Legality of Public Service Pension Levy

whizkid1

I believe that the GRA are challenging the legality of the Public Service Pension Levy. Anyone kow the legal basis for this challenge

Victor

On the good old principles of righteous indignation, self importance and sense of entitlement.

Legally, I suppose they will argue on contract, legitimate expectation and that the government's decision is contrary to the principles of natural justice (the government is on one side of the argument and the decider of the argument).

The government will of course deny these and also claim inability to pay.

Hooch

Victor wrote: »

On the good old principles of righteous indignation, self importance and sense of entitlement.

And I always thought your posts were constructive....

The GRA are fighting it on a number of fronts including it was not in the contract signed by members and the fact members cannot ask for better pay and conditions (a basic human right)

whizkid1

Is it likely that they may win

Victor

nice guy always wrote: »

And I always thought your posts were constructive....

Ah, you can afford a sarcasm / scepticism meter anymore.

talla10

the reason for the challenge is that Gardai are prevented in contract from entering into most forms of employment and so have no chance of getting more money from a part time job like every other employee can also gardai signed up to a 30 yr contract with certain increments bonus' that are gradually being eroded by the government which is legally a breach of contract

InReality

The odd thing about the Pension Levy and PS Pay cuts are that the goverment did not get any legal agreement from the employees.

In the private sector a company which requires a pay cut must get the employee to sign on the dotted line and agree to a change in the employee's terms and conditions.
Of course the alternative could be the sack but still the legal formalities must be completed.

Could this be part of the case of GRA case ?

whizkid1

I believe the cuts are by an Oireacthas Bill. It seems incredible that a Government can just decide to pay its employees what it decides. I wonder could the public serveants decide to plead inability to pay some taxes

Thick Tights

Public servants are mainly office holders as distinct from contracted employees.

Patrick Gilheaney
, Applicant v. The Revenue Commissioners
, Respondents[1998] 4 IR 150

The power to alter terms and conditions is contained in statute, which every public servant knows when they take the job. Public servants have treated their conditions like an upward only rent review. The bad news is that they have now got to live in the real world, at least to the extent of having pay cuts and conditions eroded, like everybody else. If they could get more money and better conditions elsewhere they would be gone in the morning.

InReality

I'd beg to differ about all PS knowing that their terms and conditions of can be changed by statue.

Its certainly not made clear in my own contract and neither was in ( lengthy ) induction meetings.

Also why would this piece of law have precedent over wages , when it doesn't apply to other aspects of employment law (say hours of work ) ?

And can we leave the more political points to the other forums ?

Reloc8

It doesn't matter that you did or didn't know.

Underlying this issue is the legislative point - the courts cannot direct parliament as to how the public monies are to be spent. Thus any action would have to focus on the constitutionality of the levy, under statute, and probably be based on the right to earn a livelihood under Art. 40.3 of the constitution...which is not an absolute right and the State's obligation is to defend/vindicate it 'as far as is practicable'.

InReality wrote: »

Also why would this piece of law have precedent over wages , when it doesn't apply to other aspects of employment law (say hours of work ) ?

I don't know what you mean by this question...terms and conditions of certain employees of the State are subject to amendment by statute...its as simple as that.

Thick Tights

InReality wrote: »

I'd beg to differ about all PS knowing that their terms and conditions of can be changed by statue.

Its certainly not made clear in my own contract and neither was in ( lengthy ) induction meetings.

Also why would this piece of law have precedent over wages , when it doesn't apply to other aspects of employment law (say hours of work ) ?

And can we leave the more political points to the other forums ?

Ignorance of the law is no excuse. You were an adult when you joined the public service not a child so you should behave like one and stop whinging. You hardly expect to be told what has been published by the houses of the oireachtais when private sector employers find themselves caught up in a myriad of legislation with nobody paid to tell them about it.

InReality

Thanks thats interesting.

Reloc8 wrote: »

I don't know what you mean by this question...terms and conditions of certain employees of the State are subject to amendment by statute...its as simple as that.

