Adjournment Matters

Redundancy Payments

An Leas-Chathaoirleach

I welcome the Minister of State at the Department of Jobs, Enterprise and Innovation, Deputy Perry, to the House.

I have been asked to read a cautionary note to Senator Cullinane. As the Senator is aware, I had to rule out of order certain aspects of the Senator's Adjournment matter as they appeared to me to encroach on the functions of the High Court, which is not permissible under Standing Order 47 relating to matters that are sub judice. I ask Senator Cullinane to respect my ruling when discussing this issue. The Seanad Office has provided him with a text that is admissible. For his information, he cannot raise the matter of compensation for workers and the protection of the workers' pension scheme. These matters go to the heart of the deliberations of the High Court case and may damage the proceedings. The Senator has four minutes to put his case to the Minister of State, being mindful of the admonition that I have to read to him. It is a guideline.

Senator David Cullinane

The Minister of State is aware that the former Waterford Crystal workers brought a case to the Commercial Court.

The Commercial Court sought advice from the European Court of Justice on a number of aspects of the State's obligations under the European Union 2008 insolvency directive. The European Court of Justice ruled last week and found that the State had failed in its obligations to implement measures which safeguard workers' pensions in respect of a double insolvency and that the State had not implemented Article 8 of the EU insolvency directive.

I hosted a briefing in the audio-visual room today which was attended by Members from all parties and none. The briefing was given by Mr. Jimmy Kelly and Mr. Walter Cullen, officials from Unite, Mr. Tom Hogan and Mr. Michael Dooley, former Waterford Crystal workers and plaintiffs in the court case to which I referred, Ms Mona Costello, the lawyer for the workers, and Mr. John O'Connell, a pensions expert. The two former workers spoke about their experience of working for 30 years and 40 years in Waterford Crystal. They found out at very short notice that their jobs were gone, that they were essentially being locked out of their jobs and that they were being left without proper redundancy payments and without proper terms and conditions being implemented. They were treated very badly by the company. The workers then found out that not only was the company insolvent but that their pension fund was insolvent and that after long service to a company, they would not get their proper entitlements in terms of redundancy nor would they get the vast bulk of their pension into which they had paid. To add insult to injury, they then found out to their cost that the State had failed in its obligation. If the State had implemented the 2008 European Union insolvency directive, those workers' pensions would have been protected.

I commend the workers for taking the court case and congratulate them on their victory. However, I appeal to the Government to act. I understand this must go back to the Commercial Court but the strong message from all the people who made the presentation in the audio-visual room today - from the legal people to the pensions expert to the workers themselves to the union - was that the Government should not drag its heels. While the Leas-Chathaoirleach can argue it is sub judice, that does not stop the Government from acting. The Government has it within its power to enter into immediate negotiations with the trade union to properly compensate the former Waterford Crystal workers.

I will leave it to the Commercial Court to make its decision but I am asking the Government to start negotiations with the former workers. The delegation was very clear that if the Government does that, then agreement can be reached to everybody's satisfaction. However, there must be justice for former Waterford Crystal workers who must get their pensions. What steps will the Government take following this judgment? Will it drag its heels, drag this out further and add insult to injury or will it accept the court's ruling and allow the Commercial Court to run its course but enter into negotiations with the trade union, properly compensate the workers and seek to put in place legislation, which it ultimately will be compelled to do, to ensure all workers and their pensions are protected?

Minister of State at the Department of Jobs, Enterprise and Innovation (Deputy John Perry)

I am taking this matter on behalf of the Minister for Social Protection. On 25 April last, the European Court of Justice issued a ruling which contained a number of clarifications regarding transposition EU Directive 2008/94EC which concerns the protection of employees in the event of the insolvency of their employer. This ruling was in response to a July 2011 referral from the High Court regarding proceedings brought by former workers at Waterford Crystal. The High Court had, in taking the view that interpretation of the provisions of directive 2008/94 was necessary in order for it to give its decision in this case, decided to stay the proceedings and to refer a number of questions to the European Court of Justice for a preliminary ruling.

