Joint Committee on Finance, Public Expenditure and Reform, and Taoiseach díospóireacht -
Wednesday, 14 Dec 2022

Report 42 of the Review Body on Higher Remuneration in the Public Service: Discussion

Chairman

Today's meeting will be in two sessions, the first of which is to discuss report 42 of the review body on higher remuneration in the public service. We have representatives with us from the group that has been affected. I welcome them all here. We are happy to deal with this issue.

We will have an opening statement and then members can address the statement and any queries they may have with regard to the overall issue. We will keep it as informal as we can in order to get as much information as possible from the session to progress the matter on the group's behalf. Mr. John O’Brien, Mr. Tim Kenneally, Ms Maureen Cronin and Ms Paula Lawler are very welcome.

I ask whosoever will make the opening statement to recall the note on privilege, which states one shall not name anyone in such a way as to make him or her identifiable and so on. Likewise, members already will have heard the note on privilege.

Mr. John O'Brien

I thank the Chairman and committee for affording us some time out of what I know is a very busy schedule. Before I start, I wish to introduce Mr. Tim Kenneally, who represents the voluntary hospital sector, Ms Maureen Cronin, who recently retired from the HSE finance section, and Ms Paula Lawler, who recently retired from the HR section of the HSE.

I have used headings for ease of reference. I will step through this quickly because there is quite an amount in it. The Report on the Processes and Procedures Applying to the Appointment of Senior Executives in the Public Service produced by the committee 12 months ago made certain findings and what we will present today is not dissimilar to the findings of that report. In this instance, we have senior civil servants ignoring a Government decision to pay an award; ignoring a letter of sanction to pay that award; trying to alter the findings of the independent review body that made that award; ignoring the findings of the Labour Court; and applying legislation retrospectively where no such provision existed.

By way of background, this issue arises from the report of the review body on higher remuneration in the public sector that was published 15 years ago back in 2007, believe it or not. I will not go into the background of the review body and its purpose but suffice to say, it has been in existence since 1969 as a completely independent advisory body to the Government.

In the case of the review body's report No. 42, everybody else got paid except senior health officials in the voluntary hospitals, the former health boards and more recently, the HSE. We want to know why and who made that decision.

On the question of why the payment of awards was blocked by the then Department of Health and Children, we have obtained an amount of documentation under freedom of information requests in relation to this. It is very clear, from that documentation, that the CEO of the HSE wanted the awards paid. The Secretary General of the Department of Health and Children clearly took a different view, but also recognised the inherent injustice of his position in relation to blocking the payment of awards, where effectively the Secretary General and his senior officials tried to set preconditions to paying the awards, including altering the findings and abolishing jobs into the bargain.

This matter dragged on for two years and four months prior to the introduction of the financial emergency measures in the public interest, FEMPI, legislation at the back end of 2009. It is worth noting that senior civil servants had arranged payment of the awards for themselves within seven weeks of the publication of the report. What preceded the FEMPI legislation was six months of silence before the introduction of the legislation in December 2009. That led to a flurry of activity because of the injustice that would be compounded by FEMPI. In other words, our cohort of staff had not been paid the awards set out in report No. 42 and were also going to suffer a pay cut arising from the FEMPI legislation. On 4 December 2009, our union was told that payment would be made. There was a move at the highest level in the Department of Health and Children and the Department of Finance to make that happen on 9 December. However, on the following day all that changed, and there was a move to block payment. That was done by proposing to apply the penal aspects of the yet-to-be-enacted FEMPI legislation, which did not come onto the Statute Book until January 2010. We believe that the interactions between the assistant secretaries in the Department of Health and Children and the Department of Finance over those two days were unfair, deeply flawed and possibly tainted. We can elaborate on that later if the committee members which to discuss it further.

On the role of the Department of Finance, on 10 December 2009, the Department of Health and Children asked the Department of Finance if it could pay the awards, taking into account the FEMPI legislation, which was at Bill stage at that point. However, the question was not brought to the attention of the Minister for Finance until 28 May 2010, six months later, by which time the question was redundant because the FEMPI legislation was on the Statute Book. The submission to the Minister for Finance was effectively a senior civil servant acting as sole judge and juror in respect of whether the awards should be paid. The submission contained incomplete and inaccurate information, leaving the Minister no choice but to refuse to pay the awards. Our union referred the matter to the Labour Court and matter wound its way to the court in January 2011. A full hearing was held and the Labour Court found that both sides were in agreement that the awards were due and should be paid, and it was up to the parties to bring that about. Nothing has happened in the intervening 11 years to bring about payment. In other words, the HSE, as the employer, and the civil servants ignored the findings of the Labour Court.

The current Tánaiste said, in a radio interview in March 2016, "If you make an agreement with your staff down [at] the WRC, [the Workplace Relations Commission,] it has to be honoured and honoured in full ... a deal is a deal...". The current Minister for Finance, Deputy Donohoe, expressed similar sentiments later that year, again in a radio interview. He stated "we have to be fair ... to everybody ... an independent body, the Labour Court .... intervened ... made a recommendation ... that’s the final court of arbitration for industrial relations in our land". That is in contrast to the position taken by the civil servants.

