On Section 1, might I mention that in the definition of officers of the Houses of the Oireachtas the term "Assistant Clerk of Dáil Éireann or Seanad Éireann" should be changed to "Clerk-Assistant"? I presume a verbal amendment is not necessary.
Committee on Finance. - Civil Service Regulation Bill, 1956—Committee Stage.
Question proposed: "That Section 1 stand part of the Bill."
Question put and agreed to.
Section 2 agreed to.
SECTION 3.
Question proposed: "That Section 3 stand part of the Bill."
I would like to refer here to a matter which will subsequently arise on an amendment standing in my name, namely, the power of suspension. In Section 3 it is laid down fairly clearly as to who the suspending authority is in relation to a member of the Civil Service. In sub-section (2) the appropriate authority can designate or indicate who shall be his suspending authority and do that by reference to a particular person or a particular class of civil servant.
I would be glad if the Minister would indicate now in some greater detail exactly how and to what extent this power to suspend is delegated in the Civil Service. As the section stands, it would appear that that power is very definitely delegated and confined either to senior members indicated by name or members of a particular group. My information is that the practice is much looser than what is envisaged in this section and it is because of that that I have found it necessary to put down an amendment in relation to a later section.
I understand, possibly because the practice has grown up over a number of years, that in actual fact the power to suspend can and is exercised by a fairly large group of officers and that it largely depends on who is the senior member in a particular office or section as to whether or not the power to suspend is, in fact, exercised by a person of reasonable seniority or by one who is, shall I say, still on the lower rungs of the Civil Service ladder. I understand that it is possible for such a relatively junior officer as a minor staff officer to exercise this power under certain circumstances. Possibly my information may not be complete in that regard, but so I have been informed.
What I want to elicit from the Minister is what official has the power and I also want the ladder of delegation of authority in so far as this section is concerned. For example, the power is delegated by the appropriate authority —in this case by the Minister—to the Secretary of the Department. I take it for granted that, because the Secretary must of necessity be occupied with other duties or be absent from time to time, there will be other officers below who will also have the power to suspend. This power to suspend is, therefore, conferred in a descending line by the Minister down to a particular point or does it automatically follow that, as each senior officer is absent or not available, the power to suspend falls upon the officer immediately junior to him? I understand that is the practice.
I mention this because the power to suspend is a very important power. It is being embodied in an Act of the Oireachtas here. The intention quite clearly is to limit it. It is recognised as an important power to confer on any particular officer. It is also important from the point of view of members of the Civil Service because suspension can carry with it many serious consequential after-affects. Not only that, but it can be a source of irritation. It can, if improperly used, if you like, be a means of waging a personal vendetta and a manner of expressing personal dislikes and animosities which would not normally enter into this aspect of the matter. As far as the whole Bill is concerned, the power to suspend has a number of aspects, and the one that immediately occurs is the case of an officer of the State, whatever may be his rank, who commits an offence or is guilty of dereliction of duty in respect of which his continued presence in the position he occupies is prejudicial either to the interests of the State or to the welfare of the public. Quite clearly, his removal and suspension from that post is desirable as ordinary safeguarding action.
Secondly, there is the aspect that having been suspended, and the matter having been investigated, suspension may involve punitive decisions so far as payment of salary is concerned, possibly even demotion or dismissal. Equally, I notice in a later section, that the person who exercises the power of suspension can restore the person suspended to his post but it lies with the Minister to decide whether or not his salary will be paid. But so far as that power of suspension can be exercised by persons who have not got a sense of responsibility, and more important still, an atmosphere of relative remoteness, of being away from the individual who may be involved, it may well happen that the power of suspension can be abused and can, in fact, be utilised as a medium for relatively minor punitive actions which take place from time to time and would not call for any great investigation.
I am aware of one case where that actually happened, and a number of female employees of the State were each in turn suspended for one day because of their refusal to carry out certain duties. I also understand it may well happen that because of the position they would be in, the senior person in a particular office of the Department may not have relatively high rank, and that by the process of delegation of authority—the practice of delegation if you like—the power to suspend can be exercised relatively low down in the chain of command.
It is from the consideration of these matters that the section, as I say, is not clear because while it does indicate that the Minister will delegate, or give this power of suspension to a person who, as far as the section is concerned, is envisaged as being a responsible senior, it may well happen— and this is what I should like to have some light thrown on—and I believe it actually happens in practice in the Civil Service, that the power to suspend is in practice delegated not by written permission, not by direct authority, but merely by the fact of absence of a more senior officer. Finally, at what point does that power to suspend become no longer effective? Where can we be satisfied, from the point of view of the exercise of this power, there is a reasonable degree of experience, a reasonable status of seniority and above all, there is a sense of responsibility that can only be gained, in my experience, by the exercise of authority over a period?
