Seanad debates

Thursday, 9 December 2010

Communications Regulation (Postal Services) Bill 2010: Report and Final Stages

 

12:00 pm

Photo of Pat MoylanPat Moylan (Fianna Fail)
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Before commencing, I remind Members that a Senator may speak only once on Report Stage except the proposer of an amendment, who may reply to the discussion on that amendment. On Report Stage, each amendment must be seconded. Amendment No. 1 arises out of Committee Stage proceedings.

Government amendment No. 1:

In page 16, to delete lines 22 to 28 and substitute the following:

"(2) The procedures referred to in subsection (1) shall include the opportunity for interested persons, including representatives of postal service providers and postal service users and organisations representative of employees of postal service providers, to make representations on the matter, the subject of the consultation process concerned, to the Commission in such form and within such reasonable period as the Commission may specify generally or by reference to the consultation process concerned.".

Photo of Mary WhiteMary White (Carlow-Kilkenny, Green Party)
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This amendment arises from last week's discussions on the need to include a reference to trade unions in section 15, which requires ComReg to set out its public consultation procedures. While it was never the intention, nor was it the effect of the section as drafted, that anyone, including staff representative bodies, would be excluded from any public consultation, we explored this issue with the Office of the Parliamentary Counsel. An amendment has been drafted to give effect to the Senators' proposal. Section 15(2) requires that ComReg's procedures will afford interested parties the opportunity to make representations on the matter that is the subject of the consultation. The proposed amendment includes organisations representative of employees of postal service providers among those listed as examples of interested persons for this purpose.

Photo of Joe O'TooleJoe O'Toole (Independent)
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I thank the Minister of State, draftspersons and advisers for responding so positively. As the Minister of State mentioned, I tabled an amendment to include the term "trade unions". Draftspersons are horrified by that term. They find it distasteful and have great difficulty using it.

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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And the term "public representatives".

Photo of Joe O'TooleJoe O'Toole (Independent)
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I have needed to concede this point a number of times. They do not find the term "trade unions" amenable.

On a more serious point, the staff unions were concerned about their apparent exclusion while everyone else seemed to have been remembered. Will the Minister of State convey this point? I am grateful for the positive response, which deals with my issue completely, but it is also important that people consider how partnership operates. I am not necessarily referring to social partnership. For years, we have spent money developing partnerships. We are trying to create an innovative knowledge-based society, one in which workers are being told to bring their brains to work. If they are doing that, we want to be able to use and focus their knowledge. This is the case in every sector, not just the postal sector. I have made the same remark in respect of the Civil Service, in that civil servants are often ignored in large transformational processes. Bosses seem to believe they know all. Wisdom is not concentrated in any one place. It tends to emerge from all sorts of experiences.

This should not come down to having a proposal box in a corner. Instead, people should be engaged with and have their opinions, concerns etc. heard. The Minister of State must know this. Just this morning, I received a telephone call from someone in a hospital department wherein there will be a major transformational change. That person read about the change in the newspapers. He was not opposed to whatever the change might bring, but he will now spend a sleepless weekend because he does not know what the change will be. Often, that people are not being asked leads to problems. Let us anticipate the problems in advance and deal with them.

This is a long-winded way for me to say the amendment is important. I fully support it.

Photo of Brendan RyanBrendan Ryan (Labour)
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I also welcome the Government amendment, which improves the legislation somewhat. It effectively includes trade unions without referring to them as such. I have a concern, although I am unsure whether Senator O'Toole shares it. The amendment reads "organisations representative of employees" rather than "organisations representing employees". I am not sure what the other interpretations of this provision might be, but I will take my lead from Senator O'Toole, who is shaking his head.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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I join in the welcome for this Government amendment as a co-sponsor of the initial amendment alongside Senator O'Toole and having spoken on the issue on Second and Committee Stages in the belief that the unions should be part of any consultative process, public or otherwise, as important stakeholders. I would have preferred the explicit use of the word "union" and I see no reason it should not be the case, but I welcome the amendment as achieving the same objective. I am not sufficiently expert in linguistic nuances to know the implications of Senator Ryan's concerns, but I am prepared to support him in his comments. His proposal is worth consideration, as it would specifically give workers' representatives a voice. I shall leave it at that, but I welcome it in that it is achieving one of our objectives. As I have said repeatedly, our sole objective is to shape this legislation in a fashion that maintains the integrity, quality and strength of the existing service and personnel. This is a step in the right direction, but many more will be needed as well.

