Before we begin the business before the House, I want to raise a point of order. One of the amendments I set down—amendment No. 11—has been ruled out of order. In that connection, I want to say that an amendment in identical terms was moved in the other House, discussed and debated. I was just wondering why there is a difference in standard between this House and the other.
Local Government (Superannuation) Bill, 1955—Committee Stage.
Before Senator O'Connell rose, I should have intimated to the House that, before we take up consideration of the amendments tabled for this Bill, it would be as well if I indicated that there are certain amendments which I consider out of order and may not be moved. These are Nos. 2 to 13, and 16. I consider Nos. 2 to 5, 7 to 13 and 16 out of order because they increase the charge on the Exchequer, which is not permissible on any amendment by a Private Member. Amendment No. 6 is out of order as it deals with matters outside the scope of the Bill. I have so intimated to the Senators who put down these amendments.
With respect, Sir, I want to challenge your ruling in respect of the amendment standing in my name, amendment No. 3. I do not know whether this is the proper time to state the reasons why I challenge the Chair's ruling. In accordance with Standing Order No. 37, I move that the matter be referred to the Committee on Procedure and Privileges for their report.
With regard to——
One thing at a time. Senator Murphy has moved that this question of the ruling of the Cathaoirleach on the amendment he referred to be referred to the Committee on Procedure and Privileges. What is the attitude of the House to that? Does it consider that this matter should be taken?
May I ask if Senator Murphy is entitled to give his reason for this under Standing Orders?
The question at the moment is whether we should take this matter now. If the matter is referred to the Committee on Procedure and Privileges, obviously it will not be debated now. It would clearly come before the House, after the report of the Committee on Procedure and Privileges.
On a point of order. Might I draw the Chair's attention to the paragraph on page 6 of the Rulings and Precedents of the Seanad? The last three lines on page 6 say:—
"Where submission is made that an amendment does not increase charge on State funds, the Chair hears Government view before ruling finally."
I submit that perhaps we might solve this matter if the Minister was prepared to allow us to discuss these three amendments, Nos. 2, 3 and 4, which are all related to the same paragraph. Under this rule of precedent, it would seem to me to be possible to do so if the Minister was prepared, speaking for the Government, to allow the discussion on these three amendments to avoid this motion and the delay involved.
In this matter, may I say that I have given a ruling? There is a method open to any member of the House to have the question determined as to whether my ruling is right and to say whether the matter should be referred to the Committee on Procedure and Privileges. That is what Senator Murphy has put forward: that this matter be referred to the Committee on Procedure and Privileges. That is the first point that the House has to decide. It has to decide whether it is agreeable to that course and, if it wishes, it may do so.
On a point of order, is it a general procedure for this House to refer matters of this sort to the Committee on Procedure and Privileges, or is it considered bad form to do so?
The House can do this under Standing Orders. It is the right of any member of the House to ask that this be done.
Is it not general, when a member takes this view, that he should give notice to the Chair?
Some notice has been given. If I may make a suggestion to the House, I see no objection to having this matter considered by the Committee on Procedure and Privileges. It is, however, a question for the House.
Would it be in order to take a vote on the matter?
Yes.
Is any specified number of Senators required to support a motion?
The motion requires a seconder or the recommendation of 15 Senators.
It is not necessary to have 15 Senators at this stage.
No, it is not; but you require a seconder for the motion.
I should like to second the motion, but I think that, under the precedent I have mentioned, it might be possible for the Government, through the Minister, to agree to the three amendments being discussed now, to get over the matter.
Is it the view of the House that this matter be referred to the Committee on Procedure and Privileges?
Might I ask a question? Do I understand you, a Cathaoirligh, to tell the House that the debate on this Bill cannot proceed until this matter is disposed of?
No. It is the desire that the debate on the Bill should be proceeded with.
I do not want to hold up the debate at all, but I think this is an important issue and it should be dealt with by the Committee on Procedure and Privileges. It is a matter affecting the whole House.
On a point of explanation which might help some of the Senators concerned, I understand that, in the lower House, these amendments were not discussed as amendments, but the content of them was discussed during the debate.
That is not the question before the House at the moment.
If I might make a suggestion at this stage, it is a very serious matter when a decision of the Chair is challenged to set up a precedent that any Senator, and I am one of those whose amendments have been ruled out of order, is free to raise a question of this kind and to have the matter referred to the Committee on Procedure and Privileges, thereby holding up the discussion. That is not a good precedent for this House to set up. I suggest that we allow the debate on the Bill to proceed and the matter referred to in the motion could be referred to the Committee on Procedure and Privileges, in the meantime, before the Report Stage is reached. Then, if the Committee on Procedure and Privileges holds that these amendments should be allowed to come before the House, Senators would be able to discuss them on Report Stage.
Would the House be agreeable to accept the motion and allow this matter to be referred to the Committee on Procedure and Privileges to report back to the House, and in the meantime let us proceed with the examination of the Committee Stage of the Bill?
Might we take it that the three amendments relating to this particular paragraph will be submitted to the Committee on Procedure and Privileges? Each of them deals with the same paragraph.
The present motion is in relation to Senator Murphy's amendment and his amendment only.
Might I ask if Senator Murphy would accept an amendment to include the other two amendments in his motion in order to avoid having to deal with the three amendments separately?
Do I understand that Senator Sheehy Skeffington does not accept my ruling in relation to his amendments, either? Surely he cannot ask to have my ruling on his amendments submitted to the Committee on Procedure and Privileges unless he refuses to accept my ruling on them?
On a point of order, these three amendments are all related to the same paragraph (f) of this section and they have been ruled out on the grounds that they advocate increased charges on State funds. It seems to me that, if one is ruled to be in order, all of them would then be in order.
That is not Senator Murphy's proposal.
Might I have an assurance that the committee will deal expeditiously with the matter? I am anxious to have clarification of the position as early as possible and I do not think, or wish, that reference of this matter to the Committee on Procedure and Privileges should be used as an excuse for holding up the Bill. I think all sides of the House realise the urgency of getting this Bill enacted as quickly as possible, but, at the same time, I submit that there is a matter of great importance involved, and I would not like a delay in the decision to hold up the passage of the Bill through the House.
Senators have already created a good deal of delay and held up the business by unnecessary discussion on the motion to refer this matter to the Committee on Procedure and Privileges. If the committee can hold its first meeting tomorrow, will that be suitable to the House? With regard to Senator Murphy's suggestion, I cannot indicate that the committee will have finally decided on the issue at any stage, but they can meet to-morrow and can arrange their procedure.
Is Senator Murphy entitled to withdraw his motion, if the Committee does not give a decision to-morrow?
We will leave it to the Committee to determine for itself all the circumstances involved and its own procedure. Is the motion acceptable to the House?
Motion put and agreed to.
On a point of order, a Cathaoirligh, in regard to your decision on amendment No. 6, do I understand that you rule it out of order on the grounds that it means additional expenditure?
The amendment was ruled out of order as it deals with matters outside the scope of the Bill, matters with which the Bill itself does not deal.
Section 1 agreed to.
SECTION 2.
Question proposed: "That Section 2 stand part of the Bill."
I want some information from the Minister. Under Section 2, it is stated: "other than a mental hospital board." I put down an amendment which was ruled out of order, and I should like to ask the Minister has it been ruled out of order by reason of the fact that "other than a mental hospital board" appears in the interpretation in Section 2 of the Bill? Amendment No. 7 was ruled out of order apparently because it mentioned a mental hospital board. I might be able to put myself in order on the next stage, if I got that information.
The Minister does not rule anything out of order. The Cathaoirleach does that.
Yes.
