The Court of Appeal has dismissed a challenge by the Garda Representative Association (GRA) and member Amy Bourke to regulations that brought gardaí within a revised public service sick pay scheme.
In a judgment delivered by Mr Justice Gerard Hogan on 2 February 2016, the court held that the Minister for Public Expenditure and Reform was not legally required to consult the GRA before making generally applicable regulations under legislation enacted by the Oireachtas. The appeal was from a High Court decision by Kearns P., which the Court of Appeal upheld.
The GRA argued that the regulations were invalid because the Minister included An Garda Síochána while discussions about a separate arrangement were ongoing. It relied on an expectation of further consultation and said the Minister had taken an irrelevant consideration into account when changing course after IMPACT general secretary Shay Cody warned that other public sector unions might consider industrial action if gardaí received a special exemption.
The judgment recounts that the Minister had initially agreed that gardaí would not be included at the outset, while a Garda working group developed proposals for savings. The Minister changed that position in December 2013. The GRA learned later, through documents disclosed in the proceedings, about the union intervention that preceded the change. The regulations came into force on 31 March 2014.
The court distinguished the Minister’s policy-making role in issuing rules that applied across the public service from an administrative decision affecting a particular person or a small group. It held that fair procedures, including a duty to consult, did not apply to the making of these generally applicable regulations. It also concluded that any expectation of consultation could not override the 2013 legislation, which expressly provided that the relevant statutory part operated notwithstanding any agreement, understanding or expectation.
The GRA also argued that Articles 9 and 10 of the regulations, which set limits on paid sick leave, were too unclear. The court did not decide how those provisions should be interpreted or applied. It said that would be premature without a concrete case involving an individual affected by them, and left those questions for such a case.
The appeal was dismissed. The court did not determine the provisions’ application to an individual garda’s circumstances.