERVICE REGULATION ACT 1956 S17(2)
THOMPSON v MIN FOR SOCIAL WELFARE 1989 IR 618
GILHEANEY v REVENUE COMMISSIONERS 1996 ELR 25
EOGHAN v UCD 1996 2 ILRM 302
WEBB v IRELAND 1988 IR 353
FAKIH v MIN FOR JUSTICE 1993 2 IR 406
GUTRANI v MIN FOR JUSTICE 1993 2 IR 427
ATTORNEY GENERAL OF HONG KONG v NG YUEN SHIU 1983 2 AC 629
PUBLIC INTEREST ACT 2009
CONSTITUTION ART 28.2
CONSTITUTION ART 28.4.2
MAHA LINGHAM v HEALTH SERVICE EXECUTIVE 2006 ELR 137
PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003
EEC DIR 1999/70
NOLAN v EMO OIL SERVICES LTD 2009 ELR 122
DOHERTY v SOUTH DUBLIN CO COUNCIL (NO.2) 2007 2 IR 696
EQUAL STATUS ACT 2000
EQUALITY ACT 2004
CONSTITUTION ART 34.3.1
TORMEY v IRELAND 1985 IR 289
GLENCAR EXPLORATIONS PLC v MAYO CO COUNCIL (NO.2) 2002 1 IR 84
POWER v MIN FOR SOCIAL AND FAMILY AFFAIRS 2007 1 IR 543
CURRAN & ORS v MIN FOR EDUCATION UNREP DUNE 31.7.2009 2009/11/2409 2009 IEHC 378
EMPLOYMENT LAW
Reduction in allowance
Defence forces - Motor travel and subsistence rates - Decline in economic circumstances - Conciliation and arbitration scheme - Constitutional mandate of government - Whether second respondent entitled to reduce allowance without first engaging within framework of conciliation and arbitration scheme - Legitimate expectation - Whether legitimate expectation that second respondent would first engage within framework of conciliation and arbitration scheme - Whether deduction in pay - Whether issue of deduction in pay justiciable - Glencar Explorations plc v Mayo County Council (No 2) [2002] 1 IR 84; Curran v Minister for Education and Science [2009] IEHC 387, [2009] 4 IR 300 considered - Defence Act 1954 (No 18), s 97 - Payment of Wages Act 1991 (No 25), s 5 - Constitution of Ireland 1937, art 28.2 - Application refused (2009/551JR - Edwards J - 30/11/2010) [2010] IEHC 461
McKenzie v Minister for Finance
Facts The applicant was a member of the Defence Forces and instituted judicial review proceedings against the State. It was the applicant's contention that the State was not entitled to enforce reductions in the amount of a certain allowance (the RDF allowance) that the applicant received. Arising from the economic downturn the Government had decided to unilaterally reduce certain allowance paid to all public servants including the RDF allowance. It was submitted by the applicant that the State was obliged to engage in a procedure involving the use of a conciliation and arbitration scheme before such reductions could be put into effect. It was contended that these procedures had to be fully exhausted before such reductions could be unilaterally imposed. It was further submitted that the applicant and his colleagues had a legitimate expectation that such a payment would be made and had a legitimate expectation that the agreed process of arbitration would be utilised first. On behalf of the State authorities it was submitted that due to the serious decline in the economic circumstances of the State, the common good required that the Government take strong budgetary action to reduce the gap between the State's revenues and expenditures. Under Article 28.2 of the Constitution, the Government had clear constitutional functions and duties in the area of budgetary control in the interests of the common good. This overriding duty and right of Government was reflected and expressly acknowledged in the relevant arbitration scheme.