There are a number of boards included in this Bill. There is a vocational committee, county committee of agriculture, school attendance committee, the Dublin Fever Hospital Board; and the only board that I can find ruled out is a mental hospital board. I had an amendment drafted to include persons——
The Chair has ruled amendment No. 6 out of order as it deals with matters which are outside the scope of the Bill, and it regretfully informs the Senator that he cannot discuss a matter that is outside the scope of the Bill.
I will put down an amendment to delete the other four words on the next stage.
In the definition section, on line 38 of page 6, the word "unfitness" is defined. I cannot understand the definition, and I should like the Minister to enlarge on it, because it is important, especially in view of Sections 24 and 10. It does not mean misconduct evidently—in fact, quite clearly, because there is a distinction drawn between unfitness and misconduct in one section—and it does not mean "due to infirmity of mind or body or old age". Would the Minister perhaps enlarge on that and tell us exactly what "unfitness" in the definition means?
I think the definition is fairly clear. "Unfitness" means unfitness of an officer or servant for his office or employment, but does not include unfitness due to infirmity of mind or body or old age. It means a person who is inherently unfit. That is about the best definition I can give, and I am sure the Senator would understand it much better than I would. The exceptions are included in the definition, and it does not include unfitness due to infirmity of mind or of body, or old age.
Physical unfitness.
All I can say is that I leave it to the House to decide what is unfitness. It does not include infirmity of mind or body, or old age.
The trouble is that we do not know what it does mean. It does not mean certain things, but what does it mean? Does it mean, for instance, that a person is engaged in his work for a number of years and then some new development in his particular science arises and he is not able to keep up with the new development? Would he be declared unfit? Take an engineer, with 20 years' service, who is not able to grasp some new development in atomic energy and to carry out work under that new development. Would he be declared unfit and removed from office?
It is quite possible.
We will see what will happen, then, under Section 10. We will come to that later on.
I should like to approach this from the point of view of elimination. Does it mean incapacity?
It does not mean incapacity arising from old age or infirmity. One can imagine one's mind deteriorating, but one could not say it is physical. One could imagine many other things which I need not go into at the moment.
But it says "unfitness," but does not include unfitness due to infirmity of mind.
These are the expressions used.
We are still left wondering what other unfitness there could be.
I am afraid I have given you an explanation and I cannot go very much further.
While the Minister gives us an explanation, he leaves us under the impression that he could, if he liked, say what exactly the word means, but he does not like to do so. I think it would be a wrong approach to the Seanad for the Minister to have at the back of his mind what the meaning of the thing was and not to tell us, but to tell us what it does not mean.
I may have a very bad mind. I probably have.
It may be that I may have a very bad mind, and it is not a bad thing to have a bad mind sometimes. As far as I can see, it does not mean unfitness due to infirmity of mind or body, or old age. The only other unfitness would be unfitness of character. Is that what the Minister means?
Really it means that a man is constitutionally unfitted to do his best work and, instead of sacking him, you give him a pension. Does anybody object?
No.
Would the Minister consider amending the Bill on Report Stage by inserting a paragraph to permit a pensionable servant to reckon as "service days" a period or periods in any year, not exceeding 30 days of certified sick leave, where such servant is not in receipt of a sick pay allowance from the local authority? I presume he is not permitted to count sick days?
If he is paid for them, he is.
In cases where he is not in receipt of sick payment from the local authority?
I do not know of any such case.
I understand that in some cases they are not paid when they are sick.
Permanent employees? I do not know any such case.
I am told that that is so, that there are cases of servants who, when they go sick, may get unemployment insurance, or, rather, national health insurance, but if they are not paid, they will not be able to count such days for pension purposes. They would not be reckonable for pension purposes. It strikes me that the Minister might consider looking into that matter where certified sick leave should be reckoned as pensionable.
I think it might be possible to do what the Senator suggests, if they had a sick leave scheme. If they are paid during the period of their sickness, then they come within the ambit of the Bill; but I think that could be done outside and without an amendment of the Bill. I appreciate fully what the Senator says, and I see her point of view, but I think an amendment of the Bill would not be necessary, if there were conditions of employment which would enable him to be paid during the period of sickness.
I should like the Minister to look into it because I am assured that, when many of these employees fall sick, their pay ceases——
That is quite possible.
——and not having the days' paid service, it is not reckonable. That is possible.
I think it is not necessary to amend the Bill.
Perhaps the Minister will assure himself on that point.
I certainly will look into it, but I have assured myself on the point—quite definitely.
In ordinary employment, a person is looked upon to be still in employment, if he is genuinely out sick and drawing what used to be called national health. As Senator Miss Davidson points out, when they come to consideration of pension, if that person becomes ill with some disease that takes him a couple of months to recover from, he will qualify, because he is, in fact, in the employment. But under the Act he is not being paid by the county council. He is only drawing his national health benefit and it is possible that he may lose a whole year of pensionable service. We are dealing with a different problem because we have not a really permanent staff.
Certain local authorities do pay sick leave pay, and it could be a matter for arrangement that the man could be paid a nominal figure of 1/- a day. If I might refer the Senator to Section 2, sub-section (b), line 15 on page 6 "a day (other than a Sunday) in respect of which the servant was given paid leave"—even nominal pay, I am certain, would qualify him. That is a matter of arrangement with the local authority itself. I do not think it is right that we should include it in the Bill, and make it compulsory on the local authority.
That is not the suggestion.
If there is any nominal figure given, even 1/-, it will bring him within the ambit of the superannuation scheme.
They would not pay 1/- a day.
But if you take, as Senator Miss Davidson has pointed out, a case where a faithful servant who would in the normal course, qualify, is laid up for a couple of weeks, which she says would bring him outside the scope of the Bill, I am sure that the local authority would enter into some agreement to pay him a nominal figure and bring him within the ambit of the Bill.
The county manager will tell you that he has no power to do that.
The easiest way would be to amend the Bill to provide that, if they are out on sick leave, that would be counted as service.
Force the local authority? Would you ask the local authority to superannuate him for a day when they would not give him sick leave pay? Is there not something wrong there? Would you ask them to superannuate him eventually for a day on which they would not give him sick pay?
Yes. A pension is different from pay.
But after all, if the man is sick, he is entitled to certain remuneration, while he is sick, maybe national health or workmen's compensation. But supposing he is sick and not entitled to either of these benefits, you say that while you cannot give him sick pay, you will give him superannuation as soon as he comes back.
Allow them to reckon the days as service days.
Days on which you would not give him sick leave pay or workmen's compensation?
I am not trying to deal with a peculiar case, such as the Minister is discussing, which would be a rather extraordinary one. What we are trying to cover is the ordinary case of the road worker who finds himself bona fide out sick and not qualified for national health benefit. The normal case would be that he would be drawing national health benefit, but because the county council has not made special provision for some special payment in lieu of pay, he does not qualify to have that day regarded as service for the purposes of this Bill. The Minister's suggestion is that the council could pay him while he was sick. The contribution from the council, as far as I know, would be about 4/2 or 5/2 a week. That is a very small amount, and if the Minister amends the Bill, that would be a nominal payment, instead of asking each individual local authority to pay this 5/2 as pay and 5/2 more towards his contribution. What the Minister is suggesting is that the county council should award him this 5/2. There would be a double contribution.
The local authority have complete discretion in this matter. My policy, and that of the Government, is not to compel the local authority to do anything. Once they have discretion, leave it to them.