My question was more theoritical really , if the govt tried to alter those terms and conditions in a way contrary to other employment law ( say the hours of work directive ) , which would apply ?

InReality

Thick Tights wrote: »

Ignorance of the law is no excuse. You were an adult when you joined the public service not a child so you should behave like one and stop whinging. You hardly expect to be told what has been published by the houses of the oireachtais when private sector employers find themselves caught up in a myriad of legislation with nobody paid to tell them about it.

You said all PS workers knew , I'm pointing out thats not the case.

I think its reasonable to expect to be told important facts relating to a job by an employer ( public or private ).

Time Magazine

nice guy always wrote: »

[The Gardaí] cannot ask for better pay and conditions (a basic human right)

You signed on the dotted line of your own free will. This is not a matter of "basic human rights" ffs.

InReality

Time Magazine wrote: »

You signed on the dotted line of your own free will. This is not a matter of "basic human rights" ffs.

You also can't "sign away" certain employment rights.

Time Magazine

InReality wrote: »

You also can't "sign away" certain employment rights.

I know. Employment rights are set down in legislation. You can't sign onto a below-minimum wage contract for good reason. However the minimum wage is not a human right - it's something defined by legislation.

Similarly, suggesting that preventing the Gardaí from striking is some sort of human rights infringement is absolutely ludicrous. It's a very reasonable piece of employment/contract law, not a human right.

Trust1

Thick Tights wrote: »

Public servants are mainly office holders as distinct from contracted employees.

Patrick Gilheaney
, Applicant v. The Revenue Commissioners

, Respondents[1998] 4 IR 150

The power to alter terms and conditions is contained in statute, which every public servant knows when they take the job. Public servants have treated their conditions like an upward only rent review. The bad news is that they have now got to live in the real world, at least to the extent of having pay cuts and conditions eroded, like everybody else. If they could get more money and better conditions elsewhere they would be gone in the morning.

===========> not really applicable in meehan and gilheaney -v- Rev comm and unfair dismissals etc.............. The Govt couldnt bring in a pension levy or other cuts because public servants (whether u want to use term office holders or not) have contracts and pension legislation exists. Instead they had to bring in what they term emergency legislation... (think of the Offences Against the State Act....and other such...)

Whatever about the legality of it the MORALITY of it sucks.... The Govt has set up Forum and mechanisms to deal with pay and conditions. Now because they need to Force things through they enact emergency legislation. AND they dont apply it fairly to all - See the recent media reports where they are allowing higher public servants to offset the cancelling of bonuses against a reduction in basic pay....(Those bonuses that should never have been paid to the few at the top any way.... The Dept they headed made its productivity on the blood, sweat and tears of the ordinary worker, not the handful of cronies at the top). But the politicians dont want to cut higher public servants basic pay because the politicians wages are linked to higher civil servants.

Trust1

Time Magazine wrote: »

I know. Employment rights are set down in legislation. You can't sign onto a below-minimum wage contract for good reason. However the minimum wage is not a human right - it's something defined by legislation.

Similarly, suggesting that preventing the Gardaí from striking is some sort of human rights infringement is absolutely ludicrous. It's a very reasonable piece of employment/contract law, not a human right.

=====> will someone for once name the Act...legislation that says Gardai Can't strike... or direct me to where i can find it ..AND DONT BE QUOTING NEWSPAPER ARTICLES AND GENERALISATIONS

whizkid1

It is reasonable when entering into any contract, and paying into any pension scheme that an employee would understand, or have it explained to them the payments which they would be expected to pay and the benefits they might expect to accrue. it is unreasonable that after 30 years the goalposts should arbitrarily change without any reference to the original contract. It makes a mockery of the term "contract"

No private company would be allowed to take pension contributions from an employee and offer a fixed contribution pension without investing those contributions

The government took my pension contributions, used them for day to day spending and are now levying me extra money

If a private company behaved like this their directors would be arrested.

