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

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): I had said practically all I wanted to say about this section, and I must confess I said it more than once because every time I said what I had wanted to say the Minister of State got up and answered something else, and it became necessary for me to engage in some repetition. To summarise briefly, I am against the section because of its retrospective provisions which will operate through regulations made by the Minister in respect of things that were done in anticipation of the appearance of the Bill as far back as 10 or 12 years ago.

I queried how the Local Government auditor had overlooked payments made and pensions granted without authority obviously in anticipation of authority being granted by this Bill, and the Minister of State told me that the auditor did not make any complaint to his Department. That surprises me all the more. I imagine that the Local Government auditor was—"tipped off" would be an offensive term—informed that a Bill would be introduced to regularise these payments, pensions and schemes.

I object to that method of doing things. It is wrong and I think it could lead to the descent of the slippery slope. All this could have been avoided if in 1969 or 1970 a small enabling Bill had been introduced to regularise matters pending the introduction of the more comprehensive Bill we have today.

Minister of State at the Department of the Environment (Mr. Connolly)

I will comment on the point made about the Local Government auditor. He or she is independent. The Government had intended to bring in legislation to regularise these proposals and there was not a comment from the auditor to the Department. I think that point should be cleared up. I overlooked making the point yesterday.

The Deputy spoke about bringing in an amending Bill some years ago. The commission which dealt with this matter looked into all this and they were making changes so rapidly that if a Bill had been brought in then it is possible these proposals would not have been validated. The Deputy will appreciate that an enormous amount of work went into this Bill, which will regulate all future schemes.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): I am grateful to the Minister for dealing with the point about the auditor and that he agrees it was a point well made which needed explanation. Obviously the auditor had known that enabling legislation was on the way. Otherwise he would have been amazed that some of the decisions made had been taken. I do not believe the auditor read in a newspaper that this legislation was on the way; I believe a formal communication was made to him and received by him.

These accounts are audited every year and it amazes me that the Local Government auditor did not query them if not every year then every other year and that he did not query delays in validating these actions taken by local authorities. I do not think I am making a mountain out of a molehill in this respect. I have dealt with it at some length because I think it should be ventilated. I am not sure whether a formal communication was sent to the auditor to the effect that he could overlook these things. If such a communication had been sent to him I would have expected him to have made a query every time he audited the accounts as to why the Bill had not been introduced.

If the Government were not acting on a formal, direct communication from the Department of Local Government, they must have been acting on some sort of informal communication that the thing was all right. If that were the position, it is much worse—even alarming. If the local government auditor could take an informal OK for this sort of action, he could perhaps take the same informal explanation for other things. This is the reason I am raising this matter and I am not yet satisfied that I have got a full explanation.

Mr. Connolly

I want to say a few words.

An Leas-Cheann Comhairle

We have had a tremendous amount of repetition on this section. We shall have to get away from it.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): We are getting there by degrees.

Mr. Connolly

I shall give information freely and always have done so in my long number of years in the House. No-one has ever had to drag information out of me. I shall be straight and specific and to the point. The auditor, when he went to the county council authorities throughout the country, saw a circular letter which was sent out to them by direction of the Government. He knew that enabling legislation was going to be brought in to deal with this.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): With all due respects, the learned gentleman should not have let the matter drag on for 12 years without querying when this legislation was to be brought in.

Mr. Connolly

Deputy Fitzpatrick was in office at the time.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): I am conceding that. I am making a present of the fact that I was in office for four-and-a-half years.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): Section 4 deals with the granting of annuities to non-pensionable officers. Section 4 (2) says:

Regulations under this section may provide that a gratuity granted thereunder to or in respect of a person of a specified class or description shall be paid by another person of a class or description so specified, being a person other than the first-mentioned person's employer.

If the Minister has it in his brief, would he explain that subsection? I read it a few times and it is not quite clear. I am sure it is an excellent subsection.

Mr. Connolly

The general principle of subsection (4) is that awards are made only in respect of pensionable service.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): Yes.

Mr. Connolly

One of the recommendations of the working party set up to review the local authorities' superannuation code, and accepted by the Government, was that gratuities should be paid on retirement to certain persons who because of the conditions of their employment were not eligible to be pensionable.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): I understand that.