I have never heard before that a local authority has power to pay sick pay to the servants who are unfortunate enough to go sick. I am aware, of course, that a man immediately qualifies for national health, but before I would be satisfied, I should like the Minister to tell me under what section and in what Act the local authority has power to pay a nominal sick payment, apart from the national health, which they automatically qualify for by law and which the county council cannot help or hinder. I do say that, if it is so, I am surprised, and local authorities are not aware of that. But even if it is so, it would not be the best way.
My view is that the outlook down the country would be that, when a man goes sick he qualifies immediately for national health, and if the county council were to propose to do that, the auditor might have a word to say, because he might take the view that, since this man was not working and was in receipt of national health, this payment must be surcharged, unless there is provision in some Act. The Minister may be able to trot out the section. I hope he will, and will give information to us, but even if it is so, and he can trot out the section, I still think that Senator Bergin's approach is the more direct. It is better to make provision that those days will qualify them, even if they are in receipt of national health, rather than to leave it to the local authority to qualify them or not by resolution and by paying them a nominal sum.
The longer we live, the more we learn, and I am very glad indeed to be able to enlighten the Senator. I am not a legal adviser to the local authorities, and I do not want to become an omnibus one to several local authorities. Under an Act passed by the Oireachtas in 1941, of which very many local authorities have taken advantage, they are entitled to do as I suggested. I am sure that the Senator will remain satisfied with that.
We can leave it at that.
Question put and agreed to.
Section 3 agreed to.
SECTION 4.
Question proposed: "That Section 4 stand part of the Bill."
I should like to refer to some points I dealt with on Second Reading. In his reply, the Minister said he was against compulsion, so far as local authorities were concerned. Yet, under Section 4, he is actually using compulsion in so far as officers are concerned. In this case, the compulsion is to the advantage of the officers. I should like to appeal to the Minister to consider extending the scope to servants in the same way as to officers. As it is, it rather looks like class discrimination between officers and servants.
Part II applies to officers merely in so far as certain local authorities have adopted the 1948 Act. Others have not adopted it and that is the reason for the section.
Question put and agreed to.
SECTION 5.
Question proposed: "That Section 5 stand part of the Bill."
On Second Reading, I urged the Minister to bring in an amendment which would have the effect of applying this measure to both officers and servants, but the Minister here also said he was against compulsion. There is compulsion in regard to the officers. Surely the same conditions should apply to servants. I think road workers and other servants in the Minister's own county are deprived of a pension scheme. If he sees fit to give pensions to all officers might I appeal to him to extend the pension rights to all servants? The scheme applies to all officers whether or not Part III is adopted.
While I appreciate the point raised by the Senator it is rather difficult for me. I am anxious that local authorities should themselves adopt the terms of the Bill, where they have not adopted, for servants, the 1948 Act, and then apply it in so far as servants are concerned— to give them an opportunity of considering it, and, when they have considered it, leave it to them then to implement it as they wish.
Are the officers not covered, whether or not Part III is adopted?
Yes, they are covered.
That is the point I wish to stress as between officers and servants.
They are covered, but some local authorities have no experience whatsoever and nobody knows better than Senator Hickey what happened in Cork in regard to servants. Therefore, we are giving local authorities an opportunity of themselves adopting the Bill.
When you talk about local authorities, are you not referring to city and county managers?
No. I refer to them as they are defined in the Act. I did not introduce the Act.
Let us be clear about terms.
Cork County Council have not adopted it.
Question put and agreed to.
Section 6 agreed to.
SECTION 7.
I move amendment No. 1:—
In sub-section (2) to add after "month", in line 40, "Where a person in the opinion of the local authority is not entitled to have his service recorded in the register such person shall be so informed within one month".
Section 7 provides that local authorities shall maintain a register to be known as "the register of pensionable officers," and, where a person becomes a registered officer, that the local authority shall enter his name in this register and shall notify him accordingly within one month. It makes provision for the maintenance by the local authority of a register of the persons entitled to come under the superannuation fund, but it goes much further than that. It places an obligation on the local authority to notify such person that he or she is now recorded in this register.
On the Second Reading, the Minister said that an employee would become aware whether he or she was entitled to have his or her name on the register by the amount in the pay packet. I agree that a person whose name is on the register would immediately become aware of the fact, but the person who is not entitled to have his name on the register is in a much more difficult position because there is no obligation placed on the local authority to inform him within one month that he is not entitled to be so recorded.
County councils are charged with the carrying out of a number of works on behalf of the central authority—work on behalf of the Board of Works and the expenditure of money granted for tourist development works. The men who do the work are recruited by the local authority. They work side by side with the road worker whose wage is provided from the rates and they may think, where they work for a specified period—say, 200 days—that they are people to whom the section applies, and it is only just to such persons that they should be made aware as early as possible that they are not in the class of persons to whom this Bill applies. We feel it is necessary to place an obligation on the local authority in this connection, so that the persons concerned will be given an opportunity of appealing against their position or of securing employment that would give a pension scheme of one kind or another, whether from a local authority or otherwise.
In my view, the cost of implementing my amendment would be very small. It would only mean that each person employed by the local authority at a particular time would be notified as to his position. I would seriously put it to the Minister that we should make provision so that the person whose name does not appear on the list—who is working side by side with others whose names are on the list, receiving the same amount of money in wages and doing the same type of work—will be notified if he is not entitled to be a beneficiary under this Act.
There is a lot of merit in Senator Hawkins's amendment. The case he has made has impressed me very much. Towards the end of his speech, however, he reminded me of a doubt I had as to the practicability of this amendment when he referred to the cost. It seems to me that this would tend to put a charge on the Exchequer.
On the local authority, not on the Exchequer.
Nobody worries about them.
Only the Minister.
In spite of that doubt in my mind, if it has gone past other people, it should not worry me. I would support the amendment. In my view, there is a greater necessity to inform the people whose names have not been registered so that they can benefit by sub-section (3). During the debate on Second Reading, the Minister said the best way of making them aware of the position was by taking it off their pay packets. There is merit in that. I quite concede it. However, why not go the further step and inform them officially that they have not been included on the register? When dealing with local authority workers, I think it is necessary that they should be told exactly their position, because otherwise they will worry their representatives afterwards and say they thought they were on the register. They should be notified in writing and, at the same time, their attention should be drawn to the provisions of the Act so that they will know, if they feel aggrieved, that they have a right to appeal. That is the usual procedure in dealing with these things. I think the Minister should accept this amendment.
The proposer of the amendment and Senator Murphy have evidently not read the amendment. It refers to Part II, which deals with officers only—not servants. Officers are recruited through the Local Appointments Commission, who advertise the terms of the appointment, whether it is pensionable, permanent or otherwise. Before they become competitors, they know—in advance—the terms of the appointment. I could understand Senator Hawkins putting in this amendment if it were to relate other than to Part II. What he said related to the servant angle of the Bill, not to Part II which deals only with officers. No officer is recruited into the local authority other than through the Local Appointments Commission or through some other competitive examination. He knows in advance whether the position is pensionable or otherwise.
The Minister has already covered that ground twice. On the Second Reading debate, he gave us the reasons for not incorporating my suggestion in the Bill. He said these people would become aware of it very soon when they opened their pay packets. Now he has forgotten about the pay packets. He tells us that all the people we are interested in are persons who would be recruited by the Local Appointments Commission and that they would all be bubbling over with intelligence and would already know the conditions of their employment. I accept that. I will, therefore, put the suggestion in reverse to the Minister, namely, that we delete the obligation on the local authority to inform them that they are persons whose names are entered on the register. If they are aware of the conditions of their employment, then surely the Minister, as the person accepting responsibility for having some little heart for the ratepayers, will try to save the ratepayers this little sum by making this concession and withdrawing the obligation and the cost, so far as the local authority is concerned, of informing these intelligent persons of something of which they are already aware.