Following the European Court of Justice ruling, the matter will now revert to the High Court for consideration. Given this matter remains before the courts, it would not be appropriate for me to comment further on any specific aspects of the case at this time.

Senator David Cullinane

While I understand the brevity of the response and the fact the Minister of State may be reluctant to discuss this further, I must stress that there is nothing stopping the State from doing something of its own volition. There is nothing stopping the Minister for Finance starting discussions with Unite and the former workers. I appeal to the Minister of State to use his good office to appeal to him to start those discussions and negotiations. There was cross-party support at today's briefing for that to happen. It should happen because those workers deserve justice. If it is seen by people in Waterford and those workers that the Government is continuing to hide behind the court and legal issues and dragging its feet on this issue, it will be fiercely resisted. The vast majority of people in Waterford feel very deeply for those former Waterford Crystal workers. For anybody who believes in justice, the Government must do the right thing by those workers. I appeal to the Minister of State to ask the Minister for Finance to arrange a meeting with the delegation and start those discussions, which will happen anyway.

An Leas-Chathaoirleach

I am sure the Minister of State will convey the Senator's remarks.

Deputy John Perry

I would like to emphasise what I said in my response. I stated that following the European Court of Justice ruling, the matter will now revert to the High Court for consideration, which is very important, and that given that this matter remains before the courts, it would not be appropriate for me to comment further on any specific aspects of the case at this time.

Marine Resources

Senator Trevor Ó Clochartaigh

Cuirim fáilte roimh an Aire Stáit. Tá mé thar a bheith buíoch dó as teacht isteach leis an cheist seo a phlé liom. I raise the issue of oysters in Ballinakill Bay in north Connemara. We in Ireland pride ourselves on being able to sell the country as a place which is green, which has organic foods, etc., as does the Minister. However, there is an anomaly in Ballinakill Bay, on which I have been working for quite a while. I refer to a certain strain of a virus called ostreid herpes virus which has been the subject of a surveillance programme funded by the EU and administered by the Marine Institute in the past few years. The idea is to try to keep the strain of the virus out of bays, if possible.

Ballinakill Bay was clear of the virus but during the surveillance programme, one oyster out of 900 tested was found to have the virus. It was found at the beginning of the programme approximately three years ago. As one oyster was found, the whole bay was taken out of the surveillance programme which opened up the bay for other oyster farmers to bring in other strains of oysters, which can be infected with other types of virus, although they are saleable on the market because they do not harm people. However, they reduce the quality of the bay and affect the designation it would have as an organic one in which we can farm these oysters. It is having a serious impact on the business which has been selling these organic oyster throughout Europe for the past few years.

I have raised this issue with the Marine Institute which indicated that it was following directives from the EU and that this was an EU programme. I also followed it up through the offices of Ms Martina Anderson, MEP, in conjunction with Mr. Pat The Cope Gallager, MEP, who raised it with the Commission. There is a question mark over how one infected oyster got into the sample. It seems very strange.

Does that mean the whole bay had the ostreid herpes virus? If no other oyster is found over a two-year period can we declare the bay to be free of the virus? I shall also raise these questions with the Commission.

I understand from the replies that we received from the Commission that the surveillance programme will continue until 2014. If one follows the letter of the law regarding the discovery of one infected oyster, one could argue that the bay should have been removed from the surveillance programme. I call on the Minister to have the bay reinstated until the end of the surveillance programme and for the Marine Institute to continue its testing in order to keep infected oysters out of the bay for at least another year. There is a chance that the bay is free of disease and, if so, then we should maintain that status. If we allow oysters carrying the virus into the bay then the virus will spread and we will have no chance to restore the organic status of the bay.

