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Dáil Éireann debate -
Tuesday, 22 Apr 1980

Vol. 319 No. 9

Local Government (superannuation) (No. 2) Bill, 1979 [Seanad]: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time".

(Cavan-Monaghan): When the debate was adjourned I had said most of what I wanted to say on the general principle of the Bill and on the principle involved in introducing retrospective legislation to authorise or to make payments. I pointed out that it is provided in section 12 that sections 2, 3, 4, 9 and 10 shall be deemed to have come into operation on such day or days prior to the passing of the Act as may be fixed therefor by order of the Minister.

I think I am correct in thinking that these sections have the effect of giving authority to the Minister to make superannuation schemes for local authority employees. Section 2 gives that specifically. Section 3 gives the Minister power to amend schemes regarding existing local government superannuation. Section 4 authorises the payment of gratuities to certain local government employees for non-pensionable service. Section 9 amends an Act passed in 1971, the Local Government Services (Corporate Bodies) Act, 1970.

As I said on the last occasion, I am very much against this type of legislation which legalieses actions that have been taken, payments that have been made and schemes introduced some considerable time ago, presumably on the basis that they will be ratified in due course by Dáil and Seanad. I think it is setting up an extremely bad precedent which, if allowed to drift on, will lead to trouble in the future. There can be little doubt about that.

My argument is based on the fact that the Minister now in office, and I presume his predecessors, have assumed that Parliament will ratify these types of payments. In the past we had the Department of Local Government, and the various local authorities were confronted with such things as the innovation of the five-day week and the lifting of the marriage ban. Both made it necessary to operate schemes in a different way, and my understanding of the situation following the introduction of the five-day week is that all sorts of assumptions had to be made. Particularly it had to be assumed that if an employee had the opportunity to do so he would have worked on the sixth day if work were available on that day. Of course there was not any guarantee that the employee would have worked on the sixth day. Local authorities drew up a scheme on that basis, and we are now being asked to authorise the Minister retrospectively to bring in a scheme to cover that sort of situation.

If the Bill did not contain these retrospective provisions a lot could be said for it because it makes the law regarding superannuation schemes much more flexible and it allows alterations to be made, if the need occurs, in respect of the instances I have been speaking about, the five-day week and the lifting of the marriage ban. It also gives authority to introduce categories of employees who had not previously been covered into schemes and authorises local authorities to alter the conditions of qualification for superannuation or lump sums.

In considering the Bill it struck me that the simplification of the formation of schemes might lead to frequent changes in them. Indeed perhaps even superannuation and the conditions for qualification could be used as a bargaining weapon either by the official side of local authorities or by the employees and that too frequent alteration of these schemes could lead to confusion.

Certain sections of a number of Acts will be repealed when the Minister makes the necessary order, Acts such as the Local Government Act, 1925, the Vocational Education Act, 1930, the Agriculture Act, 1931, the Pensions Abatement Act 1965, the Health Act 1970; the Local Government (Superannuation) Acts of 1948 and 1956 which are being repealed in toto. In section 6 of this Bill the rights which have accrued under sections of Acts which are being repealed are being preserved to the employees. In other words, it is stipulated in section 6 that the repeal or amendment of any enactment by or under this Bill shall not operate to reduce any pension and so on, that it shall not operate to take away any rights which have accrued already to employees. It is very important that a liberal interpretation be exercised when deciding what rights have and have not accrued. Everything is not white and black in the measures which are being repealed; there are certain grey areas. For example, I understand that certain questions could arise as to the rights of officers of local authorities who get married and who retire after marriage. I think it is under an Act of 1956 an official of a local authority can retire after marriage if that officer has not opted for the new scheme. I believe the question can arise as to whether a lady officer of a local authority could remain on for several years and then decide to retire and qualify for the retirement lump sum. One interpretation is that if a lady officer has five years' service, if she intends to retire and claim the lump sum, she must do so within two years. I understand that another interpretation is that, in certain circumstances, the officer could remain on for many more years and then decide to retire. I should like to know from the Minister which interpretation he intends putting on the various sections giving rise to that situation.