If the Minister could enlighten me on this now it would probably be helpful later on when we come to deal with specific amendments.
The point raised by Deputy Larkin must be considered, I would suggest, in two separate contexts. In the first place, we have the civil servant working in the headquarters of his Department. Where the headquarters of the Department and all the workers are in the one building the problem is far simpler than in the case of Departments which have branches right through the State. In regard to headquarters operations, it is the universal practice that the head of the Department himself, the Secretary of the Department, would be consulted unless there was the most serious reason why he should not be available. If he were not available, it would be his deputy who would be consulted on a particular point.
Where it is not a question of employment at headquarters but employment throughout the country a different problem arises. Perhaps one of the best examples I can give the Deputy is that of a postmaster. Clearly, a postmaster must be in charge of his post office and of the staff operating it. Clearly, he must be in control of that office and of the staff to such a degree that the public interest is safeguarded. Similarly, there might be an officer working out the country in connection with a gang, shall we say. It would be essential that there would be discipline in that gang, but I want to put this point clearly in relation to those two cases: first, that the power of suspension would be and should be, obviously, most sparingly used, and secondly—and this I think is the important point—in relation to the penalty to which the Deputy referred, the withdrawal of pay, in no case, no matter who is the suspending authority, can the pay be withheld until the decision of the appropriate authority, that is to say, speaking very broadly, the Minister in charge of a particular Department, is given.
The penalty which would arise from suspension, the power of withholding salary is most jealously restricted and even though it may be necessary for an officer to suspend, nevertheless, such an officer has not got the power himself in any way to decide whether or not the pay should be withheld for the period during which the employee concerned was not, in the suspending officer's judgment, able to carry out his normal duties. We are all agreed, I am sure, that the desirable thing to ensure is that the most senior officer available on the spot would be the person who would be consulted and take the decision in relation to what I might term headquarters employees. That would always be the head of a Department unless there was some unusual reason why he was not available, and then it would devolve only on whoever was acting on his behalf in his absence.
I am glad the Minister recognises that power to suspend is a power that should not be exercised only after full deliberation and careful forethought. I hope he will bear that in mind later, but I am still in the dark as to how the power to suspend is delegated down the chain of command.
The Minister refers to headquarters, where possibly the Secretary of the Department has that power, but there are occasions where the junior ranks of the Civil Service have to work where there will not be any senior officer present. On many occasions it has happened that junior officers have to work without any senior officer——
Is the Deputy talking about headquarters or down the country?
No; headquarters. It is not unknown in circumstances like that for threats of suspension to be made fairly freely. I am not querying at this point the power of suspension. If, for example, in a headquarters the secretary is not available to whom, then, is the power of suspension delegated—to whom below the rank of secretary or assistant secretary will it extend? Where does it stop?
The Minister has pointed out that outside of headquarters there is a special problem and he mentioned the position of a postmaster. I do not think anybody would query the suggestion that the power of suspension should not go beyond the postmaster, but in the Department of Posts and Telegraphs the power to suspend can go much below that of the postmaster's job. Again, on what authoritative basis does that happen? In outside employment it is very rarely anybody except the manager or the employer himself would exercise such a power. It certainly would be exercised generally in somewhat different circumstances to what is envisaged in the Bill and to what—which is more important still—is the present practice in the Civil Service.
Because the Minister has laid such stress on the care that should be exercised with such a power of suspension, it is important that if this power is to be given to officers in the service it should first of all be clear as to how they get that power which the Minister is vesting in them and, secondly, there should be clarity as to the point at which it is no longer desirable this power of suspension should be vested. The Minister merely went as far as indicating the position of a postmaster. Like many other things, the practice has grown up whereby this power of suspension, if not always used, is flagrantly threatened by officers in much more junior positions than we have discussed here. That is not desirable. The position should be made clear that the authority flows from the Minister.
One of the things we are doing now is providing, in sub-section (2), that there must be specific nomination. I think it is fair enough to say that up to this the position has been fluid. This will make it more determinate. There must be a specific nomination by the appropriate authority. In a headquarters office I cannot visualise a situation arising in which there would be any reason to nominate, if everybody was together, anybody other than the establishment officer. On the other hand, a large Department might have, say, one office in Kildare street and another in Stephen's Green but in the general run it would be the establishment officer who would consult the head of the Department. I think it is fair for Deputy James Larkin to say that the position has been somewhat fluid up to this and I think the specific requirement in sub-section (2) that the appropriate authority, the Minister, will now have to make a formal nomination, will get over the fluidity that has been there up to this.
Question put and agreed to.
