1

Permanent Defence Force Adjudication Finding

Parties:

RACO and Department of Defence

Issue:

Emergency Aeromedical Service and Garda Air Support Unit Duties - Payment

of Allowance to Senior Pilot Officers

The hearing took place on 28 January, 2021.

Background

1. RACO seeks payment of Emergency Aeromedical Service (EAS) and Garda Air

Support Unit (GASU) Allowances for senior pilot officers in the rank of Commandant

and above.

2. The Air Corps has provided an Emergency Aeromedical Service to the State since 2012,

initially on a “pilot” basis. The payment of “less than 24 hours rate of security duty

allowance” was authorised on 25 April 2012 by the Department of Defence for pilots

and crewmen performing the duty.

3. The Department of Health agreed at the time that the HSE would pay costs associated

with the provision of the EAS service to including the cost of crew for the EC135

helicopter, which comprised a Captain, a Sergeant, a Corporal and ground crew.

4. In July 2017, Military Management made a submission to the Department seeking the

payment of a Security Duty Allowance (SDA) for senior pilots performing EAS duties.

While it had been envisaged that this operation would be flown by junior officer pilots,

senior officers (Commandants and Lieutenant Colonels) had been detailed to fly this

operation) since 2013 due to a lack of suitably qualified and experienced junior

personnel.

5. Following subsequent correspondence and discussions, the Department rejected this

proposal on 26 November 2018 on the grounds that Security Duty Allowance is not

normally paid to Senior Officers in the Defence Forces.

2

6. In June 2019 RACO raised the issue of payment of SDA to senior Air Corps Officers

and sought confirmation that the allowance owed to officers be paid without undue

delay.

7. In a response to RACO, in July, 2019 the Department indicated that it was prepared to

extend a payment equivalent to SDA to Air Corps Commandants undertaking EAS

duties on an exceptional basis, on the understanding that the payment would be

confined to the limited number of personnel involved and backdated to 1 January 2019.

The Department also stated that it was expected that the training of Junior Officers in

the Air Corps would negate the requirement for Commandants to be involved in the

EAS service in the medium to long term. In that context, it proposed to review these

arrangements after 18 months.

8. This was not acceptable to RACO and following further discussions, the Department

offered to backdate the payments to 1 January 2016.

9. As agreement could not be reached, RACO submitted a formal claim for discussion at

Conciliation Council RACO on 6 September 2019.

10. In October, 2019 the Department re-iterated the offer to make a payment equivalent to

SDA to Air Corps Commandants undertaking EAS duties on an exceptional basis. The

Department was not prepared to extend this offer to Lieutenant Colonels.

11. In December, 2019, following further discussions, RACO indicated that they would

accept the offer as an interim arrangement on the understanding that they could proceed

to adjudication on the remaining issues between the parties.

12. However, the parties could not resolve the matter on this basis with the result that

disagreement was recorded at the Conciliation Council on 5 March, 2020. Conciliation

Council Report No. 540 refers.

RACO Case

Nature of the Task and Personnel Engaged

13. The Emergency Aeromedical Service came within the definition of Helicopter

Emergency Medical Service (HEMS) and was much more dangerous than Air

Ambulance in terms of risk as it was predicated on the concept of getting to the patient

where he/she had fallen and getting him/her to hospital rapidly. This risk was very much

greater as there were time constraints coupled with landing in back gardens and roads

(a hazard-rich environment). Statistically, empirically and anecdotally (from the

experience of Air Corps personnel who have done both) HEMS was more dangerous

than SAR (Search and Rescue), a former duty of the Air Corps which had been flown

3

by all pilot ranks including Commandants and Lieutenant Colonels. All of these ranks

had received the SAR allowance in the past for the performance of the SAR duty.