Photo of Mary WhiteMary White (Carlow-Kilkenny, Green Party)
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I understand that the language used in the amendment was based on advice from the Office of the Parliamentary Counsel, which had been advised of the Senators' concerns, and we believe it fully represents the views expressed. I hope that is clear. We are talking about semantics here, but I believe it fully addresses Senators' concerns.

Amendment agreed to.

Photo of Pat MoylanPat Moylan (Fianna Fail)
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Amendment No. 2 in the names of Senators McCarthy, Alex White, Ryan, Prendergast, Bacik and Hannigan arises out of Committee Stage proceedings.

Photo of Brendan RyanBrendan Ryan (Labour)
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I move amendment No. 2:

In page 21, to delete lines 18 to 23 and substitute the following:

"(a) the terms and conditions, excluding those specifying the amount of the charges, in accordance with which a postal service user may avail of the postal services concerned, and".

Our proposal is to delete sections 19(2)(a) and 19(2)(b) and include the amendment as proposed here. Basically, this stems from comments made by the Minister in the Seanad on 24 November to the effect that a price control mechanism was intended. It seems to me that it cannot be the intention to have charges approved by ComReg in advance and to have a price control mechanism, so I am interested to hear the Minister of State's comments in that regard.

Photo of Joe O'TooleJoe O'Toole (Independent)
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I second amendment No. 2.

Photo of Mary WhiteMary White (Carlow-Kilkenny, Green Party)
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It is not proposed to accept this amendment. Its effect would be to remove the need for An Post or any designated universal postal service provider to notify ComReg of its tariffs or changes thereto. Tariffs are an integral part of universal postal service providers' terms and conditions.

In the context of safeguarding the interests of users, the general terms and conditions, including the terms and procedures for dealing with consumers, under which An Post as a designated universal postal service provider, or any other designated provider, provides universal services, must be approved by ComReg. Charges for postal services not within the scope of universal service are not subject to ComReg's oversight.

In addition, Recital (34) of the first postal services directive states that Directive 93/13/EEC on unfair terms in consumer contracts applies to postal services. Oversight by ComReg gives the operator a practicable defence to any claims that even where its terms and conditions are not negotiated with its consumers, they are unfair and therefore unenforceable. Such protection is especially needed where users have no bargaining power.

Amendment, by leave, withdrawn.

Photo of Pat MoylanPat Moylan (Fianna Fail)
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Amendment No. 3 in the names of Senators O'Reilly and Cummins arises out of Committee Stage proceedings.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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I move amendment No. 3:

In page 29, to delete lines 24 to 28 and substitute the following:

"28.---(1) A postal service provider has the right to enter into negotiations with a universal service provider with a view to concluding an agreement with that provider to access the postal network of the universal service provider up to the inward mail centre and may serve notice.".

The legislation places no specific limit on where network access should begin. The current postal network is built around four mail centres, with Government support over the years. As I have said previously on Second and Committee Stages, €100 million of taxpayers' money has been spent on automation in those four centres. An Post is now ranked as the seventh most efficient postal operator out of 27 EU countries.

The purpose of this amendment is to ensure that access should not be permitted below the mail centre level. This protects the collection and delivery model that aims to serve all addresses at all locations, maximises the efficiencies provided by hi-tech equipment and ensures adequate volumes in the system. In other words its objective is to ensure that an independent or private service provide cannot enter the marketplace at a lower level than the four automated centres so as to ensure a level playing pitch for An Post and guard against cherrypicking.

A competitor might negotiate a price lower than An Post, put it into a town and have it delivered at that level. We are trying to prevent it going in at the lower level. Everything we are doing in this legislation with these amendments is aimed at protecting the universal postal service and its quality along with the 2,000 jobs that are at stake, which must now be at a premium. This is a reasonable amendment, which allows for the directive to be implemented, along with free trade and competition, while not allowing the structure of An Post as it has been built up over the years to become an unfair victim of competition.

I shall not be argumentative as regards the wording. If the Minister of State proposes to change it, that will not be an issue. The objective is to achieve the principle of fair play and to maintain the integrity and quality of An Post. We have a great national service and workforce. At ground level our post men and women throughout Ireland are exemplary, providing a great social service and facilitating crucial human contact at local level. These are great people of whom we are proud, and I include the sorters and personnel within the offices. I want to preserve those people in situ while at the same time achieving the objectives of the directive.