Mr. Connolly

Section 4 will provide for this by enabling local authorities and certain other bodies to pay such gratuities in accordance with regulations which will be made by the Minister for the Environment under this section. Local authorities have already been advised by circular letter that they may pay these gratuities in anticipation of legislation, in accordance with the conditions of the circular. Subsection (2) relates to the county committees of agriculture and vocational education committees. That is the position.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): It is quite difficult to follow subsection (2). The Minister has not explained it fully but he has put me on the right track. He says that it applies to vocational education committees and county committees of agriculture. Does that mean that the regulations may provide that non-pensionable officers of the VEC shall be paid a gratuity by the county council, or that the non-pensionable officers of the agricultural committees shall be paid a gratuity by the county council?

Mr. Connolly

All the gratuities will be paid by the county councils and will be regularised now, accordingly.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): Is that the meaning of the last few words in subsection (2)—“being a person other than the first mentioned person's employer”?

Mr. Connolly

Yes.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): Of course, he could only provide that it be paid by the county council.

Mr. Connolly

Yes, these gratuities are being paid by the county councils.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): He could not provide that it would be paid by the Minister of State or by myself.

Mr. Connolly

No.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): Again, the retrospective provision of subsection (5) says that the regulations under this section may have a retrospective effect and the meaning of that is that they shall be effective to validate gratuities made several years ago and that they may, in anticipation of this legislation under the authority of the all powerful circular letter, validate these payments. The circular letter from the Custom House is one of the most important and powerful epistles to descend on rural Ireland. I shall not hold up the House by repeating the argument that I made on section 3, but there is a glaring example.

Mr. Connolly

I move amendemnt No. 1:

In page 8, lines 42 to 49, to delete subsection (4) and substitute the following:

"(4) (a) Subject to paragraph (b) of this subsection, the Minister shall not exercise the power conferred on him by section 2 (1) (a), section 2 (5) (a) or subsection (1) or (2) of section 3 of this Act so as to apply to or in respect of a person conditions which, as compared with the conditions which are affected by the exercise and which were in force in relation to the person immediately before such exercise, are less favourable, unless such application is dependent for its effect on the exercise (whether before or after the passing of this Act) but a person of an option.

(b) The restriction contained in paragraph (a) of this subsection shall not apply in relation to the exercise by the Minister of any of the powers therein mentioned where—

(i) the persons to or in respect of whom the conditions are applied in consequence of the exercise of the power comprise a class or description of persons specified for the purposes of this paragraph in a scheme or schemes or in regulations made under section 2 or 3, respectively, of this Act, and

(ii) the said conditions, or any one or more of them, are to apply to or in respect of such persons from a date which—

(I) is specified in the scheme or regulations and which as regards a particular person is not later than that on which the person became a person of the said class or description, and

(II) is not earlier than, in case the said conditions relate to the provision of pensions for the widows, orphans or other dependents of persons of the said class or description, the 1st day of January, 1970, or in any other case, the 1st day of June. 1978.".

This section preserves existing rights of a pensionable person. Since the Bill was drafted I am legally advised that subsection (4) might give rise to difficulties of interpretation. The amendment is, accordingly, purely a drafting amendment to clarify the subsection and remove any doubt concerning its application. To put the amendment in context, I refer to the purpose of the subsection. The position is that changes in superannuation conditions having been agreed with several interests may be taken to be improvements over the conditions they are replacing. However, it can happen, particularly where a package of new conditions is being introduced, that an employee may consider that some feature of the package may be less favourable in the circumstances of his particular case than his existing conditions. To ensure that the conditions of any employee cannot be worsened, it has been the practice, when introducing new conditions, to afford options to existing employees to remain subject to their existing conditions. Newly appointed persons becoming pensionable after the revised conditions have been introduced are not afforded options and such revision conditions apply in their respect from the commencement of their service. It is intended that the same situation will apply when future changes are being brought into operation.

Subsection (5) (iv) precludes the Minister from making any provision in a scheme or regulation under the Bill that would affect to his detriment the superannuation conditions already applicable to an employee save where such employee exercises an option to have the revised conditions applied to him. The amendment is simply to clarify the position in regard to newly appointed pensionable staff. Two categories are involved. First, it involves persons who entered the service as officers after the widows' and orphans' scheme was made compulsory and who were not given an option. The amendment will make clear that the scheme can be applied to them without an option. Secondly, it involves persons who entered the service on or after 1 June 1978 and who had the new superannuation pension scheme applied to them without an option. The amendment will validate their position.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): Subsection (4) as drafted states that no new scheme or any amendment of an existing scheme shall worsen the conditions enjoyed by any person at the introduction of this scheme unless the acceptance or application of the new scheme depends on an option. I think I am correct in stating that that is the purpose of subsection (4) as drafted?

