Oireachtas Joint and Select Committees
Thursday, 19 November 2015
Committee on Transport and Communications: Select Sub-Committee on Transport, Tourism and Sport
Harbours Bill 2015: Committee Stage (Resumed)
Apologies have been received from Deputies Tom Fleming who has nominated Deputy Richard Boyd Barrett as his substitute, Deputy Timmy Dooley who has nominated Deputy Éamon Ó Cuív as his substitute and Deputy Patrick O'Donovan who has nominated Deputy Bernard Durkan as his substitute for the consideration of this Bill. Are the substitutions agreed? Agreed.
This meeting has been convened to resume consideration of the Harbours Bill 2015. I hope that we can make more progress today than we did last week. I ask members to confine their contributions to the amendments being discussed. However, I have taken on board the comments made last week. The Minister has a commitment and is required to leave here by 4 p.m. Is that correct?
We will try to get through the legislation as quickly as possible but, by the same token, people will be given the chance to make their points. Is that agreed? Agreed. If we have not concluded consideration of the Bill by 4 p.m. then we will resume at 2 p.m. next Thursday. I hope we can get through the legislation as quickly as possible.
I welcome the Minister for Transport, Tourism and Sport, Deputy Paschal Donohoe, and his officials to the meeting. There are a number of related amendments so grouping arises. I ask members and visitors to ensure that all telephones are switched off. I wish to advise the sub-committee that sections 1 to 8, inclusive, were agreed on 11 November.
I move amendment No. 3:
In page 8, lines 19 to 22, to delete all words from and including “(a) Subject” in line 19 down to and including line 22 and substitute the following:“(a) Subject to paragraphs (b)and (c), a local authority chief executive may not sell, transfer, exchange, surrender or otherwise dispose of any shares vested in the local authority of which he or she is the chief executive by order made under section 8.”.
On a point of order, as it happens I cannot stay for very long which I am sure everybody will be relieved to hear. Is it okay if Deputy Ellis moves my amendments when I am gone?
I must leave shortly and shall say a brief word on the amendment. Even though we only covered a couple of amendments on the last day we covered most of the arguments around them. Although there is a series amendments, they work their way in a logical order through the Bill and are connected. A series of amendments provide that the ultimate power for managing and controlling the harbour should not be in the hands of the CEO. I contend that it should be in the hands of elected members who are required to consult with a stakeholder group. That theme has worked its way through a series of amendments which will be formally moved and then we can discuss them further on Report Stage.
In terms of this amendment, the Bill gives a CEO the right to sell shares. My amendment contends that the CEO should not have such a right because I do not believe that we should privatise our harbours. I suspect that the Government's position is that one needs flexibility to bring in private capital to develop harbours. When one looks at some of the proposals that have come forward, such as a cruise berth and the harbour master plan in Dún Laoghaire, then it become clear that it is not a very good idea to do so. Part of Dún Laoghaire harbour has already been put up for sale to finance these developments. That is not the way to go with vital infrastructure. I do not think that we should mortgage public assets in order to fund commercial speculative developments. My amendment provides that there should be no circumstances in which a CEO can mortgage or sell off the assets of a harbour. I wish to flag that a few sites in Dún Laoghaire have already been sold which is very much at odds with what the people want. The amendment is very simple in that regard.
As I will not be here later I wish to state that the only other substantial matter, beyond the ones that we have already debated, is the issue of worker directors. In the case of Dún Laoghaire, the number of employees has been substantially reduced and means they would not have a worker director under the provisions of the legislation, as it stands. I believe that any harbour, as part of the idea of having genuine stakeholders involved, should have a worker director. I have referred to a different amendment in this respect. All of my amendments share the same theme, that we need real involvement and participation by stakeholders and in this respect workers are a very important group of stakeholders. My deepest knowledge about Dún Laoghaire harbour has come from talking to the workers who know the harbour. They are the front-line people and can tell what is going on, so one must have their input on the board. If one has the threshold of employees required to have a worker director too high then one will not get such vital input. I shall leave my comments at that.