Also Public sector employees who are not elligible for entry into the pension scheme are also being levied how can this be legal

Trust1

Trust1 wrote: »

=====> will someone for once name the Act...legislation that says Gardai Can't strike... or direct me to where i can find it ..AND DONT BE QUOTING NEWSPAPER ARTICLES AND GENERALISATIONS

I wrote this recently. Hope it helps.

In an article published in the Irish Times on December 9th, 2009 Professor Dermot Walsh wrote that “contrary to general perception, there is no express statutory prohibition on the right of Gardaí to strike” and, as one would expect, Professor Walsh is entirely correct. However, Professor Walsh’s article was unfortunately quite brief and gives the impression that there is a right for members of the Gardaí to take strike action.

The issue of a right to strike has been discussed extensively by the courts and, in this writer’s opinion, certainly seems to exist within Art. 40.3. Even so it has been enshrined in the Charter of Fundamental Rights (Art. 28 specifically) but the recognition of such a right is subject to a number of caveats. Most importantly, as Prof. Walsh himself notes, the explicit exclusion of the Gardaí from the protections under the Unfair Dismissals Act 1977 and the Industrial Relations Act 1990 place the Gardaí in a unique class in terms of industrial relations.

It may be informative to compare the Gardaí with the other group who are excluded under both acts. While there are a number of exclusions from the Unfair Dismissals Act the only 2 groups to be excluded from the Industrial Relations Act are the Gardaí and members of the Defence Forces. This is not wholly surprising. Policing and the defence of the State are matters of the very highest priority. In absence of either of these two forces it is arguable that the State would find itself in a position of unimaginable, albeit temporary, anarchy. The greatest disturbances always occur when something we take completely for granted stops working for just a moment and there are few public services we take more for granted than the Gardaí.

In light of this we might turn our minds to what would face the High Court or Supreme Court if ever a strike was called and the legality of a strike action by the Gardaí was tested by the courts. Arguably the legality of such a strike would be determined by the form which it took. The courts have held that where a strike has the effect of restricting the constitutional rights of another person or persons that such a strike may give rise to liability and, in the case of the rights which a Garda strike may affect, that may extend to criminal liability.

Let us take the most extreme example: the Gardaí engage in a mass walkout for one day. People would not be brought before the District Court within the proper time periods, detention periods for persons in custody would over-run, testimony by Gardaí could not be given, emergency calls could not be answered and the public could be placed in danger. This is, admittedly, a rather hyperbolic example but any form of mass action by the Gardaí would more than likely exceed the “Blue Flu” action of the 1990’s where it was necessary to put the Defence Forces on standby to police the State. Any prolonged Garda action would be immensely damaging to the country as a whole and would arguably infringe upon the individual rights to liberty and a swift trial enshrined in the constitution.

So, how would the courts deal with this? Arguably they would see the necessary policy implications and, in conjunction with the strong implicit prohibition within the Industrial Relations and Unfair Dismissals Acts, be forced to rule that any strike action by the Gardaí was illegal. However, just as Professor Walsh suggests in his article, it would seem extremely prudent and necessary for the Oireachtas to legislate on this issue with all possible haste so as to avoid any future debate. In fact one must consider the failure to do so in 2005 as a serious oversight on their part. So while Professor Walsh is correct in saying there is no express prohibition on Gardaí taking strike action, it seems very likely that there is a strong implicit prohibition of which the courts, and the Garda Representative Association, should take serious note.

whizkid1

So if they cant strike and the Government can arbitrarily cut their pay looks like they have to grin and bear it. And if they fall into debt they get sacked.I always believed that the deal was that citizens pay what they owe to the state in taxes and in return the state honours its obligations to its citizens. I wonder how many pay cuts the Gardai and the public serveants are prepared to take before they get up and walk off the job

After all public servants cant go up to their doctor or dentist and say I cant afford to pay your usual fee we need to negotiate on this

Or tell the state I cant afford to pay my property tax or my car tax.etc

I wonder what would happen if the Gardai decided not to check Car Tax for the next year on the basis that people might not be able to afford it

Jo King

Trust1 wrote: »

=====> will someone for once name the Act...legislation that says Gardai Can't strike... or direct me to where i can find it ..AND DONT BE QUOTING NEWSPAPER ARTICLES AND GENERALISATIONS

Garda Siochana temporary provisions Act 1923.