Mr. Connolly

Yes.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): The Minister now states he is taking away the proviso at the end of the subsection making it dependent on an option and that the new section will simply read that the conditions of a person cannot be worsened. I do not know if that is the correct interpretation. The new subsection is less favourable to employees than was the old subsection.

Mr. Connolly

I agree it is more unfavourable than was the previous proviso but I should like to point out that the working party agreed to this. The provision in relation to the widows' and orphans' scheme is purely precautionary. On any reasonable basis the scheme introduced in 1969 must be regarded as a benefit. It is possible that some person appointed after 1 January 1970 might challenge it on the grounds that contributions have to be paid and, therefore, might challenge any scheme made under the regulations. What is being sought here is to validate what is being done at the moment.

Apart from the question of the widows' and orphans' scheme, the effect of the amendment will make it clear that changes in conditions can be made without the necessity of an option provided the person is appointed to the relevant class of employee on or after the operative date of the new conditions and, in any event, after 31 May 1978. To put it another way, persons appointed before 1 June 1978 will not be affected by the amendment except in relation to the widows' and orphans' scheme. Persons appointed on or after that date will be affected and it will be made clear they will not have a right of option in relation to the new superannuation revision scheme that was put into effect on 1 June 1978 on a compulsory basis in accordance with the recommendations of the working party. Although that revision scheme represented a major overall improvement and although it made clear to all the persons appointed after 1 June 1978 that the scheme would apply to them compulsorily, it is possible that under the Bill as it stands some person might challenge the scheme. The purpose of the amendment is to put the matter beyond doubt.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): The Minister tells us the amendment will not affect anybody appointed prior to 1978 except in respect of the widows' and orphans' scheme. It will prevent any person appointed before that time from putting a certain interpretation on the widows' and orphans' scheme. Is that correct?

Mr. Connolly

Yes.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): What is the interpretation it is proposed to exclude?

Mr. Connolly

It deals with the worsening of a person's conditions by bringing in the widows' and orphans' scheme. The person will have to pay contributions.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): Will they have to be paid retrospectively?

Mr. Connolly

No. The person is paying them all the time.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): If he has not been paying them he is not in the scheme?

Mr. Connolly

Yes, he is not in the scheme.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): The person would have opted not to pay them?

Mr. Connolly

No, if he was appointed before 1970.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): Some people appointed before 1978 will be entitled to the widows' and orphans' scheme because they paid contributions in respect of the scheme. You will have other people who will not be entitled to the benefit of that scheme because they did not pay contributions. Is that right?

Mr. Connolly

Yes.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): Had they an option of paying contributions if they wished to do so?

Mr. Connolly

If they were appointed before 1970.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): If appointed before 1970 and they did not opt to pay contributions they have nobody but themselves to blame?

Mr. Connolly

That is true.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): Apparently, there is another group, those that fall in between 1970 and 1978. They had not the option of paying contributions?

Mr. Connolly

No, they were compelled to pay.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): Then it could not affect them at all?

Mr. Connolly

No, it will not affect them. They may also claim that it was a disadvantage to have to pay them.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): Compulsorily. I raised the question in general and, perhaps not very clearly, on Second Stage about different interpretations about the right of women to opt for retiring on marriage and claim a gratuity or lump sum. This has nothing to do with that, has it?

Mr. Connolly

No.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): I shall come to that later. But there is one question I should like to ask here which is on the amendment. It is provided that a scheme which is less favourable cannot be imposed on officers or servants of a local authority. Who decides whether it is less favourable or not?

Mr. Connolly

It will be the courts.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): Is there any doubt about that?

Mr. Connolly

No, there is no doubt about it.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): This is not done by regulation.

Mr. Connolly

No.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): It is stated earlier in the section that any regulation made by the Minister under this Act may provide for the determination by the Minister of questions arising under or by virtue of the making of the regulation and may provide that the decision of the Minister on any such question shall be final.

Mr. Connolly

It is not intended to cover that. It is only that the Minister may regulate a pension under it.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): I shall deal with that on the section.

Mr. Quinn

I received representations from people in the country in relation to the Bill and I attempted to move an amendment but I was informed that it would incur possibly additional expenditure and therefore would be ruled out of order. The general question I wish to raise on the section dealing basically with regulations and schemes is: what provision, if any, does the Minister or the Department envisage making for a person who has been in the public service for at least five years—the five years would be a minimum period; that could be variable— and has paid in contributions and then opts to leave the service? He may have ten years of contributions. Is the Minister in a position to say that the powers are available under this section to enable a Minister, either himself or one of his successors, to draw up regulations which would enable a person in the position that I have described to cash his contributions and take them out with him? I am really talking about transferability of superannuation contributions. I understand that if this person leaves in advance of the pensionable age the contributions are locked into the pension scheme and cannot be transferred to another pension fund.