Before I respond in more detail to the point made by Deputy Boyd Barrett I wish to emphasise the following in terms of the current text that he has proposed be deleted. Section 9(1)(c)(i) clearly states that any disposal of shares cannot go ahead without "the consent by resolution of the elected council concerned." In a moment I shall outline my policy on some of the areas outlined by the Deputy. I fundamentally believe that if a port is now part of a local authority unit, in whatever way, then I agree that a decision on shareholding should only happen with the consent of local members. My belief flows from what I have said about a local authority structure being of benefit to some ports. Section 9(1)(c)(ii) states there is a requirement for "the approval of the Minister, given after consultation with the Minister for the Environment, Community and Local Government and the Minister for Public Expenditure and Reform." Furthermore, any disposal of any capital, for whatever reason, can only be up to a maximum of 49% of the issued capital for that port.
The reason for such a provision is that I view ports and airports as important in their own ways for the development of our country. While the boards and offices of a port, at different points, may decide to raise capital or allow a minority stake to be disposed of to raise funding, I fundamentally believe that they should be in majority public ownership. That is why we have the further requirement in place that if a local authority's chief executive is lucky enough to dispose of a minority stake, or a portion of a minority stake, that it requires both the consent via a resolution of the local authority's members and the relevant Ministers. Overall, what we are looking to do here is to give flexibility to the ports in terms of how they might look to raise capital but we have been clear that the consent of both the local members and the Minister, for different reasons, are still required.
I understand where the Deputy is coming from but I believe that the safeguards that we have in place at the moment are robust. It is for that reason that I am not in a position to accept the Deputy's amendment.
I move amendment No. 6:
In page 10, line 19, to delete “local authority chief executive” and substitute “Elected Council in consultation with Stakeholder and Community Group”.
I move amendment No. 7:
In page 10, line 30, to delete “local authority chief executive” and substitute “Elected Council in consultation with Stakeholder and Community Group”.
I move amendment No. 8:
In page 10, line 34, to delete “local authority chief executive” and substitute “Elected Council in consultation with Stakeholder and Community Group”.
I move amendment No. 9:
In page 11, line 17, to delete “local authority chief executive” and substitute “Elected Council in consultation with Stakeholder and Community Group”.
I move amendment No. 10:
In page 11, lines 25 and 26, to delete “local authority chief executive” and substitute “Elected Council in consultation with Stakeholder and Community Group”.
I move amendment No. 11:
In page 11, line 30, to delete “directors of the transferred company” and substitute “Elected Council in consultation with Stakeholder and Community Group”.
I move amendment No. 12:
In page 12, line 5, to delete “local authority chief executive” and substitute “Elected Council in consultation with Stakeholder and Community Group”.
I move amendment No. 13:
In page 12, line 37, to delete “local authority chief executive” and substitute “Elected Council in consultation with Stakeholder and Community Group”.
I move amendment No. 15:
In page 13, lines 25 and 26, to delete “local authority chief executive” and substitute “Elected Council in consultation with Stakeholder and Community Group”.
I move amendment No. 16:
In page 13, line 28, to delete “local authority chief executive” and substitute “Elected Council in consultation with Stakeholder and Community Group”.
I move amendment No. 17:
In page 13, line 30, to delete “local authority chief executive” and substitute “Elected Council in consultation with Stakeholder and Community Group”.
I move amendment No. 18:
In page 13, line 31, to delete “local authority chief executive” and substitute “Elected Council in consultation with Stakeholder and Community Group”.
I move amendment No. 19:
In page 13, line 39, to delete “local authority chief executive” and substitute “Elected Council in consultation with Stakeholder and Community Group”.
I move amendment No. 20:
In page 15, line 35, to delete “may” and substitute “shall”.
