Léim ar aghaidh chuig an bpríomhábhar

Seanad Éireann díospóireacht -
Wednesday, 28 Nov 1979

Vol. 93 No. 4

Private Business. - Local Government (Superannuation) (No. 2) Bill, 1979: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

The purpose of the Bill is to provide that the superannuation conditions of employees of local authorities and certain other local bodies will, as in other branches of the public service, be regulated by superannuation schemes. At present the detailed provisions governing the superannuation of local authority employees are set out in enactments, principally the Local Government (Superannuation) Act, 1956. As things stand, therefore, any changes in superannuation conditions can only be effected by way of amending legislation. This in turn gives rise to a dilemma. Either the improvements in pension conditions, which have been agreed with staff interests and may be needed to avoid hardship, are postponed until the legislative process is completed or, alternatively, local authorities are authorised by the Government to introduce the improvements in anticipation of amending legislation. The latter alternative has been followed under successive Governments but I think the time has come to put matters on a more secure basis. The present Bill will enable changes in the conditions to be dealt with in future by statutory schemes supplemented where necessary by regulations.

The change to the system of superannuation schemes was recommended by a working party representative of employer and employee interests set up by the then Minister for Local Government in June 1976 to carry out a general review of the superannuation arrangements applicable to local authority employees. The working party furnished their recommendation in an interim report in June 1977 in which they also recommended a number of significant improvements in superannuation conditions which were accepted by the then Minister and have since been implemented by the Minister for the Environment. As the House is aware, procedures for the setting out of superannuation terms in statutory schemes rather than in legislation are already in operation in the public service generally including the Army and Garda Síochána, and in the case of the secondary and national teachers, and it is also being applied in the case of civil servants by way of the Superannuation and Pensions Act, 1976. The Bill, therefore, is essentially an enabling measure in line with the recommendations of the working party under which the more flexible approach to the administration of superannuation benefits already in operation in the civil service can be extended to local authority employees. The memorandum circulated with the Bill provides a brief explanation of its various provisions. I would like to refer to certain of the main features of the Bill.

Section 2 is the heart of the Bill and is the section which will enable the Minister for the Environment, with the consent of the Minister for the Public Service, to make schemes setting out the rules governing superannuation conditions. It will also enable the making of amending schemes. Thus, it will not be necessary to go through the elaborate procedure of legislation every time it is found necessary to introduce changes or improvements in the superannuation code, although under a later provision, in section 5, every scheme must be laid before both Houses of the Oireachtas and may be annulled by resolution of either such House. Initially, schemes, together with regulations made under section 3, will provide retrospective authority for improvements already introduced. The ultimate aim is to have a comprehensive or consolidated scheme or schemes containing all the pension terms relating to local authority employees and on the making of such consolidated scheme or schemes the existing superannuation enactments will be repealed under section 11 of the Bill. As and from that time, future changes found necessary in the superannuation code will be effected by amending schemes.

Section 3 will enable the Minister for the Environment, with the consent of the Minister for the Public Service, to make regulations to amend or repeal the enactments which are listed in the First Schedule to the Bill or any statutory instrument made thereunder. These regulations may be made only in the period between the passing of the Bill and the repeal of the existing enactments which will be effected when section 11 is brought into operation. In other words, they may only be made in the interval before the consolidated scheme is made and are, in effect, a transitional device to provide retrospective authority for improvements already introduced and facilitate the making of the initial schemes in the interim period before the repeal of the existing enactments.

This cover by regulation will be of a temporary character and is necessary because of the inevitable delay involved in the complex task of replacing the entire existing pensions code by way of a consolidated scheme. Under subsection (3) there is provision for the making of regulations extending the list of enactments contained in the First Schedule to the Bill if this should prove necessary. This provision is essentially precautionary but, since it would involve an extension of the scope of the First Schedule, subsection (5) provides that regulations effecting such an extension must first be laid before each House of the Oireachtas in draft form and would require the positive approval of each House.

Under subsection (9) of section 2, the present position whereby the local authority superannuation code also applies to employees of health boards is being continued. In the subsection there is also a provision under which other health bodies administering public health services may be brought within the scope of the Bill if they are so designated by the Minister for Health with the consent of the Minister for the Environment. In addition, sections 7, 8 and 9 of the Bill provide for the continuance of the position whereby the local authority superannuation code may be applied, with or without modifications, to the employees of certain other statutory bodies.