12.—No member of the Gárda Síochána below the rank of Chief Superintendent shall be at liberty to resign his membership of the Gárda Síochána or to withdraw himself from his duties as such member unless authorised so to do in writing by the Chief Superintendent of the Area in which he may for the time being be stationed, or Unless he shall give to such Chief Superintendent one months notice of his intention so to resign or withdraw, and if any such member of the Gárda Siochána shall so resign or withdraw himself without such previous permission or notice he shall be liable on summary conviction to a penalty not exceeding twenty pounds, or to imprisonment with or without hard labour for a period not exceeding three months.

Trust1

Jo King wrote: »

Garda Siochana temporary provisions Act 1923.

12.—No member of the Gárda Síochána below the rank of Chief Superintendent shall be at liberty to resign his membership of the Gárda Síochána or to withdraw himself from his duties as such member unless authorised so to do in writing by the Chief Superintendent of the Area in which he may for the time being be stationed, or Unless he shall give to such Chief Superintendent one months notice of his intention so to resign or withdraw, and if any such member of the Gárda Siochána shall so resign or withdraw himself without such previous permission or notice he shall be liable on summary conviction to a penalty not exceeding twenty pounds, or to imprisonment with or without hard labour for a period not exceeding three months.

@ INCORRECT......THAT SECTION ACTUALLY COPPERFASTENS A GUARD'S CLAIM TO BE ABLE TO WITHDRAW FROM DUTIES/STRIKE.....You have to read the full context of that section............ if you read it, it says a guard can resign or withdraw from duties with a Chief Superintendent's permission OR.......and i repeat OR... BY GIVING ONE MONTHS NOTICE .... So in the same way as serving strike notice a Guard can give one months notice to withdraw from duties...... (that section was originally intended to deal with guards quitting/resigning and leaving their position where a security risk would be caused such as where a large number of guards might leave the force..... and was of similar intent as to deal with persons going AWOl (in army terms)..................... i HAVE DONE A COMPREHENSIVE TRAWL OF LEGISLATION...... SO I ASK AGAIN, CAN SOMEONE POINT ME TO THE SPECIFIC LEGISLATION THAT PROHIBITS GUARDS FROM SRIKING ETC

Trust1

Deleted User wrote: »

I wrote this recently. Hope it helps.

Thanks, i prefer to be technically correct, than like some politicians think they are correct on a technicality

Very well written and engaging article. However it tends to hover around the ideal and hypothetical issues of what a court might do. ........ However, in reality we see that a court is the arm of the state that we term judiciary and not the legislative arm. So the court cant legislate on the spot to make up for non-existing legislation..... Neither can it apply sanctions or penalties that dont exist for offences that dont exist...... We see the situation that occurred when common law offences were abolished. The situation of sexual offences etc..... Where cases were thrown out.... YES, the Constitution allows for the rights of a minority to be subjugated to the rights and welfare of the majority, but this has to be implemented by the legislature enacting statutory law to deal with same ****(and building in sections in that same legislation, to protect the rights of the minority............So if the Government want to enact legislation to prohibit, then in line with the Constitution they should also build in protections for that same workforce whose rights to strike that they intend to shackle....... ie the government being both the enacter of legislation and the employer of these workers must distance itself from their pay negotiations and place them in a completely independent and impartial forum, where wages and terms and conditions will be looked at on the basis of the claim being paid if they are legitimate (and not the current situation as in the rest of public service where the govt just claims inability to pay)........ that workforce should be compensated for its right to strike being shackled.......... *****(the right to strike..../..... or the right to be dealt fairly by employer is very important...... The Govt cant just say do as ure told, whatever ure told, for as long as ure told 24hours a day.... SLAVERY has been abolished

