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.