Section 4 agreed to.
SECTION 5.
Question proposed: "That Section 5 stand part of the Bill."
I appreciate what the intention is in the section but I wonder could we get something clearer, some more lucid expression of the contract of service.
I confess quite frankly that this is a re-enactment of similar provisions in the 1924 Act.
There is no other phrase that will meet the situation. The Government must be supreme.
I did not consider whether another phrase was desirable or not; I thought the existing one was satisfactory enough.
It is not a question of the supremacy of the Government but of the way in which it is stated.
It is the operative effect it has.
Question put and agreed to.
Sections 6 to 12, inclusive, agreed to.
SECTION 13.
I move amendment No. 1:—
In sub-section (1) (a), line 49, before "misconduct" to insert "grave".
Might I respectfully submit that in view of the fact that amendment No. 2 deals with the same subject both might be discussed together?
Would the Deputy mind taking amendments Nos. 1, 2 and 3 together?
I think we could discuss the three together. The purpose of the three amendments is to try and clarify the position in regard to the suspension of an officer. We have already dealt with the question of the suspending authority. From what the Minister has said it appears to me there now will be a considerable improvement in the practice that has prevailed, but even though the Minister is now going to take steps to ensure that there will be direct nomination of the official having the power to suspend, I think, because of the phrase used by the Minister about the importance of this power to suspend and the desirability of exercising it properly, that may not hold good. As Section 3 now stands it appears that the power to suspend is envisaged, from the point of view of the Minister, as having two aspects.
One is that it is a very important step to take to suspend an officer because, even if the suspension is subsequently lifted, it cannot be pointed to as being a good conduct mark on the officer's career to have it recorded that at any time it was found necessary to suspend him even though, in subsequent investigations, any imputed misconduct was cleared up. It is suggested now that we might limit this suspension in respect of confinement to matters of grave misconduct, not merely misconduct — serious irregularity rather than the bare word "irregularity". The conception of what misconduct means can vary from officer to officer exercising the authority to suspend, and if at any point an officer wishes to append his own conception of the degree of seriousness in respect of some act then automatically he is entitled to exercise this power of suspension if it has been delegated to him.
As the section stands at the moment the only limiting qualification I can find is that the misconduct or irregularity shall warrant disciplinary action. My understanding of the suspension of any employee is that, not merely have they appeared to commit some offence or failed to carry out a duty, but that their continuation in their position in itself is prejudicial to the interests of the employment in which they are engaged or that it will have certain other serious consequential effects. Therefore, the question of suspension arises more from the desirability of immediately removing them from the exercise of their office or duties than from the point of view of imposing discipline.
If a person in the service is guilty of misconduct or irregularity the matter is duly noted by the senior officer, and it is to be taken for granted that there will be some form of inquiry after which, if it is found proved, some form of punitive decision will arise. So far as paragraph (a) is concerned that does not arise because in the case of the suspending authority the only question he requires to answer before he exercises power is, firstly, whether there has been misconduct, secondly, whether there has been irregularity, and, thirdly, whether either of these particular faults are of such a character as to warrant disciplinary action.
I would suggest that, having regard to the general concept of what is implied by the power to suspend, it would be desirable that that power to suspend, even when exercised by a duly authorised officer, should be confined, first of all, by the insertion of the word "grave"—only for grave misconduct or serious irregularity— but more important still that the overriding qualification should be that which I have set down in the third amendment, namely, that no interest of the Civil Service might be prejudiced by allowing the officer to remain on duty. I respectfully suggest that that is the main and most important argument in the exercise of the power of suspension. It is quite possible that an officer may be guilty of grave misconduct or serious irregularity and yet, because of the nature of that particular offence or because of where the officer was carrying out his duty, no question of prejudicing the interests of the Civil Service and the public would arise, and that the matter could be fully dealt with after investigation or inquiry by normal punitive measures, even those most serious in character.
The important aspect I would stress is that, in granting the power of suspension, the overriding factor should be the present interests of the Civil Service and the public, and that unless it is quite clearly prejudiced by the conduct of the officer on duty, as far as the power of suspension is concerned, that power should not be exercised. Secondly, it should be limited to the more grave and serious irregularities. I agree, in the light of what the Minister says now, that some of the—I will not say abuses—peculiarities that have occurred in the past will not be repeated. In so far as we are giving this power, I think it is desirable that we should have a full understanding of what that means. For that reason I have put down amendments to try and clearly establish that. As the Minister says, it is a serious and grave matter to exercise this power. I suggest that the main and overriding qualification is that the suspension of the officer is necessitated by the best interests of the service and not merely by the character or the aspect of the action of misconduct or irregularity he is alleged to have committed.