Our attitude towards every EU directive should not be too cap in hand, and we should not take them too literally. We have this tendency in that we almost have to go beyond the terms of a directive in effecting its implementation. We can be nearly more penal than what is intended in the directive, and therefore I ask the Minister of State to see reason on this. I am totally open to the manner in which she does it.

Photo of Joe O'TooleJoe O'Toole (Independent)
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I second the amendment.

We are just trying to avoid a race to the bottom. We want to ensure that what has happened in other places does not happen to the Irish postal service in the effort to undercut everybody. We want to ensure we get efficiency and quality as well as good value. We are talking about value for money here, but we do not want to see advertisements for half the rates the people doing the job at the moment are getting, with people queuing up for these jobs. In the event quality is lost as regards a postal job, it ceases to be a career and the incumbent is no longer a focal point and pillar of the community, while all that is achieved, perhaps, is a greater saving in costs. There is an assumption that those costs will benefit the consumer. That was the assumption behind the privatisation of Eircom and what we finished up with was a couple of dozen extra millionaires. That is always a difficulty.

I know ComReg will be insisting on quality and I do not say this lightly, but there is only so much that can be done. We have seen many areas of work in this country that have simply become places through which people just pass, without seeing any career opportunities. The question is whether we want to ensure this area is seen to provide a real career opportunity, where people want to develop the service and see it improving, or just a place to work while they are looking around for a better job. That is what happens if one just creates a yellow pack career structure where people are simply taken on at a minimum wage and kept for as long as possible until they get a job somewhere else. In the event, the employer is losing out on the quality of the people he or she is employing.

I have heard this argument before, where people question how much quality is needed. The reality is that intelligent, bright and well-qualified people are needed in every job. I want to ensure we are not just going down the wrong road in a race to the bottom. We have seen this happen in other places and it does not improve the quality of life for anybody. All it does is increase the profits for whoever is running the operation. Eircom is the best example I can think of. Just reflect on how many times it has been sold in the last ten years, and how much money it made for everybody along the way. The first time it was sold for €250 million and we did not even get capital gains tax from this. That is the law of the land and I am only using this as a reference point. When we were doing that I recall standing here and making the same speech. I remember asking about who was going to bring broadband to Belmullet. This was before the advent of Corrib gas. It was not going to be worth anyone's while, and I remember saying at the time that Sir Anthony O'Reilly would not do it.

We are transposing a European directive, the general thrust of which I support despite that in many ways the legislation goes against the grain for me. However, I recognise where we are at. I welcome competition in the public sector, which should be in place to make it work properly. However, what I want is not competition at any price but competition based on fairness, quality, career, good value and community reference points.

Photo of Mary WhiteMary White (Carlow-Kilkenny, Green Party)
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It is not proposed to accept this amendment. Section 28 places an emphasis on access being granted following commercial negotiations between a universal postal service provider and another postal service provider. Where an agreement cannot be reached, ComReg may resolve the issue and may impose certain terms and conditions in relation to access. Section 28 sets out ComReg's role in this context and the issues to which it must have regard, including the need to ensure and maintain the efficient provision of the universal service, the reasonableness of the access request and network costs incurred in granting access. It is not appropriate to legislate for where access should be granted and the precise terms under which it is granted. To do so, could potentially be restrictive and it is not possible to predict future work arrangements of postal service providers.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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I am disappointed with the Minister of State's response. We do not believe there is sufficient protection in the legislation to provide for a level playing pitch. The legislation is too ambiguous and open to different interpretations. There is also too much of an assumption underlying this legislation that An Post, while it will expand and take on new roles and services and so on, will discover a crock of gold or new business model at the end of the rainbow. As eloquently put by Senator O'Toole, we are anxious to preserve jobs and a level playing pitch. We accept the directive and have been particularly constructive in our approach to it because we accept the legal requirement to implement it. It is a shocking state of affairs, however, if in this process we throw out the baby with the bath water, which is effectively what we are doing.

I ask the Minister of State to reconsider and accept the amendment. If not, we will have to press it. The legislation in this regard is unacceptable, in particular to the workers. There is too much at stake. We have put too much into An Post as a national enterprise, in terms of taxpayers' money and human effort, to throw it to the winds. It is bad practice.