I must leave shortly so I shall make a brief comment. In terms of accounts, the Bill provides that the chief executive "may" at the end of a period of three years carry out a performance review. My amendment seeks to delete "may" and substitute "shall" thus insisting that a performance review is carried out. My amendment is very straightforward.
I can understand the rationale behind the Deputy's amendment. I shall go back to the broad thrust of my response so far which is that if we are saying that a port of a particular size is best located within a local authority, it continues to be my view then that it is up to the members of the local authority or its chief executive to decide how those review clauses can be used. I believe that some of our ports are best managed by them and, therefore, I would trust and enable them to make those decisions.
Section 22 sets out the director related provisions on any transferred company. With regard to employee representation on the boards of transferred companies, the section states that if a transferred company has more than 30 employees then an election is held and the winner is automatically appointed as a director. If a transferred company has fewer than 30 employees, then the local authority chief executive is obliged to appoint a director to represent employee interests to the board, and prior to doing so, the local authority chief executive must consult the relevant trade unions. This approach is identical to that found in section 39 in regard to ports of national significance and is, of course, identical to that which applies to date to all those port companies.
The amendments do not seem to align correctly with each other. The main thrust is to reduce the statutory threshold for employee-director relations from 30 to ten employees and then, if the amendment were not to be successful, to introduce through amendment No. 25 a requirement that rather than consider any trade union recommendation for employee representation on the board, a local authority chief executive would be compelled to accept any recommendation.
Amendment No. 31 relates to section 39, which deals with the ports of national significance. This amendment seeks again to reduce the threshold for employee elections from 30 to ten employees. I assume that this amendment is drafted, unaware of the fact that employee-director elections are already held at each of our ports of national significance, that is Dublin, Cork, Shannon, Foynes and Waterford. A reduction in the threshold from 30 to ten, would be inappropriate for a port company, and in particular for those ports of regional significance.
I move amendment No. 28:
In page 24, between lines 16 and 17, to insert the following:“(2) In respect of Dun Laoghaire Harbour, the Minister shall with the consent of the Minister for Public Expenditure and Reform and the Minister for the Environment, Community and Local Government, by order provide for—(a) The dissolution without winding up of the company, andon such a day as the Minister appoints in the order in this Act referred to as a company transfer and dissolution day.”.
(b) The transfer of the company’s harbour to Dun Laoghaire-Rathdown County Council
I move amendment No. 29:
In page 25, to delete lines 5 to 10 and substitute the following:“(2) Save in accordance with a collective agreement negotiated with a recognised trade union or staff association by the local authority, and approved by the Minister after consultation with the Minister for Environment, Community and Local Government and with the consent of the Minister for Public Expenditure and Reform, a person referred to in subsection (1)shall be subject to such terms and conditions of service, including terms and conditions relating to remuneration, as are not less favourable than the terms and conditions of service, including terms and conditions relating to remuneration, to which the person was subject immediately before the coming into operation of this section.”.
These two amendments are technical amendments designed to ensure the subsections in question use language identical to that in other similar legislation. Amendments Nos. 29 and 30 relate to sections 30 and 31, respectively. These two sections relate to situations where employees of now dissolved port companies transfer into the employment of a relevant local authority. Any such transfer will ensure the protection of terms and conditions. Therefore I am introducing these two amendments to ensure the exact wording used in these two subsections mirrors that used in other recent legislation such as the Roads Act 2015.
I move amendment No. 30:
In page 25, lines 26 to 32, to delete all words from and including “(a) Save” in line 26 down to and including line 32 and substitute the following:“(a) Save in accordance with a collective agreement negotiated with a recognised trade union or staff association by the local authority, and approved by the Minister after consultation with the Minister for Environment, Community and Local Government and with the consent of the Minister for Public Expenditure and Reform, a person accepted into the employment of a local authority under section 30who, immediately before the company transfer and dissolution day was a member of a staff superannuation scheme, shall, on and after the company transfer and dissolution day, continue to be a member of such a scheme in accordance with its terms and conditions in force from time to time.”.