Jo King

Trust1 wrote: »

@ INCORRECT......THAT SECTION ACTUALLY COPPERFASTENS A GUARD'S CLAIM TO BE ABLE TO WITHDRAW FROM DUTIES/STRIKE.....You have to read the full context of that section............ if you read it, it says a guard can resign or withdraw from duties with a Chief Superintendent's permission OR.......and i repeat OR... BY GIVING ONE MONTHS NOTICE .... So in the same way as serving strike notice a Guard can give one months notice to withdraw from duties...... (that section was originally intended to deal with guards quitting/resigning and leaving their position where a security risk would be caused such as where a large number of guards might leave the force..... and was of similar intent as to deal with persons going AWOl (in army terms)..................... i HAVE DONE A COMPREHENSIVE TRAWL OF LEGISLATION...... SO I ASK AGAIN, CAN SOMEONE POINT ME TO THE SPECIFIC LEGISLATION THAT PROHIBITS GUARDS FROM SRIKING ETC

Look at the following sections of that Act. A guard cannot join a trade union.
The members of registered trade unions can withdraw labour from their employers and benefit from important legal protections. That is what is meant as an official strike. Immunity from suit and protection from disciplinary action by the employer are provided.
Organising a mass resignation by members of the garda is a criminal offence.
Strikes are inherently about group action. That cannot happen legally in the garda.

Trust1

Jo King wrote: »

Look at the following sections of that Act. A guard cannot join a trade union.
The members of registered trade unions can withdraw labour from their employers and benefit from important legal protections. That is what is meant as an official strike. Immunity from suit and protection from disciplinary action by the employer are provided.
Organising a mass resignation by members of the garda is a criminal offence.
Strikes are inherently about group action. That cannot happen legally in the garda.

Very good debate. I am not actually anti your articles etc. Just trying to do devils advocate and to clear up the anomalies and mis-perceptions that you document because the general public and gardai personnel themselves might actually believe some misperceptions that the media have fed them through mis-interpretation of law

(1) The fact that a guard or anyone cannot join a trade union is irrelevant and does not impact on a guards ability to strike.... The constitution guarantees all citizens the right to associate (join union) or disassociate (remain outside union structure). Unions dont have the monopoly on strikes. The ordinary citizen who is not a member of a union (and whether or not he is a member of a club, group or representative association) can strike.....

(2) The benefits accruing under the legislation you refer to for members of registered trade unions are mainly benefits that accrue to the Trade union organisation itself when it acts collectively such as when it ballots its membership and urges, recommends in favour of a strike.... Again, i say that Constitutionally each individual citizen (and individual garda) cannot be disadvantaged just because they are not a member of a trade union, so any legal protection that accrues to an individual citizen who is a union member must also accrue to a non union member (whether legislated for or not).

(3) A non union individual can engage in an official strike (it is not a term that is confined to unions). Once that individual complies with the terms and gives proper notice etc..

(4) The guards authorities cant discipline guards for acts that are not illegal or acts that are not in breach of garda rules of discipline. Nor can guards officers bring in new rules that make a discipline offence out of something that is not illegal.

(5) i dont think anyone needs to be talking about anyone organising a mass resignation from the garda siochana. (A) Every one of the laws that are in existence make it illegal for anyone to organise, urge other gardai to withdraw. So no one guard is going to urge others to do anything. What they will do is tell the guard to make up their mind once and for all as to what it is they as an individual want to do. (B) Also the legislation you quote - S. 12 Garda Siochana temporary provisions Act 1923 , while it does mention resignation and while it was probably intended to cover situations of permanent withdrawal of labour (or going AWOL as we would usually use for an army term) it does not actually give a legal definition of "withdraw from duties".. So when S.12 says, in a roundabout way, that a guard can withdraw from duties by giving one months notice it can also be interpreted that a guard can temporarily withdraw from duties by giving such notice. ie he sends in one months notice that he will be absent for a day or 2 days etc...