The Bill, as drafted, also makes provision for the granting of gratuities for non-pensionable service. This is an improvement on the present situation but I should like the Minister to say whether that will cover, say, a person who has been employed for several years on rates, as they are known, but who is employed for virtually most of the year on a temporary basis. Will that type of officer qualify for a gratuity in lieu of a pension? Also what will be the position of veterinary surgeons employed by local authorities over a long period but who do not qualify for pension? Will they qualify for the type of lump sum mentioned here?

Those are some of the questions that occur to me and that we shall be raising on Committee Stage. I can sum up my attitude to the Bill by saying that in so far as it is a retrospective measure going back over a period of several years, meant to ratify schemes that have been operated, pensions that have been granted and lump sums paid out without any statutory authority, I am dead against it. I am sure there have been no abuses. Nevertheless, in the sort of parliamentary democracy we have— which is the best type of government, bad and all as some people think it, yet found—it is necessary that authority be sought from this House and not as sumed or taken for granted. If I am correct—and the Minister will correct me if I am wrong—this Bill, and particularly section 12, is so drafted as to ratify things that have been done over several years, certainly since the introduction of the five-day week and the lifting of the marriage ban. Therefore, so much for the principle of retrospective legislation.

As far as the individual sections of the Bill are concerned, I have raised in a general way the points that I would like to raise in more detail when we come to Committee Stage.

This Bill has come to us from the Seanad where it has been debated at some length. As Deputy Fitzpatrick has indicated in his concluding remarks, it is essentially enabling legislation. The purpose of Second Stage debates in this House is to explore and debate the principle behind the legislation. Committee Stage is the period in which we go through the various sections.

I do not think that anybody on any side of the House questions seriously the principle of pension schemes, particularly for public service employees. Indeed, it is held out frequently by mothers and wise uncles that one of the attractions of the civil service is the pension. Therefore, on Second Stage in a debate like this there is not much point in trailing down through the various sections when we are going to get a reasonable bite at them on Committee Stage.

I have had discussions with a number of people involved and we are concerned about why it has taken so long for this Bill to come to both Houses. In his reply the Minister might indicate the reason for this. The scheme basically was thrashed out during 1976 and I understand it was agreed in 1977. This is not any reflection on the Minister of State, Deputy Fahey, but increasingly the House has been asked to rubber-stamp in retrospect decisions that have been taken by the Minister of the day. It might be more realistic to say the Department of the day, because frequently the Minister is not in a position to evaluate one way or the other whether it should be done.

What is the purpose of this House at all in authorising retrospectively actions taken by the Minister? Let us suppose theoretically that we decide not to pass this Bill. Does that make invalid the actions that have been taken by officials in the Department of the Minister of State? Does that mean that lump sum moneys will have to be repaid? Is some kind of farcical charade taking place? Does anybody seriously think that officials can be requested to return the payments made to them? Does it not make a mockery of the whole process of an accountable civil service? The issues raised in that kind of commentary belong to another place, another debate and another day.

In fairness to the House, increasingly we are seeing this kind of legislation coming from the Department of the Environment. We had it in relation to the Housing (Miscellaneous Provisions) Bill. That is another piece of disgraceful legislation from that Department where the Bill was moved ostensibly in December 1977 if I am correct in my memory—perhaps Deputy Fitzpatrick will remind me—and it was virtually a full year later, certainly six months, before we got the Second Stage. The record shows that it was tabled for reading and introduced in the House in December 1977. Again, there were bits and pieces of grants and regulations that had been authorised by the Department of the Environment.

There are a number of points which can be made usefully only on Committee Stage and not on Second Stage. Therefore, I do not propose to go down through the Bill at all. Obviously, we are in favour of a pension scheme that can be negotiated with the representatives of the employees, but I have one question of a general nature to put to the Minister. Frequently I get representations, as many other Deputies probably do, about people who cannot be employed by the local authority because they are over the age of 45. If such people are taken on for more than a year, apparently the local authority in question would be contracting to take on an obligation with them which involves pension rights.

To illustrate this I take the case of a woman who was a cleaner in Clonskeagh Hospital. The chief executive of the hospital contacted me in this case because the woman in question was working as a cleaner in the hospital and she had a natural capacity for working with elderly people. She got on exceptionally well with the ward staff and was nearly a sort of para-medic. They were very upset because she could not be kept on. They were looking for a replacement for her because the personnel department of the Eastern Health Board said that she was over the age of 45 and they could not employ her for more than six months at a time. They were getting into all kinds of nonsensical arrangements whereby she would be employed for six months, then they would find somebody whom they could employ for three months and they would then take her back for another six months.