In summary, these awards were approved by the Government and sanctioned by the Department of Finance, the Labour Court recommended that they should be paid, the money has been in the HSE accounts since 2021 and FEMPI has been unwound. We want to know why payment is not being made and who is blocking it. We feel that we have been blatantly singled out for unfair treatment. We have avoided taking industrial action because it is not in the nature of those who are seen to be managing and running the services to do so. Unfortunately, some retirees have passed away and their widows are now on the wrong pension rates. The civil servants who are blocking these payments were paid in 2007. As the current Tánaiste said, "a deal is a deal". If the committee wishes to delve further into the matter, we have accumulated an amount of documentation over the years that we are happy to make available to the committee. Our ask of the committee, if appropriate, is to ask the Minister for Public Expenditure and Reform to intervene with his colleague, the Minister for Health, to either request or direct his Secretary General to issue the necessary sanction to the HSE to pay the awards. I thank the members for their attention.

Deputy Mairéad Farrell

Go raibh maith agaibh as teacht os comhair an choiste. I have to say this is probably one of the most detailed and well laid out opening statements that I have seen in a long time. It has been extremely helpful, gives a good background to the situation and sets out the points very well. I have a few questions, some of which are to provide me with a better understanding of the matter. According to page three of the opening statement, "It is the strongly held view of those impacted by non-payment of the awards that the Secretary General ... had no authority to adopt this course of action" and may have been acting outside their powers. I ask Mr. O'Brien to elaborate on that particular point.

Mr. John O'Brien

Basically, the review body is completely independent. It issued its report in September 2007. The report was extremely detailed, ran to 220 to 230 pages and covered 13 different categories of staff, including those working in local authorities, the Judiciary, the fire services, public officials and so on. Shortly after that, the Government made the decision to pay the award in full. The Department of Finance sanctioned the award. Shortly afterwards, I think it was April of the following year, it was formally sanctioned with new salary scales. They were submitted to the Department of Health and Children, and that is where the blockage occurred, from our point of view. The question we are asking is whether civil servants have the power to overrule a decision of Government and not pay the awards. Second, according to correspondence, there was a clear attempt to alter the awards that were granted to HSE officials downwards. Is the Secretary General allowed to do that? We have come to that conclusion that he is not. Otherwise, if the Civil Service has that power to overrule the Government, it is our view that that raises very serious issues for the administration of government.

Deputy Mairéad Farrell

On that point, my second question relates to the reference in the opening submission to how "civil servants took a different position from the two Government Ministers" and how no effort is being made to honour the Labour Court recommendation. In Mr. O'Brien's experience, is the taking of such different positions and in the pursuit of different course of actions commonplace? Is it something he has seen happen at another point between Ministers and senior Civil Service officials?

Mr. John O'Brien

Not in my experience. My experience is that we have always respected the Labour Court as the final court of arbitration and accepted the recommendations. It is not binding and we understand that as well but that is our experience. Ms Lawler, whose expertise is in HR, might wish to say something on that or confirm it but that is certainly our experience. Generally, when those decisions are made, they are honoured.

Ms Paula Lawler

That is the case. As Mr. O'Brien has said, they are not binding but parties willingly engage in that machinery and the recommendation is always implemented where it can be.

Deputy Mairéad Farrell

If the witnesses do not want to answer this question that is okay and I have others but the obvious question then is why do they think this is the case in this specific issue?

Mr. John O'Brien

Is the Deputy's question why do we think the award is not being paid?

Deputy Mairéad Farrell

Why do they think it has not been paid and there is this difference?

Mr. John O'Brien

The only thing that is outstanding is the letter of sanction from the Department of Health to the HSE to pay. Everything else is in place; the Government decision and the sanction from the Department of Finance is there. Effectively, down the years, the sanction from the Department of Health in this type of situation is a rubber-stamp exercise. That is the only part that is missing. We have written to the HSE, which has said that the Department of Health sanction is not forthcoming. In the most recent letter from the Department, the Secretary General has refused to answer correspondence even though as late as about 18 months ago he said all would be reviewed once FEMPI was unwound. We followed that up with correspondence and there has been no response forthcoming. Instead, we have had correspondence from one of the people in HR in the Department of Health saying that sectoral bargaining would solve this or that we should go back to the industrial relations machinery. We have been through that machinery so we simply do not know. The HSE has set aside the money to pay for it so we simply do not know what it is being blocked.