14. Since the EAS was established, it had saved countless lives and provided an invaluable

service to the State. It entailed a four-day (96 hour) duty, 130km from the home station,

and was provided 365 days a year by the Air Corps. The service was flown using an

AW139 helicopter and required a crew of four; the Detachment Commander (P1), Co-

pilot (P2), a Crewman, and an Advanced Paramedic (AP) from the National Ambulance

Service. They were augmented by a Ground Crew of two technicians. All team

members (Pilots, Crewman and Technicians) received the same rate of SDA.

15. The duties of the Pilot and Co-Pilot were set out as follows:

(a) The Detachment Commander (known as the aircraft commander, the skipper

or the P1) was the most experienced of the two pilots on the duty and was

responsible for all aviation related aspects of the operation, along with being

generally responsible for the smooth running of the detachment. He/she made

the weather calls before lift and, more crucially, if conditions deteriorated in

flight, made the call to turn around or otherwise discontinue a job. He/she was

responsible for ensuring that all flights and other activities on the detachment

were conducted safely and within laid down regulations. He/she endeavoured

to remain as detached from the clinical side of the call as possible in order to

make decisions objectively. The Detachment Commander was directly

accountable for everything that happened or did not happen on EAS for the

duration of the four-day shift. A typical skipper would have at least 2,000 flying

hours with significant AW139 experience before starting on EAS. The average

skipper had over 3,300 flying hours at the end of 2019. The Officers involved

had a varied background that included at least Army and Naval Service support

by day and night, support of specialist Garda units, along with previous

aeromedical experience flying domestic and international interhospital

missions. Most had at least three years’ experience flying in GASU – the Garda

Air Support Unit – on EC135 helicopters by day and night, which was the most

similar current role to EAS.

(b) The Co-Pilot, also known as the P2, was the second of the two pilots on duty.

They could range from a reasonably fresh pilot with about 500 hours total flying

time to experienced pilots on the cusp of a command upgrade. P2s who were

serving on EAS prior to going to GASU were, in effect, increasing their flying

experience in a very demanding operational environment. This was not only a

baseline requirement for flying any job in the Air Corps, but also built up their

understanding of high-risk decision-making under stress before they had to do

it themselves on a high stakes mission like GASU where they would be doing

it as single pilot by day and night.

4

16. EAS was a duty covered by 301 Squadron of Number 3 Ops Wing in Casement

Aerodrome, Baldonnel. 301 Squadron covered a variety of operations including EAS.

EAS did not have designated fulltime EAS Pilots. When the service was conceived, it

had been intended that it would be flown by junior officers (Captain and Lieutenant

ranks). Senior Officers (Commandants and Lieutenant Colonels) and junior officers on

the P1 roster all had gazette appointments in Baldonnel which were fulltime jobs.

Therefore, these officers were on the roster only on a part time basis.

17. The roster required a minimum of 5-6 P1s to function. As of December, 2020, the EAS

roster was staffed by 8 Senior Officers (P1s) and one Junior Officer. The 8 senior

officers comprised 3 Lieutenant Colonels and 5 Commandants, while the sole Junior

Officer was a Captain. The strength of the qualified junior officer helicopter pilots in

the Air Corps had been at approximately 50% of establishment since 2015. Senior

Officers were the back-bone of this roster and would remain so for the foreseeable

future until an adequate number of suitably qualified P1 (Detachment Commander)

junior officer pilots were available. This was estimated to be a minimum of two years

from now, depending on increasing training and limiting retirements.

18. A dedicated Garda Air Support Unit (GASU) service had been operating from

Casement Aerodrome, Baldonnel since September 1997. It was run by An Garda

Síochána and the Air Corps in accordance with arrangements formalised by way of a

Service Level Agreement (SLA). The support provided by the Air Corps to the GASU

included provision of hangar facilities and pilots for all GASU aircraft and for the

servicing and maintenance of the fixed wing Defender 4000 aircraft. Pilot shortages

had necessitated the rostering of Commandants to fly the GASU operation since 2016.

These pilots of Commandant rank had also been denied payment of SDA.

