SELECT COMMITTEE ON PUBLIC ENTERPRISE AND TRANSPORT debate -
Tuesday, 23 Mar 1999

Vol. 2 No. 2

Road Transport Bill, 1998: Committee Stage.

Sections 1 to 6, inclusive, agreed to.

SECTION 7.

Mr. Jacob

I move amendment No. 1:

In page 7, subsection (3), line 42, to delete "a road freight carrier's licence or".

The intention is to give the Minister power to exempt certain classes of operators or vehicles from the need to obtain and display a transport disc. The power is taken in the main because passenger vehicles are being plated for the first time. It was not intended that those in city bus services would need transport discs. Such vehicles are readily identifiable already, and it would be a considerable waste of time and resources to issue a disc in respect of each vehicle. Dublin Bus is a case in point. It has in excess of 1,500 buses, each of which is easily identified. The power in the amendment would be used in respect of Dublin Bus. We consulted the haulage associations. They wish to have freight operators exempted from the power and I am happy to agree to that.

Mr. Stagg

I do not understand the last point. The Road Haulage Association asked that its people be excluded from this power?

Mr. Jacob

Yes, that is correct.

Mr. Stagg

What was the thinking behind that?

Mr. Jacob

We were concentrating on the passenger transport sector in the preparation of the legislation. I do not know what fears the haulage associations may have had but they made this request.

Amendment agreed to.

Section 7, as amended, agreed to.

Sections 8 to 12, inclusive, agreed to.

SECTION 13.

Chairman

Amendments Nos. 3, 6 and 7 are cognate on amendment No. 2 and all may be discussed together by agreement.

Mr. Jacob

I move amendment No. 2:

In page 10, subsection (1)(a)(ii), line 9, to delete "for reward".

This group of amendments refers to the two important issues of out of State hauliers and on the spot fines. The amendments delete the words "for reward" in sections 13 and 16. Those are deleted to ensure offences against the tachograph rules can be included within the ambit of these sections. Tachograph rules apply to drivers and operators in own account categories as well as in the reward sector. The intention is to include all categories.

Mr. Stagg

This is the critical part of the Bill and is to be welcomed in so far as previously we had no capacity under a large segment of the transport legislation to deal with out of State operators. This allows them to be dealt with and I welcome these sections of the Bill. I understand the reason for the amendment; it is valid. I am delighted to see it included as it is something I failed to have introduced during my term in office. That is the main improvement on the 1997 Bill. It is good to see it was achieved.

Mr. Currie

I understood from what the Minister said that this was to bring violations in relation to tachographs under the legislation but does it apply to anything else?

Mr. Jacob

This is in relation to out of State hauliers.

Mr. Currie

I know that.

Mr. Jacob

I concur with Deputy Stagg in welcoming this development. This is one of the major items we wanted stitched into the Bill. This section is designed to deal with the out of State hauliers issue and to ensure out of State carriers are prosecuted for breach of the road transport Acts and regulations relating to the carriage of merchandise or passengers under the European Communities Act, 1972. This is achieved by arresting any driver whom a garda has reason to believe is committing or has committed an offence and in the opinion of the Garda has not given a satisfactory address for service of summons. The Bill defines what constitutes a satisfactory address as an address at which the person will be for a sufficient length of time for it to be possible to serve that person for summons or an address of some other specified person who will accept a summons on the first person's behalf. In such cases the address of a firm of solicitors in the State who undertake to accept a summons on behalf of the driver will satisfy this provision. The section is similar to a provision in the United Kingdom Police and Criminal Act, 1984, which is used extensively by UK police authorities to deal with out of State hauliers in breach of road transport legislation in the UK.

In the case of a driver being arrested under this section the provisions of the Criminal Procedure Act, 1967, as amended by section 3 of the Criminal Justice (Miscellaneous Provisions) Act, 1997, come into effect. Briefly, the procedure is as follows: the arrested driver is brought to the nearest police station, he is brought as soon as practicable before the district court of the district in which the person has been arrested or is released on bail to appear at the next appropriate sitting of the district court. Bail can be set by the station's sergeant in accordance with section 31 of the Criminal Procedure Act, 1967. It can be in the form of recognizance or a sum of money and it is lodged in the relevant district court by the court clerk. If the driver fails to appear before the court clerk at the appointed time an application can be made under the relevant district court rule to entreat the recognizance or to forfeit the sum of money. In response to Deputy Currie this applies to offences under the road transport Acts relating to the carriage of merchandise and goods by road.

