The High Court dismissed a judicial review challenge to a 25% reduction in the special allowance paid to Permanent Defence Force personnel working with the Reserve Defence Force, holding that the Government could implement the reduction without first referring it to the Defence Forces conciliation and arbitration scheme.
The judgment was delivered by Mr Justice John Edwards on 30 November 2010. The applicants were Michael McKenzie, a Company Quartermaster Sergeant in the Permanent Defence Force, and the Permanent Defence Force Other Ranks Representative Association (PDFORRA). The court corrected the association’s name in the case title.
The challenge concerned changes made after the Government decided on 3 February 2009 to reduce public service travel and subsistence rates by 25%. The Department of Finance issued Circular 07/2009 on 5 March. On 11 March, the Minister for Defence amended Defence Force pay regulations; revised RDF allowance rates were notified the following day, with effect from 5 March.
The RDF allowance is paid to non-commissioned officers and privates on duties with the FCA. The judgment described it as distinct from ordinary travel and subsistence allowances, while noting that it covers expenses including subsistence, but not travel. The applicants argued that the reduction should have been discussed through the established scheme before implementation. They also claimed the change breached statutory and procedural protections and amounted to an unlawful deduction from wages. The respondents said the Minister had authority under the Defence Act 1954 to reduce allowances and that the urgent Government decision left nothing to negotiate or arbitrate.
Justice Edwards held that the Government could act swiftly and unilaterally in what he described as exceptional circumstances and an urgent national interest. The scheme was non-statutory and expressly preserved the Government’s freedom to exercise its constitutional authority. In the circumstances, the Minister was not required to submit the reduction to the scheme before implementing it.
The court also rejected the applicants’ legitimate expectation argument. It found no specific promise that the scheme would be used in every case involving a reduction to the RDF allowance, and held that the public interest in the across-the-board reduction would outweigh any such expectation. It further ruled that the Payment of Wages Act 1991 did not apply because the measure reduced the allowance payable rather than making a deduction from wages; in any event, alleged breaches of that Act were not justiciable in the High Court given its separate enforcement mechanism.
The court dismissed both applications. It did not determine costs, saying it would hear submissions on that issue later.