I would agree with Deputy Larkin that it would be a most regrettable thing if any officer with suspending authority should act arbitrarily or without due consideration. One would like to accept any possible safeguard against that but my difficulty in relation to Deputy Larkin's amendment is this. I do not see how any suspending authority could possibly act if the misconduct or irregularity were to be qualified in the manner which Deputy Larkin suggests. It would mean that every suspending authority before he acted would feel that he must be in a position to show that conduct was grave misconduct, not merely to his own satisfaction but to the satisfaction of other people and similarly, that the irregularity must be a serious irregularity, not merely in his own judgment but to the full satisfaction of somebody else to whom the civil servant might appeal.
If these qualifying adjectives were to be put in the Bill the appeal might lie to some tribunal other than that of the Minister despite the terms of Section 5 of the Bill. The civil servant whose conduct would call for suspension or who had been suspended might be able to go to the courts and say: "After all, the will and pleasure of the Government was limited by the fact that it could not suspend unless I was guilty of grave misconduct" and the whole matter would have to be thrashed out in the courts. I could not see how the public service could operate on that basis.
There is another aspect of it. If a person is to be nominated as the suspending authority under Section 3, he must first of all be a senior officer in the service and must be a person who has shown beyond any manner of doubt that he is a person who will act objectively and with full consideration. It seems to me that if the Deputy's amendments were to be accepted we should in fact stultify the suspending authority in the discharge of his proper duty which is to ensure that any person who in his view has been guilty of misconduct warranting disciplinary action will be suspended or has been charged with misconduct or irregularity which warrants investigation. I could see that we would get into a very difficult situation.
Suppose a person were suspected of having embezzled public moneys or were guilty of some financial irregularity in the handling of public moneys. Suppose it was a case of suspicion, but suspicion grave enough to make it prudent that the person who was under suspicion should be suspended so as to prevent his continuing to commit these irregularities, if in fact he had already done so. It seems to me that with Deputy Larkin's amendment it would not be possible to deal with that question for the reason I have said, that it might open a way to an appeal from the Minister and the Government to the courts. I cannot conceive public service in this State being carried on effectively and efficiently unless the authority of the Government in relation to the officers in the public service is supreme, and not limited in any way except for the fact that the Government is answerable to Dáil Éireann in the ultimate resort for any injustice that it or its officers might be guilty of in regard to any citizen, whether he is a public servant or not.
For that reason, therefore, although I am sure that I should be in full concord with the Minister in being anxious to see that nothing was done arbitrarily and that nothing was done unjustly, it appears to me that the best safeguard against injustice or arbitrary treatment is the fact that, as the Minister has now provided for in the Bill, the suspending authority must be a responsible officer, duly nominated, who will be, no doubt, answerable to his superiors and ultimately to his Minister if he would suspend a civil servant who was not guilty of conduct warranting such a suspension.
I thought I understood this. I have heard the arguments and am now becoming rather vague. I should have thought—and I should like the Minister to tell me if it is true— that the distinction in paragraphs (a) and (b) of sub-section (1) of Section 13 was that in (a) the misconduct or irregularity is governed by the phrase "warranting disciplinary action" to begin with, and also that this is to cover cases where the suspending authority is himself aware of the misconduct or irregularity, whereas in paragraph (b) it is a question of a charge made to the suspending authority by someone else.
One, so to speak, internal, the other external, so to speak?
Exactly. I do not see that the addition of the word "grave" to "misconduct" in paragraph (a) has any real effect at all because it is already governed by "warranting disciplinary action," which surely in itself means "grave". There seems to me to be confusion as to the purpose of the two paragraphs. It seems to me reasonably clear that one is internal and within the knowledge of the suspending authority and that the other is something reported and it is a matter of suspending while that charge is being investigated.
Deputy Larkin in amendment No. 3 specifiees "the interest of the Civil Service". When he was speaking he used sometimes that phrase and sometimes the phrase "the interest of the public". We must consider this entirely from the public interest. The civil servants are there to serve the public interest and I would suggest, and I think Deputy Larkin will agree with me, that any consideration that we must give to this section is the public interest. I do not think the Deputy meant any difference between the two phrases.
Secondly, I am not quite clear why the Deputy put, in amendment No. 1, "grave" and, in amendment No. 2, "serious", whether he intended there to be any difference between "grave" and "serious". I personally think that the case might be argued just as well on the same word in both amendments. I propose to take it on that basis.
Paragraph (a) of sub-section (1) deals with a case where the suspending authority is there and then in possession of the facts. Paragraph (b) deals with the case where a charge has been made by some outside person and the suspending authority deems it necessary to investigate that charge before deciding whether the complaint is sufficiently justified to warrant suspension or not.