Ms Maureen Cronin

Could I comment on this? I am a bit nervous and my heart is pounding because I am not normally here like this in front of cameras and it is very difficult. It is difficult that we have got to here and I thank the committee for giving us a chance to speak. Something happened in the percentages in that award. Someone decided in 2007 that over their dead body would those people get that percentage. I believe that because I have worked full-time for 41 years in the public system and have never seen this happen. Someone had a hearts-and-minds issue in this regard, which I find disturbing and chilling. I should say I have worked for many years with civil servants; some of whom are my friends and have been colleagues for years. When I refer to civil servants, I am referring to some very small group of very powerful people who appear to be able to work independently. Somebody made the decision that we would not be getting this award and they have the capacity then to pass the parcel and send the fool further. We are blue in the face with the processes and have waited patiently. I am an accountant and have worked in finance all my life. We have senior hospital managers, engineers, architects, procurement specials in the group involved with this award and all of these people are basically the infrastructure underpinning the delivery of healthcare in our system. They are not the front-line people but they are the underpinning infrastructure. I still say "We" because I still feel very embedding in the HSE and I have just retired because my health, to be honest, was becoming an issue and the stress and the pressure was just too much. I have just left and I still feel I am part of it. We feel we are the system and if we were nurses we would not be sitting here today. Nobody would tolerate this. There would have been a strike a long time ago. We have held on and held on all through the FEMPI years. Then we had Covid-19. We have done 90-hour-weeks all through the pandemic. I have seen people put themselves into bad health and marriages gone from the amount of commitment put in by these people. Through all of that, we believed, foolishly really,that these send-the-fool-further things would end and eventually FEMPI would unwind. One of the letters, from the Secretary General I think, stated that when FEMPI was unwound, our people would have a review. None of these things mean anything. It is really about getting this issue away, off the desk, and sending a letter to a pensioner. The most recent letter is from August 2022 and seriously, you would have to be sedated to put up with what we are getting. The letter is telling a pensioner to go into the industrial relations machinery as if this person has landed from Mars. Do they not know we have already gone through all the industrial relations machinery? The highest court in the land in industrial relations is the Labour Court. It made a decision. The parties were even in agreement - there is not even a dispute - and yet somehow in the background, people are still able to not move. There is some kind of channel there or some kind of covert silo; I do not even know what to call it and have found it hard to put the words on it. There is something, however, that runs in parallel with the real system which is not transparent and these people are collaborating and making decisions. Bear in mind that some of our colleagues in the HSE got this award and we were just singled out. We are a blade of grass in the mouth of an elephant in terms of the overall award and are a tiny little group but it is just an exercise of sending the fool further, passing the parcel and telling us this is the process.

I apologise as I am a bit wound up. I will stop in a second. Our union wrote to the HSE on 30 September, now that FEMPI is fully unwound, and said that we would be in serious precipitative industrial action if this award is not now paid. As I sit here today 75 days later, that letter is unanswered. I find that absolutely staggering. Mr. Paul Reid has now left us but as the HSE CEO, he wrote in the latest published service plan that in terms of vaccination, testing, and tracing that this sustained response is only possible because of the extraordinary commitment, tenacity, and courage of an outstanding workforce where professionalism has been apparent in the performance of every role. I can tell you that if this was Brian Cody, he would not be treating his team in the way we have been treated. I believe this is a hearts-and-minds issue at its origin and it has been hammered and rehammered to the extent that we were sent a letter on 22 August to be told that the industrial relations machinery of the State is available to us.

Mr. Tim Kenneally

Can I focus in on a particular point? I know Mr. O'Brien made reference in his submission to the fact that we believed some things were improperly done and information withheld. There are two key memos which we have analysed in relation to this thing. I have copied to hand if it would help the members. Ours views are based on what is in these two memos and how the Department acting on one particular day. Mr. O'Brien mentioned the flurry of activity on 9 December. There was a flurry of activity to clear everything in order that the award could be paid before the new pay cuts came into place. The Secretary General instructed his assistant secretary to issue a statement to the Minister to that effect. You would think that would be the end of it but no way. There were two memos written and the first was written on the morning of 10 December by an assistant secretary, RIP, and cleared the way to finally pay senior health service managers. The memo was written on the instruction of the Secretary General and a key point within referred to an agreement reached with the Department of Finance days previously.

However, shortly afterwards on that morning and completely out of the blue, a new memo was typed up by the same assistant secretary. It was the first time that the prospect was introduced of the award being blocked or stymied by the FEMPI legislation. FEMPI was not legislation at the time but there was the Bill of the same name. On the first memo, somebody wrote the word "draft", as if to make the first memo obsolete, and the one that was carrying the decisions was written on 9 December. I believe that draft could have been written in 2015 when a freedom of information request had been lodged. It was written subsequently when the Department realised that there were two different memos on file.

This out-of-the-blue memo, which was drafted by the same assistant secretary within minutes or an hour of the first one, has some serious questions to be asked of it. Why would the assistant secretary in the Department of Health, partly off his own bat, decide to take a completely new and different approach to what had been agreed as late as that morning, without any indication whatever or any reason for doing so? Why was it deemed necessary to type up a new memo rather than amending the draft, as would have been the case?

The second memo stymied the payment of the award that have been agreed the previous day. The typed date on it is 2010 but somebody changed it, in handwriting, to 2009. I have some concerns about the authenticity of that memo. I believe that the word “draft” was written on it in 2015 when the freedom of information request was lodged. The handwritten draft was also uninitiated. Why did the assistant secretary omit the key point in the first memo, which was that this had been discussed and agreed with the Department of Finance. That was completely omitted from the new memo. How did the assistant secretary come to the conclusion and inform his Minister that the matter now fell to be dealt with under the proposed FEMPI legislation, when the stated aim and that of his colleagues was to pay the award before the legislation came into effect?

The assistant secretary said in one of his items of correspondence that the FEMPI Bill was published on 10 December, on the same day. In actual fact, the history of the Bill was that it had its first reading on 8 December. There are many anomalies. There is no indication as to how the assistant secretary came to the conclusion that the FEMPI Bill would affect the payment of the award. He sent his memo to the Minister and to his Secretary General saying that the matter now fell to be dealt with under the FEMPI Bill. I am wondering how a matter can be dealt with under a Bill when it has not been enacted.

Later that same day, he wrote to the assistant secretary in the Department of Finance - by the way the very same secretary who had agreed two days previously to pay the award - asking if the award could be dealt with under the FEMPI Bill. He tells his Minister that it has to be dealt with under the FEMPI Bill, and later on in the day, he is asking the secretary in the Department of Finance if it could be dealt with under that Bill. This does not make sense to me.