Nature of Allowance paid to EAS and GASU staff

19. As the EAS had been established initially on a pilot basis, the Department had neglected

to establish a unique EAS or HEMS (Helicopter Emergency Medical Service)

allowance for the pilots and technicians providing the service. Instead, Security Duty

Allowance (SDA) had been identified as an allowance to be paid for the pilot project.

Payment of SDA at “less than 24 hours rate of security duty allowance” had been

authorised “for the personnel providing this service”. This mirrored the allowance

arrangements for GASU. While it had been intended that a new EAS or HEMS

(Helicopter Emergency Medical Service) allowance would be created once the service

became permanent, this never materialised.

20. It had been envisaged that the EAS would be piloted solely by junior officer pilots

(Lieutenants and Captains), but it had soon become apparent that this would not be

possible due to the lack of qualified Detachment Commanders at these ranks in service

within the Air Corps. This had led to the Air Corps having to roster senior officer pilots

(Commandants and Lieutenant Colonels) to fly the Emergency Aeromedical Service

5

(EAS) instead of junior officers from 04 July 2013. This continued to be the situation,

due to the lack of suitably qualified and experienced junior officer pilots in the Air

Corps. Moreover, senior officers of Commandant rank had had to fly the Garda Air

Support Unit (GASU) since 2016 due to pilot shortages. Using senior Air Corps pilots

to conduct operations normally undertaken by junior officers took them away from their

critical leadership, management, instruction, administrative and mentoring roles in the

Air Corps, which had an associated detrimental impact on governance, and consequent

increased organisational risk. Commandant and Lieutenant Colonel pilots had been

denied the payment of the agreed allowances to fly these dangerous life-saving

missions, despite being ordered to complete these duties by management.

History of Claim

21. RACO set out a description of the history of the interactions between the Association

and the Department, including the various proposals and counter proposals of both sides

dating back over three years.

22. RACO pointed out that, despite the fact that sanction had been given for the payment

of the allowance “for the personnel providing this service” by communication from the

Executive Branch of the Department dated 23 May, 2012, the Department had denied

actual claims for payment to senior officers. RACO considered this position entirely

incompatible with that original sanction.

23. Included in this description of the discussions, they pointed out that, on 19 September,

2019, RACO had met with An Taoiseach, Leo Varadkar, in the presence of Minister

Kehoe and his Officials. The Minister with Responsibility for Defence, Paul Kehoe,

had expressed dismay at the situation to the Taoiseach and said that he had been

unaware of the injustice. He told the Taoiseach that the Department had not informed

him of the issue of the non-payment of allowances to Senior Pilot Officers. Minister

Kehoe had assured the Taoiseach that the matter would be resolved without delay. The

matter had been the subject of much attention and discussion at the RACO Delegate

Conference on 23 September 2019 and had been reported widely in the media. It had

also been discussed at length in Dáil Éireann, where it had been stated that the service

was “on the brink of collapse”. On 15 November 2019, it had been reported widely in

the national media that the EAS had been scaled back for a period of four months as a

consequence of pilot shortages.

24. Despite this, the Department had continued to refuse to pay the allowance to Lieutenant

Colonels and had also refused to provide for full retrospection of the payment of the

allowance to Commandants. The Department had written to RACO on 15 October 2019

stating that the Department’s final position was that payment of allowance to Lieutenant

Colonels would and could not be entertained at this time.

6

25. In addition, the Department had introduced a new argument by claiming that the

payment would be “cost increasing”. RACO contended that the claim could not

possibly be cost increasing as the EAS service schedule for pilots was based on an

identified roster, irrespective of the rank of the pilots performing the flying duties.

26. RACO considered the Official Side’s position to be both contradictory and inconsistent

with that of the observations expressed during discussions and with the position taken

by the Minister and Taoiseach in the discussions the latter had had with RACO the

previous month.