As a general principle, superannuation awards are made in respect of pensionable service. However, under section 4, regulations may provide for the granting of retirement gratuities in respect of non-pensionable service in appropriate cases. Section 6 provides for the saving of pension rights under existing legislation.

Taken in conjunction with subsection (4) of section 5, it provides that where changes are being made in superannuation conditions an employee of a local authority will have the right to exercise an option to come under such new superannuation conditions or alternatively to decide to remain subject to his existing conditions if he deems these to be more favourable in the circumstances of his particular case. Section 12 includes provisions relating to the commencement of certain sections with retrospective effect. This is necessary in order to ensure that retrospective effect can be given to the improvements in superannuation conditions already referred to.

Before concluding there is one additional feature of the Bill to which I must refer. That is, its use of the common term "employee" replacing the terms "officer" and "servant" in the existing legislation. I am sure the House will agree with me that this is a welcome change from the present position. I commend the Bill to the House.

I sympathise with the motivation behind this Bill and I welcome the Bill because it will enable superannuation schemes to be made easier in future and make amending them easier. This Bill introduces what I consider to be an appalling and I think an unconstitutional principle. Under section 3, the Minister for the Environment, with the consent of the Minister for the Public Service, purports to take power to make regulations to amend or repeal the enactments which are listed in the First Schedule to the Bill. The enactments in the First Schedule to the Bill are all Acts of Parliament.

The Minister is now proposing to take regulatory powers to amend or repeal Acts of Parliament. I always understood that under our Constitution the only law making institution in the State—lawmaking includes repealing or changing Acts of Parliament—is the Parliament and the President. I consequently would have no doubt whatever that the proposal in section 3 is blatantly and flagrantly unconstitutional. I sympathise with the Minister's dilemma that it is an interim period. The way to deal with that problem is not to act unconstitutionally and make regulations to do something which is within the exclusive scope of the Oireachtas as per the Constitution. In addition, administratively, it is very wrong that Acts of Parliament should be amended or changed by ministerial order and not even to appear on the table of the House.

How is a person to know what the law is if it is to be found only in ministerial order? It is hard enough to know what the law is when it is to be found not merely in an Act of Parliament but in regulations made thereunder which can be copious and complex, and it is difficult enough to find and to keep track of them. If there is to be an added dimension of trying to search for a ministerial order within the vastness of the Department, the position of those called on to advise people under this particular legislation is almost impossible.

That is a side issue, but it is also a serious objection I have to the method proposed in section 3. There is a basic objection to this Bill because of what is proposed in section 3 and I think cannot be acceptable to the House as drafted. Senators can see from the Minister's speech that he does not put a tooth in it. He said:

Section 3 will enable the Minister for the Environment, with the consent of the Minister for the Public Service, to make regulations to amend or repeal the enactments which are listed in the First Schedule to the Bill or any statutory instrument made thereunder. These regulations may be made only in the period between the passing of the Bill and the repeal of the existing enactment which will be effected when section 11 is brought into operation.

We do not know when section 11 will be brought into operation. Even if it was to come into operation next week it is not good enough that for a week the Minister supersedes Parliament and exercises the functions of Parliament as given by the Constitution. A consolidated scheme is to be brought in under section 11, and consolidation is a dificult legislative process, a difficult drafting matter. I envisage that it will be some considerable time before it is in operation. In the meantime, we will have Acts of Parliament repealed and amended by ministerial order. It is outrageous.

I, like Senator Cooney, am amazed at the provisions in this Bill. From my knowledge of superannuation, discussions on details contribute to improve legislation. Legislation was always preceded by long periods of discussions between the trade unions involving the employees and the different Departments. I am amazed that section 3 purports to give the Minister power without having written in "prior to discussion with", not necessarily agreement of, the organisations representing the individuals concerned. People will have the choice of opting in or out of any new proposals that the Minister may decide on in taking to himself the power to amend existing legislation without having it submitted to the Dáil or Seanad for discussion on its merits or demerits. I strongly urge on the Minister here present this evening to reconsider this. The Minister is very conversant with local authority superannuation conditions and the anxiety of people in Local Government, Health, Education and so forth, about their rights within the superannuation legislation. Certainly any thought that these might be amended without having private discussion, or without bringing them to the floor of both Houses would create very serious confusion in their minds. I respectfully suggest that that section should be amended, because the superannuation rights of employees are greatly cherished and well established because of years of negotiation and years of representation to different Governments, to different Ministers and different Departments.