There is a note in one of the memos, which states that the Minister for Health agreed that it could be referred to the Department of Finance. It would be very unusual if it was an absolute fact that it was covered because the Minister would say that it has to be referred to the Department of Finance. She said that it could be referred to the Department of Finance, and that it was optional. It did not seem to dawn on all of these senior civil servants until that morning that the FEMPI Bill could be an issue for them.

Out of the blue, the only thing which could affect payment of the award was the FEMPI Bill. As legislators, the committee here would know more than I would on such matters. Is it legal and proper to apply the penal terms of legislation before it is actually passed in respect of doing something, and then to retrospectively apply the terms of the legislation when it is enacted as regards an issue which had been dealt with prior to the legislation coming into effect? This certainly does not make sense to me but, as legislators, the committee would clearly know the answer to that question.

The other thing that happened on 10 December, as well as the assistant secretary in the Department of Health writing to his counterpart in the Department of Finance asking could this matter be dealt with under the FEMPI Bill, was that assistant secretary in the Department of Finance, in a subsequent letter on 7 January, said that he did not expect an early conclusion to the matter. He was right because it was not actually dealt with for a further five months.

If it was so urgent on 9 December, why was it sat on until 28 or 29 May? If it is in order to do this afterwards, I believe it would be worth looking at the memos because we are quoting exactly what the Department’s own actions are.

The one thing that is glaringly obvious from looking at the memos, and one thing that is absent, apart from one mention that the Secretary General was at a meeting that day with the Minister where it was discussed; is that there is not the slightest indication of his influence, input or anything to the process. This is a process that was adopted on one foot and, within hours and minutes, had changed tack completely.

Mr. O’Brien has covered some of these issues but he mentioned the Secretary General acting as judge and jury in the matter. He had decided that the Government award, the Department-sanctioned and approved award, would not be paid, unless he was happy to do so. This is a fairly strong statement to make. He then decided to unilaterally reduce the amount of the award. Not alone did he not listen to his own senior officials, including even the memo writer, were urging him to pay the award that he had agreed himself the previous night on 9 December, he did listen to the HSE CEO who advocated that the award should be paid, he did not listen to the national director of HR, nor did he abide by his own views, which he stated repeatedly were that it would be unfair and would be a double hit not to pay this award.

My final comment is that something prompted a change of heart within minutes or hours on the morning of 10 December and the only thing that I can think of is that there was a headline in the Irish Independent, which stated, “Pay cuts do Harney a favour ...”. While this money was fully funded and confirmed by the Department at the time, this is one of the reasons the Secretary General said to hold on and that if we play smart, and use the FEMPI Bill, we can avoid paying this award.

If the then Government wanted this award to be covered by the FEMPI legislation, all it had to do was to wait until 1 January when this legislation was in place.

Overall, what they did raises serious questions of probity and correctness. Their memos are contradictory; it is amazing that things could be written on memos or drafts, or that memos were produced subsequently to reflect decisions which were made on the day.

Senator Maria Byrne

I welcome all of the participants, in particular, Mr. Kennelly and Mr. O’Brien, whom I know personally, together with Mr. Hourigan, who is sitting behind me.

When I heard recently about this, it raised questions in my own mind. Deputy Farrell has asked some of the questions I would like to have asked. In respect of the Secretary General, has he ever communicated with our witnesses? Has he ever come back with a response?

Regarding Mr. Hourigan’s letter on 22 September under the Freedom of Information Act, the witnesses have had the right to appeal it. Was this request ever appealed?

I believe our witnesses have answered most of what I wanted to ask, in that the Department of Health is saying that it cannot pay this money without the HSE approving it. Knowing the different backgrounds from which all of our witnesses have come from and that their roles were at a certain level within the HSE, is it mainly the people across that level who have not received this money and that people below or above their level have received this money? Is that correct?

Mr. John O'Brien

I think it was probably our level upwards where the awards have not been paid.

The other grades are covered by general pay awards, benchmarking, and that kind of thing. The review body on public sector pay, which has been agreed since 1969, dealt with grades at that level across the public service, the Judiciary, the local authorities, fire services, together with public officials such as Ministers and taoisigh, and so on. That is basically the position.

On the point about Mr. Watt's letter, Mr. Watt wrote to Mr. Hourigan on 22 April 2021 and basically said that Mr. Hourigan was entitled to request a review of this decision on the expiry of FEMPI legislation. Mr. Hourigan followed up on that once the FEMPI legislation was unwound on 1 July, and has received no response to that correspondence.

It seems to have been delegated to one of the people in the HR department of the Department of Health, who has told us, basically, to go to the WRC, after we have been through the Labour Court process.

Senator Maria Byrne

Is there an example in any other public sector organisation of something similar having happened, or do the witnesses think they are the only ones who have ended up in this situation? Mr. O'Brien asked that we speak to the Minister for Public Expenditure and Reform. I have no problem doing that on a personal basis. I certainly will put a question to him on the matter in the future. Is there any other way we can help the witnesses?

Mr. John O'Brien

On the question as to whether we are the only ones, the answer is "Yes". All the other staff groups right across the 13 categories have been paid the award. All the awards were capped at 5% in 2008 or 2009 because of the downturn. The original intention was that they would be paid over three phases. Certain grades got higher awards than 5%; some got 10%, 12% and so on. I cannot remember all the details but they are set out in the documentation. We are the only ones that have been picked out for this kind of unfair treatment, as we view it, and we have lived with this basic injustice for the past 15 years.