27. They had refused to pay the allowance to Lieutenant Colonels, despite continuing to

rely on them to prop up the mission. The fact that the Official Side had accepted that

Commandants were entitled to be paid allowances for flying the EAS mission as

Commandants should surely mean that they should be paid for all duties for which they

had been rostered for and had faithfully completed on behalf of the State. Full

retrospection should apply. Moreover, the allowance was paid for the duty, irrespective

of the rank, and all personnel who were rostered for and performed this duty should be

compensated. The Department accepted that the EAS Allowance should be paid for

those pilots up to and including the rank of Commandant but, despite this, these officers

had not been fully compensated from the date when the duty commenced. The same

held true for Lieutenant Colonels who, by virtue of the demands of service and junior

pilot shortages, were compelled to undertake the necessary duties.

28. Subsequent efforts by RACO to progress the issue were set out in detail, culminating

in the Department’s refusal to pay full retrospection to Commandants and their refusal

to contemplate any payment despite the fact that they were continuing to perform the

duty.

29. In the circumstances, RACO had no option other than to seek payment of allowances

and full retrospection for all legitimately rostered duties completed by Air Corps senior

officer pilots through the Adjudication process. The claim also extended to

Commandants who are rostered to fly the Garda Air Support Unit (GASU) duty. The

Department included these individuals in the original offer of retrospection back to 1

January 2016 but had yet to pay them.

Conclusion

30. Air Corps pilots had been rostered to perform this work, and, unlike other public

servants, were not in a position to refuse, regardless of whether they were compensated

or not. A crucial fact remained that the payment of “less than 24 hours rate of security

duty allowance” had been authorised on 25 April 2012 and that “payment of an SDA

allowance was approved by C&A Branch for the personnel providing this service”

(irrespective of rank) on 23 May 2012 – see above. Using senior Air Corps pilots to

conduct operations normally undertaken by junior officers took them away from their

7

leadership, management, instructional and mentoring roles in the Air Corps, with an

associated detrimental impact on governance, and consequent increased organisational

risk.

31. Without these senior pilot officers, the EAS and GASU provided by the Air Corps could

not function, and as long as these officers were to be rostered to perform these duties

and therefore risk their lives in the service of the State, they should be paid fairly for

their efforts. The payment of the SDA (EAS) allowance was not based on rank but

based on the duties performed. While the Official Side had conceded that Commandants

were entitled to the payment of SDA for the rostered duty, they had yet to sanction

payment (with full retrospection) since the concession of that principle in November

2018.

32. RACO could not understand how Lieutenant Colonels could be refused the same

allowance for the same work. The assertion that paying Lieutenant Colonels would be

cost increasing was incorrect and misleading, as the duties were rostered and budgeted

for in advance and performed without fail. Indeed, this budgetary allocation for the cost

of the EAS had been confirmed by the Department in the course of email

correspondence leading up to the signing of Conciliation Council Report No. 540.

Finally, there was precedent for payment of allowances to Lieutenant Colonels for

similar activities. The Search and Rescue (SAR) Allowance had been paid to all ranks

for many years, including Commandants and Lieutenant Colonels.

33. RACO claimed the payment of the SDA (EAS) allowance to all senior officer pilots of

Commandant and Lieutenant Colonel rank who performed the duties and taskings

associated with the Emergency Aeromedical Service (EAS), and the Garda Air Support

Unit (GASU) and further claimed that the allowance be paid with full retrospection.

Department’s Case

34. Security Duty Allowance (SDA) had been introduced in 1974 and paid to military

personnel to compensate for exceptional duties of a security nature over and above

normal peacetime pattern of military duties, e.g., guards on military posts, aid to the

civil power or protecting vital installations.