I appreciate that the matter is covered by EU legislation. The only course of action open to us is for the Minister to intervene and request that the Marine Institute and his colleagues in the Commission restore surveillance for another year and until the end of 2014. Such a provision would mean that we could engage at the end of year and check if there are more infected oysters. If they exist, then one could argue that the bay is no longer disease free. If no more diseased oysters are found then surely we can reinstate the disease-free status of the bay on a full-time basis. Such status would do us a lot of good at European and national levels and would support the farmers involved. I look forward to the Minister of State's reply.

Minister of State at the Department of the Environment, Community and Local Government (Deputy Jan O'Sullivan)

I thank the Senator. I apologise for the Minister, Deputy Coveney's absence but he was unable to attend this important and complex debate.

As the Senator said, the competent authority for dealing with the issue is the Marine Institute. The core issue is that in areas deemed free of the disease there should be no importation of stock from infected areas. The areas were known as surveillance areas and included Ballinakill. In 2011 a positive test result necessitated the removal of the bay from the surveillance programme.

Losses related to the virus in oysters were first observed in Ireland in 2008. The disease spread in the next couple of years and was strongly associated with imports of seed from France. Following representations made to the European Commission by the Marine Institute, it was agreed by the Commission that this was a serious emerging disease and that trade restrictions should be put in place to protect the areas that were still free of the virus while allowing trade to continue between infected areas.

EU legislation was brought forward to that effect in 2010. As a result, a surveillance programme was established in certain parts of Ireland, the UK and the Netherlands. The kernel of the surveillance programme was that each competent authority identified epidemiological units, or bays in the case of Ireland, where virus-related mortality had not been observed to date, and which the member state wished to protect from trade with other infected areas either within their own member state or further afield, most particularly France. Once these areas were identified as part of the surveillance programme, they could only trade with areas that were also in a surveillance programme, either here or abroad, and were thereby afforded a level of legal protection against the virus.

One of the requirements of being in the surveillance programme was that a testing regime would be put in place to ensure that these bays were free of the virus. A significant amount of State resources have been put into the operation of the Irish surveillance programme since it started in 2010. Since the basis of the surveillance programme was to underpin safe trade, an obvious prerequisite was that an epidemiological unit must be removed from the programme should a positive result be detected in that unit following laboratory testing. Such a result was obtained in respect of Ballinakill Bay in 2011.

The Irish surveillance programme started with 19 surveillance areas. Since 2010 testing has revealed that five of them were infected and must be removed from the programme. The bays are Gweedore, Drumcliffe, Ballinakill, Oysterhaven and the Shannon Estuary. As new positive findings arose, new decisions were issued by the European Commission. As newly-infected areas were removed from the national programme, the legislation was modified to reflect these findings. Newly-infected areas were also detected in Northern Ireland and Great Britain since the programme began in 2010.

Clinical disease is not required for an epidemiological unit to be removed from the programme. In other words, a single molecular result constitutes a positive finding which requires removal from the scheme. If it were not the case, then any trade out of the area in which the positive test was confirmed could potentially be responsible for disease spread either within Ireland or further afield.

As indicated, five bays have been removed from the Irish surveillance programme since it began in 2010. A positive finding at Ballinakill Bay necessitated its removal from the surveillance programme in 2011. It is important to note that the current legislation provides for no option other than to remove the bay from the surveillance programme following the detection of one positive oyster in the bay.

Once a bay is removed from the surveillance programme, the relevant competent authority no longer has any legal basis for restricting trade into the bay. This is the basis of the agreed EU programme and applies equally in all member states who participate in the programme. In the case of Ballinakill Bay, if the Marine Institute had continued to restrict trade following its removal from the programme, a legitimate challenge could have been taken by other operators in the bay who wish to import stock from France. Such imports were not allowed while the bay was in the surveillance programme.

The very complex situation in Ballinakill was fully recognised by the institute. Instead of simply removing the bay from the surveillance programme and immediately allowing importation of stocks from France, the institute invested significant efforts into encouraging growers to voluntarily restrict trade with France for that season while testing continued. The objective was for the institute to gather more scientific data that would be used to inform a voluntary path forward for all stakeholders.