Held by Edwards J in refusing the reliefs sought. It was part of the constitutional mandate of the Government that it should be able to unilaterally, in urgent protection of the national interest. Under Article 28 of the Constitution, the Government had a very wide freedom of action pursuant its mandate to discharge the executive power of the State in the area of budgetary control in the public interest or in the interests of the common good. The applicants had been treated in the same way as everybody else in the public service and had not been singled out for special treatment or discrimination. In the particular circumstances of the case there was nothing to conciliate or to arbitrate about. If one particular interest group was allowed to make representations concerning the intended measure then every other interest group would have to be afforded the same facility. The Government would potentially have then become mired in an extensive controversy which would have most likely given rise to significant delay in the implementation of the relevant measures to the prejudice of the overall national interest. The Payment of Wages Act, 1991 had no application in the circumstances of this case. The reduction in the PDF allowance was not a "deduction" from wages payable, it was a reduction of the allowance payable.
Reporter: R.F.
JUDGMENT of Mr Justice John Edwards delivered on the 30th day of November, 2010.
2 1.1 On the 25 th day of May 2009 the applicants were granted the leave of the High Court by Mr. Justice Peart to seek diverse Orders and reliefs, including Orders of Certiorari and Mandamus as well as Declarations and Injunctions, by way of judicial review in what may be described as a challenge to the purported implementation of Department of Finance Circular 07/2009 on Motor Travel and Subsistence Rates to what is known as the "RDF Allowance" which is a special allowance paid to Non Commissioned Officers (hereinafter NCOs) and Privates (hereinafter PTEs) in the Permanent Defence Force who are employed on duty with An Fórsa Cosanta Áitiúil (hereinafter "the FCA").
2 2.1 The first named applicant in this matter describes himself in his affidavit as a member of the Permanent Defence Forces by which it is presumed he means "the Permanent Defence Force", which is one constituent part of "the Defence Forces". The Defence Forces are comprised of both the Permanent Defence Force ("na Buan - Óglaigh" as gaeilge) and the Reserve Defence Force ("na h Óglaigh Cúltaca" as gaeilge), both of which have army, naval and air components as provided for in s.18 of the Defence Act, 1954 (hereinafter "the 1954 Act"). The FCA is part of the Reserve Defence Force (hereinafter "the R.D.F").
3 2.2 The first named applicant is an NCO holding the rank of Company Quartermaster Sergeant and serves within the army component of the Permanent Defence Force (hereinafter the P.D.F.). He is also a member of the National Executive of the second named applicant.
4 2.3 Under s. 2 of the Defence (Amendment) Act 1990 (hereinafter "the 1990 Act"):
"the Minister [for Defence] may provide by regulations for the establishment of an association or associations (in this Act referred to as an "association") for the purpose of representing members of such rank or ranks of the Defence Forces as may be specified in the regulations in relation to matters affecting their remuneration and such other matters as the Minister may specify in the regulations....".
5 2.4 Acting pursuant to s.2 of the 1990 Act the second named respondent made regulations by a statutory instrument entitled "Defence Force Regulations S.6 -Representative Associations" (hereinafter DFR S.6), and regulation 19 of DFR S.6 established the second named applicant.
6 2.5 The second named applicant is misdescribed in the title to these proceedings as "the Permanent Defence Forces Other Ranks Representative Association". It should of course be "the Permanent Defence Force Other Ranks Representative Association", and the Court of its own motion hereby amends the title to the proceedings so as to substitute the correct name for the second named applicant. The Permanent Defence Force Other Ranks Representative Association (herein after called "PDFORRA") is the representative association for members of the P.D.F. other than Commissioned Officers in relation to the matters specified in the Third Schedule to DFR S.6.
7 2.6 The Third Schedule to DFR S.6 is entitled "Scope of Representation" and is divided into four parts designated "A", "B", "C" & "D", respectively. In this case only parts "A" and "B" are potentially relevant.
8 2.7 Part "A" of the Third Schedule is subtitled:
"Remuneration etc under the following headings:-"
and it continues:
a "(a) claims relating to remuneration and other emoluments whether in cash or kind (for this purpose "remuneration" means
· - pay
· - allowances
· - gratuities, or
· - grants
payable to a member of the Permanent Defence Force or any
· - pension,
· - retired pay, or
· - gratuity
for which a member may be eligible in respect of or arising out of his service as such a member);
(b) the...
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