With regard to the amendment, I should be quite satisfied if the Minister would go part of the way with me. I shall be quite satisfied if he will accept the principle and, where necessary, incorporate it in the Bill, that where it relates to servants, rather than to officers, the servants will be notified by the local authority as to whether or not they are entitled to have their names on this register.
If I understand the Minister correctly, he said that local authority officers were appointed by the Local Appointments Commission and knew beforehand the conditions of their employment and whether they were pensionable or not. Suppose I am being appointed as an officer of a county council and know that I am to be a pensionable officer. If I do not get any word from the county council informing me of that matter, I would think it normal. I would have no complaint. I do not see why I should go to the county council office to inquire about my position, or appeal to the Minister, or anybody else. The fact that a person would expect his name to be on the register makes it all the more important that he should be told if it is not on the register. Suppose that, as far as you know yourself, you are a pensionable officer. Why should the council write and tell you again? Why not write and tell a person whose name is not on the register that that is the position and thus give him a chance of appealing to the Minister?
I support Senator Hawkins's amendment. In sub-section (3) of Section 7, it is obvious that an officer may not be on the register by reason of one of two events —(1) a definite and positive refusal on the part of the local authority to put his name on the register and (2) a failure on the part of the local authority. That second point might well be one upon which he would like to appeal, as he is allowed to do here. If, however, he is not being informed that his name will not be on the register, if there is no obligation to inform him, he may be left in the dark and wrongly assume that his name is on the register. It seems to me that Senator Hawkins has made a very good case for the amendment.
I stand over everything I said on the Second Reading of this Bill. If Senator Hawkins's amendment applied to Part III, which deals with servants, I could talk to him. His amendment is to Part II, which deals with officers. When I was referring to the pay packet on the Second Reading, I was referring to what was deducted from the servant, not to what was deducted from the officer. That should clarify the position.
With regard to officers, I think it is but right to point out to Senator Bergin, Senator Sheehy Skeffington and Senator Murphy that an officer's appointment is advertised. It is clearly stated in the advertisement whether it is a temporary or a permanent appointment. Under the Bill, if the appointment is permanent, then it is pensionable and there is a duty on the local authority to enter the officer's name on the register and so notify him. If he receives no such notification, all he has to do is to inquire. If his name is not on the register, he may appeal to the Minister, but remember there are a number of officers employed in a temporary capacity who are not entitled to have their names registered in this register. If I could refer only to a few of them, there are, for instance, consulting engineers. If every consultant appointed was entitled to be registered, you would want to keep a special liaison officer between temporary and permanent employees with his eye on the register and on who is appointed permanently and who is not appointed permanently. Again, we have planners, quantity surveyors, bog assessors, rate applotters. All those people are temporary and they know when they are appointed that they are temporary. They know they are officers applying for a position under a local authority, and they know whether they are temporary or permanent. If they are permanent, they are entitled to have their names entered on the register. If they are not and do not receive notification, they are entitled to appeal.
The amendment is to Part II, not to Part III. I did not intend, and I do not think it is necessary, to refer to it here, but with respect, if I may refer to it—seeing that the mover of the amendment did refer to it—the servant, who is usually paid week by week or at the very outside every two weeks, knows from the amount of the deduction of the contribution from his weekly or fortnightly pay packet whether he is a registered permanent servant or otherwise. I am not going to comment on the fact that their packets may be so large that they may not notice the reduction—Senator Bergin commented on that. They will know, if there is no deduction, that they are not registered. If there is a deduction, they will very soon inquire as to why there is not and if they are entitled to be registered. I think that is a simple method.
We all agree that local taxation— the cost of local administration—is very high, and we do not want to add to it. Somebody suggested that it would not cost the Central Fund anything. They are forgetting about the unfortunate ratepayer down the country. I think we have got enough employees, be they either servants or officers, without bringing in a few more. I think the method I have suggested is quite reasonable. I may also say that I have had interviews with the Local Government Officials' Union and I have incorporated, as far as this is concerned, everything they require in the Bill. They are quite satisfied.
Amendment, by leave, withdrawn.
Section 7 agreed to.
Sections 8 and 9 agreed to.
SECTION 10.
Question proposed: "That Section 10 stand part of the Bill."
Without going into the question which we have deferred for the moment, I should like to ask the Minister was the object or anticipated result of paragraph (f) of sub-section (1) the saving of money to local authority or to State funds? Is that the object or the anticipated result?
No.
The Minister will remember that, on the Second Reading, we devoted a good deal of time to this section and especially to paragraph (f). But, before I come to that, I would refer to sub-section (d) (1) where this word "unfitness" comes in again. We see here that, if an officer is removed for unfitness, he suffers the loss of all his previous service. Now it is bad enough to be penalised when he does something which is deliberately wrong and unauthorised, but he is also penalised under this sub-section (d) if he is removed for misconduct or for unfitness—and unfitness does not mean unfitness, as it is defined there, due to an infirmity of mind or old age.
The Minister, speaking a few minutes ago, said he becomes constitutionally unfit. I cannot really follow that. He said would it not be better for him to be finished and to get his pension, but he does not or may not get his pension because he is removed for unfitness, and any period before his removal is denied to him for pension purposes. We do not know what this unfitness is about. That is one point on this section that I would like to refer to and stress.
I come now to (f). That was debated at great length. I may say that I put down an amendment on that and it was ruled out of order. I expected it would be ruled out and I did not question the Cathaoirleach's ruling. I put it down because I thought—the only object was, as the Minister mentioned on the last occasion, to deal with occasions when doctors and nurses might go on strike and leave their patients neglected and on their own—the Minister would think well of fathering it himself and putting it down as an amendment at this stage and say he was going to accept it. That was the one point that there was some apparent validity in, although, indeed, I do not think for a moment—and I do not think it has ever been known— that doctors or nurses or mental hospital employees would leave their patients neglected at any time; and I do not think it is right that a situation like that would be taken for granted— that they would go on strike and leave their patients. There are a great many other officers who are not in that position and who, even if they did absent themselves and go on strike for a period, might cause inconvenience, but that would be the end of it.
Here is a point I want to refer to also. The Minister also said:
"If a man is denied his service like that, he can appeal to the Minister."
I gather from the Minister that he thought that that was the end of it, that the man would be all right and that he would get back his service almost automatically. Now, the Minister knows that there are Ministers and Ministers. If we could be assured that we would always have a Minister like our genial Minister for Local Government, it might not be so bad to have to appeal to the Minister. Sometimes it would not be the Minister for Local Government to whom he would have to appeal at all.
Take the case of the people I was speaking about the previous day—the vocational teachers. If they have to appeal, it is not to the Minister for Local Government, but to the Minister for Education, and sometimes, if they are on strike, they would be striking against the Minister to whom they would have to appeal. The Minister for Education fixes their rates of salary. If they have to go on strike because they are not prepared to accept that arrangement, then the strike is actually against the Minister to whom they would have to appeal for their pension rights. I am sure the Minister remembers nearly ten years ago when the national teachers went on strike. They did not lose their service. If they did, they would have had to appeal to the Minister in that case and I know how far they would have got.
Another point is the question of contributions. A man pays contributions and, not only does he lose his service, but he loses the contributions which he has paid, and I doubt the legality of that. He pays contributions and he certainly enters into a contract, when he pays those contributions, to get the benefit those contributions will bring to him. Apart altogether from the obvious argument that it is a very great hardship for a person to lose his service of ten, 15 or 20 years, there is no guarantee that an appeal to the Minister will help him.