We would be grateful for any help the committee can give us. As I said earlier, if members want to delve more deeply into this, we have a raft of correspondence supporting everything we have said today. We are asking the committee to intervene with the Minister for Public Expenditure and Reform and, in turn, to ask the Minister for Health to direct the Secretary General to issue the letter of sanction from the Department. That is the only missing piece we can see in all of this, unless some other rabbit is pulled out of the hat. There have been many such instances over the past 15 years that have served to block this award.

Ms Maureen Cronin

The Senator asked whether we are the only group in this situation. In fact, even within the HSE, some categories of staff were paid based on the report. Consultant orthodontists were part of that report and they were paid. The outgoing chief executives were included in the report and were paid.

The Senator asked what help the committee can give us. We are an example of a small group against whom an injustice has been perpetrated by the processes or the individuals involved. It raises fundamental questions for me about the operation of government and governance when a decision made by the Government can be twisted and tangled and not implemented. That is a much bigger principle the committee may need to consider. We are just an example. Our situation has happened to come before the committee and our position is clear. There is a much bigger principle at play here that should be followed up by the committee, particularly as the Labour Court has also been ignored in this matter.

Senator Maria Byrne

Have the unions given any up-to-date advice to the witnesses? Has there been any communication from them and have they attempted any action recently on the witnesses' behalf?

Ms Maureen Cronin

I established an internal group within the HSE 23 months ago. It includes a cross-section of senior hospital people, procurement people, IT people and so on. I chaired that group until I finished working during the summer. We engaged with Fórsa because we knew the FEMPI legislation was going to be unwound. We have sought engagement with the HSE. Sadly, our morale on this issue is very low. I said to somebody earlier that the comedian, Michael McIntyre, once said he did not know his wife had a tether until she was at the end of it. We are at the end of our tether. Despite our best endeavours to avoid any disruption to the business, there has been no progress.

More than 60% of the people involved in this award are Fórsa members. On 30 September, the general secretary of Fórsa, which is the largest health services union, wrote to the HSE stating, as I said earlier, that we would be in precipitative and serious industrial action if this matter is not resolved. There has been no reply to that letter, which is extraordinary. We have now asked the union to take us back to the WRC but it is like Groundhog Day. I do not know what can break through this brick wall, what the brick wall is and why it exists in the governance of public administration and government administration.

Deputy Bernard J. Durkan

I apologise for arriving late. I had a couple of other issues of business to which I had to attend. I welcome the witnesses, for whom I have a few questions. There was an approval of the award by two Ministers at different times. Were those approvals conditional or were they clear and unequivocal?

Mr. John O'Brien

They were absolutely clear and unequivocal.

Deputy Bernard J. Durkan

Why has the correspondence been with the assistant secretary in the Department?

Ms Maureen Cronin

It has been done out of desperation.

Deputy Bernard J. Durkan

Was the Secretary General not responding? I would have presumed the Secretary General was the person to approach. I might be wrong.

Ms Maureen Cronin

We cannot answer that.

Mr. Tim Kenneally

The assistant secretary is mentioned often because he was the primary person involved in 2009. Since then, Mr. Hourigan has written to the Secretary General and we have written to the Secretary General. Over the past number of years, correspondence has been directly to the Secretary General, in fact, the Secretaries General, of whom there have been several.

Deputy Bernard J. Durkan

What has the response been or has there been no response?

Mr. Tim Kenneally

Mr. O'Brien read out one or two of the responses, which talk about when the FEMPI legislation is unwound and different options. However, all the options are unrealistic.

Deputy Bernard J. Durkan

I am coming to that.

Mr. Tim Kenneally

I want to make the point that it is not just us who are affected by this. It also affects spouses' pensions. Unfortunately, a number of people who should have-----

Deputy Bernard J. Durkan

How many are affected?

Mr. Tim Kenneally

It affects nearly everybody involved. There are approximately 200 people involved but I am not sure how many of them have spouses. On an ongoing basis, it affects everybody's pension and it also affects spouses' pensions. This is why we are concerned about it. It has ongoing and everlasting effects.

Mr. John O'Brien

Two of our colleagues passed away in the past six months and their widows are affected by this.

Deputy Bernard J. Durkan

Approximately how many of the pensioners involved have spouses?

Mr. John O'Brien

The last figure I saw showed there are approximately 240 people. It started out at approximately 150 people in 2007 but staff have retired since then and other people have replaced them. The number is approximately 240. I am not privy to the exact details-----

Deputy Bernard J. Durkan

Will more people come into the group as time goes by?

Ms Maureen Cronin

If somebody was in post in 2007, he or she must work right through to retirement. That is my situation and, therefore, my pension, when it is calculated, will be at the wrong rate because my salary was at the wrong rate. Whoever replaces me will go in on the wrong rate. If I were to pass away, my spouse would get the wrong rate. There are a number of different people affected along the chain of employment and pension.

Deputy Bernard J. Durkan

I am particularly interested in the so-called unwinding of the FEMPI provisions. More than a year ago, or even two years ago, I asked more than one Minister whether the provisions were now unwound. I was assured that they were but I have since noted that there appear to be a number of outstanding issues, one of which is the issue facing the witnesses. I propose that the committee needs to have a discussion with the people responsible-----

Ms Maureen Cronin

To clarify, my understanding is that the FEMPI provisions are not unwound in the sense that the legislation has not been stood down or taken off the Statute Book, if I am getting the language right. The cuts that were applied, certainly in the HSE, as I know because I was working in the finance operation, have all now been fully unwound since 1 July. In terms of the language, people could be saying the legislation is not unwound but, in fact, the cuts have been unwound and, therefore, we had an expectation. We waited patiently through all the years of cyberattacks, the Covid crisis and so on. You name it, we did it because we believed, foolishly, what we were being told, which is that the FEMPI legislation was the reason the State could not afford this award and that when the FEMPI provisions were over, the matter would be addressed.