That kind of anomaly is getting in the way of the principle of a pension scheme on the one hand, with which we all agree, and with the desire to maintain a certain degree of flexibility in employing staff. Many of the population have to change their employment after the age of 45 and the local authorities and the State generally are major employers in this country. There may be good technical reasons for the situation, but if technical reasons exist as to why somebody cannot be employed permanently after the age of 45, then those reasons have been created by the Department of the Environment and by the pension regulations generally. I hope that the provisions of this Bill will enable local authorities to have discretion to take on such people and so avoid the difficulty that my local authority and others also have experienced.

We welcome the principle of the Bill. We regret very much that it has taken so long to get here. My colleague, the former Minister for Local Government, on a number of occasions asked questions in this House about when it would be implemented. I conclude by asking the Minister if he will indicate in his reply, first of all, if he would envisage that this Bill would remove the anomaly to which I refer. If he wishes to wait until Committee Stage I am happy to wait until then for that reply. I ask him to give some indication to the House why this Bill has taken the time that it has. I ask him also if he is satisfied with the basic implications behind this Bill.

I thank Deputy Fitzpatrick and Deputy Quinn for their contributions on this Second Reading. Both of them have been critical of the long delays involved and of the procedures followed, especially with regard to retrospection. This could be a question of trying to have it both ways. This Bill was introduced because of the unsatisfactory position. We want to make the changes and the changes being made will get us away from the position in which we found ourselves with regard to retrospective legislation. The proposals in the Bill to move from having the detailed provisions set out in a statute and to have superannuation represented in a more flexible way by schemes are intended precisely to get away from the situation mentioned by the Deputies.

Perhaps I should expand a little on this. The first big change in the superannuation framework laid down in the 1956 Act was the adoption of the widows' and orphans' scheme. That improvement was adopted throughout the public service in anticipation of the legislation. So far as the local services were concerned, the Department intended to promote legislation to validate this, but learned that further concessions were being discussed with the civil service which would also be applicable to the local services. They became available in due course but only as an interim measure. Further concessions were being discussed. Later a large number of amendments were suggested to the Department by the unions, and a working party was set up to consider them. The working party, which is still in being, issued an interim report in 1977 which was also implemented in anticipation of legislation.

It was against that background that we decided the old system of having all the conditions set out in a statute no longer worked. We had no choice but to opt for a more flexible system of schemes which now operates throughout the public service. It was suggested by Deputy Fitzpatrick that we should have introduced a temporary Bill to effect these specific amendments. The problem there was that we would have needed a stream of Bills and each one of them would have taken time, involving delay and hardship until after its enactment in order to provide the benefits. In so far as we are looking for a general absolution for this, we have many good precedents for it, not least the Local Government (Superannuation) Act, 1956. This Bill is modelled exactly on that one and account has also been taken of retrospection.

We are dealing here with the future and regulation by schemes is now the standard method. It must not be forgotten that the schemes must be presented to each House of the Oireachtas and are subject to annulment. The scheme will be flexible. The questions raised by Deputy Fitzpatrick and Deputy Quinn can be better dealt with on Committee Stage. The local authorities have a pretty wide scope to take into account the different problems which may arise. By its very nature, the scheme has to be flexible. For example, in many cases veterinary surgeons with non-pensionable service will be entitled to qualify for the gratuity. That will depend on length of service and other conditions. The local authorities will adjudicate. If the people concerned are not happy with the ruling of the local authority, they have the right to appeal to the Minister.

The main thing is that nobody has suffered by reason of the delay involved. I take Deputy Quinn's point that it took quite a long time to get the Bill to this stage in the House. That is not my fault. I am not responsible for it. Normally the business of the House is arranged between the Whips and there is pressing legislation which must get priority. We wish the Bill had come before the House much earlier, but there was nothing we could do about that. Entering into that debate leads us into a much wider field. As I say, no one has suffered because of this delay. We will do everything possible to ensure that any unforeseen circumstances will be given sympathetic consideration. The matters raised by Deputies can be discussed in more detail on Committee Stage.

Question put and agreed to.
Committee Stage ordered for Tuesday, 6 May 1980.