35. SDA was normally payable to all ranks up to and including Captain. Arising from

recommendations in the Report of the Commission on Remuneration and Conditions

of Service in the Defence Forces (the Gleeson Report), payment of SDA to

Commandants ceased in 1990. The Commission said “... revised rates of regimental

pay which the Commission is recommending, combined with the recommendation in

relation to military service allowance, will remunerate commandants at a level which

would make SDA payments inappropriate in principle for this rank”. The current pay-

scales and rates of Military Service Allowance (MSA) and flying pay for Commandants

and Lt Colonels were provided to the adjudication.

8

36. RACO had contended that the Department’s internal correspondence of 25 April 2012,

sanctions the payment of “less than 24 hours rate of security duty allowance” to the

personnel providing this service, irrespective of rank. This contention was not based on

fact. The Memorandum of Understanding (MOU) between the Department of Defence

(Air Corps) and the Department of Health (HSE National Ambulance Service), dated

31 May 2012, set out the costs payable to the Department of Defence for Air Corps

participation in the service and was based on the proposed crew for the EC135 at the

time of a Captain, Sergeant and Corporal. Accordingly, any correspondence at this time,

such as the memo of 25 April 2012, would only refer to these ranks outlined and could

not be construed as open-ended vis-a-vis other senior ranks in the Air Corps.

37. Indeed, RACO had confirmed this position in paragraphs 4 & 7 of their statement of

claim where they stated “When the service was conceived, it was intended that it would

be flown by junior officers” and “It was envisaged that the EAS would be piloted solely

by Junior Officers pilots (Lieutenants and Captains)”. It therefore begged the question

as to how RACO could contend that the memo of 25 April 2012 was “irrespective of

rank”, when they accepted that, from the initiation of the MOU of 31 May 2012, the

tasking of Commandants and Lieutenant Colonels for EAS Duties had not been

envisaged at that time.

38. In their email of 2 March 2020 RACO had further conceded the point when stating “I

accept your point on the Lieutenants and was not aware that only Captains were

originally supposed to fly the EAS”. This admission clearly showed that, on making the

original claim for SDA for Commandants on 6 September 2019, RACO had

erroneously formed the opinion that such Commandants had been included in the

original scheme and the email acknowledged their mistake.

39. The basis of the offer to pay the Commandants an allowance equivalent to SDA, similar

to the payment made to junior officers and enlisted personnel, was that the rank of

Commandant in the Defence Forces had been treated as analogous to a mid-point

between Higher Executive Officers (HEOs) and Assistant Principals in other

agreements with RACO.

9

40. The agreement on foreign service allowances for military officers set out in

Conciliation Council Report No. 472 was an example. Following was an extract from

same:

In determining the appropriate rates of certain allowances, the following rank-grade

equivalents will apply:

Local Post Allowance – Diplomatic Rate

Lieutenant = EO

Captain = HEO (3rd Secretary)

Commandant = (HEO + APO)/2

Lt Colonel = APO

Colonel = PO

41. As HEO was a rank in the Civil Service, which was entitled to additional payments for

certain duties performed by way of overtime, it had been decided in this instance to

make an offer to pay the Commandants flying EAS duties, the allowance being paid to

junior officers for these duties. The current rate of the allowance was €26.92 per day

(Monday to Saturday) and €53.77 for Sundays and Defence Forces holidays.

42. Were it not for the restrictions of the Financial Emergency Measures in the Public

Interest legislation (FEMPI) at the time that the payments to junior officers commenced

in 2012, sanction for a new allowance might have been sought, and perhaps an EAS

allowance would have been considered. This prohibition against creating new

allowances was still in force under the current PSSA 2018-2020. However, the duties

were not security related and did not come within the range of duties which attracted

SDA.

43. The Garda Air Support Unit (GASU) duties were of a security nature and in accordance

with the recommendations in the Gleeson report, it was not proposed to extend the

payment of SDA to Commandants who performed these duties.

44. The rank of Lieutenant Colonel in the Air Corps was a senior management position.

This was demonstrated by the fact that in a full Air Corps establishment of 887

positions, there were 14 Lieutenant Colonel posts and there were only four more senior

officers in the Air Corps.