Let me come back, however, to the first two amendments put forward by Deputy Larkin. I come back again to the example I gave already, the postmaster. We all must accept that Christmas is a time of some convivial gatherings. Supposing a man comes into a post office suffering to such an extent from the Christmas spirit that he is unable to carry out his duties, clearly he should not be kept there working while he is in that condition. If I accepted Deputy Larkin's amendments, I would be classifying that demeanour on, perhaps, Christmas Eve, however reprehensible it may be, as being grave misconduct or grave irregularity and, while all of us would wish that such should not happen, we must at the same time be human and remember that it can occasionally happen and it would mean, in effect, if we dealt with the matter as is suggested in the amendments by Deputy Larkin, that action of a very grave nature might have to be taken because of something that was not quite so grave as all that but which undoubtedly was such that the public interest would require that the officer concerned should not carry out his duties at that moment. I do not know whether Deputy Larkin intended that his amendments should lead to that result or not but, in their phraseology and in the manner in which they are down, the situation would be such that I would then have to regard that man's action on Christmas Eve as having been grave misconduct.
I must, of course, reject the suggestion that the decision on whether the conduct was such as required in the public interest that the person concerned should not remain on duty could go for interpretation in the courts. That would lead to a plethora of legislation that would be entirely undesirable and would completely stultify any proper administration. Quite candidly, I do not think that Deputy Larkin meant that by his amendment——
I am sure he did not.
——although in fact it would arrive at that. I am prepared to meet Deputy Larkin to this extent, if the House thinks that it would meet the case: I am quite prepared to agree that there should be a paragraph (a) of Section 13, sub-section (1); that it should cover grave misconduct or grave irregularity provided that I then have another new paragraph (b) which would give the suspending authority power to suspend if, in the opinion of the suspending authority, the public interest would be prejudiced by allowing the civil servant to remain on duty. I think it would be absolutely essential to have that provision if you had the other amendments.
It would mean that the governing factor would be that the suspending authority, being a person in a responsible position, a person with experience, a person who should not act unreasonably would realise that, if he did act unreasonably, he would get into serious trouble with his Minister—and it must go to his Minister—if he acted on the power of suspension without due regard to its seriousness. But you must provide that the case where a person could not be, in the public interest, kept on duty, must be judged by the person in charge, in the public interest, at that time and that his judgment must not be in any way fettered by the feeling that he might be brought to task in court for the exercise of his bona fide judgment.
As long as the suspending officer has that power in his own judgment to decide in the public interest that it is undesirable for that officer to remain on duty—and I accept wholeheartedly that it must be the public interest that is the governing factor—bearing in mind that the suspending officer is a responsible officer, I would be prepared to accept either of the two words—I do not mind—but I think it should be the same word that is used in both cases.
I am sorry that the Minister does not propose to keep the section in the form in which it originally appeared. It seems to me we may be opening the door to a great deal of controversy if it does not go further. If the Minister is disposed to meet the points raised by Deputy Larkin then I would suggest there might be an amendment made to the section which would preserve to the appropriate authority absolute power of decision in this matter.
That is what I said. I said it must be in the opinion of the suspending authority that the public interest would be prejudiced. It must be in the opinion of the suspending authority.
Would the Minister say what happens if it is a case that the postmaster himself is the worse of the wear at Christmas?
That depends on the class of post office it is and who his superior officer is.
In the light of the discussion on Section 3 and what the Minister said then, and in the light of the discussion on my amendment, I see no difficulty in accepting the viewpoint of the Minister. First of all, it has to be borne in mind that amendments come seriatim and that you try to cover a position from a number of aspects. The important amendment I think is neither No. 1 nor No. 2 but No. 3, in so far as the suspension is concerned. I agree entirely that where the officer is in a bad condition or, if not under the influence of drink, in a bad temper, it is better in the public interest and in his own interest that he goes home. In the ordinary private employment he is usually told to go home. I wonder whether it might meet the position—it certainly would meet my view—if instead of putting in the words "grave" and "serious" we put in what the Minister suggests, namely, that if the suspending officer is satisfied that it was in the public interest the officer should be suspended. That is what I want to get at because I do not regard suspension as a disciplinary measure. The disciplinary measure comes after the suspension.
I do agree that in certain cases an individual officer may be relieved from duty either in his own interest or in the interests of the public. The overriding factor is the public interest. I am quite prepared to accept that the suspending officer will form that judgment himself and naturally he will take the full responsibility for it and if he in his wisdom and judgment decides that it is necessary to exercise the power of suspenion in the public interest I personally will be quite satisfied with that.