I move amendment No. 32:
In page 40, between lines 35 and 36, to insert the following:“Amendment of section 79 of Act of 1996 (power of Minister to re-organise provision of pilotage services)
47.The following is substituted for section 79 of the Act of 1996:“79. (1)The Minister may by order—(a) establish one or more additional pilotage districts (that is to say, districts in which pilotage shall be regulated in the like manner to that provided by this Part in relation to a pilotage district mentioned in section 56) and define the limits of such a district or of such districts,and nothing in section 56 shall be construed as restricting or limiting the exercise by the Minister of his or her powers under this section in relation to a pilotage district mentioned in that section.
(b) specify the circumstances in which pilotage shall be compulsory in a pilotage district established under paragraph (a),
(c) abolish a pilotage district (being a pilotage district mentioned in section 56 or established under paragraph (a)),
(d) alter the limits of a pilotage district to which paragraph (a), (e) or this paragraph relates, or
(e) subject to section 57(2), provide for the limits of a pilotage district referred to in Part II of the Third Schedule in lieu of the limits set out in that Part,
(2) (a) An order under paragraph (a) of subsection (1) shall confer on a specified person the function of organising and ensuring the provision of pilotage services in the pilotage district to which the order relates. That person shall perform that function by one of the means specified in section 56(1). This Act in so far as it relates to pilotage services otherwise applies to the pilotage district concerned with the substitution for references to ‘company’, in each place where it occurs (other than in this subsection), of references to that person and any other necessary modifications.(b) An order under subsection (1) may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient.(3) In deciding whether or not to make an order under this section the Minister shall have regard to the following:
(c) In this subsection ‘specified person’ includes a company, a local authority and, in the case of a fishery harbour centre (within the meaning of the ), the Minister for Agriculture, Food and the Marine.(a) any existing or proposed harbour limits to which the pilotage district or proposed pilotage district relates or would relate, and(4) The powers of the Minister under this section are in addition to his or her powers under section 43.”.”.
(b) navigational safety.
This is another technical amendment and I am introducing it to facilitate the continued safe management of shipping operations within fishery harbour centres, which are under the control of my colleague, the Minister for Agriculture, Food and the Marine, Deputy Simon Coveney.
The amendment relates solely to subsection (2)(c) and is the insertion of a reference to the Minister for Agriculture, Food and the Marine. As the section as a whole has been amended a few times since its original drafting in 1996, the Office of the Parliamentary Counsel thought it best to reproduce the whole section to aid understanding.
The effect of the amendment will be that if the Minister for Agriculture, Food and Marine deems it necessary, I can create a pilotage district for a particular fishery harbour centre and in doing so designate the Minister for Agriculture, Food and the Marine as the responsible authority to regulate pilotage within that harbour in line with the requirements of the Harbours Act 1996. This, for example, would allow the Minister for Agriculture, Food and the Marine to make pilotage by-laws.
I move amendment No. 33:
In page 44, between lines 34 and 35, to insert the following:“(a) in subsection (2), by inserting after paragraph (aa) (inserted by section 35(a) of the the following:“(ab) make bye-laws to provide for matters relating to the use of tugboats in fishery harbour centres, including minimum requirements in relation to equipment on board and the qualifications and training required of the crew of tugboats,”,”.
This introduced a number of technical amendments to the Fishery Harbour Centres Act 1968, again on the request of the Department of Agriculture, Food and the Marine. It is intended to make a further technical amendment and provide that Minister will a new power under the Fishery Harbour Centres Act to make by-laws relating to towage within fishery harbours.
I wish to put the committee on notice that I will be proposing an amendment on Report Stage, to delete the words "Galway Harbour Company" from Schedule 1. It is important that this matter would be debated in the Dáil and I hope that between now and Report Stage, the Minister would reflect on the wish of the people of Galway that their port would remain a national port. We can discuss this in more detail in the plenary session of the Dáil where all the Deputies will get a chance to make their views known on this issue.