Section 37 states "Any legal proceedings pending on the establishment day in any court or tribunal to which the National Standards Authority of Ireland, . . . is a party shall continue with the substitution of the Authority for such party and shall not abate by reason of such substitution." When this Bill is enacted and a case is taken by the original standards authority, does the new Authority carry those liabilities with it?
SECTION 37.
Question proposed: "That section 37 stand part of the Bill."
Yes, it will be defended by the Authority.
Question put and agreed to.
Amendment No. 14 in the name of Deputy O'Rourke is out of order because it is merely descriptive in nature.
What does that mean?
It is not a proper amendment to the substance of the Bill. The amendment is out of order. The Deputy can speak to the subject matter when the committee addresses the section.
Amendment No. 14 not moved.
NEW SECTION.
Amendment No. 15 in the name of the Minister proposes a new section. Amendments Nos. 16 to 20, inclusive, are alternatives to amendment No. 15. Therefore, amendments Nos. 15 to 20, inclusive, may be discussed together by agreement. Is that agreed? Agreed. Acceptance of amendment No. 15 involves the deletion of section 38 of the Bill.
I move amendment No. 15:
In page 15, before section 38, to insert the following new section:
38.—(1) (a) Subject to the provisions of this section, every person who immediately before the establishment day was a member of the staff of Forfás shall continue to be a member of the said staff and, where his or her principal duties related to a function which by this Act is vested in the Authority, shall discharge his or her functions in accordance with the directions of the Authority.
(b) Where immediately before such establishment a person was employed by Forfás on contract for a specified period or purpose related to a function which by this Act is vested in the Authority the contract shall, with the consent of that person, continue to operate with the substitution, for Forfás, of the Authority.
(2) The terms and conditions relating to tenure applying to a person to whom paragraph (a) or (b) of subsection (1) applies shall not be less favourable to the person than those prevailing immediately before the application of the relevant paragraph save in accordance with a collective agreement negotiated with any recognised trade unions or staff associations concerned; and if a dispute arises between Forfás or the Authority and any such person as to terms and conditions prevailing immediately before that application, the matter shall be determined by the Minister for Finance, after consultation with the Minister.
(3) The terms and conditions referred to in subsection (2) shall specifically include the right to apply and be considered for appointment to vacancies which arise in Forfás, Forbairt or the Industrial Development Agency (Ireland) from time to time after the establishment day.
(4) Save in accordance with a collective agreement negotiated with any recognised trade unions or staff associations concerned, a person to whom subsection (I) applies shall not, while in the service of Forfás or the Authority, as the case may be, receive a lesser scale of pay or be made subject to less beneficial terms and conditions of service than the scale of pay to which he or she was entitled and the terms and conditions of service to which that person was subject immediately before the establishment day.
(5) Until such time as the scales of pay and the terms and conditions under this section are varied by Forfás or the Authority, as the case may be, following consultation with recognised trade unions and staff associations concerned, the scales of pay to which any person was entitled and the terms and conditions of service, restrictions, requirements and obligations to which he or she was subject immediately before the establishment day shall continue to apply to that person and may be exercised or imposed by Forfás or the Authority, as the case may be, while they are in the service to which subsection (1) refers. No such variation shall operate to worsen the scales of pay or the terms or conditions of service aforesaid applicable to any such person before the establishment day, save in accordance with a collective agreement negotiated with any recognised trade unions or staff associations concerned.".
Section 38 is perhaps the most important section in the Bill and deals with the transfer of staff to the new Authority. As a result of staff concerns regarding their terms and conditions of employment, a complete redrafting of section 38 was necessary.
Staff interests have requested that they remain as staff of Forfás and be seconded to the NSAI. The reason for the establishment of NSAI as an independent body in the first place is its need to be accredited under the full terms and conditions attaching to a certification body as set out in the European standard EN 45012. This requires inter alia that staff will be independent in the discharge of their functions and, therefore, any control of staff in an operational sense from Forfás would negate this requirement.
Subsection (1) (a) and (b) provides for the staffing of the Authority. Subsection (1) (a) in particular provides fully for the permanent staff to remain as staff of Forfás. They are, however, required to fulfil all their functions in accordance with the directions of the Authority. This achieves the requirements of both accreditation and staff interests.
Regarding contract staff, when contracts are being renewed or if the contract person is being made permanent, it will be the NSAI who will be that person's employer. Deputy O'Rourke has suggested an amendment to the former subsection (1), which has now been completely changed. However, the effect of her amendment has not been incorporated into the revised subsection. It would be impossible to allow permanent staff to opt to stay in Forfás and be seconded to NSAI.
Subsection (2) guarantees that the terms and conditions relating to tenure of both permanent and contract staff will be no less favourable then they are at present. Deputy O'Rourke has suggested an amendment to subsection (2) which would add the phrase "shall continue to be linked to those on offer in Forfás and". The effect of this would be to copperfasten the link of the staff in Forfás and those in NSAI, that is ensure that grades and scales of pay are still the same. This is precisely what subsection (2) says and Deputy O'Rourke's amendment is, therefore, unnecessary.
Deputy O'Rourke has also suggested that any dispute between Forfás and the Authority as to their terms and conditions prevailing "may" rather than "shall" be determined by the Minister for Finance in consultation with the Minister for Enterprise and Employment. It is suggested that if the disagreement is continued between the Authority and Forfás, the final arbiter is the Minister for Finance in consultation with the Minister for Enterprise and Employment. However, he would only act as the final arbiter and the amendment should be rejected.
Subsection (3) guarantees the rights of staff to apply for and be considered for promotion in either Forfás, Forbairt or IDA Ireland. This is also designed to overcome fears by staff that their promotion rights would be affected by transferring to the Authority.
Subsections (4) and (5) give those necessary guarantees that their terms, conditions and scales of pay will not be lessened and also provide that they can be increased in accordance with any collective agreement negotiated on behalf of the staff.
Deputy O'Rourke has suggested an amendment to subsection (5) to replace the word "consultation" with "negotiation". This is unacceptable in so far as it implies that agreement must be reached by both sides and, therefore, negotiations would be totally openended.
Deputy O'Rourke has also proposed a further amendment to subsection (5) to delete ". . . Chief Executive Officer . . . " but this has already been deleted by my amendment.
This is a most important section. The Minister kept saying that he had already made a provision but he must remember that my amendments were submitted before I saw his amendments. Obviously, the Minister's amendments take precedence. That is not to say that I agree, and I do not agree with many of the points in his amendment. Mine are more valuable in the circumstances, but we will go through them all.
I must leave at 5 p.m. The Chairman mooted that he was prepared to sit later, but I had detailed myself for 5 p.m. I am available for the slot given to the committee on Friday morning.
On that basis, we will not be able to dispose of this section.
I agree. It is a considerable section. The Minister has gone some distance but not has far as I want him to go, particularly with regard to "negotiation" rather than "consultation" and various other matters which I want to tease out in greater detail.
As we will not complete the Bill this evening, I have no alternative but to adjourn the meeting until 10 a.m. on Friday, 21 June 1996.
The Select Committee adjourned at 5 p.m.