I also was somewhat intrigued as to the difference between paragraphs (a) and (b) and I am not entirely satisfied that, just because we are dealing with two different aspects of the same problem, two different approaches are being laid down here. The first question is where the suspending officer of his own knowledge has sufficient evidence to permit him to exercise and make his decision. The second is where the charge is made to the suspending officer and the matter has to be investigated because he has not got personal knowledge.
In the case of paragraph (b), while it refers to grave misconduct and grave irregularity, it still is tied up with the question of investigation. There can be quite clearly fairly grave irregularities which, although they would warrant investigation, might not require suspension, and from that point of view there is a strong case for trying to pursue the line we have been discussing, that where we are merely speaking of misconduct, irrespective of the degree of the irregularity, there would be the limiting proviso that the suspending authority should be satisfied himself that the suspension of the officer is required in the public interest. That clearly draws the distinction between the two situations that might develop and it does clearly designate that what is involved here is not a disciplinary measure which in fact is being initiated by a single officer maybe in the heat of the moment or in some hasty judgment but rather safeguarding the overall interest of the public and the efficiency of the service. Subsequently it will be possible to determine what is the degree of misconduct or irregularity and the punishment to be involved. If that matter could be dealt with by the Minister I would certainly be quite willing to withdraw the amendment and leave it in his hands.
I considered this matter before to-day and I would like the Deputy to be quite clear as to what I am prepared to do. It would involve that I would add between clauses (a) and (b) a new clause (b). It would be another alternative, so to speak, if it appears to the suspending officer that the public interest might be prejudiced by allowing the civil servant on duty. I am not quite clear from what Deputy Larkin has said whether, when he got that additional clause, he would be anxious that the word "grave" or the word "serious" would be added in paragraph (a).
The Minister's suggestion is to put in a third clause directly relating the power of suspension to the question as to whether the best interests of the public would be prejudiced by allowing the person to remain on duty. I would prefer to see that directly related to clause (a) because clause (a) as it stands has no limitation whatever except the word "misconduct" and the word "irregularity" are there. It may be minor or grave. I agree that we must largely take it for granted that under the new arrangements following the enactment of this Bill the suspending authority will be a responsible officer, a matter about which I have had grave doubt in the past. However, even a very responsible officer can be involved in personal relationships which prejudice his own judgment. He may be guilty of hasty decisions and he may also be guilty of unfair decisions. For instance, most of the time of this House is taken up questioning the degree of responsibility of Ministers, not to mind the ordinary senior officers of the Civil Service, and we have listened to a good deal of that in the last few hours. Deputy McQuillan has said in regard to the postmaster that maybe it is the postmaster who will be a little out of control at Christmas.
What we have got to bear in mind here is that we are not dealing with official positions only. We are dealing with personal relations in an official service. I submit it is not sufficient to give this power of suspension even to a senior and responsible officer, allowing him to exercise it purely on the basis that it can be done in relation to an act of misconduct, without any qualification as to the degree of seriousness or of irregularity. We have to some extent accepted the view that the public interest is the overriding factor. I feel I would not be pressing the Minister unduly if I suggested that, instead of putting it in the third paragraph, the qualification referring to the public interest might be put in as an amendment to paragraph (a).
The Minister is thinking largely along the lines I hoped he would when I put down the amendments. It may at the moment be a bit difficult to think in terms of a definite draft amendment. If the Minister is willing to deal with this along the lines we have discussed here I will be quite prepared to leave the matter in his hands and wait to see what he will bring in on the Report Stage. To put in the third paragraph on the lines he suggests is merely to add, if you like, a third basis on which the power of suspension can be exercised without in any way qualifying or limiting.
The Deputy misunderstood me. What I meant was to add a third paragraph and add the word "grave" in paragraph (a).
Having been convinced by the Minister's argument earlier on the desirability of putting in "grave", I accept the Minister's view on that.
Then I would move on the public interest paragraph rather than on the first one.
Amendment, by leave, withdrawn.
Amendments Nos. 2 and 3, by leave, withdrawn.
Sections 13 and 14 agreed to.
SECTION 15.
I move amendment No. 4:—
In sub-section (5), page 12, line 29, before "shall" to insert "or a recognised staff organisation acting on his behalf and of which he is a member".
The purpose of this amendment is to provide that the civil servant concerned shall be afforded the opportunity of making representations to the appropriate authority through the recognised staff organisation of which he is a member and which he desires to act on his behalf. I appreciate I am possibly trying to break fairly new ground here. I understand that the Minister's viewpoint is that it is not permissible or acceptable to have recognised Civil Service organisations heard or permit them to make representations in matters of a purely disciplinary character. Quite clearly we are dealing with discipline here.