This is not a pay claim in that sense. These are wages withheld from us. This is not about negotiating, doing a certain amount and going a certain distance. I am relating to colleagues in the Department of Health who are all on this salary scale. It is beyond belief that they are writing letters to us saying that we are not getting it, but they are on it. I just find that extraordinary.

Deputy Bernard J. Durkan

My interpretation of the unwinding is the restoration of the payments associated with FEMPI. We discussed those at length in this committee and in other committees, and in the House. I am sure my colleagues will follow it up, but it might be better to invite a delegation from the Department before the committee. It need not be a long meeting. Half an hour would do it. It will be either "Yes" or "No"; it will either work or it will not work. The commitment has been given in good faith and taken in good faith. For that reason, we should make an incisive intervention.

Senator Maria Byrne

I second Deputy Durkan's suggestion.

Chairman

I thank Senator Byrne. In line with that proposition, I want to ask the witnesses when this started. The answers are contained in the presentation that they have made, but I want them to confirm a number of points as I go through it. What year did the Labour Court make its decision?

Ms Maureen Cronin

It was 2011.

Mr. John O'Brien

It was in January 2011.

Chairman

When was the first letter from the Secretary General in relation to non-payment? When was the first time that this arose?

Ms Maureen Cronin

Mr. O'Brien probably has the individual letters there. I think it was just before the award was even approved by the Government.

Mr. John O'Brien

It was.

Chairman

It was approved by the Government.

Mr. John O'Brien

Yes, in October 2007. The sanction arrived in April 2008 to pay the award.

Chairman

Where was that sanction sent to?

Mr. John O'Brien

The Department of Health.

Chairman

When?

Mr. John O'Brien

In April 2008.

Chairman

Who would have got that?

Mr. John O'Brien

It went from a Mr. Dowling as far as I know.

Ms Maureen Cronin

It would have been the assistant secretary, typically the assistant secretary for HR in the Department.

Chairman

I am asking because the witnesses have the correspondence. If the sanction went in 2008, do the witnesses have confirmation of the person to whom it was sent?

Mr. John O'Brien

Yes, we can get that.

Chairman

Who is it?

Mr. John O'Brien

It was Mr. Carey, an assistant secretary, now deceased.

Chairman

Okay. Let us go on from there then. That was 2008.

Mr. John O'Brien

There is correspondence immediately prior to the receipt of the sanction from the Secretary General to the CEO of the HSE. The sanction was dated 28 April 2008, but five days before the sanction arrived in the Department, the Secretary General wrote to the CEO of the HSE requesting his views on the implementation of the review body report. It is very clear from that correspondence that the Secretary General had formed certain views about paying HSE-----

Chairman

That was 2008. Who was the Secretary General then?

Mr. John O'Brien

A Mr. Scanlan.

Chairman

It was for the HSE to implement this. The Department of Finance had sanctioned it.

Mr. John O'Brien

To the Department of Health, and generally there would be a rubber stamp by the Department of Health to the HSE to pay it.

Chairman

Yes, so that was Mr. Scanlan's job.

Mr. John O'Brien

Exactly, but that never happened.

Chairman

It stopped dead in 2008.

Ms Maureen Cronin

That is it. Yes.

Chairman

That was 2008.

Mr. John O'Brien

Instead of that, there was an exchange of correspondence between the CEO of the HSE and the Secretary General through 2008 and into 2009.

Chairman

So who was CEO of the HSE?

Ms Maureen Cronin

It was Brendan Drumm.

Mr. John O'Brien

Professor Brendan Drumm.

Chairman

Was he in favour of paying it?

Mr. John O'Brien

Absolutely.

Chairman

In the correspondence to the Secretary General, was Mr. Drumm asking for permission? Permission was already there. What was he asking?

Mr. John O'Brien

He had not got the formal rubber stamp from the Department of Health.

Chairman

So it stopped in the Department of Health.

Mr. John O'Brien

It is very clear in the CEO's response that he wanted the award paid. In fact, in one of the quotes he states: "It is hard to see the justification to unilaterally overlook the HSE-IMPACT agreement. In the interests of respecting existing agreements and maintaining fairness, we should proceed with honouring these limited increases." That was the CEO of the HSE to the Secretary General. The response from the Secretary General to that letter of 5 February 2009 was a handwritten note as follows: "Please prepare a draft reply. I regard this as a most unsatisfactory reply to my letter." He did not agree with the CEO and he made that very clear in handwriting.

Chairman

I want to explain this to those who may be listening, including other members who are attending remotely. Mr. Carey approved it. He wrote to Mr. Scanlan in 2008. At that stage it began to stop making progress. Mr. Drumm was asking for progress to be made.

Mr. John O'Brien

Yes, he was asked for his views.

Chairman

Mr. Scanlan then, as Secretary General of the Department began to question whether it should be paid or not.

Mr. John O'Brien

Yes.

Chairman

Could Mr. O'Brien take it from there then?