Mr. Currie

When the Minister first spoke I understood he was referring to offences in relation to tachographs but since that I understand he is referring to offences or breaches of the road traffic Acts relating to out of State hauliers. Are all breaches under the road traffic Acts included?

Mr. Jacob

We are talking about road transport Acts as distinct from the road traffic Acts.

Mr. Currie

What breaches of the road transport Acts are we talking about?

Mr. Jacob

Obviously we are talking about tachographs.

Mr. Currie

I understand tachographs and I agree entirely with that but what are the other effects on the transport business?

Mr. Jacob

General breaches, tachographs, unlicensed haulage, breaches of the new transport disc regime incorporated in this legislation.

Mr. Currie

Is overweight included?

Mr. Jacob

The issue of overweight comes under road traffic legislation.

Mr. Currie

I am getting mixed up.

Mr. Jacob

We all have an inclination to get mixed up on this issue from time to time.

Mr. Currie

That is why there are road transport Acts and road traffic Acts.

Mr. Jacob

Road traffic Acts are for the Minister for the Environment and Local Government.

Mr. Currie

That is why we should be as specific as possible in terms of what breaches are being referred to under the road transport Acts. The best way of dealing with it would be for the Minister to read them into the record.

Mr. Jacob

Tachograph offences, unlicensed haulage offences, breaches of the new transport disc regime.

Mr. Stagg

Under the transport Acts we are dealing with what can be dealt with but no doubt we will have the continuing anomaly where Dukes Transport, based in Belfast, can break the speed limit with impunity because a summons cannot be served on them and this Act cannot be applied for this purpose. Likewise their lorries can exceed permitted weights. Complementary changes are needed in respect of the other legislation to allow the four million tourists who come here to be subject to normal laws. The Minister is taking an important first step in an effort to bring them into line. The removal of the words "for reward" will allow own operators, people who own their own lorries and carry their own goods but not for reward, to be subject to the clause also.

Subsection (1)(b) states: "for doubting that an address provided as an address for service by the person whom the member believes to have committed or to be committing the offence is a satisfactory address for service of a summons . . . . If the above paragraph read "a satisfactory address in the State" it would fortify the section and leave no doubt about what is a satisfactory address. Perhaps the Minister will look at that. My advice is that the addition of the words "in the State" would fortify the section.

Mr. Jacob

We continue to have interaction with the Minister for the Environment and Local Government in endeavouring to co-ordinate the effects of the relevant legislation which comes under our respective Departments. We have consulted the Department of the Environment and Local Government to ascertain whether it would be disposed to widen the scope of its legislation. A road traffic Bill is in the offing and will be introduced next year. That Department considers such a provision would be more appropriate to that Bill.

Out of State hauliers have been thumbing their noses at Irish hauliers for many years. I want to nail this as severely and as explicitly as possible. I will certainly look at Deputy Stagg's suggestion, to see if the situation could be further fortified by inserting the wording "within the State". We are certainly at one on that point.

Mr. Currie

As I understand it, a satisfactory address includes a solicitor's address.

Mr. Jacob

Yes.

Mr. Currie

I agree it is totally illogical and unfair that people from outside the State are being treated differently from those in the State. I support it being redressed. Deputy Stagg gave an example of a haulier in Portadown with two or three sevens in the licence plates and registration number.

Mr. Jacob

We are very much at one.

Amendment agreed to.

Mr. Jacob

I move amendment No. 4:

In page 10, subsection (1)(b), to delete lines 18 and 19 and substitute the following:

"the prosecution of the offence,

the member may, without warrant, arrest the person.".

This is to correct an error in the positioning of the end of subsection 1 and the amendment makes no substantive change in the provision. It is for clarification purposes to ensure that it is clear that this applies to A and B.

Amendment agreed to.

Section 13, as amended, agreed to.

SECTION 14.