Mr. Connolly

There has been no ruling on that yet. The working party are still looking into it. I have an open mind on the matter and if the working party come up with a favourable recommendation in that regard I would be disposed to accept it.

Mr. Quinn

We are perhaps talking in a vacuum because the Minister has quite properly decided to leave much of the footwork to the working party since it is of a complex nature. Would it be reasonable to assume that what is at issue here is transferability of pension rights from one sector of employment to another? The umbrella within which this would naturally fall is the whole question of a national pensions scheme.

Mr. Connolly

No, I should not like to commit myself any further on that. What the Deputy alludes to comes under another Bill. I am not being evasive. We are now awaiting the report of the working party. As the Deputy appreciates and as has been explained in the House, it is quite a complex matter. We are going along with the working party who have been meeting on this matter over a number of years and we are awaiting their report.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): I raised the question on the new subsection (4) as to who will determine whether or not a new scheme is less favourable than an old scheme and I was told the courts would decide that. If that is so, I am satisfied on that point but I wonder if the provisions of subsection (2) which are very far flung and which provide that if any question arises under or by virtue of the making of regulations, that question shall be decided by the Minister and the Minister's decision shall be final. It appears that a question as to whether a new scheme is more or less favourable than an old one is something arising under or by virtue of the making of regulations because the new scheme, as I understand it, will be made by regulation. If it is to be held that the decision whether a new scheme is more or less favourable than an old one is to be made by the Minister I will be very unhappy about it. It is really an appeal to nobody, not an appeal at all. The scheme would be settled by the Minister on the recommendations of his advisers. It would be an appeal against the Minister himself being decided by the Minister.

Mr. Connolly

No, we would not provide for an appeal on that but as regards which is the better scheme or if a scheme is not to the person's satisfaction he has the right, as I said earlier, to go to the courts.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): I am not happy about section 5 because I think it is doubtful whether it is constitutional.

Mr. Connolly

Any Act in any parliament in a country can be doubted or it can be brought to the courts as unconstitutional, but we are happy about that section. It is based on the 1976 Act. It was put to the Attorney General of the day. He was of the opinion that it was in order; in other words, that it was not unconstitutional.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): I am sure it was advised by the Attorney General of the day as, I am equally sure, was the question of whether the income of the husband and wife could be aggregated for the purpose of income tax. That operated for years and years, come Attorney General, go Attorney General, but when it came to the Supreme Court they found the whole thing was unconstitutional. Therefore I make no apology for raising this sort of question here.

Section 5 deals with the making of regulations generally and we must bear in mind that this Bill when it becomes an Act will operate through regulations. Section 5 (2) provides:

(a) Any regulations made by the Minister under this Act may provide for the determination by the Minister of questions arising under, or by virtue of the making of, the regulations and may provide that the decision of the Minister on any such questions shall be final.

If it is held by the courts that the Minister is exercising a judicial function, it is unconstitutional. There is no doubt about that because there is no appeal to anybody from it. He may decide these questions and there is no appeal to any court. If it is held that he is acting in a judicial capacity, that is unconstitutional. It goes on in subsection (2) (b) in so far as any scheme made by the Minister under this Act may provide:

(i) for the determination by a Minister of the Government specified in the scheme or by a person of a class or description so specified of questions arising under or by virtue of the making of the scheme,

(ii) for the determination by such a Minister or by a person of such a class or description so specified and for the determination by the Minister of any other such question,

(iii) that a decision pursuant to the scheme on any question shall be final.

That is a very far-reaching authority. There is every likelihood that the courts, in their present mood of thinking and in their present approach to the rights of citizens to resort to the courts over the head of the Executive, would hold that that provision is unconstitutional. There is an argument in favour of what the Minister says. There is no argument in regard to subsection (2). The regulations may provide that the questions shall be decided by the Minister, and that is final. I was afraid that the same interpretation might be put on subsection (4)—in other words, I was afraid that the question of whether a scheme is less favourable or more favourable than a previous scheme might be decided by the Minister. Taking subsection (2) and subsection (4) together there is nothing to prevent the Minister, say, drawing up the regulations to provide that whether a scheme is less or more favourable will be decided by the Minister. If that were to happen I would be anything but happy. As a matter of fact the Minister might very well think of introducing an amendment on Report Stage which would exclude from the provisions of section 5 (2) the right of a Minister to provide by regulation for the decision by him as to whether a scheme drawn up was less or more favourable. I would be much happier if the Minister would consider that.