My purpose is to ensure that the officer who may be in jeopardy shall have the opportunity of securing the advice of the organisation of which he is a member and, more important still, be afforded the opportunity of having that organisation make representations on his behalf. I regard that as one of the most important and valuable aspects of the right of organisations or associations, apart from collective representation and collective bargaining.
It is accepted by the Government that civil servants are entitled to have staff organisations which are afforded the right of representation. Those organisations engage in negotiation and discussion in relation to conditions of employment. It is only when the individual finds that he requires a specialised service that difficulty arises. So far as civil servants are concerned, while they are members of what are regarded in practice as trade unions, because they are employees of the State, not only are they not entitled to exercise the right to strike but, as a practical measure, it is almost impossible to think in terms of their being effectively able to use that weapon and their membership of staff organisations therefore is, in fact, merely the medium through which they make collective submissions to the Minister in respect of their remuneration and conditions of employment. So far as the individual is concerned, he naturally gains if the staff organisation is successful. But that organisation is not a direct personal link in so far as his personal employment and service is concerned.
I have had experience in outside employment where the same situation arises. I have discovered that, from the point of view of the member as an individual and not as part of a collective organisation, probably the most important service that can be rendered to him is that, when he requires what might be described as an independent source of advocacy before his employer, it is possible for the trade union to provide that for him. That is not the position in the Civil Service. Where a civil servant is the subject of disciplinary action and where that has reached the point that a final decision is about to be made—that decision may be anything from loss of pay to dismissal—he is afforded the opportunity of making representations but it is most important that with that right at that point he should have the advice of his staff organisation. Secondly, the staff organisation, because of its experience and standing, should be permitted to make representations on his behalf.
It does not state whether the civil servant will make the representations personally or in writing. I take it the intention is that he will be afforded a personal opportunity of making representations. I am not concerned with that at the moment. What I am concerned with is that he should be afforded this measure of assistance by his staff organisation and that the staff organisation, in turn, should be afforded the opportunity of making representations on behalf of the officer, if he so desires.
I am well aware that in many employments, while there is no objection to the right of association in a trade union or organisation of employees and while there will be unlimited collective bargaining in regard to conditions of employment, there is objection to that type of organisation having anything to do with purely disciplinary matters. I suggest that the most important service a staff organisation can render to an individual civil servant in a direct and personal way is the giving to him of assistance and guidance in relation to representation in respect of perhaps the most personal matter of all, namely, disciplinary action which may vitally affect his position. I am somewhat at a loss to understand on what ground objection can be taken to this amendment, particularly since the Government accepted and accorded to civil servants the right to have staff organisations. They have accorded them the right of audience and negotiation. They have accorded to them a quite elaborate and quite effective conciliation and arbitration machinery.
In addition to that, in an over-all and general way, this State has affirmed its adoption of the Convention of the International Labour Office on this very question of the right to organise and to freedom of association. I would impress on the Minister from my experience in a type of employment similar to the Civil Service, where what we regard as the effective industrial weapon that can be exercised by organised bodies of employees and workers is not present and available, that the most essential aspect of that right of association, the right of collective representations, is, so far as the individual civil servant is concerned, the possibility that when he is placed in the position where there is danger to his employment, to his post or remuneration, that he can then at that point call in the assistance and advocacy of his organisation and have it there and then used as the medium through which he makes his representations.
One other aspect which I would stress is this. In the case, say, of an individual civil servant who, for any reason, finds himself in jeopardy in so far as his employment is concerned, being accorded this right of making representation to the appropriate authority, which of course, in most cases would be the Minister, it is at the final point, before any action is taken. The whole matter has been the subject of inquiry by various officers in the Civil Service, most of whom will be experienced and will have a wide grip of the problems involved. In a case of this type, where the matter is going to the Minister for the final action to be taken, if at that point the civil servant who may not have a very wide experience and may not have very great ability in making a submission of his representation, is to be afforded this right, it may be ineffective so far as the individual is concerned because he may lack the experience or he may fail to understand various aspects of the charge made against him. Possibly, too, he has no appreciation of the public issues involved. He may not have a knowledge of precedents, what happened in previous cases, and yet he is to be afforded this right by virtue of the authority of this House. In many ways, we are giving him something that may be of great value, but if he exercises it in a wrong way it may do more harm than good.
I think it is a most important aspect of the matter, that in the over-all fixation of the terms of employment of civil servants we accord official recognition to staff associations and the Minister and his leading officials meet them and so on. I think we should complete our recognition by according to them in regard to representing individual civil servants the same collective recognition that we grant them as a body. I would impress on the Minister that whatever difficulties he may feel may arise in regard to allowing staff organisations to make representations on this matter it is most important. To the extent that it will only be made under sub-section (5) and at a point before any action is taken, I think it will not in any way prejudice the effect of the present disciplinary machinery. It will at least take us to the point where not only will justice be done but it will also appear to be done, by giving the opportunity for the making of reasonable and fair representations which the Minister himself feels a civil servant in such circumstances is entitled to make.