Mr. Jacob

I move amendment No. 5:

In page 10, between lines 31 and 32, to insert the following subsection:

"(2) Section 16 (1)(i) of the Act of 1986 is hereby amended by the insertion after 'used for a purpose connected with road transport' of ', including the engagement or use by a person in the premises or place of the services of an undertaking for the carriage by road for reward of merchandise in a vehicle'.".

It is an offence under section 36(1) of the principal Act as substituted by section 9 of this Bill to employ unlicensed haulage. On checking section 16 of the Road Transport Act, 1986 it would appear that transport officers from my Department do not have power to enter premises of persons or companies who employ haulage to obtain documents or any other evidence they deem necessary.

This amendment, which amends section 16 of the Road Transport Act, 1986 by making specific reference to persons who engage or use haulage services, is an effort to close that loophole. It gives my official the power to enter premises for the purpose of checking documents and so on of the consignor.

Amendment agreed to.

Section 14, as amended, agreed to.

Section 15 agreed to.

SECTION 16.

Chairman

Amendment No. 6 has already been discussed with amendment No. 2.

Mr. Jacob

I move amendment No. 6:

In page 11, subsection (1)(b), line 21, to delete "for reward".

Amendment agreed to.

Chairman

Amendment No. 7 has already been discussed with amendment No. 2.

Mr. Jacob

I move amendment No. 7:

In page 11, subsection (1)(b), line 22, to delete "for reward".

Amendment agreed to.

Question proposed "That section 16, as amended, stand part of the Bill."

Mr. Stagg

I wish to raise a point under section 16(1)(a) - there can be no on the spot fines for an indictable offence. Will the Minister list the indictable offences so that we can see whether in each case it is right there should not be on the spot fines?

Mr. Jacob

In an earlier response to Deputy Currie we talked about tachograph offences, transport disc offences and unlicensed haulage offences generally. It would be helpful to list them. We will confirm and fully specify them on Report Stage.

Question put and agreed to.

SECTION 17.

Question proposed: "That section 17 stand part of the Bill."

Mr. Currie

On Second Stage my colleague Deputy Yates raised certain matters on the issue of consignor liability under that section. Will the Minister comment on the section?

Mr. Jacob

This salient provision of the legislation relates to consignor liability. We are all pleased by its introduction. It represents a balanced measure which introduces the concept of liability for consignors for the first time and as far as we are aware this has not been achieved elsewhere in Europe. I think Deputy Curry is referring to a point made at the early part of the Second Stage debate, the good defence clause. The good defence clause which is incorporated ensures that consignors cannot use frivolous reasons for saying they were unable to estimate the weight of the load. Now they will have to prove they were able to establish the load weight and consignors, some of whom would be small and medium sized businesses, are not required to invest in unnecessary weighbridges for which they would not have the finance or space.

I have agreed in conjunction with the Minister for the Environment and Local Government to prepare a code of practice for consignors. The code of practice will establish the responsibilities of consignors and the measures that must be taken to ensure the law is not breached. The proposed code of practice will be given mass publicity and will be circulated widely. If it is considered to be necessary I will discuss with training providers such as The Chartered Institute of Transport and FÁS whether there might be opportunities to train transport managers, dispatch clerks, loaders and other personnel on weight issues. It is very important to nail it down at this time not least in view of the graph of carnage on our roads. This will improve road safety as well.

Mr. Currie

Is the code of practice being announced today for the first time?

Mr. Jacob

Yes, we have been talking about it and it is being considered in conjunction with the Department of the Environment and Local Government.

Mr. O’Flynn

How would that affect containers from overseas taken from the docks, the weight of which may not be precisely that indicated on the container? How does the Bill propose to deal with an operator who takes a container from the docks and the vehicle is over the permissible weight when fully laden?

Mr. Jacob

Is the Deputy talking about pinning down a consignor who is not from this State?

Mr. O’Flynn

Yes.

Mr. Jacob

One of the problems we encounter on the island apart from the dock is the difficulty in nailing down a consignor who is not of this State. What we would have in situ in that case would be the driver or driver-owner of the vehicle.

Mr. O’Flynn

That does not solve the problem for the haulier.