Mr. Connolly

I give the Deputy an undertaking now that that will not happen.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): I would accept that assurance in so far as the Minister of State is concerned, but we are dealing now with legislation which it is hoped will serve for a very long time. Different minds will be brought to bear on it and future Cabinet Ministers and Ministers of State will not be bound in any way by the debate taking place in the House now. I suggest that the Minister exclude the right of determination by the Minister whether a scheme is less or more favourable, and he should write that into the Bill.

Mr. Connolly

Subsection (4) begins:

The Minister shall not exercise the power conferred on him by section 2 (1) (a),....

That is straight. I do not want to get into a legal and constitutional argument as to who is right and who is wrong. This Bill and its drafting were approved by the former Attorney General in 1976. As everybody knows, under our Constitution any person has the right to contest any Bill or any Act in the courts. Our country is very democratic, thank God. I cannot say, nor can anybody else or any Government, which Bill or which of its provisions is going to be taken into the courts today. According to the best legal opinion we have, we are satisfied that this Bill is in order. Anyone can take this up as a constitutional issue in the courts. That is why there is no need for anything of the nature that Deputy Fitzpatrick is talking about to be written in on Report Stage. It clearly says that the Minister shall not exercise the power conferred on him in section 2. The local authority make decisions on the amounts and any individual or group of individuals who are not happy can appeal to the Minister. Since this Bill was given to me I have studied it and discussed it with a lot of people and everyone seems to be happy with it. I do not wish to get into a legal wrangle with Deputy Fitzpatrick on these highly technical matters but on the best of legal opinion I am informed that the Bill will stand up and that it is all right.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): I concede that the Minister has an argument in relation to subsection (4). One interpretation would be that an aggrieved person would have access to the courts and I hope that this interpretation would stand up. I was afraid that the Minister in drawing up regulations under section 5 (2) would make provision for deciding by himself whether or not a scheme was more or less favourable. That would be quite unacceptable. I am not happy with the right taken in subsection (2) about which there can be no doubt and no argument. The intention here is to give the Minister the right to adjudicate on all questions arising on regulations made by him and to make that interpretation final. There can be no argument about that; it is as clear as a pikestaff. That is the meaning of subsection (2) in laymen's or any other man's language. There can be no appeal from the Minister's decision on these regulations to somebody else except through the courts. It is not reasonable to authorise the Minister to draw up regulations and then confer on him the right to decide on the interpretation that should be put on those regulations and to say that no appeal should lie from the Minister. There is no use in saying that that is a legal wrangle or anything else. It is a clear expression of what is in subsection (2) and it is going too far.

Mr. Connolly

It would be foolish of the Minister to take some of the powers that has been suggested the Minister could take upon himself as it would not stand up in court. I am satisfied that as the Bill is drafted now it will stand up in court and I am satisfied that the Minister has not taken excessive powers. Applicants in any of these schemes still have the right to go to the courts if they wish.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): The Minister is wrong. If subsection (2) of this section is valid and if it is binding there is no appeal to the courts. There is no appeal to anybody else because it says that all decisions “pursuant to the scheme on any question shall be final”. The decision is meant to be final and it is meant to deprive a person from going to the court.

Mr. Connolly

Other sections in old legislation have been brought to the court. This is the situation on this or in relation to any section of any Act. Any Minister irrespective of what regulation he makes can be brought to court. It is then a matter for the legal people and the judges. Any section of this Bill can be brought to the courts if a person so desires. However I am satisfied that this Bill will stand up. As the Deputy knows better than anybody some legal people are right and others are wrong but the judges at the end of the day decide what is right and what is wrong.

An Leas-Cheann Comhairle

We are getting into a lot of repetition.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): I do not mind the Minister justifying what is in the Bill but I object to him trying to justify what is not in the Bill. The Minister is right in his general statement that anyone can bring anybody to court but he need not get much of a hearing. Subsection (2) says:—

(a) Any regulations made by the Minister under this Act may provide for the determination by the Minister of questions arising under, or by virtue of the making of, the regulations and may provide that the decision of the Minister on any such questions shall be final.

(b) Any scheme made by the Minister under this Act may provide—

(i) for the determination by a Minister of the Government specified in the scheme or by a person of a class or description so specified of questions arising under or by virtue of the making of the scheme.