I must confess that I think it would be undesirable to implement in legislation the suggestions that have been made by Deputy Larkin in his speech on the amendment. I do not think that references of that type are desirable additions to the legislation. I think it is correct that the representations that the civil servant concerned is entitled to make should be made at the point at which, as the Deputy correctly stated, they are to be made under sub-section (5) of the Bill. I accept, however, the point of view that in relation to the more serious penalty, where it is a question of a man keeping or losing his employment, in relation to dismissals, it might be desirable to have an opportunity given to a civil servant in that case of making representations through his staff organisation.
I have already told the staff organisations that I propose to permit them —we will try it and see how it works and I hope and believe it will work well—to make representations in writing in relation to any case where they are requested to act by the civil servant concerned and where dismissal is involved. The House is aware that Section 17 provides that there can be certain arrangements made by the Minister for Finance for the carrying out of the detailed implementation of regulations of the Civil Service. I may say, as part of those arrangements, I propose to provide that an officer, when the point is reached that dismissal would be the penalty, would be notified under sub-section (5) that he has the right to offer any representations he may wish, and to add at the time when that notification is sent to him that he may if he so wishes get his staff organisation to make representations on his behalf.
I do not think it would be desirable to write that into the statute. As I say, I have already informed the Civil Service Associations that I am prepared to give them that opportunity as an extra-statutory procedure, and I mention that in the House so that when the practice arises it will be considered as part of the precedent for the future.
Generally, I am more concerned with the substance than the form, and whether the right of representation accorded to staff organisations is embodied in the amendment under sub-section (5) or whether this is done in the form indicated by the Minister matters little, because it will become part of the negotiation machinery between the Minister and the recognised staff associations.
He has indicated what he is prepared to do in that regard but he has also indicated that he feels it should be effective only in the case of possible dismissals. I am somewhat at a loss to understand why—I shall not say he concedes that point—but why he agrees that the right of representation by staff organisations on behalf of a civil servant should be accorded in the case of a dismissal and should not be accorded also in the two other cases that are dealt with under this section.
A civil servant could be placed on a low rate of remuneration, he could be reduced to a low rank or there could be a combination of both.
I agree that the physical act of dismissal is the final and complete break as between the individual and the service, but it may happen that a decision to reduce a civil servant to a lower grade and to combine that with a reduction in remuneration may be of such a nature that it would set an individual civil servant a problem in respect of which he may feel that he might just as well be dismissed. He may decide to resign because the reduction in remuneration may be of such a serious character as very gravely to impair and undermine his whole status and personal prestige in the service.
I am somewhat in the dark as to why, at least in regard to charges which would involve a fairly serious reduction of remuneration or grade, it is considered justifiable to impose the disciplinary action of dismissal. Of course a great deal depends on the Minister's officials. Am I to understand that in regard to every action involving some punitive or disciplinary measures there is to be the right of representation and that that will not imperil or prejudice the disciplinary machinery? It may give rise to a great deal of clogging and from that practical viewpoint it might be felt that the right of representation through the staffs' organisation should be limited in some degree. I think the Minister will appreciate that there may be punitive measures other than dismissal imposed on the individual which can have almost as serious effects on the individual as dismissal. They can quite clearly be measures which, if applied, would make the individual feel that possibly it would have been better if he had been dismissed, that would make him feel there was no alternative left to him but to resign.
The Minister has accepted the principle of the amendment in so far as to indicate that it is not essential to have it embodied in legislation, but has suggested that the Minister and the staff organisation would be able to give effect to it. Accordingly, I shall not press it further in view of the fact that it might be given an examination elsewhere. It might also be conceded to the individual civil servant in matters involving action short of dismissal. It should be remembered, as I have said already, that an officer can be very seriously undermined in his prestige and position by certain punitive measures short of dismissal. If the individual civil servant were given a fair and a just hearing and a final opportunity of making representations, I do think that, in so far as there are other serious disciplinary measures besides dismissal, the Minister might consider, apart from this Bill altogether, the possibility of opening this door a little wider.
The main class of persons affected would be in the postal service. There are existing procedures applicable and they will be extended under this Bill.
Amendment, by leave, withdrawn.
Section 15 agreed to.
Sections 16 to 23, inclusive, agreed to.
Schedule and Title agreed to.
Bill reported without amendment.
Report Stage ordered for Thursday, 22nd November, 1956.