(6) You say Strikes are inherently about group action and that group action is illegal in gardai. This is incorrect, group action is not illegal. What would be correct is to state that if a guard URGED other guards as a group to strike then it would be illegal. A body of individuals can act similar to a group and as long as none of them urges the other to act they commit no offence.....

I have done exhaustive research into strikes/ industrial actions and their legal ramifications. I have often found ingenuity. The time of previous garda withdrawal of labour no individual guard held meetings and told another not to come to work.. If they had done so they would have breached garda rules/regulations and the law and would have been disciplined/prosecuted....What happened was that the garda workforce became aware that on a particular date that it was probable that a number of gardai were protesting pay issues and would not be at work but would be reporting ill. The other gardai as individuals made up their minds - some chose to join in and a few chose not to. No action was later taken by garda associations/groups agains those who chose not to join in. In the current situation no guard would need to tell or urge another guard, nor would a guard need to name a date (and thus be accused of organising). The action of withdrawal would be precipitated automatically when the ICTU notified its members that industrial action was planned. Then each individual garda would make up his or her mind whether to exercise his or her lawful right to withdraw from duty (if s.12 makes it ok to do so with one months notice).


****** hopefully this wont ever happen. But the Govt have become negligent with how they deal with gardai over pay. Media publishes stories comparing guards pay per hour with other peoples but cognisance should also be taken of the types of garda work, the strains on the guard, his family, relations etc. The guard having to deal with nearly all calls they receive even when the guard hasnt been trained or has the safety eequipment to deal with some of these calls...The guard ,through his work, having to come into conflict with his own townspeople, neighbours. The restrictions the constitution and indeed internal garda rules puts on guards such as not being able to run for political office, not being able to own certain property, not being able to take additional employment in certain jobs, not being able to transfer into areas where certain relatives are.. And if the govt wants a no-strike clause they should pay additional for it. The government when dealing with guards and army are in the role of judge, jury and executioner (ie heres what we will pay you, ya we all in government agree it and if you dont like it u can lump it). Remember the govt prohibits the guards from the labour relations commission and the labour court on pay matters. So the safety net of appeal built into other employments both private sector and public sector is witheld from guards......

The guards need to be taken out from political control to a real independent body who will fund them properly and who will have flexible budgets to cope with the changes in crime levels.

Time Magazine

Trust1 wrote: »

Unions dont have the monopoly on strikes.

I think this is the crux of the matter.

The Industrial Relations Act 1990 makes it quite clear that the Gardaí and the Defence Forces are not to be considered "workers", and that a "trade dispute" is "between employers and workers", so therefore Gardaí cannot be involved in a "trade dispute".

The Act then goes on to say when a strike is official (i.e. follows all the usual avenues) then the workers are immune from losses, breach of contract implications, etc.

I am not a lawyer but I understand that implies that if Gardaí are not "workers" then if they withdraw as a trade union would, they are not immune from being sued for losses and breach of contract. I would expect that intentionally not showing up for work would count as a breach of contract sufficient enough for instant dismissal.

So from my reading of it saying that there's "no law against it" doesn't mean they can't get sacked for it, either.

Jo King

Trust1 wrote: »

(1) The fact that a guard or anyone cannot join a trade union is irrelevant and does not impact on a guards ability to strike.... The constitution guarantees all citizens the right to associate (join union) or disassociate (remain outside union structure). Unions dont have the monopoly on strikes. The ordinary citizen who is not a member of a union (and whether or not he is a member of a club, group or representative association) can strike.....

.

No constitutional right is absolute. Any guard who takes a plenary action in the High Court striking down the provisions in legislation preventing him from joining a union would most likely fail. Since no guard has done so, the law remains that no guard can join a union.
A resignation with permission by one individual does not a strike make. There would be no chance of re-engagement. The object of strikes is that by collective action the employer is foreced to agree terms.