There is no guarantee that an appeal to the Minister will help him. After all, the Minister has inevitably to depend on the advice he gets from his inspectors or local superintendents, or whoever they may be. I think the case made the last day from all quarters of the House deserves to be made, that this is a penalty that really ought not to appear in the Bill.
Then there is Section 2. I do not know when a man deprived of his service is notified and when he finds out when his service has been denied to him. Section 2 is not very definite. It says: "the local authority shall give notice in writing of the forfeiture to the officer." When exactly does he get that notice? There is nothing definite here. Does it occur immediately after the circumstances? Does it occur only when the man is claiming pension rights after ten or 15 years? I would again appeal to the Minister as strongly as I can to remove this sub-section and I would appeal to him especially to explain what is the justice of denying a man his service because he is removed for unfitness, whatever that is.
There are just one or two points I should like to make in support of Senator O'Connell's remarks. I think we may take it as a general maxim in education that the fewer swords of Damocles hang over the heads of educators, the better. Certainly, it seems to me that the whole of Section 10, sub-section (1) is vitiated to a large extent by paragraph (f). The vocational teachers, I think, have rightly pointed out that the paragraph which they complain of allows of a narrowing and menacing interpretation and might be used by superiors to promote a feeling of fear and uncertainty. What gives point to the remarks and what impressed me about their memorandum was that they said:
"Whereas the same conditions applied in this respect to servants as to officers under the 1948 Act, reference to the penal provision in this Bill is omitted as regards servants."
As the Minister implied in discussing another point, the officers go through a pretty severe process before they are actually appointed. Presumably, in undergoing this process, they have a greater sense of responsibility. It seems to me to be rather a bad thing to penalise them in a way in which the servants are not penalised. I am not urging that it should be extended to servants, but rather that it should be removed from the officers.
The second point I want to make is that the Senators who earlier heard the Minister for Health talking about the need to safeguard opticians against the possible acting of a board on misinformation will possibly have thought of this, too. Sometimes a vocational education committee or a senior officer might act on misinformation and an officer might be unjustly penalised and lose 20 or 30 years because he had one slip-up for a day or a couple of days.
The last point I wish to make concerns something the Minister said about the very uncertainty that would hang over the heads of vocational teachers. He said that the officers would be safeguarded by the fact that they could always appeal to the Minister. That seems to me to beg the question. After all, the Minister, if appealed to, will, in turn, consult the vocational education committee who in turn, will probably rely on the advice of the very same senior officer who in fact, unjustly penalised the teacher. For those reasons, I think the Minister should be very cautious about retaining Section 1, paragraph (f) in this Bill.
Like Senator O'Connell, I had an amendment down in regard to paragraph (f) and like him, also, I expected my amendment to be ruled out of order, but, as a trade unionist and a labour representative, I must continue to protest as strongly as possible against a penal clause embodied in paragraph (f) of Section 10. I think it is very obvious to all of us that this is a penal clause, in that, if any group of officers of a local authority take strike action, not alone will they lose their salaries for the period they are out on strike, but they lose altogether their previous service for pensionable purposes.
I cannot find any parallel for that in my experience. I was wondering exactly why the Minister finds it necessary to put in this penal clause in relation to the officers of local authorities. As Senator McHugh pointed out, it was withdrawn in relation to the servants of local authorities. I do not know whether I read the papers sufficiently, but I have not seen any account of a local authority being bedevilled by wildcat strikes of local authority officers. I think all will agree that there is very little probability of local authority officers taking strike action in support of any particular claim. What then is the need for this sub-section?
I say very definitely that these people have a right to take strike action. I should say in conjunction with that that I should hope that right would never be exercised, but the right should not be taken from them. It has not been taken from them in so many words here as such, but it has been effectively taken from them in that their past service for pensionable purposes is lost to them, if they take such action. Civil servants, as such, have not the right to take strike action. I think that is correct, but local authority officials are not regarded as civil servants. I notice in this measure dealing with super annuation that local authority officials have a deduction made from their salaries for superannuation purposes. Civil servants, as such, have not.
The Minister might be happier about this clause if he could tell us that there was adequate machinery for dealing with any disputes in relation to these officers. I remember some months ago raising this question of negotiating machinery when dealing with some other Local Government Bill and I think that, so far, there is no machinery for dealing with the salaries and conditions of service of these local authority officials. I may be very innocent, but I think the Minister, when dealing with this matter on the Second Stage, referred to doctors going to races at Clounanna. He then, so far as I remember, evaded the point I made.
I was merely quoting an instance given, I believe, by Senator O'Connell.
I am particularly interested in this clause because the people we are dealing with here are not rash people. There is very little likelihood that they would ever take strike action, even if there was not this penal clause which takes away their previous pensionable service, if they ever found it necessary to take strike action in support of their claims.
The Minister very well knows that there is very little likelihood of such a thing happening. I think the rules of this union, the Local Government Officers' Union, provide that they must have a two-thirds majority, if they are to take strike action. I do not know whether they have ever taken strike action, but certainly they have not, to my knowledge. I do not know if there is any possibility that they would do so in the future, but certainly I hope not.
My opposition to this sub-section is not to encourage any such group to take strike action or to strengthen their hand in taking it. My opposition is against the principle of depriving them of the rights given to them under the Constitution.
The Government subscribes to certain I.L.O. conventions, and, whilst the Minister in this section says in effect that these officers have no right to go on strike, he and we all know this is what the section means and it penalises these officers, if they should do that. I appeal to the Minister to withdraw this sub-section from the Bill. There is no need for it. It is a penal clause which is uncalled for in this present legislation. It is applied only to the officers and not to servants of the public authorities. It is a sub-section which applies to these individuals who would be more unlikely than any others to take strike action.
I support everything that has been said by the previous speaker and by Senator O'Connell. I am sure that both speakers have covered the ground fully. For my part, I should like to go back to the word "unfitness" contained in this sub-section, because the Minister's explanation seems to refer to constitutional unfitness and to sickness. Under this sub-section, if a person becomes unfit while in the service, he loses not only his job but also his pension rights. I think that that is a peculiar word to use in this Bill and if enshrined in this legislation, it would be quite dangerous because I can recall an occurrence which took place in this city some years ago, in connection with a student body. One of the vocational schools in the city invited a speaker to address them and a teacher decided that the lecturer was unfit. As far as I know, no reason was given for that decision. Since then, I have got to know the person concerned very well and I could not see any reason why he should be described as unfit to lecture on that occasion. That shows that one individual can decide the fitness or otherwise of any person in the service.
Other reasons given for unfitness can be bad health or old age, and I suppose, dipsomania could be advanced as a reason for unfitness.
And rightly so.
Yes, I quite agree with the Minister, but that leaves only ideological unfitness. That would seem to be the only one left. Therefore, a person who finds himself holding ideals not generally accepted, or only part accepted by a particular officer, could find himself considered to be unfit for his post, and in those circumstances his pension rights could be taken away from him. That word leaves a bad taste in my mouth and is akin to some of the most objectionable phrases which I have heard from far across the water in recent years.
I support the three previous speakers in all they have said on this matter. Unless the Minister can advance some more substantial reasons for this sub-section, I cannot see how he can defend its inclusion in the Bill. I say that because I believe that, in this year of 1956, this House should not permit legislation of that type to leave it. I say that we cannot possibly condone or defend the passing of that type of legislation as long as we subscribe to the conventions of the I.L.O.
This section of the Bill refers solely to officers, and servants are out of it.
That is what makes it objectionable.
Do you want to have servants included in it? I wanted to have servants excluded from the conditions of the Bill and I put them out of the proposal, but the complaints seem to have been that they have been excluded.