Specifically, the institute was faced with a situation where certain growers wanted to bring in stock from France, which could not be legally prevented, and others wanted to go back into a surveillance programme that was not legally permissible. Instead, the institute tried to encourage stakeholders to consider the results obtained which was only one positive out of almost 900 animals tested using very sensitive methods. It encouraged stakeholders to consider the findings and to reach an agreement on a code of practice for the bay that the institute would support with testing and advice. It is understood that while this has not been actioned by the stakeholders to date, an initial meeting may be scheduled for the coming weeks.

The action taken by the institute in Ballinakill had been agreed by the European Commission. The institute has made considerable efforts to encourage the stakeholders to agree a code of practice. An agreement to a code of practice could potentially, after a number of years, provide data upon which the virus free status at Ballinakill could be reinstated. The institute has offered scientific advice and laboratory testing to support the approach.

Ireland's reputation as a producer of top quality seafood is predicated on the implementation of a sound regulatory system that has the confidence of the public in general and the European Commission. The Minister has indicated that he is satisfied, in the circumstances, that the correct approach is being adopted for the benefit of the entire industry. The reply was appropriately long for such a detailed and complex issue.

An Leas-Chathaoirleach

An bhfuil tú sásta, Senator Ó Clochartaigh?

Senator Trevor Ó Clochartaigh

I appreciate the answer. I have received a lot of the information from the Marine Institute. I agree that the matter is complex. The bottom line is that there was only one positive out of 900 animals tested which was discovered during the first year of testing. One could question how that could happen. It seems to be an aberration rather than the rule. I know that in the case of some of the other bays that were removed from the programme the situation was much more severe.

I welcome the fact that the Minister and the institute are trying to establish a code of practice for the bay. I ask that he applies a little more pressure to ensure that it is established, particularly if there is a chance that the bay could be kept disease free. That is a possibility. If the data collection is continued the bay could be reinstated. I understand that there is not a huge amount of testing being done at present because the bay has been removed from the programme. Perhaps he could urge that Marine Institute continues its testing and monitors whether the bay is disease free. I thank him for his answer again.

Deputy Jan O'Sullivan

I will convey the Senator's comments to the Minister.

Planning Issues

Senator Colm Burke

I welcome the Minister of State. I wish to raise the issue of Part V compliance. I know of a number of projects that did not comply with Part V when a company went into liquidation. There is a difference between going into liquidation and entering NAMA. In this case Ulster Bank is involved but is not part of the NAMA process. I was concerned to find that the properties are fully occupied. I have sought clarification from the local authority on whether there was compliance with Part V and if the appropriate moneys were paid. Under Part V lands were to be made available to the local authority but they were mortgaged to another bank and, therefore, Part V could not have been complied with.

What action has the Department taken to ensure that liquidators in this situation comply with Part V, by way of a financial contribution, if a property is not going to be made available?

It is one area on which we appear not to have got full clarification. Local authorities provided the necessary services not only for this development but a number of developments, without any compliance with Part V, yet these properties are now occupied and an attempt is being made to sell them. Will the local authorities get a contribution for providing the services in view of what has occurred?

Deputy Jan O'Sullivan

I thank the Senator again for raising this issue, which is complex.

Part V of the Planning and Development Act 2000 specifies that up to 20% of land zoned for residential use must be reserved for the provision of social and affordable housing in each local authority area. This is transferred to local authorities at existing use value by way of land, units or serviced sites.

Following the amendment of the 2000 Act by the Planning and Development (Amendment) Acts of 2002 and 2010, and other guidance issued on implementation issues by my Department in July 2003 and November 2006, developers and house builders can offer a range of alternative ways to meet their Part V requirements. These alternatives include the provision of off-site serviced sites, the transfer of other lands to the planning authority within its administrative area, payment of a financial contribution and entry into rental accommodation availability agreements.