Photo of Mary WhiteMary White (Carlow-Kilkenny, Green Party)
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I thank Senator O'Reilly for his heartfelt input on the amendment. The Senator will be aware that the postal service is undergoing significant change and must evolve to ensure it meets the needs of its users. An Post may make commercial decisions in the future as to how it should configure its network to meet its obligations and best serve the needs of its users. The challenge for An Post is to recognise the need to re-evaluate its relationship with customers and competitors alike. It must explore its potential through competitive partnerships with rival postal service providers and ensure it remains the postal delivery company of choice for the foreseeable future.

Question put: "That the words proposed to be deleted stand."

The Seanad Divided:

For the motion: 21 (Dan Boyle, Martin Brady, Larry Butler, Ivor Callely, James Carroll, John Carty, Donie Cassidy, Maria Corrigan, Mark Dearey, John Ellis, Geraldine Feeney, John Gerard Hanafin, Cecilia Keaveney, Terry Leyden, Niall Ó Brolcháin, Labhrás Ó Murchú, Fiona O'Malley, Ann Ormonde, Shane Ross, Jim Walsh, Diarmuid Wilson)

Against the motion: 11 (Paul Bradford, Paul Coghlan, Maurice Cummins, Paschal Donohoe, Frances Fitzgerald, Dominic Hannigan, David Norris, Joe O'Reilly, Joe O'Toole, Brendan Ryan, Alex White)

Tellers: Tá, Senators Niall Ó Brolcháin and Diarmuid Wilson; Níl, Senators Maurice Cummins and Joe O'Reilly.

Question declared carried

Amendment declared lost.

Government amendment No. 4:

In page 30, line 34, to delete "network costs" and substitute "postal network costs".

Photo of Mary WhiteMary White (Carlow-Kilkenny, Green Party)
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In response to Senator O'Toole's suggested amendment to this section, the Minister has agreed to make this amendment for clarification purposes. Subsection(9) provides that ComReg, in making a decision on the price of access to the postal network of a universal postal service provider, should take into account any network costs involved in granting such access. The amendment makes it clear that the network costs referred to are those of the postal network of a universal postal service provider.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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I co-sponsored the amendment with Senator O'Toole who asked me before he left the House to express his appreciation to the Minister for accepting the amendment. The objective is to prevent a private service provider coming in to cherry-pick areas, enter the market at an unreasonable cost level and prejudice An Post and its operation. While I wish the previous amendment had also been accepted, this is a step in the right direction, which is welcome.

Amendment agreed to.

Photo of Pat MoylanPat Moylan (Fianna Fail)
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Amendments Nos. 5 and 6 are related and may be discussed together.

Photo of Brendan RyanBrendan Ryan (Labour)
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I move amendment No. 5:

In page 31, between lines 14 and 15, to insert the following:

"30.—A postal service provider that operates a post office shall not close the post office (other than for a temporary purpose) without the consent, by reserved function, of the local authority in which the post office is situate."

The amendments attempt to limit the closure of post offices and post boxes, to recognise that post offices have been closed solely on a commercial basis with no account being taken of their social value and to provide for a consultation process when closures are proposed. We had a long debate on this issue on Committee Stage and there was support throughout the House for the amendments. However, they were rejected by the Minister. I asked him to reconsider them to see if he could come up with something for Report Stage.

I have retabled both of them. I am not suggesting the wording represents the only way to deal with this. I would be happy if the Minister of State said the Government wanted to take the spirit of the amendments into account when the Bill goes before the Dáil, and might introduce some mechanism to deal with this and recognise that the people do not want our post offices to be closed purely on a commercial basis.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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I formally second the amendment which I strongly support. If we were to apply solely commercial criteria to the maintenance or otherwise of rural post offices, we would have two to three post offices in an average county. This cannot be the case. I support the effort to put a legislative imperative into the Bill to prevent this being the case in the future. We have all attended the public meetings and witnessed the closure of a local post office. We all know it is, effectively, the death-knell of a community and how traumatic it can be for a local community. We have seen the rationalisation of schools, the reduction of Garda stations and the closure of post offices. Even outlet post boxes dotted around the place mean so much to people in isolated communities. Older people who are not in a position to drive and want access to their post need these facilities.