Nobody made any complaints about the servants.
I put the servants out of the Bill. Let us take this section as it stands. It merely refers to officers and says that officers who have served certain periods become entitled to pensions, with certain exceptions. Senator Murphy has repeatedly pointed out that the Local Government Officials' Union have never yet been involved in a strike and he cannot visualise them being involved. Therefore, we must deal with individual cases and not with a body. That is what I gather from the debate—that they are not the type of people to involve themselves in strikes and, therefore, we may have individual cases.
Section 10, sub-section (d), says that an officer is entitled to a pension, provided he has served a certain time, except for any period during which he was discharged from his office for misconduct or unfitness. Take the case of an officer who is in the employment of a local authority and has served a sufficient number of years to qualify for a pension. Suppose he becomes a dipsomaniac and says: "I am going to continue to drink. I will continue to serve until I am 65. Then I will have 40 years' service and you cannot stop me." What is the local authority's position in such a case. They can sack him without a pension, but here we say that, first, it may threaten him and advise him to pull himself together or they will deduct the years he has served up to the present for superannuation purposes. That is not striking at the right of the officer. He has, should that occur, the right of appeal to the Minister, and if he can prove to the Minister that he has made an effort to pull himself together, I am sure the Minister will consider his case.
That is a case where he could, through misconduct or refusal to become abstemious become unfit, but suppose he goes further, and, as a result of his indulgence, becomes unfit. The same threat is made, and he is cautioned that he will lose his pension rights, but again he has the right of appeal to the Minister. I think it is rational and reasonable that he is given this caution, that all his past service will go for nought, unless he pulls himself together. The Minister is the person who will decide finally and I believe that is reasonable. Remember what Senator Murphy pointed out is that we are dealing with a body of individuals and that there is not much likelihood of them striking.
Yes, a body made up of individuals, but you are legislating for the community.
I understand Senator Hickey's point of view. It was clearly put by Senator Murphy that we are dealing with individuals, and not a body and that they have never gone on strike.
Come now to paragraph (f), which deals with an officer who absents himself from the place where he performs his duty in a local authority or deliberately refrains from performing the duties. Do not let us forget the last emergency. We had certain commissioned officers in the Army who deliberately deserted because they thought a particular side was going to invade this country and that they would have an opportunity of coming in on the winning side. One can imagine, for instance, an emergency arising again. One can imagine an invasion by X country and certain sympathisers with X deliberately absenting themselves and joining the forces of this invading country. Is it not right that we, if we could repel the invasion, should have the right to forfeit the years of service which those gentlemen had incurred for pension purposes? That is one case I can visualise.
You are suggesting that vocational teachers should be subject to army discipline.
I am not. I am referring to the fact that people absent themselves from the position in which they are employed by the local authority and surely there must be some punishment inflicted on them for doing so. I can appreciate what Senator McHugh said, but this step is not taken in an authoritarian fashion because they still have the right of appeal to the Minister.
They should not have to depend on him.
Would the Senator suggest that we should leave them with the same rights as they had before they absented themselves or absconded?
No.
Then what are you going to do with them in cases where they have absented themselves or refrained deliberately from performing their duties? Senator Murphy has referred to the other case mentioned by Senator O'Connell on a previous occasion where a doctor decided to go to the coursing at Clounanna.
It was yourself who suggested it.
The Senator is quite right. If an officer of a local authority decides to spend the day coursing—and you have three days at Clounanna—and suppose all the servants in the surrounding counties decided that they would do likewise, what position would you then have?
You are exaggerating the position.
We are dealing with individuals, as Senator Murphy has pointed out. He has in this case been dealing with individuals. I am in full agreement with him that this is not a case where we are dealing with classes, but with individuals, and, that being so, look at the damage that could be done by the deliberate absence of these officers of the local authorities. Who is to control them? Surely we are entitled to tell them, first of all: "Watch yourself, you are going to forfeit years of service, if you do not", and then tell them that if they persist in their attitude, they must go to the arbitrator who in this case will be the Minister. I believe that that is a fair principle.
Would the same apply to servants?
Does the Senator want to include servants? There is no doubt, in the case of servants, that they are an organised class, and, if there is a strike, they have somebody behind them to put their case.
Unions do not stand for that sort of thing.
I have every respect for the trade unions, but we are here discussing a different section, and I think I am being very fair. Some Senators have referred to civil servants. Senator Murphy has stated that there is no parallel for this section, but there is no doubt that local officers are in an analagous position with the Civil Service, and this provision in the Civil Service goes away back as far as 1865. Some Senators are inclined to imagine that we are trying in this section to refer to strike action. If we were referring to strike action, then we would have included servants in this section, because again we come back to that argument advanced by Senator Murphy that we are dealing with individuals. There is no doubt that a strike by servants is quite legitimate, in my opinion, and we have provided for it, in that if they went outside the 200 days' absence permitted, there is legislation to cover them for pension purposes. We are not trying in this section to hit at strikers, but we are trying to hit at individuals who, through misconduct or unfitness, fail to carry out their duties, or who voluntarily and deliberately absent themselves from their duties.
We have no intention of referring to strikes. If we had, we would have included the servants. We are trying to get at the individual and, in my opinion, this is the only way in which we can do it. We have gone a long way towards meeting the Senator's point of view by excluding the servants.
I think most Senators will agree with me on two points. The first is that when the Minister for Local Government comes before us, he comes with his brief extremely well prepared. He knows the legislation he is going to put before us. He knows the pitfalls. I think we will all agree that, in nine cases out of ten, he answers the point made extremely cogently. The second point upon which I think we would agree is that the Minister tends, by reason of this first fact, to be singularly inflexible. I cannot remember the Minister ever having accepted any amendment——
Read the Local Government Bill and the County Management Bill debates.
Let me put it this way, then. I can remember the Minister resisting with all the force and passion of his oratory, nine amendments out of ten, and only in the last ditch, as it were, accepting any amendments, and, not quite regarding them as a personal insult when he had to accept them, but certainly not accepting them without a very considerable, and, I might say, skilful struggle. I suggest he has been a little disingenuous in relation to this present matter because, on the one hand, as Senator Bergin has said, if a man happens to be a dipsomaniac and is to be dismissed for that reason, it is because he is no longer fit to do his job. The Minister submitted the view to us this evening, and asked us if we did not think it was better for such a man to be given a pension than the sack. Of course, we all agreed, but the Minister now asks for the power to give him the sack, without any pension. The only thing that will prevent that from happening is an appeal to one person, appeal to the Minister himself—not to an arbitration tribunal—no representation of the man's union. The Minister himself is the only barrier we have between justice and injustice in such a case.
The Minister has just said it seems reasonable that when a man indulges in some "misconduct" or what he even called the "misconduct" of refusing to give up drink, if he was a dipsomaniac—again, I understood the Minister to agree that the dipsomania might, in fact, be beyond his control or might be an infirmity——
Not "misconduct". I said "unfitness".
I am speaking subject to correction but if my recollection serves me well I think the Minister used only the word "misconduct" and spoke of the "misconduct" of refusing to give up drink in this case. I think the record will bear me out and, if it does not, I withdraw it. In effect, the Minister said:
"Should we not have a right there to deduct the years served, and so forth?"
I would answer emphatically: "No." And I would underline that word of the Minister—"deduct" years of service. "Deduct" is the wrong word. He means "wipe out" all the man's service—20 years have been suggested but it might be 30 years—in relation to pension. There is no "deduction." It is a "wiping out", and that is what the Minister is asking us to grant him the right to do.