Mr. John O'Brien

In March 2009, following that exchange with the CEO, he wrote a letter to the CEO saying, "I now intend to issue a general letter of sanction for the implementation of the award." That letter is on file, but it was never issued, for no logical reason.

Chairman

How does Mr. O'Brien know it was not issued?

Mr. John O'Brien

It was not issued to the HSE.

Chairman

How does Mr. O'Brien know that?

Mr. John O'Brien

He said it.

Ms Maureen Cronin

But also the HSE has always said it could not pay it because it had not got approval from the Department of Health. It never got that.

Chairman

What date was this letter?

Mr. John O'Brien

It was 6 March 2009.

Chairman

So on 6 March 2009 the Secretary General-----

Mr. John O'Brien

He wrote to the CEO saying: "I now intend to issue a general letter of sanction." He proceeded to draft that letter of sanction on 10 March 2009. However, it appears that the letter of sanction never issued. The HSE seems never to have received it and we got confirmation that the letter never issued from the Department of Health.

Mr. Tim Kenneally

That letter included salary scales for the amount to be paid to the different groups.

Chairman

We will just stick to this line for a moment. That was 2009. Could Mr. O'Brien quickly take us through what happened after that?

Mr. John O'Brien

There was a memo on 1 April 2009 from the Secretary General to the Minister, more or less confirming what he had put in the letter of sanction. "It would be very difficult to justify withholding the increases from HSE staff when they have already been paid in the rest of the public service." There is an indication straight away that he understands there is an injustice going on here. On 21 April-----

Chairman

Was that Mr. Scanlan writing to the Minister?

Mr. John O'Brien

Yes, writing to the Minister for Health.

Chairman

Who was the Minister for Health then?

Mr. John O'Brien

Mary Harney. On 21 April, he wrote again to the Minister. We do not know why it was necessary to issue two memos, but it says more or less the same thing: "I don’t think we can justify withholding the increases from HSE staff given that they have been paid...in the rest of the public service. Nor do I think we can justify withholding retrospection." That was in April 2009 and then there was a period of silence until FEMPI came on the scene in early December 2009.

Chairman

Then that was being used.

Mr. John O'Brien

Yes, that has been used since.

Chairman

What has happened since then?

Ms Maureen Cronin

There was the Labour Court in 2011.

Mr. John O'Brien

The Labour Court in 2011. I should mention as well that this issue was not brought to the attention of the Minister for Finance until January 2010, even though it was a burning issue in early December 2009 that was referred from the Department of Health to the Department of Finance. The Minister was not informed until six months later.

Chairman

So the Minister for Finance was not informed.

Mr. John O'Brien

He was not informed, and then when he was informed I referred to a person acting as sole judge and juror on whether it would be paid or not. In fact, that person went so far as to apply two tests to the correspondence.

Chairman

The Minister for Finance at that time, 2010-----

Mr. John O'Brien

I think it was Mr. Noonan. Maybe it was Mr. Lenihan.

Mr. Tim Kenneally

I would say it was the late Brian Lenihan.

Chairman

Mr. O'Brien mentioned the Secretary General. Which Department's Secretary General was he referring to?

Mr. John O'Brien

The head of pay policy in the Department of Finance wrote that memo to the Minister for Finance. It was very clear that he was being steered in a particular direction, that is, not to pay.

Chairman

Who wrote that memo?

Mr. John O'Brien

It was a lady by the name of Ms Oonagh Buckley. I have the memo here.

Chairman

We will go through the process from there. Where did it go after that?

Mr. John O'Brien

It went to the Labour Court in 2011.

Chairman

This is really the first correspondence from an official to the Minister advising him of all of this.

Mr. John O'Brien

Yes.

Chairman

In 2011, it went to the Labour Court.

Mr. John O'Brien

Exactly, yes.

Chairman

The Labour Court found in favour of the retired public servants.

Mr. John O'Brien

Absolutely.

Ms Maureen Cronin

The parties were in agreement. There was no dispute.

Mr. John O'Brien

The money was due and should have been paid.

Ms Maureen Cronin

The parties were to make that happen.

Mr. John O'Brien

The parties were to make that happen.

Chairman

Ms Cronin reinforced what was said about this attitude of "over my dead body are they getting this increase". That was the feeling she got.

Ms Maureen Cronin

That is the only-----

Chairman

She referred to "these people". Who are "these people"? Ms Cronin was referring to senior civil servants. Who in the senior ranks of the Civil Service has blocked this payment?

Mr. John O'Brien

From our perspective, the key people who can be seen in the correspondence are: the Secretary General, Mr. Michael Scanlan; his assistant secretary, Mr. Bernard Carey, who is now deceased; and Mr. Brendan Duffy, assistant secretary at the Department of Finance who, by coincidence, was also secretary to the review body that reported and so was fully aware of the report and the award.

Chairman

These were the people within these sections in Government who were presenting the obstacles to the payment.

Mr. John O'Brien

There is also Ms Oonagh Buckley, who presented that memo to the Minister for Finance in May 2010.

Ms Maureen Cronin

What is clear is that nobody has ever been able to tell us why. We can speculate but nobody-----

Chairman

I just want to find out what happened. We are now up to 2010. It then drifted into more recent times.

Ms Maureen Cronin

Yes.

Chairman

The witnesses have raised this again with Secretaries General and Ministers.

Ms Maureen Cronin

Yes.

Chairman

The response from the Secretaries General involved was not to reply at all. Which Department's Secretary General are we talking about?

Mr. John O'Brien

The Department of Health.