45. Senior managers across the Public Service were expected to carry out additional duties

undertaken by more junior staff as necessary without recourse to additional

remuneration. The higher rate of remuneration paid in progression through the

ranks/grades was intended to cover any extra liability to duty that might arise.

10

46. In this context, across the Civil and Public Service, there were areas where junior staff

could earn more than senior staff working in the same area, e.g., Higher Executive

Officers in a section being paid overtime for additional duties could earn more than the

Assistant Principal who was not in receipt of additional remuneration.

47. As with other senior management positions across the public service, payments could

not be made to Lieutenant Colonels for additional duties performed or extra hours

worked. RACO had accepted in Conciliation Council Report No. 472 that the rank of

Lieutenant Colonel was analogous to Assistant Principal in the Civil Service.

48. The cost of conceding the claim in total was quite small. From 1 January 2013 to end

June 2019, (when discussions commenced with RACO) the total cost of paying the

allowance to Commandants and Lieutenant Colonels for EAS duties was around

€19,000. SDA for GASU duties totalled around €1,163. The offer to pay Commandants

from 1 January 2016 was around €14,175, for settlement of the claim.

* - To End June

49. Cost was not the determining factor in this claim. The concern was that the repercussive

effect of contagion across the entire public service, where analogous grades who were

not currently paid allowances for additional duties to date could use this case as a

precedent. The implications were concerning as there could be a significant cost to the

Exchequer across all sectors of the public service.

50. In their Statement of Claim, RACO had asserted that there was precedent for paying

Lieutenant Colonels for similar activities. They stated the “Search and Rescue (SAR)

Allowance was paid to all ranks for many years, including Commandants and

Lieutenant Colonels”. RACO omitted to state that they had submitted a similar claim

for an air ambulance allowance in 2008, on a similar rationale. This had been rejected

by the Adjudicator in 2009. A copy of the Adjudication finding was made available for

this adjudication.

Cost Excluding Lt

Cols

Including Lt

Cols

Lt Col

only

2019* €1,696.10 €1,817.25 121.15

2018 €4,046.41 €4,918.69 872.28

2017 €5,645.59 €5,645.59

2016 €2,786.45 €2,786.45

2015 €1,114.58 €1,114.58

2014 €2,326.08 €2,326.08

2013 €484.60 €484.60

TOTAL €18,099.81 €19,093.24 €993.43

GASU €1,163.04

11

51. In conclusion, the Official Side stated:

(a) RACO had made their case based on the premise that the memo of 25 April

2012 gave sanction for the payment of SDA, regardless of grade. It was clear

that the sanction for payment of the allowance was for grades up to and

including Captain, as set out in the MOU of 31 May 2012.

(b) Lieutenant Colonels in the Defence Forces and particularly in the Air Corps

were senior managers. There were only 4 other appointments more senior to the

Lieutenant Colonel grade in the Air Corps. In claims for other allowances,

through the Conciliation and Arbitration scheme for members of the Permanent

Defence Force, RACO had successfully argued that Lieutenant Colonels were

at a level corresponding to Assistant Principals in the Civil Service. The higher

rate of remuneration paid for progression through the ranks/grades was intended

to cover any extra liability to duty that might arise.

(c) In an effort to reach an amicable arrangement on this claim, an offer had been

made to RACO. This had involved the payment of an allowance equivalent to

SDA to Commandants performing the EAS duties, with effect from 1 January

2016. This offer had been made on the basis that it was exceptional and that it

would be temporary in nature until sufficient junior officers were available to

take up these duties in the future. The representative association had rejected

the offer to settle the claim.

(d) The Official side could not concede on the entirety of the claim which included

the payment of the allowance to Lieutenant Colonels because of the risk of

likely contagion across the public service which could impose a significant

burden of liability on the Exchequer (i.e. the taxpayer).