(ii) for the determination by such a Minister or by a person of such a class or description of any such question which is of a class or description so specified and for the determination by the Minister of any other such question,

(iii) that a decision pursuant to the scheme on any question shall be final.

Let us be rational about it. That simply means that the Minister may personally or through an agent decide any matter arising from or in connection with the making of a scheme and that any such decision made by him shall be final. That is plain language and there is no appeal from that. The words "that a decision pursuant to the scheme on any question shall be final" mean that the decision made by the Minister or his agent shall be final. The Minister makes the regulations and it is not reasonable that the appeal should lie to the person who made the regulations.

Mr. Connolly

On Report Stage I will remove the word "final", if the Deputy is agreeable.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): I would be happier if the Minister would look at the section between now and Report Stage.

An Leas-Cheann Comhairle

And any amendments to be brought in can be brought in on Report Stage. We cannot discuss them now.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): To remove the word “final” would not make sense as it would read “a decision pursuant to the scheme on any question shall be”.

An Leas-Cheann Comhairle

If the Minister is to look at it——

Mr. Connolly

It is determined by the Minister.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): I am satisfied that the Minister will have a look at it.

An Leas-Cheann Comhairle

Before Report Stage.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): This section saves rights already enjoyed by local authority employees and provides that those rights cannot be taken away from them. I raised on Second Stage a general question arising out of the right of ladies employed by local authorities to retire on marriage or to opt not to retire on marriage. I understand that there are a number of views on the rights of such female employees. Some take the view that if they want to opt to retire on a lump sum they must do so within a specified time. Others take the view that they can remain in employment for a long time and then decide to retire.

In connection with this section, which saves rights to which employees are already entitled, it is essential that there is a liberal interpretation of what rights people are entitled to or what rights they enjoy under existing regulations and schemes. I should like the Minister to deal with this question which, I agree, I have not yet dealt with fully. It is the right of married women to continue to work in the service or to retire. When must they opt?

Mr. Connolly

We are dealing with marriage gratuities. Under the Local Government (Superannuation) Act, 1956, a female employee of a local authority who completed at least five years' pensionable service became eligible to receive a marriage gratuity. Having ceased to hold her employment by reason of her marriage before the removal of the ban on the employment of married women she had to resign on marriage to qualify for a gratuity.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): She must have had five years' service.

Mr. Connolly

That is correct. When the ban was lifted matters were not as clear. Where a girl continued in employment for some time after marriage before resigning and seeking a marriage gratuity in such cases it is a matter for the local authority concerned, having regard to the legislation, to determine whether a gratuity should be paid, that is to say, they must satisfy themselves, all other conditions being fulfilled, that the resignation is by reason of marriage. Otherwise, no gratuity is payable.

This position has not altered except in the case of girls who have opted to come under the 1977 revised scheme of superannuation conditions recommended by the working party in substitution for their existing conditions. Under the terms of that scheme the local authority have no discretion in the matter as the scheme spells out precisely how long a girl may remain in employment after her marriage if she is to remain eligible for a marriage gratuity on resignation. That clears up some of the points raised.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): It does go some of the way. Apparently, it is up to the local authority to decide whether or not the retirement is on marriage. Is that the phraseology?

Mr. Connolly

Yes, by reason of marriage.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): Supposing a girl in the employment of a county council gets married. She has a family and she decides to continue in employment with the county council. After about ten years her circumstances change. Her mother, who was living with her and looking after her children dies. If she retires then, does she retire on marriage?

Mr. Connolly

I could not say. It is a matter for the local authorities. I have been a member of a local authority for a number of years and I always found the managers and the secretaries more than fair in this matter.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): The rights of existing employees are being saved and preserved by this section?

An Leas-Cheann Comhairle

That is the only reason we can raise the point.

Mr. T.J. Fitzpatrick

(Cavan-Monaghan): The rights of existing employees are being preserved and saved under this section. The point I am making is—and this might be something for one of those circular letters that go out from time to time—that the policy should be to have a broad, liberal interpretation of what existing rights are. If an old scheme is being looked at or interpreted it should be given a liberal interpretation which would be in favour of the employee. That is the object of this section—to preserve rights, not to take them away. If there is any doubt as to whether an existing scheme affords certain rights or benefits to a person in interpreting that scheme it should be interpreted in a liberal manner and the benefit of the doubt given to the employee.

Dáil Éireann debate - Wednesday, 7 May 1980

Dáil Éireann debate -
Wednesday, 7 May 1980