Generally speaking, conditions attached to a planning permission requiring the payment of development contributions will require the developer to pay the specified amount, often in advance of development commencing. It is my understanding that, on appointment, a liquidator becomes responsible for discharging the liabilities of a developer, including the development contributions attached to a planning permission. Without so discharging, the development may be classified as unauthorised development. While I am aware generally of the difficult financial position of local authorities, and have brought forward important changes to the development contribution regime in that regard, I am not aware of specific difficulties in securing development contributions from liquidators.

In recognition of the challenges presented by the current economic environment, my Department issued updated guidance to local authorities early last year on options for ensuring compliance with Part V requirements. In light of market conditions, the financial position of local authorities and the Exchequer, and the difficulties associated with the over-supply of affordable housing, my Department advised local authorities that mechanisms for discharging Part V obligations, which would not place additional funding pressures on local authorities, were to be used. Such options include financial contributions, reduced numbers of units, or lands in lieu.

The Government's housing policy statement, published in June 2011, announced the standing down of all affordable housing schemes, including the shared ownership scheme, in the context of a full review of Part V of the Planning and Development Act 2000. These schemes were introduced to bridge the affordability gap that emerged during the boom years, preventing middle-income households from realising their ownership aspirations. However, affordable housing did nothing to address the underlying problem - market overheating - with an unsustainable gap between prices and incomes. In addition, affordability has eased to such an extent that there is little or no demand for affordable housing. Indeed, in recent years the challenge has been to deploy existing affordable stock productively rather than deliver new affordable housing.

The review of Part V is now almost concluded and I have also asked the Housing and Sustainable Communities Agency to provide me with a stand-alone analysis of the shared ownership scheme, including identification of the main difficulties and recommendations for mitigating measures.

Any future change to legislation governing affordable housing schemes, including the shared ownership scheme, will be made in the context of both pieces of work and I expect to make announcements in this regard in the near future. As the next step in this process, I intend to publish public consultation documents on both topics in the coming weeks.

Senator Colm Burke

I thank the Minister of State. If I give her details of the project I am concerned about it could be followed up because I am not satisfied that the local authority has not responded to my query. This is a major development of over 160 units and I am not satisfied that Part V has been complied with. When I see it being offered for sale to outside investors I want to make sure that the liquidator is making a contribution to the local authority in view of the fact that the local authority provided the services, the roads, the sewerage and the water supply. I am very concerned that would happen. If I give the Minister the details on it the Department might come back to me on it.

Deputy Jan O'Sullivan

If there are developers who are trying to avoid their responsibilities, I would be delighted to get the information and come back to the Deputy on the matter.

School Accommodation

Senator Lorraine Higgins

I welcome the Minister of State to the House and thank her for taking this matter on the Adjournment. My home town of Athenry is a growing urban area the population of which has increased from 1,000 during pre-boom times to 5,000 currently and, as a consequence, the local schools, and in particular the Presentation College in Athenry, is experiencing over-capacity and ongoing demand for school places. This school was built to accommodate considerably fewer students than the approximately 1,000 students currently attending the school. More troubling is that of the student population, at least half of the students are housed in prefabs. Furthermore, other difficulties are being presented, particularly to parents in the town and those from surrounding parishes such as Monivea, Clarinbridge, Craughwell and Kilcolgan who are trying to get their children educated at this school, which has a wonderful academic record, but to no avail as a result of the demands that are placed on it. The school would like to be able to accommodate all these children, and there is a significant over-capacity issue, but because of the serious over-utilisation of general space in the school and that half the school population study in prefabs, health and safety risks may well be presented to all and sundry.

Adequately spaced classrooms are in short supply, as is specialist accommodation for the school. While the school has received funding in the past for upgrading the facilities and the addition of temporary classroom facilities, for which the principal of the school and the board of the management are extremely grateful to the Department, it is telling that the Department has acknowledged the unsuitability of the facility when it placed the school on a five-year list for capital building works and earmarked a 20-acre site for development on the outskirts of Athenry.