(e) RACO had made a claim in the past for the application of a Search and Rescue

Allowance to Air Ambulance crews or alternatively the introduction of an Air

Ambulance allowance. This claim had been rejected by the Adjudicator. In the

instant case the Department sought to uphold the rationale behind that decision

by seeking the rejection of the current claim also.

(f) In conclusion, the Official Side contended that the Representative Side had not

established a rationale or justification for the payment of SDA to senior officers

in the Air Corps and accordingly requested the Adjudicator to reject RACO’s

claim.

12

Finding

52. It is clear that both the allowances in question are not allowances related to the level of

line managerial responsibility of the personnel carrying out the tasks but, rather,

allowances related to the dangerous nature of the tasks involved and the responsibilities

which ensued from same which are not related to rank.

Emergency Aeromedical Service

53. It is clear that the original intention was that the Officers involved in the Emergency

Aeromedical Service would be Captains and Lieutenants but that, in the absence of a

sufficient number of such qualified officers, the service is now, substantially, provided

by Commandants and Lieutenant Colonels. Figures provided for the adjudication show

that the EAS roster is currently staffed by 8 Senior Officers (Detachment Commanders)

and one Junior Officer. The eight senior officers on the roster consist of three Lieutenant

Colonels and five Commandants, while the sole Junior Officer is a Captain.

54. While there might be an argument to be made about the provision of the allowance to

senior officers carrying out the task on a very occasional basis, the situation which now

exists is that it is the norm for such senior officers to provide the bulk of the personnel

involved. This cannot be compared with a situation where senior Officers might be

required to provide the service on a “once in a blue moon” basis.

55. The Department has referred to an Adjudication Finding by Kieran McGovern dated 28

August, 2009 in support of their case. This was a claim for the application of the Search

and Rescue Allowance to Air Ambulance Crews, including Commandants. The

Adjudicator rejected this claim on two grounds, one of which was that the Gleeson

Report of 1990 had ruled that SDA was inappropriate for Commandants. (This,

however, was a secondary consideration of the Adjudicator as the finding states that the

more important issue was that the agreement on the Search and Rescue Allowance had

precluded the use of that settlement in pursuit of other claims). The Official Side argued

that the rationale of the finding on the Gleeson Report aspect required the rejection of

this claim.

56. I do not find this a compelling argument. If the Official Side’s position were that

Commandants should not be eligible for the allowance, then the argument might have

had some validity. However, this is not the case as the Official Side have already

conceded that Commandants should be entitled to the allowance – even if on an

“exceptional basis” – but not from the time they became regularly liable for the duty.

57. In any event, Mr. McGovern’s Adjudication Finding concerned a claim for the payment

of an allowance for personnel engaged on the Air Ambulance function equal to the

allowance payable for the Search and Rescue function.

13

58. The claim before this adjudication concerns the Emergency Aeromedical Service,

which comes within the definition of Helicopter Emergency Medical Service and is

entirely different to the Air Ambulance function.

59. It was made clear at the adjudication hearing that the Emergency Aeromedical Service

and the Air Ambulance function are not comparable in terms of risk profile and that the

Emergency Aeromedical Service operations are more hazardous than Search and

Rescue (SAR) for which an allowance had been payable to all ranks, including

Lieutenant Colonels.

60. In their Counter-Statement, the Official Side state:

Were it not for the restrictions of FEMPI at the time the payments to junior

officers commenced in 2012, sanction for a new allowance may have been

sought, and perhaps an EAS allowance would have been considered. This

prohibition against creating new allowances is still in force under the current

PSSA 2018-2020. However, the duties are not security related and do not come

within the range of duties which attract SDA.

61. It is clear, then, that, while the allowance that arises is described as “Security Duty

Allowance”, the only reason that it is so described is because of the constraints arising

from the Financial Emergency Measures in the Public Interest legislation. In these

circumstances, it would be absurd to preclude the payment of the monies involved to

Commandants and Lieutenant-Colonels because they are technically described as

“Security Duty Allowance” even though the Department states “the duties are not

security related and do not come within the range of duties which attract SDA.”