I suggest, in relation to dipsomania, since that has been mentioned, that perhaps the best cure would be to put the man out on pension, because the sort of niggardly pension envisaged here will certainly very considerably cut down the amount of drink he will be able to buy for himself! An appeal to the Minister is again the only barrier. It seems to me to confer on the Minister—upon any Minister—too much power—power almost of life and death over not only the man but his family, the power to deprive him of his pension rights when he might be quite advanced in years and incapable of finding any other work.
Now I should like to see the whole principle of pensions related to the work done. I should like to see pensions regarded as, in a sense, part of the salary. It is quite obvious that people apply for certain jobs with pensions and put up with certain niggardly salaries, because the jobs have pensions, and the pension is a right vested in the job of which the worker should certainly not be deprived too lightly or indeed deprived, I think, at all.
The Minister painted a lurid picture of local officers deserting and joining an invading army, coming in at the head of an army, and suggested that it is for the purpose of avoiding this kind of thing happening that we have to have these clauses.
I said the tail.
If this army is successful, the Minister will be replaced and consequently these men coming even at the tail of the army would be able to appeal to their new Minister and get their pension in that way. The Minister is allowing his imagination to go too far by suggesting that we have no other way of dealing with a man who deserts his country and fights in the armed forces of another country to invade this country, that we have no way of depriving him of his pension unless we pass this Bill, including these sections! I suggest that the Minister is stating his case in an extremely exaggerated way.
I would put it to the Seanad that it is, in fact, intolerable to imagine a man, after 30 years of work, being put in the position of having no more pension rights than if he had done no work at all. That is what we are asked to do under two of these paragraphs—to deprive the man not of a proportion of his pension rights but of his total rights, after a considerable period of work decently and honestly done, which are all to be wiped out in an inexorable way by these clauses, if we accept them.
Finally, I am afraid the Minister went a bit too far when he suggested that one of the reasons in his mind when he decided to exclude "servants" but to include "officers" was that the servants are a class—he used the word "class". Are we going to allow class legislation to be included here? He went further. He said they had a union behind them. That was not very flattering for any union that may represent the officers. He went so far as to say that servants "have a union behind them". The implication was, therefore, that, because the officers are not so well organised, because their union is more easily brought to heel, we will grant them less. I would regard that as an unwarrantable class distinction. I do not think it can be described in any other terms. Consequently, I would very strongly appeal to the Minister to reconsider this, and to demonstrate, shall I say, yet once more, that he is capable of having second thoughts and accepting amendments or, if not accepting amendments, inserting even better amendments himself on the Report Stage.
I think the Minister was not particularly happy in the examples he quoted for us. Take the case of an emergency. Is it to be assumed for a moment that we should write into a Bill intended for ordinary times—non-emergency times—that will last for a number of years something that will apply only in the case of an emergency? If any officer were to do the kind of things he suggested might be done in an emergency, surely there is a way of dealing with them. In the case of an emergency, the Government have all power; and, if I were a member of a Government during an emergency and if an officer did the things or attempted to do the things that the Minister suggested he might do, then I would not be content with depriving him of his pension, but would do something very much more drastic with him. But it is not good enough, I think, to bring into ordinary legislation for everyday use something which would apply only in the case of an emergency.
Then there is this other matter. I do not agree with what Senator Murphy said—or rather the interpretation the Minister took out of what he said— that there would not be a strike on the part of State or local authority officers. I was speaking the last day, and I am speaking to-day, about a particular body—the vocational teachers. These people are well organised—they have a union behind them—and there may be circumstances in which they would feel compelled to strike. I will give you an instance of the kind of thing, because it actually has occurred. During the Second Reading, the Minister said that in this Bill the officers of local authorities were, in the main, like civil servants. There were some differences about contributions, but they were treated as civil servants. I will give an instance. There was an award made some time ago to civil servants—I think it was a 7½ per cent. increase. It was applied, or intended to be applied, to vocational teachers, amongst others. The vocational teachers in a certain county—I will tell the Minister which county if he wishes— have refused to honour that award.
The committee.
Yes; the vocational committee have refused to honour that award.
That is democracy.
It is the kind of democracy that the union might be forced to strike against. It is quite possible that the vocational teachers employed by that body might feel themselves that it was the only way they had left—to strike—and, if they are prevented from exercising that right, which they are given in the Constitution, by this deterrent, put there especially to stop them, I think that would be a case where a strike might be well justified.
I do not want to dwell any further on the case made by the Minister about the dipsomaniacs. I do not know how many of these there are in the service of local authorities, but, again, surely there ought to be a way of dealing with that individual, without threatening the whole service with this deterrent. I am sure the Minister and his officials could find a great many ways of dealing with individuals of that kind, and that there would be plenty of opportunities of dealing with them, without putting in this regulation that applies to the whole body.
These officials are responsible people. They are the kind of people who do not like to be threatened. They feel themselves placed under a cloud of suspicion, by this assumption that they would not do their duty. We have 12,000 to 15,000 national teachers, and although many queer things were done in regard to them, it was never thought necessary to put in a deterrent of this kind, that they would lose their service. They went on strike for a period of eight months. They lost all that period of service, and no one is grumbling about that, but when they went back into service, all the pensionable service that they had before that was to their credit.
As I say, there have been no great abuses in the case of national teachers. Maybe there were one or two, but there are ways of dealing with them, if they do not do their duty. Their salaries can be stopped—and ought to be stopped—if they absent themselves without authority or deliberately—and their pensions for that period of their absence may be stopped and they may lose their rights of promotion, and so on. But it is a terrible penalty to an officer, who is looking forward at the end of his days to something to support himself when he leaves his job, to be deprived of 20 or 30 years' service for pensionable purposes, and to be thrown out at the end of his long service with a miserable pension.
I am afraid I must have wronged the Minister completely because he has now explained to us that the provisions in this section are required to deal with cases of individual discipline. He has explained that, in order to give the Minister discretion in disciplining individual members, he should have the right to cancel their previous service for superannuation purposes. In regard to that point, might I say that I have no knowledge of any such provision in other superannuation funds? I have knowledge of superannuation funds in other services where the member of the superannuation fund pays a certain proportion of his salary equal to that paid by the employer and, if he is dismissed for any purpose later on, the portion which he has paid in to the superannuation fund is his own property. There is no doubt at all that, if he decides to leave, it is still his own property. If he is dismissed for anything, it is still his own property, except that the employer has always a lien on the employee's contributions for any money which he might have stolen. I think that is all right.
That is not the point I was making to the Minister. I should say that I think he is taking too much power here altogether for that individual discipline, but I was not quarrelling with him when I rose to oppose sub-section (f) on this point. He has assured us, however, that it is not intended as an instrument to deal with group discipline; in other words, it is not intended to deter or prevent strike action by a group. I will put him to the test, however, in regard to that and I will ask him, if it is not his intention, as he said, to prevent strike action or to deter—I am not quoting his words exactly because I do not remember them, but I think I have the general sense of what he said—and to test him I will ask if he will be putting in an amendment on Report Stage, to add on to paragraph (f) a provision that it does not apply to any absence in pursuance of a trade dispute. Perhaps the wording I suggest is not the proper wording, but I think the Minister knows very well what I mean. If he is sincere in his assurances here to-night, in telling us that it is not a group deterrent, that it is not to prevent strike action, that it is simply intended to deal with individual cases of discipline, again, let him give us that assurance and I, for my part, will be prepared to sit down and not say any more about paragraph (f) of Section 10.
The Minister bases his whole argument in favour of the retention of paragraph (f) on the fact that there is an appeal to the Minister. He tries to make it appear that, so long as that appeal is there, everything is all right and that there is no risk whatever of hardship or injustice. The Minister appears to take the view that, so long as the Minister, being a generous and kind-hearted man, as I know he is——
There are four Ministers.