Chairman

We are talking about the person currently in that position.

Mr. John O'Brien

Yes.

Ms Maureen Cronin

There was no response to the latest letter. In fairness, there was a letter to one of our colleagues saying that, when the financial emergency measures in the public interest, FEMPI, were over, there could be a review. Our colleague followed up to ask how the review was to be conducted when the FEMPI provisions and the cuts were being fully unwound. That is when we got a letter, on 22 August 2022, saying-----

Mr. John O'Brien

It was not from the Secretary General.

Ms Maureen Cronin

It was not from the Secretary General but, on foot of the letter asking how the review was to be carried out, the response was delegated to an official, who said that the industrial relations mechanisms of the State are available to us. That fully closes the circle and we are now being told to go back into the same-----

Chairman

The witnesses have been through all of that. They have been around the loop. The reason I have asked these questions is to have set out in simple terms that there is a case to be answered here. The Labour Court confirmed everything.

Ms Maureen Cronin

Yes.

Chairman

The political system, the Ministers, were poorly informed to say the least.

Ms Maureen Cronin

Yes.

Chairman

It is mainly senior civil servants who are holding up the payment to their colleagues.

Ms Maureen Cronin

Yes.

Chairman

They have got the payment, however.

Ms Maureen Cronin

That is correct.

Mr. John O'Brien

They got it seven weeks after the report was published.

Chairman

It is a little bit like 2010, when senior civil servants excluded themselves from a cut through the then Taoiseach and Minister for Finance. Now, having gone through the machinery of the State and correspondence, the witnesses find themselves in a situation where those who were in senior positions got paid while those in their own positions across the sector were not.

Ms Maureen Cronin

Yes. This is only the case in the HSE and only in our group.

Chairman

It only affects the witnesses' group. Every effort made so far has been met with zilch.

Ms Maureen Cronin

A brick wall.

Chairman

Can the witnesses provide this correspondence to the committee to support the various dates, times and responses so that we are absolutely clear?

Ms Maureen Cronin

Yes.

Chairman

The committee secretariat will inform the members. This correspondence will form the basis of what we are going to do next.

Ms Maureen Cronin

We can provide a detailed schedule.

Chairman

Powerful senior civil servants were mentioned. The reason I took an interest in this matter and read into it is that the question of who is running this country often crosses my mind. This is a clear example of who is running the country. It is also an example of who is being kept in the dark. As long as the very senior civil servants keep the politicians in the dark, they can do what they like, even to their own. I doubt that, when the witnesses were going through their careers, they ever expected having to turn up here to present a case.

Ms Maureen Cronin

God, no.

Chairman

They would have expected that the Civil Service would at least respect the fact that they were one of its own. The witnesses have had a Labour Court decision and support from various pieces of correspondence and yet payment is still withheld from them.

Ms Maureen Cronin

You would expect people to behave ethically.

Chairman

So, what Ms Cronin is saying is that they do not behave ethically. It is the reverse or opposite.

Mr. John O'Brien

The Chairman put it very well. If they can do this to one of their own, what would they do to someone who is not inside the system?

Chairman

I can give Mr. O'Brien plenty of examples of that. I will conclude by saying that the reason the witnesses are here is that it is absolutely outrageous that the Civil Service would behave in the way it has in this particular instance. It is an example of the very same arrogance that is applied in running the country and in the administration of various sections within Government and of the lack of timely information being passed to Ministers to make decisions. It goes to the core of democracy, the core of the administration of Government and the core of justice and injustice. I commend the witnesses on coming forward with this case. It must not have been easy for them. Ms Cronin said she was a bit nervous. If that is the case, I would not like to see her fully unfettered in dealing with this. She gave us plenty of information and insight. I am sorry that it had to come to this.

Ms Maureen Cronin

We never wanted to be here. It is very difficult for me to make comment on or critique my employer, where I loved working.

Chairman

If Governments, including this Government, had a backbone at all, they would turn around, support the Labour Court judgment and pay. I would love to hear the Government's explanation as to why senior civil servants were allowed to pay themselves while leaving outside the door one small cohort of people who, apart from deserving it, have been supported by the Labour Court in their claim. It is despicable.

Ms Maureen Cronin

Someone will have to force them. That is my view.

Chairman

It is despicable that they would do this. With the permission of the committee, we will send the transcript of this meeting to the Secretaries General of the Departments involved in this matter and to the Ministers involved and explain to them that, if they have any shred of decency in them, they will recognise the injustice and pay Ms Cronin and her colleagues immediately. After that, we will take stock of the replies we receive, although some Secretaries General and Ministers choose to ignore committees. We will decide what kind of package to send to each, which will be more or less the same.

We will also send it to the new Taoiseach and Tánaiste and to the new Ministers who will be appointed on Saturday. We will pursue it again in the new year if it is not paid. Deputy Durkan made a proposition and we will follow through on that as well.

Ms Maureen Cronin

Thank you very much for taking the time to meet us. We really appreciate it.

Chairman

It reminds me of a line, I think it was by Mr. John Drennan, about having a backbone. He said that sometimes Government is like a shiver looking for a backbone. It does not even have one. I thank our guests for coming forward because this is not just about them-----

Ms Maureen Cronin

No, it is not. It is much bigger.

Chairman

It is about the administration of the country, justice and fair play. I thank all of our guests for being with us today. We will suspend for three minutes.

Sitting suspended at 2.41 p.m. and resumed at 2.45 p.m.