62. The Official Side have also referred to the fact that, in the Civil Service, Officers who

are at a level analogous to Lieutenant Colonels, do not receive payments such as

overtime for additional duties. As a result, they concluded that this precluded

Lieutenant-Colonels from receiving the allowance involved in this case.

63. I do not follow the logic of this argument. The allowance in question is not for

additional duties akin to overtime but an allowance related to hazards etc. The factors

which give rise to the allowance have nothing to do with additional duties such as

overtime and do not change because of the rank of the Officer carrying out the duty.

64. A further argument made by the Official Side is that concession of the claim could have

a repercussive effect of contagion across the entire public service, where analogous

grades who are not currently paid allowances for additional duties could use this case

as a precedent. The implications are a matter of concern as there could be a significant

cost to the Exchequer across all sectors of the public service.

14

65. I do not consider that this argument is a valid one. It involves pulling an extraordinarily

long bow as it is exceedingly difficult to see how any analogous situation could arise

and, again, is based on describing the task involved in the instant case as “additional

duties” when it clearly does not come withing such a description.

66. The Official Side have also argued that the claim is debarred by the provisions of the

Public Service Agreements on pay which preclude “cost-increasing” claims.

67. I fail to understand where the increase in costs arises. Were there a sufficient number

of junior officers available, the Department accepts that they would be in receipt of the

relevant allowances which has a specific cost. In the event that the Senior Officers

occupy the places which should, ideally, be filled by these junior officers and be paid

the allowance which the junior officers would have received, the cost is identical to

what was envisaged originally. Therefore, there is no increase in costs and, as a result,

this claim cannot be a cost-increasing claim.

68. Taking all the circumstances into account, my finding is as follows:

(a) Commandants and Lieutenant Colonels should be entitled to the Security Duty

Allowance which would have been payable to qualified junior officers were

they available while performing Emergency Aeromedical Service duties as

provided for in (b) following;

(b) The allowance should be payable from the time such officers were first assigned

to this duty on a continuous basis (i.e., 4 July, 2013) and should continue so

long as any officers of either of these ranks continue to be rostered for this duty

routinely.

Garda Air Support Unit

69. As regards position of personnel engaged on the Garda Air Support Unit (GASU), I

have noted that the circumstances in which Commandants have been assigned to this

duty is identical to the reason they have been assigned to the EAS function (i.e., the

absence of suitably qualified junior officers).

70. While I am very sympathetic to the claim for the Commandants on GASU duties in

these circumstances, I feel constrained about making a finding which is binding by the

clear ruling of the Gleeson Commission to the effect that Commandants should not be

entitled to SDA.

71. That said, I think that it is very unlikely that Gleeson could have envisaged a situation

where, as a matter of routine, Commandants would be assigned on a roster to carry out

a function normally carried out by junior officers who would have been entitled to SDA

in respect of the function involved.

15

72. I also note that the Gleeson Report stated that “relatively few Commandants do in fact

receive SDA in any week” which suggests that the Gleeson Report could not have

envisaged the circumstances applying in these cases when they recommended against

SDA for Commandants.

73. In addition, I was advised, during the course of the hearing for this adjudication, that

some Commandants (not involved in the EAS or GASU functions) are in receipt of

SDA, notwithstanding the conclusions of the Gleeson Report.

74. I am also satisfied that this claim is not a cost-increasing claim for the same reason that

I have found that that the claim concerning the EAS cannot be considered a cost-

increasing claim.

75. In the circumstances, I suggest to the parties that they should engage further on this

issue and that the Official Side should, in such discussions, adopt a sympathetic

approach to finding a mutually acceptable solution which takes account of the

exceptional circumstances which have arisen in the case of the routine rostered

deployment of Commandants on Garda Air Support Unit duties.

Daniel Murphy,

Adjudicator.

29 January, 2021