GRA V Minister for Public Expenditure & Reform: Gardai had no entitlement to specific consultation process on terms of sick leave

In Garda Representative Association v Minister for Public Expenditure and Reform, the Supreme Court accepted, for the purposes of this case, that due to the statutory interference with the Gardai’s constitutional right join a union, it may be required as a matter of proportionality that they have a right to consultation with the Minister regarding their conditions of employment and remuneration. But there is no right to any specific form of consultative process. Given that, the Minister had not breached any entitlement to consultation in introducing regulations altering the sick pay entitlements of public servants, including Gardai.

 

Background

Garda Síochána Act 2005

Section 122 of the 2005 Act provides:

(1) The Minister may, after consulting with the Garda Commissioner and with the approval of the Government, make regulations for the management of the Garda Síochána, including regulations relating to any or all of the following matters:

(g) the pay and allowances of members, including the conditions under which they are payable;

 

Section 122(6) provides:

Before making regulations under subsection (1)(g) or (i), the Minister shall—

(a) submit a draft of the regulations to the associations referred to in section 18 representing the ranks and grades in the Garda Síochána who would be affected by the regulations, and

(b) consider any representations made to him or her in respect of the draft regulations by any of those associations.

 

In response to budgetary constraints at the time, the Government introduced the Public Service Management (Recruitment and Appointments) (Amendment) Act 2013.

Section 58B provides:

(1) Without prejudice to subsection (5) and subject to subsections (2) and (7), the Minister may make regulations providing for the payment of remuneration, in circumstances specified in the regulations and subject to such conditions as are specified therein, to a relevant person during a period of sick leave on his or her part, and that remuneration shall be (as the Minister determines and specifies in the regulations)—

(a) the whole amount of the remuneration that would otherwise accrue to the person,

(b) a percentage specified in the regulations of the whole amount referred to in paragraph (a), or …

Section 58C provides:

This Part has effect notwithstanding—

(a) any provision made by or under—

(i) any other Act,

(ii) any statute or other document to like effect of a university or other third level institution,

(iii) any circular or instrument or other document,

(iv) any written agreement or contractual arrangement,

or

(b) any verbal agreement, arrangement or understanding or any expectation.

 

Under the 2013 Act, the Minister introduced the Public Service Management (Sick Leave) Regulations 2014, reducing the entitlements of public service workers, including Gardai, to sick pay.

The GRA applied to the High Court for a declaration that the 2014 Regulations did not apply to its members. The High Court (Kearns P) rejected that application, as the relief sought would amount to an untenable limit on the power to legislate.

The Court of Appeal (Finlay Geoghegan J & Hogan J) rejected the GRA’s appeal, finding that that the High Court decision was correct.

The GRA applied to the Supreme Court for leave to appeal.

 

Supreme Court

The Court determined that the GRA had raised questions of general importance and granted leave. Those questions were defined during case management to:

(a) Whether decisions of Government which impact on existing entitlements of workers in the public service require, prior to being changed to the detriment of such workers, either consultation with those so affected or any other form of procedure, such as procedural fairness?

(b) Can the doctrine of legitimate expectation arise in the particular context at issue in this appeal?

(c) Where a representation is made, if, which is denied, any such was made here, which gives rise to a legitimate expectation that Government will be bound to a particular course of action, may this be resiled from or withdrawn without legal consequence?

(d) Whether the conditions for liability for legitimate expectation also require that the party or parties, to which a representation is held out, change their position to their detriment, or otherwise act on same so that it would be inequitable for the Government to go back on that representation?

Clarke CJ wrote the judgment for the unanimous five judge panel. He concluded:

10.1 In summary, therefore, for the reasons set out earlier in this judgment, I have first concluded that the relevant statutory regimes do not, of themselves, confer any right to be consulted prior to the making of regulations by the Minister for Public Expenditure and Reform under the measures introduced by the 2013 Act. The Regulations were introduced under that Act. That Act is, in its terms, stated to apply notwithstanding any other legislative provision.

10.2 I have, for the purposes of the argument, been prepared to accept that it is possible that the GRA was entitled to some engagement prior to the making of such Regulations on one or other or both of two bases. The first being the possibility that the restrictions placed on the ability of An Garda Síochána to conduct what for others might be considered to be ordinary industrial relations may give rise to an entitlement to be consulted. The second is that it may again be arguable that the history of the engagement between the parties is such as to give rise to a legitimate expectation that some form of consultation or the right to make representations would be afforded. However, I have also concluded that under neither of those headings is it arguable that there could be a right to any specific form of process. Rather the height of the argument could only extend to an entitlement to a generalised form of consultation or facility to make representations.

10.3 On that basis I have considered the facts and concluded that no breach of any such general entitlement has been established. There was a lengthy engagement between what might loosely be called the Government side and the GRA. On that basis I have come to the view that, even if any generalised right of the type which I have described could be said to arise on any of the legal bases put forward, no breach of any such entitlement has been established. For that reason I do not consider it necessary to finally determine whether any such rights exist in the first place for even if they do, such rights have not been breached.

10.4 For those reasons I would dismiss the appeal and affirm the orders of the Courts below.

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