There must be positive discrimination involved. We cannot let everything out to the free markets. We have to preserve certain things. Throughout the debate on the Bill, we have been trying to preserve the universal service obligation, as well as the State's investment. I support Senator Ryan in preserving the rural post office network and post boxes around this country. They are such a part of our infrastructure, and not only in the countryside, but also in villages, towns and on the fringes of our big cities. We cannot have people coming from Balbriggan and Skerries into the GPO on a daily basis. Some common sense and compassion must be applied.

We must decide what our priorities are as a society and what we value. If we are to turn the entire country into an economy, with no social dimension, it will be a sad and bleak place. I urge the Minister of State even just to come back with an alternative wording to achieve this objective. It is a worthy objective and it is hardly one that anyone could reasonably disagree with.

Photo of Pat MoylanPat Moylan (Fianna Fail)
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While we are waiting for the Minister of State to reply, I welcome to the Visitors Gallery former Senator Helen Keogh.

Photo of Mary WhiteMary White (Carlow-Kilkenny, Green Party)
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Let me reassure Senators that the Government is committed to as large a post office network as is economically possible. However, it is not proposed to accept these amendments.

In respect of amendment No. 5, the opening, closing or maintenance of postal infrastructure, such as post offices, are commercial matters for the management of the postal service provider concerned. The provision of post offices is not affected by the directive and the requirement to open postal services to competition. An Post's responsibility, pursuant to the Postal and Telecommunications Services Act 1983, to provide counter services for the company's own and Government business is not being amended by the Bill. The vast majority of post offices are operated by postmasters under commercial contracts with An Post. The closure of individual post offices is a contractual matter between An Post and the individual postmaster in question. Post offices are only closed when An Post has been unsuccessful in recruiting a postmaster to fill a particular vacancy.

It is not proposed to accept amendment No. 6, which relates to the closure of a post box or similar access point. In respect of a designated universal service provider, section 16(10) of the Bill provides that ComReg may, following a public consultation process, direct such a provider for the purpose of ensuring that the density of access points and the provision of points of contact for users with the universal postal service provider, take account of the reasonable needs of postal service users. ComReg already has this direction making power under the current regulations and section 16 (10) restates this in primary legislation.

For commercial postal service providers other than the designated universal postal service provider, establishing or removing access points to their networks are purely commercial decisions.

Photo of Brendan RyanBrendan Ryan (Labour)
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I asked the Minister of State to concede that she would go back to the Minister to see if something else could be done. I do not necessarily accept the Minister of State's point that the post office only closes when An Post cannot get an alternative operator. The evidence I have received is to the contrary, but I will not argue that now because I have not got specific examples. However, I do not think that is true.

I am asking the Minister of State to take this back and see if the Minister could consider some way of dealing with the spirit of what we are trying to achieve.

Photo of Pat MoylanPat Moylan (Fianna Fail)
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Does the Minister of State wish to comment further?

Photo of Mary WhiteMary White (Carlow-Kilkenny, Green Party)
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I have no further comment.

Amendment put:

The Seanad Divided:

For the motion: 11 (Paul Bradford, Ciarán Cannon, Paul Coghlan, Maurice Cummins, Paschal Donohoe, Frances Fitzgerald, Dominic Hannigan, David Norris, Joe O'Reilly, Brendan Ryan, Alex White)

Against the motion: 23 (Dan Boyle, Martin Brady, Larry Butler, Ivor Callely, James Carroll, John Carty, Donie Cassidy, Maria Corrigan, Mark Daly, Mark Dearey, John Ellis, Geraldine Feeney, Camillus Glynn, John Gerard Hanafin, Cecilia Keaveney, Terry Leyden, Niall Ó Brolcháin, Labhrás Ó Murchú, Fiona O'Malley, Ann Ormonde, Shane Ross, Jim Walsh, Diarmuid Wilson)

Tellers: Tá, Senators Dominic Hannigan and Brendan Ryan; Níl, Senators Niall Ó Brolcháin and Diarmuid Wilson.

Amendment declared lost

3:00 pm

Photo of Brendan RyanBrendan Ryan (Labour)
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I move amendment No. 6:

In page 31, between lines 14 and 15, to insert the following:

30.—A postal service provider that operates a post box or similar access point shall not close the post box or similar access point (other than for a temporary purpose) without the consent, by reserved function, of the local authority in which the post box or similar access point is situate.".

Amendment put and declared lost.

Bill, as amended, received for final consideration and passed.