One door opens, another closes

Frontline members of An Garda Síochána now have access to the industrial relations mechanism of the State so all is well, right? Ciarán O’Neill investigates

In 2016 representatives from the main Garda Associations sought parity with other public service workers and sought access to the State’s Industrial Relations mechanisms, these being the Workplace Relations Commission and the Labour Court.

The Government at the time promised access to Garda members and their representative Associations, initially on an ad-hoc basis and then on February 1 2020, Garda members were granted access to the industrial relations machinery of the State, due to the enactment of the Industrial Relations (Amendment) Act 2019. During the intervening period, the

Gardaí did have ad-hoc access if they needed it and they were present in the WRC for the 2018 Public Service Pay Agreement.

Although up to 2016 the Garda Associations could not raise collective issues, it was always open for individual Garda members to take cases in respect of equality issues. Or in the case of Ronald Boyle and Brian Fitzpatrick they took a case in respect of discrimination on the grounds of age in the competition to become a member of An Garda Síochána. Between 2005 and 2007, the two men applied to join An Garda Síochána and were refused as they were excluded from the procedure on the grounds that they were above the age of 35 years to join, as set out in the Garda Síochána Admissions and Appointment Regulations 1988 to 2004, as amended.

They made a complaint to the Equality Tribunal, which subsequently became the Workplace Relations Commission (WRC) in 2015. The claimed they had been discriminated against, on the age ground and that the Regulations were contrary to EU Directive 2000/78. A decision of the Equality Tribunal would have meant setting aside Irish legislation in order to comply with the EU Directive. Before this decision was issued, the minister commenced an action claiming that under the Irish Constitution that was a matter for the High Court to determine. The High Court upheld the minister’s action and the claimants appealed to the Supreme Court.

The Supreme Court held that the power to set aside a provision of national law has been vested in the High Court under Article 34 of the Constitution. However, the Supreme Court put a stay on its ruling pending a preliminary ruling from the Court of Justice of the European Union CJEU. The Supreme Court did note that cases for discrimination did fall under the remit of the WRC. It referred the matter to the CJEU enquiring if a statutory body has the jurisdiction, in order to apply EU law, to disapply a rule of national law that is contrary to EU law where the national laws have designated jurisdiction in all such cases to a Court established under the Constitution. The CJEU noted that the WRC had jurisdiction to deal with infractions of Directive 2000/78 and that the High Court had the jurisdiction to disapply or strike down national legislation.

The ruling of the CJEU states that the duty to disapply national legislation that is contrary to EU law is not exclusive to the national courts, but also for all organs of the State – including administrative authorities – called upon within the exercise of their respective powers, to apply EU law. Under the principle of primacy of EU law, it requires that not only the courts, but all bodies of the Member States, give full effect to EU Rules.

The CJEU found that the WRC must be considered a Court or Tribunal within the meaning of Article 267 TFEU as it may refer cases to the CJEU and it is bound by the judgement of the CJEU on matters regarding the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union. The CJEU found that all such bodies in exercising their respective powers are obliged to apply EU law and if in order to do so means setting aside or disapplying then they must do so.

Is there a knock-on effect for Gardaí? I believe so. The Gardaí have been specifically excluded from the European Working Time Directive by Section 2 of the Organisation of Working Time Act and this decision opens the doors for members of An Garda Síochána to raise disputes regarding breaches of that Directive. There is a collective agreement in place currently providing those protections but there’s no better protection than an independent body making sure that those protections for all workers are enforced. So, until Garda members are included in the Organisation of Working Time Act, it is a comfort to know that there is an avenue open to them to achieve those protections.

D/Garda Ciaran O’Neill is the Special Detective Unit Representative on the Central Executive Committee of the Garda Representative Association

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