In the explanatory leaflet there is just one point I ask the Minister to clarify. It says that in relation to the 1945 Mental Treatment Act there are a small number of employees who have remained under that Act. I would like to know, when this is put in this fashion, who this small number of employees are? Are they individuals? Are they basic category employees? Are they outside the proposed legislation which it is now proposed to bring within the consolidated Act?

Cuirim fáilte roimh an mBille seo, mar measaim go ndéanann sé iarracht leigheas a chur ar éagóir nó ar rudai nach raibh ceart ins an am atá caite. Very briefly I wish to say that I welcome this Bill. I do so because I have experience of anomalies which occurred and injustices which were suffered by people who worked under local government schemes and who were affected by superannuation conditions which then existed. In the Minister's opening statement he says that the purpose of the Bill is to provide that the superannuation conditions of employees of local authorities and certain other local bodies will, as in other branches of the public service, be regulated by superannuation schemes.

My main interest is to illustrate the anomalies that I have experienced and that I have known to have occurred up to now in regard to the superannuation of employees under local authorities. Let me give my example. For instance, teachers who worked in the primary branch for some time and elected to become employed by vocational education committees and continued their service there for, say, 30 to 33 years and then reached the stage at which they were entitled to superannuation or to full pension rights, when their pension rights were being assessed, as they were assessed under the local government superannuation schemes, the period which they had served with the primary branch of Education was not calculated and could not be calculated due to certain statutory conditions in relation to their employment under the primary branch of Education. I know examples where persons suffered the loss of seven years full-time service working under the primary branch of Education. When they transferred from that branch to the vocational education committee and became employed there, the seven years that they had served as primary teachers could not be calculated for their pension rights. Therefore, instead of getting superannuation which would be related to 40 years' service of teaching they received only 33 years' superannuation. That is an anomaly and an injustice. That injustice still exists. That is my main purpose in speaking here today.

I should like to refer to other injustices and unfavourable conditions which relate to superannuation of local government employees. In the past a great many part-time teachers served under vocational education committees. They worked on a part-time basis and because in many cases their hours of class contact did not reach the required number per year, per month or per week, these years in which they served as part-time teachers were not taken into account when they came to receive their pensions. Despite the fact that their class contact hours may not have reached the required number, they had additional duties and activities. I refer to teachers of Irish and general subjects who worked under vocational education committees and organised feiseanna and promoted the general spectrum of the revival. If the hours that they worked on these activities were calculated not only would they have worked a 25-hour week but up to 40 and 50 hours a week but because they were not engaged in class contact with a specific class these hours were not taken into consideration. Many injustices of this kind have existed for the past ten, 15 and 20 years. They are ceasing to exist because there is no part-time teaching scheme now as such and therefore it does not arise.

I gladly welcome this Bill and I congratulate the Minister on introducing it. I hope it will have the effect of regularising the difficulties to which I have referred and the anomalies which have existed in the past. With regard to the point made by the last speaker on the other side of the House in regard to having this Bill discussed with trade unions and all the various other interests concerned, I do not think there is any great need for it. I do not think that his complaint is valid for the reason that the Minister said the people concerned have the option of remaining in or opting out of the scheme as they had in 1956. I was employed in 1956 and concerned with a similar Act at that time. We had the option of remaining under the old scheme or going into the new one. People decided for themselves. What could be more democratic than people being allowed to make their own choice? I hope the Minister will take into consideration the type of case—there have been many such cases—I referred to.

There is no doubt that any cause which improves the superannuation pension rights of any local authority employees is a worthy cause. It is a pity that the vehicle by which this is attempted appears to be a rather cumbersome vehicle. As regards the accusation made by Senator Cooney, it is one which will certainly take some answering by the Minister. I hope that will be done. Anything which improves the superannuation conditions of local authority employees is to be welcomed. There is no doubt that the working party did a very good job in 1976 and 1977 with the task that they were given to do. The conditions which very many local authority categories enjoyed up to that in regard to superannuation were far behind what was applicable in other State and semi-State organisations. That working party's recommendations did a lot to remove the anomalies which existed.