The majority of appeals will concern the Minister for Local Government.
No, the Minister for Health.
Suppose all the Ministers referred to are generous and kind-hearted men, the Minister is basing his argument on the fact that——
I did not say they would be kind-hearted. I said they would act in a judicial or quasi-judicial capacity.
The Minister did not make any provision for the fact that there might be a change of Government and that we might not have the kind-hearted men acting in a quasi-judicial capacity. Even Rome fell and the Minister should have some regard to the verdict of history. He should look back and remember that even Rome fell, and you might have in those quasi-judicial positions men who would not be kind-hearted or who would not be as judicial or judicious, as they should be.
That is really the corner stone of the Minister's case in respect of sub-section (f), together with a hypothesis that could hardly arise when the Minister referred to the possibility of officers of a local authority deserting their posts to join with some invader and coming in as the leaders of an invading army. If that is the argument put forward in justification of that sub-section, surely the Minister should know that treason has ever been regarded as treason and for quite a long time it has been dealt with as it should be.
Before an appeal comes to the Minister, an officer of a local authority must be suspended or dismissed. Who suspends or dismisses an officer? We will leave out the servants for the moment.
The manager.
The Minister knows quite well and every member of this House who has any experience at all of local government knows that the manager, acting and discharging his functions in a local authority, dismisses an officer.
He has the right of appeal to the Minister.
He has, and I will deal with that, Sir. That would be all right if we could ensure that all managers acted in a quasi-judicial capacity.
If we could ensure that in respect of the judiciary, we would be doing well.
The Minister has more experience of the judiciary than I have.
That is why I mentioned it.
If the Minister has that view about the judiciary, I cannot change it. It is a matter of opinion. It is the Minister's opinion, and I have no view myself on that. In practice, here is what happens. A manager suspends or dismisses an officer and there is an appeal, but the file or the statement of claim, if you like, is compiled by whom before it goes to the Minister? I think that should register with the Minister. I am serious now because I think I have some cases in mind where there might have been miscarriages of justice. It is better to err on the side of the individual. The statement of claim is compiled, I suggest, by the local authority, or, in other words, by the manager. If I am wrong, the Minister can correct me.
I do not understand what the Senator means by the words "statement of claim". Does the Senator refer to it in the legal sense?
I was using that phrase——
I only know the civil side of the law. I know nothing about the criminal side.
When I mentioned the words "statement of claim", what I had in mind was the file in regard to that particular officer in respect to his conduct, or his alleged misconduct, and which the county manager compiles.
That is not true.
To an extent. His observations are on it.
So are the officer's.
That is so, but because I was jocose in regard to other matters, I do not want to suggest that the present Minister would not be as fair as he could be and as kind-hearted as he could be in dealing with any officer. The fact is that the county manager may have prejudices, since he is human, just as a judge can have them. He can also have pride, and pride and prejudice could ensure that an injustice would be done. Once an officer is suspended it is a dangerous situation for that person, despite the fact the Senator Murphy does not appear to be interested so long as it does not refer to a group of persons. The Minister is quite right when he says it deals with individuals.
When a man who has worked for 25 years, given good and faithful service and contributed to a fund to create a pension right for himself discovers that he is suddenly deprived of that right which he purchased by reason of paying into a superannuation fund——
We are not dealing with the dismissal of an officer. We are dealing with the pension rights of an officer. They are two distinct things under the section.
Yes; but when an officer is removed from office under this section, he loses his pension rights.
The Senator should read the paragraph which refers to a person being removed for certain reasons only.
It is wrong to deprive an officer of a pension right since he has paid into the fund, even if he is removed from office for a good reason as being unfit. I think, in ordinary justice, he is entitled to the pension right he has purchased over the period during which he gave good and faithful service. I think common justice demands that. It is not just to wield the big stick in this section to deprive him of that right. The Minister was defining unfitness earlier in this debate. He mentioned constitutional unfitness. I was at a loss to know whether the Minister meant the Constitution of the State or the constitution of the individual. Perhaps the Minister, when replying, might tell us which he did mean.
I merely wish to make one further observation before the Minister replies to the challenge Senator Murphy has put to him, or the queries he has posed. I do so to point out that I do not really think the addition of words to sub-section (f) in itself would record clearly and definitely enough the assurance that the Minister has expressed. I am prepared to accept in all good faith every assurance the Minister has given the House, but what troubles me and many other members of the House is obviously the fact that we could, and probably will, be dealing with many other Ministers under this Act, if and when it is enacted.
I want particularly to point out that even the addition to sub-section (f) of words providing that absence from duty in the legitimate pursuance of a trade dispute would not of itself remove some of the objectionable parts of this section. If we look back for a moment to sub-section (d), we find the use of the terms "misconduct" and "unfitness". Quite clearly, we have to visualise that we could, perhaps, be dealing with a local authority or a Minister eventually who would put an interpretation of unfitness or misconduct on some of the officers of the local authority who would in fact engage in a trade dispute. For that reason, I want to say that it is my intention on the Report Stage to put down a further amendment to this section. The Minister might, perhaps, note that before offering his reply to Senator Murphy.
Having heard particularly the two Senators whose amendments to this section were ruled out of order, and having heard them themselves tell us in their opening speeches that they expected that this decision would be made by the Chair, we had quite a long time of the House taken up to decide what procedure we should adopt before we began the discussion on this Bill. Be that as it may, the Minister, having a very bad case, adopted an approach in regard to this section of making up his mind that the best thing he could do was as far as possible to distract the attention of the House from what the section proposed to do.
Speaking to an earlier amendment of mine to Section 7, he pointed out that the officers to whom he referred were responsible persons and were, in the main, appointed on the recommendation of the Appointments Commission, or other various means set up of competitive examinations and so forth by the local authority, whether it was functioning through the county manager or not. He said that all those officers were responsible officers, and, further, that they were pensionable. Therefore, I hold that this section as far as it relates to officers of local authorities is unnecessary, because those people have already their pension rights provided for under the terms of their contract of employment with the local authority.
In making the case for the section, and particularly for the sub-section to which the Senators referred, the Minister drew an analogy with a dispensary doctor who was not in a position to perform the duties assigned to him, and argued that surely the House did not expect that that person should be allowed to continue in the service without somebody having the responsibility of making a decision to terminate his employment and, further, to deprive him of years of service he had already given. Before this Bill was printed, and as a matter of fact since 1868, the Minister for Local Government, or whatever Department functioned in control of dispensary officers and like employees of a local authority, had the authority and right to remove such persons from office, and to either add or subtract terms of years from their employment, and so forth. Therefore, the point I wish to make, regarding the picture drawn for us by the Minister of the necessity for this Bill to deal with those officers who were not acting through an organisation, but were acting as individuals, is that the Department has already sufficient power and has down the years exercised its powers in various ways.
Hardly a Senator has not had the experience of being on a deputation to the Department of Local Government or the Department of Health, whichever it may be, in relation to action taken in connection with an employee of a local authority such as the Minister has pointed out. Before we make a decision as to whether we should or should not reject this section in its entirety or try to amend it and make it more acceptable on the Report Stage, I should like to have from the Minister some more definite information as to what groups of officers of local authorities this section will affect. It cannot affect persons who already will be employed, through the fact that their employment carries pensions without any deduction being made from them. The best thing the Minister could do is to withdraw the section and to resubmit a section giving power, if the power is necessary, to the Minister to do the things that may be required to be done and which I hold this section does not do.
Progress reported; Committee to sit again.