Mr. Jacob

It does not solve the problem for the haulier in relation to people who are outside the jurisdiction. It is an issue which has bothered me also and we searched for a solution to it.

Mr. O’Flynn

Does the Minister plan to insist the shipping agent ensures the weights conform to the laws on vehicle weights?

Mr. Jacob

My train of thought has been with regard to Northern Ireland traffic entering the State, which constitutes a fair percentage of the type of traffic to which the Deputy refers. How we might pin down these offenders has exercised my mind but I have not come up with an answer. If the Deputy has any such suggestions, I would be delighted to hear them.

Mr. Stagg

It was intended that this section deal with largescale consignors who used to own most of the lorries they used and who now use hackers, former employees, to whom they sold their lorries. These hackers are contractors from the original transporters, who require them to break the law every time they leave the yard. If they do not accept the contracts, they do not get the loads. The only person liable is the driver-owner. That is undesirable.

I am pleased this section is still contained in the Bill to deal with the kind of people to whom I refer. In one case of which I am aware, a State company is consigning colossal illegal loads of timber to hackers on an ongoing basis. One can work out the name of the consignor. That is happening on a constant basis and it is doing major damage to the minor roads over which these loads must be drawn. The other culprits are mainly those involved in providing materials for the construction industry. I am delighted this section is contained in the Bill and that they will no longer be able to force people to accept contracts which break the law.

Mr. Jacob

I am happy to confirm that the Bill, which was prepared by Deputy Stagg's regime, incorporated this particular measure. As one whose background is in the haulage, transport and distribution business, I know this is something for which the sector has been calling. It is about time we introduced it.

Mr. Stagg

On the extension to 25 kilometres of the distance to which a person can be brought to a weighbridge, people in my constituency seem to in the belt in which lorries can avoid the five mile limit. We get a great deal of unnecessary heavy traffic arising from the avoidance of the five mile radius of the weighbridge. I hope that will no longer be the case with the 25 kilometre limit and that they will be catchable in the area which they use as a rat run.

Mr. Jacob

All of our constituents will be happy with that provision. Perhaps some hauliers will not be happy with it, but it will be welcomed by the general public.

Question put and agreed to.

Section 18 agreed to.

NEW SECTION.

Mr. Jacob

I move amendment No. 8:

In page 12, before section 19, to insert the following new section:

19.-(1) The Board may prepare and submit to the Minister a scheme (in this section called a 'special amending scheme') which-

(a) amends a scheme to which this subsection applies (the 'receiving scheme') by providing-

(i) for a fund established by and maintained under the receiving scheme to receive and include assets transferred from a fund established by and maintained under another scheme to which this subsection applies (the 'transferring scheme') and contributions payable under the transferring scheme, and

(ii) for benefits arising under the transferring scheme to be paid out of the fund established by and maintained under the receiving scheme,

or

(b) amends a scheme to which this subsection applies (the 'transferring scheme') by providing-

(i) for the assets of a fund established by and maintained under the transferring scheme (if any) to be transferred, and contributions payable under the transferring scheme to be paid, to a fund established by and maintained under another scheme to which this subsection applies (the 'receiving scheme'), and

(ii) for benefits arising under the transferring scheme to cease to be payable out of the fund established by and maintained under the transferring scheme.

(2) a) A special amending scheme shall not amend any scheme to which subsection (1) applies so as to provide less favourable benefits, or to provide benefits on less favourable terms and conditions, than those provided before the special amending scheme was made.

(b) A fund established by and maintained under a scheme which is a receiving scheme for the purposes of subsection (1) shall, after receiving any transfer of assets or payment of contributions made pursuant to a special amending scheme, continue to be deemed to be held under an irrevocable trust in accordance with section 44(7) of the Transport Act, 1950.

(3) Subsection (1) applies to-

(a) the schemes specified in Part I to the Table to this section, and

(b) any superannuation scheme specified in regulations under subsection (6).

(4) Subsections (1) to (6) of section 44 of the Transport Act, 1950, shall apply, with any necessary modifications and adaptations, to a special amending scheme.

(5) (a) The schemes confirmed by the orders specified in Part II of the Table to this section (in this subsection referred to as the 'scheduled schemes') shall be deemed always to have been validly made by the Board, and to have been validly confirmed by the Minister, under the said section 44.

