I move amendment No. 14:
In page 12, after line 50, to insert the following:
"11.—Section 16 of the Principal Act is amended by substituting the following subsections for subsection (2):
‘(2) A period when a civil servant refuses to carry out the duties of his grade shall as respects the civil servant concerned be considered to be a period of unauthorised absence from duty.
(3) If any question arises in relation to the application of subsection (1) or (2) as to whether—
(a) a particular period of absence from duty of a civil servant is a period of unauthorised absence from duty, or
(b) a particular action taken by a civil servant constitutes a refusal to carry out the duties of his grade, or
(c) a refusal by a civil servant to perform a particular duty constitutes a refusal to carry out the duties of his grade,
the question shall be determined by the appropriate authority.'.".
Amendments Nos. 14 and 15 are technical amendments put forward by the Office of the Attorney General. These relate to sections 11 and 12 of the Bill which amend sections 19 and 16 of the 1956 Act, respectively. In the interests of continuity I propose to reverse the orders of sections 11 and 12 so the Bill will amend sections 16 and 19 of the 1956 Act in the correct sequence. This correction of the Bill will be effected by amendment No. 14, which deletes the current section 12. A further provision, amendment No. 15, will re-insert that text above the current section 11, thereby renumbering the text currently at section 11 as section 12. Amendments Nos. 16 and 16a propose changes to section 16. Section 16 of the Civil Service Regulation Act 1956 currently provides that an officer shall not be paid remuneration in respect of any period of unauthorised absence from duty. It provides that if any question arises as to whether a particular period of absence from duty is a period of unauthorised absence, the question shall be determined by the appropriate authority. There was much debate on this issue on Committee Stage, and before I respond to the amendments proposed by Deputies Bruton and Burton it is important to clarify a number of points.
The need to amend this section arose following a High Court ruling on 8 July 2003 in a case involving staff of the Department of Agriculture and Food. The court found that the refusal to perform certain duties in the context of that industrial dispute did not constitute an unauthorised absence from duty within the terms of section 16 as long as the staff concerned were physically present in the workplace, even though they were not carrying out their duties. The court also decided that management could not use the current section 16 of the 1956 Act to remove from the payroll officers who refused to perform core duties appropriate to their grades. The High Court ruling was upheld in an appeal to the Supreme Court by the Minister of Agriculture and Food and the Minister for Finance. In the light of this the Bill was amended on Committee Stage in order to provide in the 1956 Act the power to remove from the payroll officers who refused to perform the full range of duties of their grades. The amendment does not change the provisions in relation to situations where there is a physical absence from the workplace. The existing position is that a civil servant is not paid for a period where there is unauthorised absence from work due to industrial action or where a person is not on annual leave, sick leave or other forms of leave which have been approved. The amendment does not give management any new powers as regards circumstances of this kind involving a physical absence from the workplace. It is designed to deal with a situation where a person is physically present in the workplace, but refuses to perform his or her duties as part of a campaign of industrial action. This may arise where the industrial action involves a refusal to perform certain duties while remaining in the workplace.
Until recently, the understanding, based on legal advice from the Office of the Attorney General, was that the reference in section 16 of the Civil Service Regulation Act 1956 to "an unauthorised absence from duty" covered the situation where a person was physically present in the workplace, but was refusing to carry out his or her duties. However, the recent decision means clarification is required. Following consultations with the Office of the Attorney General the text was included, on Committee Stage. Concern was expressed on Committee Stage regarding the penalties provided for under the amendment. The amendment provides only for temporary removal from the payroll for the period of the refusal to carry out the duties of the grade. It does not provide for any other penalties. This is an important point because the High Court judgment in the Department of Agriculture and Food case indicated that action should have been taken under section 15 of the Act. If such a situation were to again arise, and section 16 remained as currently drafted, management would otherwise be required to impose penalties arising from disciplinary action.
It is also important to confirm that the Civil Service unions were informed of the proposed amendment and that no objections were raised. As regards the proposed amendment, it is important to emphasise that the text which I am proposing echoes the original section 16(2) of the 1956 Act, in allowing the appropriate authority discretion in deciding whether an action or omission of an officer shall amount to an unauthorised absence. Any decision as to whether an officer has reasonable excuse to refuse to carry out certain duties is therefore a matter to be considered by the appropriate authority in the context of making a decision as to whether an officer is taking an unauthorised absence from work. Should the officer dispute the decision taken by the appropriate authority, he or she has the opportunity to consult with the representative trade union and to make representations to the appropriate authority on the matter. The proposed amendment is intended to deal with a situation arising from industrial action. A civil servant refusing to perform duties as part of industrial action, is likely to consider that he or she has a reasonable excuse for so doing, in industrial relations terms. Equally, it is reasonable for the employer to stop paying the civil servant while the industrial action continues.
In addition, it is a fundamental principle of administrative law that one may assume the powers conferred by statute are to be exercised in a manner that is consistent with constitutional rights and principles of fair procedure. Any attempt by a decision making authority to thwart those principles will be considered ultra vires, that is, outside the powers bestowed on that decision maker by the statute in question.
Finally, I want to address the proposal that there should be an appeal against the decision of the appropriate authority. It is not feasible to provide for a formal appeal mechanism before removal from payroll, as management must be able to act quickly. Otherwise the employer would be unfairly disadvantaged in an industrial action situation. The reality is that there can be an appeal after staff have been removed from the payroll, and restoration of pay can be sought. There is no need for specific provisions for this to be made in the legislation as there is nothing to prevent representations being made to the appropriate authority by unions or staff about removal from payroll. Where a person feels that a decision maker has exercised his or her powers in an unreasonable manner, it is, of course, open to unions or staff to seek a judicial review. This avenue is open to officers who wish to have the decision of the appropriate authority reviewed by a third party, should resolution not be possible through the internal mechanism I have set out. All of these forms of appeal may be taken only after staff have been removed from payroll, while still allowing staff to respond quickly to industrial action. In the light of these points I do not accept the proposed amendments Nos. 16 and 16a.