I understand that in December 2011 the project has entered into a design process whereby a team of architects and engineers planned the form and structure of this new school but despite promises at that time that the school would be up and running by 2014, it is clear now that this will not be possible. The board of management has been very proactive in proceeding through the various processes and it has, as such, completed its part of the deal. However, information to which I have become privy and that has been circulating locally suggests that other business organisations involved in significant infrastructure projects within Athenry, which are to be earmarked for development locally, have grave reservations about the viability of this site from a planning perspective. I am afraid that may stymie any plans to have a school built on this site that is earmarked for development. It calls into question the suitability of the site in its totality and if that is the case, I suggest to the Minister that we should not delay and should seek alternative sites to ensure that the progress of this school continues without any undue delay.

In light of what I have stated, I request that the Minister outline the current status of the application for new accommodation, including an indication of the timeframe within which this school project will be delivered. If the details I have referred to in my contribution are accurate, the Minister of State or the Minister, Deputy Quinn, might be so good as to inform me.

Deputy Jan O'Sullivan

I am responding on behalf of the Minister for Education and Skills, Deputy Ruairí Quinn. I am pleased to be given this opportunity to inform the House of the position on the provision of new accommodation for Presentation College, Athenry.

As the Senator will be aware, meeting the current emerging demographic challenges for the school sector is one of the highest priorities of the Minister and his officials. The provision of school accommodation in areas of greatest need is the key to achieving our objectives in this respect. The Senator will recall that the Minister announced a five-year plan for school building projects in March 2012. More particularly, he also recently announced the 50 school projects scheduled for construction in the current year as part of a €2 billion capital investment programme. Through these announcements the Minister has identified the major school projects that will be undertaken to meet these challenges. These projects will commence construction over the duration of the five-year plan.

As the Senator said, Presentation College, Athenry, is a co-educational voluntary secondary school in a town which has seen significant population growth in the past number of years. That growth precipitated the identification of Athenry as one of the areas in need of additional school provision at both primary and post-primary levels. The Minister is also conscious that a significant proportion of the students in Presentation College, Athenry, are currently being accommodated in temporary buildings and facilities. The need for new school places in the school is critical in that context.

Consequently, it is planned to deliver a new post-primary school with provision for 1,000 pupil places on a greenfield site in Athenry. This school building will replace the existing Presentation College premises. A site for the new school was acquired from Teagasc by the school trustees in late 2012.

I was not aware there was an issue with the site, but I will return to that matter. The site is currently the subject of pre-planning preparations for the project. The preparations are being undertaken by the National Development Finance Agency to which the project has been devolved for delivery under the new devolved model which is in use by the Department. Pre-planning discussions are taking place with all relevant stakeholders, including the board of management, nearby residents and enterprises and the local community in general. The discussions are ongoing and progressing. The target date to complete the project at Presentation College, Athenry, is 2014-15. It is hoped that by then students and staff will be able to occupy the fully equipped science laboratories, multi-media and technology rooms, music, art and home economics facilities and the special needs unit. I assure Senator Higgins that in the interim the Department is maintaining contact with the school to ensure there is sufficient accommodation for September 2013.

I thank the Senator for the opportunity to set out this information. I note the specific issues she raised, which I will bring to the attention of the Minister for Education and Skills, Deputy Ruairí Quinn.

Senator Lorraine Higgins

I thank the Minister of State for her response. I am glad some clarity has been provided. I am aware that the Department is in contact with the school, on behalf of which I have raised the issue this evening. The school was seeking clarity as to a definite timeline and a date by which students and staff could occupy the accommodation in the new building. As I said, there was concern locally about the suitability of the site in the context of an outside body or agency looking at developing significant infrastructure in the town. It was of concern to me as it is in the interests of parents, the board of management and the general population of the town that the project goes ahead as quickly as possible and that nothing stands in the way of it being expedited.

The Seanad adjourned at 6.30 p.m. until 10.30 a.m. on Thursday, 2 May 2013.

Seanad Éireann debate - Wednesday, 1 May 2013