(b) Notwithstanding paragraph (a), that paragraph does not apply to a scheduled scheme if and in so far as it provides less favourable benefits, or provides benefits on less favourable terms and conditions, than those provided before the scheduled scheme was made.

(c) A fund established by and maintained under a scheme amended by a scheduled scheme shall, after receiving any transfer of assets or payment of contributions made pursuant to a scheduled scheme, continue to be deemed to be held under an irrevocable trust in accordance with section 44(7) of the Transport Act, 1950.

(6) The Minister may, if he or she considers it appropriate to do so and is so requested by the Board, specify by regulations for the purposes of subsection (3) a superannuation scheme made by the Board or in relation to which the Board may exercise any power formerly exercisable by the person who made the scheme.

(7) In this section-

'the Board' means Córas Iompair Éireann;

'the Minister' means the Minister for Public Enterprise.

TABLE

Part I

Subsection (1).

Córas Iompair Éireann Salaried Officers' and Clerks' (G.S.R.) Superannuation Scheme

A scheme made under rule 54 of the Scheme aforesaid.

A scheme made under section 44 of the Transport Act, 1944 (No. 21 of 1944) and confirmed under section 45 of that Act.

A scheme made under section 44 of the Transport Act, 1950 (No. 12 of 1950) or referred to in section 45 of that Act or made under a power contained in such a scheme.

A scheme made under a power conferred under section 25 of the Transport (Reorganisation of Córas Iompair Éireann) Act, 1986.

Part II

Subsection (5).

Great Northern Railway Company (Ireland) Pension Fund for Wages Staff (Amendment) Scheme (Confirmation) Order, 1995 (S.I. No. 317 of 1995).

Great Southern Railways Company Pension Scheme for Regular Wages Staff (Amendment) Scheme (Confirmation) Order, 1995 (S.I. No. 318 of 1995).

Córas Iompair Éireann Pension Scheme for Regular Wages Staff (Amendment) Scheme (Confirmation) Order, 1996 (S.I. No. 115 of 1996).

An opportunity is being availed of here to address certain technical legal difficulties which have arisen in relation to CIE superannuation schemes. This amendment concerns the amalgamation of CIE pension funds. The purpose of this amendment is to change the present requirement that each CIE pension scheme should have a separate fund by allowing the company to propose the amalgamation of pension funds operated by it.

Under current legislation there is no specific statutory provision for the amalgamation of pension funds. For a variety of reasons, CIE wishes to proceed with an amalgamation of the funds of the salaried superannuation schemes. It has reached agreement with the members of the schemes to do so.

In addition, while it is not directly connected with this provision, I understand agreement has been reached on certain improved superannuation benefits which will be introduced once the funds are amalgamated.

This provision will allow pension funds to be amalgamated while keeping separate the actual pension schemes. This is because the various pension schemes in place in CIE provide for different contributions and different benefits. Therefore, the contributions which the members pay and the benefits which they receive will not be affected per se by the merger.

Subsection (1) allows existing schemes to be amended so that the funds of the schemes can be merged. Under it a fund established and maintained under pension scheme A, for example, can take on the obligations to receive the contributions and pay the benefits arising under pension scheme B. At the same time, the fund established by pension scheme B can have all its assets transferred to the fund of pension scheme A. Thereafter, there would be a single fund which would receive the contributions and pay the benefits arising under both schemes.

Subsection (2) protects the interests of the members of the schemes by ensuring that an amendment made under subsection (1) will not operate so as to provide less favourable benefits or to provide benefits on less favourable terms and conditions than those applying before the amendment is made. In addition, the existing requirement that all pension funds must be deemed to be held on irrevocable trusts will continue to apply to the merged funds. This will ensure the merged funds will continue to enjoy exempt approval status for tax purposes as they do at present.

Subsection (3) defines the pension schemes which may be amended to allow for the merger of funds. The power to merge funds will cover the principal pension schemes made by CIE and may be extended to other pension schemes by ministerial order under subsection (6).