I should like to make a point regarding the actual explaining of new superannuation schemes to certain categories of local authorities. I have experience of many local authority categories coming to me and asking for an explanation in regard to what they were entitled to under the new scheme, what they could opt for and what they would have in preference to that option if they remained in the existing scheme. They seemed to have experienced a certain confusion in regard to the scheme. Perhaps the measures were complicated for them. I believe that in future where such changes are envisaged more study should be given by county managers, county secretaries and other officials to ensure that the categories involved understand what they are being asked to do. Sometimes, because people are advised by the responsible officers that they should enter a new scheme, they think they should do it without giving much thought or study to the matter and are reluctant to put questions to their immediate superiors as regards the pros and cons of what is put before them. I believe these employees deserve the utmost consideration in this regard and that their immediate superiors should do everything possible to explain the full ramifications of any superannuation amendments to them in the future.

Any consolidated scheme that will be drawn up will be welcome. The retrospective element which is embodied in this legislation is most welcome. The question raised by Senator Cooney needs answering by the Minister. I hope that he will do so and thereby give to the cause which is attempted in this legislation a proper vehicle which will measure up to the cause itself.

I would like to join in welcoming this Bill. A number of serious anomalies existed in relation to the superannuation of local government employees. I am very glad to see this timely Bill. The objection to it seems rather exaggerated. I would like to see this Bill going through.

As a member of a local authority I welcome this Bill. It is about time that people working in local government had the same conditions as teachers and so on. It is fitting that a Fianna Fáil Minister with his vast experience in the field of local government should see that this was necessary. In answer to Senator Markey I have talked about this to some employees of local government and I do not think they are quite as confused as the Senator thinks they are. Maybe a few years ago some local authority employees might be confused but not now.

I have known the service those people give long before I came here. Senator Cooney, of course, with his legal experience, has his own slant on it. I would not dare compete with his vast experience. I welcome this Bill.

Senator Cooney refers to the introduction of a new principle, possibly an unconstitutional one, as he says, to the effect that regulations may be made to amend or repeal Acts of the Oireachtas. This is not a new concept. It follows what was done in the Superannuation and Pensions Act of 1976, which was authorised by the previous Government.

That, too, was unconstitutional.

I do not agree. We must bear in mind that this is only a transitional measure. The Acts which are due for repeal will be repealed in accordance with the provisions of this Bill under section 11. No person's rights may be adversely affected because of the savers in section 5 (4) and in section 6 of this Bill. Adequate provision is being made in the Bill for the interval period, that is the period between the coming into operation of section 11 and making the schemes and regulations.

Senator Moynihan criticised the change of pension rights without the agreement of the staff. In fact, the unions have agreed that it is a change of the present system. Moreover, individuals have the right to opt out of any changes. The proposals made by unions on behalf of their members, proposals submitted by individuals, were carefully considered by the working party which was set up in 1976. I would like to express my thanks to the working party who put in a tremendous amount of work into the change in the superannuation of the staff of local authorities, health boards and other bodies. We must bear in mind that superannuation is now an on-going situation. This is very relevant to the present Bill. It is continuously being discussed in conciliation and arbitration. Pension schemes and superannuation is now part of many wage and salary agreements and improvements in the rights of employees.

As regards the point raised by Senator de Brún the working party is still operating. Any grievances which any individual or any employee may have will be sympathetically considered by the working party. Senator Markey's main criticism of the Bill was similar to Senator Cooney's and the reply is the same. I agree that county managers, county secretaries, the immediate employers of the employees, should guide the employees as regards options. Numerous circulars on this matter were sent out from my Department to the employees. If any employee has any doubt and wants to clarify any matter he is quite welcome to either get in touch with the working party or get in touch with my Department and we will clarify the matter for him as far as possible. I do not agree that this is unconstitutional. It follows the same pattern as was followed in the Superannuation and Pensions Act, 1976, in relation to civil service pensions.

Question put and agreed to.

An Leas-Chathaoirleach

Next Stage?

I have raised what I consider to be a very serious and fundamental objection to this Bill. The Minister has given me an answer and he has referred me to certain sections of the Bill as part of his answer. I will certainly need time to consider his answer in relation to the contention I am making. I am alleging that the Bill is flagrantly unconstitutional. It is assuming to take lawmaking powers by regulation.

Committee Stage ordered for Wednesday, 5 December 1979.