Trust1

Jo King wrote: »

No constitutional right is absolute. Any guard who takes a plenary action in the High Court striking down the provisions in legislation preventing him from joining a union would most likely fail. Since no guard has done so, the law remains that no guard can join a union.
A resignation with permission by one individual does not a strike make. There would be no chance of re-engagement. The object of strikes is that by collective action the employer is foreced to agree terms.

OK....i think uve lost the thrust of my few paragraphs. If you go back over the points made, I havent suggested gardai going to the High Court to obtain right to join a Union..... they dont need to join a union. We have already jointly agreed that the only law that exists is that gardai cant join a union.......

AND.....I havent suggested a resignation with permission by one individual....
(1) I have suggested that a possible course was of temporary withdrawal from duties under section 12 temp provisions (rather than resignation)

and (2) I have suggested that maybe it is possible that a large proportion of them would do so (ie as a group of individuals, but protected by not urging each other or acting as a group because we seed that the law is only broken by the person who urges the next...no law broken by the garda who himseld takes action........ ******also remember that whatever amount would take action there would always be cover provided by policing by junior gardai and by other ranks

Tester46

InReality wrote: »

In the private sector a company which requires a pay cut must get the employee to sign on the dotted line and agree to a change in the employee's terms and conditions.
Of course the alternative could be the sack but still the legal formalities must be completed.

I have no desire to turn this into a public -v- private sector debate, but if you think that every private sector employer goes through this process, you are very much mistaken. As many posters on boards.ie can testify, lots of private sector employers simply told their staff that 10%/20%/30% pay cuts were being imposed. No discussion, no argument and certainly no threatened strike action.

I agree that the unilateral change in pay and terms and conditions is very unfair, but in the private sector a lot of employees were simply glad to still have a job. And they knew if they challenged their employer they wouldn't have one for much longer. Unfortunately reality and fairness are not happy bedfellows at the moment.

Time Magazine

Time Magazine wrote: »

I think this is the crux of the matter.

The Industrial Relations Act 1990 makes it quite clear that the Gardaí and the Defence Forces are not to be considered "workers", and that a "trade dispute" is "between employers and workers", so therefore Gardaí cannot be involved in a "trade dispute".

The Act then goes on to say when a strike is official (i.e. follows all the usual avenues) then the workers are immune from losses, breach of contract implications, etc.

I am not a lawyer but I understand that implies that if Gardaí are not "workers" then if they withdraw as a trade union would, they are not immune from being sued for losses and breach of contract. I would expect that intentionally not showing up for work would count as a breach of contract sufficient enough for instant dismissal.

So from my reading of it saying that there's "no law against it" doesn't mean they can't get sacked for it, either.

I am a lawyer and your post is EXACTLY what I said above

Time Magazine

Deleted User wrote: »

I am a lawyer and your post is EXACTLY what I said above

Damn, I should have read that again before I went researching it myself!

Time Magazine

Time Magazine wrote: »

Damn, I should have read that again before I went researching it myself!

It's not a great article as it's, obviously, not written for an academic journal so I couldn't really get into the nitty-gritty details and arguments but it gives you the gist of it.

PoleStar

To get back to the original point as to on what basis is the legality of the pension levy being challenged, I wonder is it because of the following.

I am a public sector worker, working in an area where overtime is required to maintain the level of service (not enough staff).

Our final pension entitlement is based on our basic salary alone, so no matter how much overtime I earn, it will not influence my pension, whether I work 40 hours overtime per week for my entire lifetime or just work my basic hours.

I.e., overtime is non-pensionable.

Despite this, the pension levy is applied to the basic salary AND to the overtime. Thus, while the overtime is non-pensionable, the pension levy is still applied to this overtime income. Thus it can easily be argued that applying the pension levy to non-pensionable income has a shady legal basis. Now I am a realist, and I recognise that the pension levy was introduced as a means to cut salaries without invoking mass strikes and was a back door way to slip it in, however, personally I think the government should have been honest about this.

