Mr. Walter Croke:

We thank the committee for affording us the opportunity to articulate our observations pertaining to the forthcoming pensions legislation and to inform it of possible difficulties that may not be apparent to legislators.

As former employees of Waterford Crystal, we want to highlight our difficulties in dealing with the pension industry over the past 30 years. Between 1990 and 1992, a group of 445 employees of Waterford Crystal agreed a voluntary redundancy package with their employer. Although the Pensions Act 1990 stipulated certain actions on the part of employers and trustees of pension schemes in the event of employees being made redundant, we assert that certain of the mandated actions in the Pensions Act 1990 did not occur at that time. In 2009, following a ten-year legal battle in the High Court, our pension provider offered a compensation package to the plaintiffs, which was us, based on a depleted pension fund, on a without prejudice basis. The plaintiffs accepted the offer from the defendants, agreement was reached - under seal - and the case was struck out on 13 January 2010. The existence of this settlement proves that those employees who accepted voluntary redundancy in 1992 should, at that time, have been offered the option of remaining members of the Waterford Crystal pension scheme by way of the deferred pension option.

Following Waterford Crystal’s insolvency in January 2009 and the insolvency of its employee pension scheme in March 2009, Unite the Union initiated litigation against the Irish State, stating that it had failed in its obligations to establish a pension protection scheme in the event of the insolvency of its employers in accordance with Article 8 of European directive 2008/94/EC, which was previously directive 80/987/EEC. On 25 April 2013, the European Court of Justice, ECJ, found in favour of the litigants and referred the decision back the Irish High Court for consideration and to determine the level of compensation that the Irish State would have to provide. The Government referred the issue to the Labour Relations Commission where Mr. Kieran Mulvey was appointed mediator in the administration of the compensation fund, arising from which former employees of Waterford Crystal were compensated by the Government, resulting from the deficit in the pension fund.

Those employees of Waterford Crystal who had accepted the voluntary redundancy in 1992 were not included in this process, although they clearly should have been, arising from the above referenced 2010 settlement with the pension provider. According to the then Minister for Social Protection, Joan Burton, during this long, drawn-out situation, one did not have to be a member of the union to benefit from the directive. Rather, one had to be a member of the pension fund.

Our primary objective in addressing the committee is to ensure that what has befallen us in our 30-year struggle does not occur again for those who may happen to be victims of a similar insolvency. Our interaction with and experience of the pension industry and the political system may assist the committee in ensuring that the new pensions legislation will safeguard the rights and entitlements of the members of pension schemes and we have included some observations and recommendations in this brief document. Had the trustees of our pension scheme adhered to the provisions of the Pensions Act 1990 and in 1992 issued us with our pension option forms, we would not be here today still advocating for our legal entitlements from this Government. This key legal requirement should be enshrined in the forthcoming legislation and it should be enforceable.

The ECJ case involving Hogan and others, which was initiated by Unite the Union, was taken as a consequence of the loss of benefits for active and deferred members of the pension scheme. As outlined above, we are covered by the ECJ directive and should have been included in the Government compensation fund. We are confident that this could still occur in 2023. In 2009, Unite the Union was contacted, requesting that our group be included in the union’s ECJ litigation. However, no reply was forthcoming. Again in 2016, Deputy Mary Butler wrote to the Unite regional secretary regarding our situation but again no reply was ever received. Subsequent correspondence to various Ministers for Social Protection up to the present have elicited similar responses that were disturbingly replete with inaccurate and contradictory information.

In short, we are convinced that the Government has not implemented ECJ Directive No. 2008/94/EC in respect of our entitlements. We believe that the forthcoming legislation should also protect those who leave pension schemes early. Unlike our situation, members of a pension scheme should be furnished with their three options and be compensated similarly to Waterford Crystal workers in the event of any shortfall in a pension fund, with the Government contributing the balance or shortfall. We are aware that pension providers are subcontracting portions of their pension portfolios to other providers who then become their agents. This makes it very difficult for individuals to ascertain who their actual pension provider is and, more importantly, makes it extremely difficult to access personal information. It is important that forthcoming legislation recognises this development and addresses it.

In the UK, following Carol Robins taking a case against the British Government after a company’s insolvency left her and others with only between 20% and 49% of their pension entitlements, the ECJ in January 2007 found in her favour, stating that compensation should be in excess of 49%. We believe the forthcoming legislation should include a stipulation of a minimum percentage compensation for members of a pension scheme in the event of a company ceasing trading. We believe the legislation should stipulate that companies make annual returns regarding their pension scheme so as to ensure an early warning system that would highlight potential problems in the funding of pension schemes by companies. We are also of the opinion that the forthcoming pension legislation should mandate the Government to establish a fund exclusively for the compensation of members of a pension scheme. This was part of the original directive from Europe, that a fund be set up. To the best of my knowledge, there is still no fund. This would be similar to the UK’s pension protection fund, which was established in 2009 following the ECJ ruling in the Robins case. Ireland was a party with the UK in trying to limit in time the effects of a judgment favourable to the claimants to proceedings brought before the date of delivery.

We would like to conclude this brief statement on a positive note. In April 2022, we met with then Minister of State, Deputy Damien English. This meeting was arranged by Senator John Cummins while the Minister of State was in Waterford. On presenting him with the facts and supporting documentation pertaining to our situation, the Minister of State was visibly taken aback by the contents therein and assured us that this could be fixed and he would come back to us on it. Subsequent meetings with Minister of State, Deputy Mary Butler, Sean Kelly MEP, Deputies Ivana Bacik, Matt Shanahan, David Cullinane, Marc Ó Cathasaigh and Paul Murphy and Senator John Cummins were held and all accepted the veracity of our argument, namely, that the presence of the without prejudice agreement of January 2010 between the plaintiffs and defendants meant that those of us who departed Waterford Crystal in the early 1990s are entitled to receive the same level of compensation from the Government as all other Waterford Crystal workers. We now await constructive proposals and action from Government but we are confident, based on the observations of then Minister of State and other Deputies, that our 30-year struggle will, by the end of 2023, be finally fixed to the satisfaction of all concerned. I again thank the committee for the opportunity to make this statement.