Subsection (4) applies the provisions of subsections (1) to (6) of section 44 of the Transport Act, 1950, which prescribe the procedures to be followed in making and approving pension schemes to amendments made under this section. For instance, when CIE wishes to amend a pension scheme to merge funds, it must prepare the necessary amendment and submit it to the Minister. Notice of the proposed amendment will be published and there will be an opportunity for interested parties to make objections and representations. Only after considering these objections and representations will the Minister decide whether to confirm the proposed amendment. As an alternative to confirming it, she can first decide on such modifications as she considers proper or she may refer it back to CIE for reconsideration and resubmission, but no amendment will be effective until the Minister confirms it.

Subsection (5) validates a previous amalgamation of the funds of certain other CIE pensions schemes. Doubts had been raised about the validity of that amalgamation under existing legislation. Rather than leave those doubts outstanding, it was decided to take this opportunity to put the validity of the amalgamation beyond any doubt.

Subsection (6) allows the Minister, by order, to extend the power to amalgamate funds to other specified schemes. The order may specify not only schemes made by CIE but also pension schemes made originally by former transport undertakings and now operated by CIE. This is a technical legal provision designed to allow the introduction of more flexible and efficient arrangements for funding pensions without, in any way, altering the rights and entitlements of workers in relation to their pensions. I draw the attention of colleagues to the need to change the words "to the Table" to "of the Table" in subsection (3)(a). I would appreciate if colleagues would agree to this minor change in the amendment.

Mr. Currie

The Minister referred to a technical legal provision. I do not pretend to have any particular expertise in this field. Consultation is of the essence. I gather from what he said there is provision for future consultation. Has there been any consultation?

Mr. Jacob

Yes. There has been considerable consultation with the union representatives of members. There is agreement on these provisions. The opportunity is being taken now - this is the earliest opportunity - to provide for this issue in legislation. A number of colleagues, including Deputy Stagg, raised this on Second Stage. I am pleased this is provided for in this Bill.

Mr. M. Brady

How many pension schemes are in operation in CIE? Has agreement to amalgamate these schemes been reached with the trustees of these pensions schemes? We can pass legislation here which can be detrimental to the workers concerned and we do not want to leave ourselves open in that regard.

Mr. Jacob

As I indicated to Deputy Currie, the unions have been consulted and these issues have been agreed. Full agreement has also obtained with all interested parties. We can advocate the amalgamation. I am advised there are four salaried schemes and one merged wages scheme.

Mr. Stagg

Is this the issue Deputy Michael Higgins raised repeatedly with the Taoiseach in the Dáil?

Mr. Jacob

Yes. I believe so. The Deputy's colleague, Deputy Séan Ryan, raised it on Second Stage.

Chairman

Is it agreed that subsection (3) (a) of the new section be amended by the substitution of the word "of" for "to" after Part I. Agreed.

Amendment agreed to.

Sections 19 and 20 agreed to.

SECTION 21.

Chairman

Amendment No. 9 is in the name of the Minister, amendment No. 10 is consequential and, therefore, amendments Nos. 9 and 10 can be taken together by agreement.

Mr. Jacob

I move amendment No. 9:

In page 13, lines 13 to 16, to delete subsection (2).

These are technical amendments. Subsection (2) of section 21 should be subsection (2) of section 22, which deals with commencement of individual provisions in the Bill. In accordance with section 22, each individual section can be commenced by an order of the Minister as required. Amendments Nos. 9 and 10 cater for that situation.

Amendment agreed to.

Section 21, as amended, agreed to.

SECTION 22.

Mr. Jacob

I move amendment No. 10:

In page 13, between lines 21 and 23, to insert the following subsection:

"(2) An order under this section may as respects the repeal affected by section 21 and the Schedule to this Act fix different days for the repeal of different provisions mentioned in column (3) of that Schedule or for the repeal for different purposes of any such provisions.".

Amendment agreed to.

Mr. Stagg

This section is in nearly every Bill. As a parliamentarian, it puzzles me why we pass legislation and then hand it over to other people to decide when it will become law. It should be implemented as law as soon as we make it law. I do not expect the Minister of State to remove this section, but we should examine why this is necessary.

Amendment agreed to.

Section 22, as amended, agreed to.

Section 23 agreed to.

Schedule agreed to.

Title agreed to.