To take another extreme example. There are those in the public sector who when they joined the public service, they already had their own private pension contributions and thus opted out from the public pension. These individuals also pay the pension levy because anyone who is entitled to a public pension pays the levy, despite not receiving the pension.

I am not sure but I imagine it is similar for the Gardai that their overtime is non pensionable and this would be a reasonable basis to question it.

I think none of the unions so far have bothered with this as deep down they recognise that its not a levy, its a pay cut masking itself as a levy.

Victor

PoleStar wrote: »

I am not sure but I imagine it is similar for the Gardai that their overtime is non pensionable and this would be a reasonable basis to question it.

I understand many Garda payments are pensionable.

Trust1

Victor wrote: »

I understand many Garda payments are pensionable.

Yes, an article...i think in the independent way back mentioned some garda payments/allwoances that were pensionable... But POLESTARs point is that the pension levy is being taken off of non-pensionable payments not only in gardai but in all areas of public service..... AND what is worse is that there are some public servants who dont qualify for pension but they are still paying what is termed "pension related levy"....... \I think these staff are probably the worst off as the levy was brought in supposedly to compensate/balance out the "golden public sector pension" but if an employee isnt going to get a pension surely he shouldnt pay a pension levy

pah

Trust1 wrote: »

=====> will someone for once name the Act...legislation that says Gardai Can't strike... or direct me to where i can find it ..AND DONT BE QUOTING NEWSPAPER ARTICLES AND GENERALISATIONS

Sorry to drag this thread up again Thrust but nobody answered your question.

Here is the legislation.

http://www.irishstatutebook.ie/2005/en/act/pub/0020/sec0059.html#sec59
Garda Síochána Act 2005


Causing disaffection.

59.—(1) A person is guilty of an offence if he or she induces, or does any act calculated to induce, any member of the Garda Síochána to withhold his or her services or to commit a breach of discipline.



(2) A person guilty of an offence under subsection (1) is liable—


(a) on summary conviction, to a fine not exceeding €3,000 or imprisonment for a term not exceeding 12 months or both, or



(b) on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 5 years or both.

BlackZombie

pah wrote: »

Sorry to drag this thread up again Thrust but nobody answered your question.

Here is the legislation.

http://www.irishstatutebook.ie/2005/en/act/pub/0020/sec0059.html#sec59
Garda Síochána Act 2005


Causing disaffection.

59.—(1) A person is guilty of an offence if he or she induces, or does any act calculated to induce, any member of the Garda Síochána to withhold his or her services or to commit a breach of discipline.



(2) A person guilty of an offence under subsection (1) is liable—


(a) on summary conviction, to a fine not exceeding €3,000 or imprisonment for a term not exceeding 12 months or both, or



(b) on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 5 years or both.

The above legislation does not prohibit a member of An Garda Siochana from going on strike, rather it creates an offence for a person to induce, or do any act calculated to induce (i.e. encourage or persuade) any member of the Garda Síochána to withhold his or her services or to commit a breach of discipline.

Huge difference.

pah

BlackZombie wrote: »

The above legislation does not prohibit a member of An Garda Siochana from going on strike, rather it creates an offence for a person to induce, or do any act calculated to induce (i.e. encourage or persuade) any member of the Garda Síochána to withhold his or her services or to commit a breach of discipline.

Huge difference.

I see what you mean but members can't strike without being balloted and the balotting is what's outlawed by section 59

BlackZombie

BlackZombie wrote: »

The above legislation does not prohibit a member of An Garda Siochana from going on strike, rather it creates an offence for a person to induce, or do any act calculated to induce (i.e. encourage or persuade) any member of the Garda Síochána to withhold his or her services or to commit a breach of discipline.

Huge difference.

pah wrote: »

I see what you mean but members can't strike without being balloted and the balotting is what's outlawed by section 59

Is it? I think you might find that an arguable point.

MagicSean

I didn't think they were arguing against the legality. There is an exemption clause built into the pension levy legislation and the gardaí are looking for that aren't they?