Oireachtas Joint and Select Committees

Wednesday, 25 January 2023

Joint Oireachtas Committee on Jobs, Enterprise and Innovation

General Scheme of the Industrial Relations (Provisions in Respect of Pension Entitlements of Retired Workers) Bill 2021: Discussion

Photo of Maurice QuinlivanMaurice Quinlivan (Limerick City, Sinn Fein)
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Under public health arrangements, all those present in the committee room are asked to exercise personal responsibility to protect themselves and others from the risk of contracting Covid-19.

Members who are participating in the meeting remotely are required, as they are well aware, to participate from within the Leinster House complex only. Apologies have been received from Senator Gavan.

Today we will undertake detailed pre-legislative scrutiny on the industrial relations (provisions in respect of pension entitlements of retired workers) Bill 2021. It is a Private Members’ Bill that provides for amendments to industrial relations and pensions legislation to allow for retired persons who are members of occupational pension schemes to be granted access to industrial relations machinery of the State. The Bill is sponsored by Deputy Bríd Smith, who is present to address the committee on any matters or questions may have in respect of the legislation.

I am pleased that we have the opportunity to consider these matters further with the following representatives: Ms Sue Shaw, CEO, Irish Senior Citizens Parliament, ISCP; Ms Eileen Sweeney, Retired Airline Staff Association, RASA; Mr. Gerry Foley, Alliance of Retired Public Servants, ARPS; Mr. John Nugent, vice chairman, National Federation of Pensioners Associations, NFPA; and Mr. Tony Collins, chairman and national executive, ESB Retired Staff Association; and Mr. Walter Croke, former master glass blower, and Dr. John M. Hearne, former master glass cutter, Waterford Crystal Pension Action Group.

Before we start, I wish to explain some limitations to parliamentary privilege and the practice of the Houses as regards references witnesses may make to other persons in their evidence. The evidence of witnesses physically present or who give evidence from within the parliamentary precincts is protected, pursuant to both the Constitution and statute, by absolute privilege. Witnesses are again reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable, or otherwise engage in speech that may be regarded as damaging to the good name of the person or entity. Therefore, if their statements are potentially defamatory in relation to an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that they comply with any such directions.

The opening statements that were sent to us are being circulated to all the members. To commence our consideration of this matter, I now invite Ms Shaw to make opening remarks on behalf of the Irish Senior Citizens Parliament.

Ms Sue Shaw:

I am the CEO of the ISCP. We welcome and thank the Oireachtas committee for the opportunity to engage and outline our views on the proposed Bill in respect of pension entitlements of retired workers. I will be joined by my colleagues to address key elements of the proposed Bill.

The parliament has the issue of equality and rights for older people at its core. We work to ensure the implementation of policy commitments pertinent to ageing and older people. A fundamental element of this work relates to securing the rights of retired workers relating to pension provision. This refers to the security of the State pension as an adequate, secure income and access to rights relating to the occupational pension of retired workers. It is the latter we are here to speak to the committee about.

We believe strongly in the rights of retired workers to continue to contribute to society in all areas, but in particular policy development. In the past few years, we have drawn together many retired workers and staff associations with a similar experience and concerns relating directly to their pension provision and the lack of the access to address these concerns. The network, under the auspice of the ISCP, represents up to 500,000 retired workers.

“Nothing about us without us” is the catch cry of many social movements and so it is with the retired workers representatives addressing the committee. They are speaking both as constituents and retired workers. They appreciate the time afforded by the committee to listen to their lived experience and why this Bill is crucial in supporting the rights of retired workers to be represented and to defend their pension in payment benefits after they have retired.

The Bill, when passed into law - I am being optimistic - will give a voice to retired workers over what happens to their occupational pension schemes. At present, thousands of retired workers who have worked for decades in the private, public and Civil Service sectors find that once they have left their job, any changes that impact their provision can happen with little notice or negotiation with them. The Bill gives retired workers and their representative associations the right to go to the Workplace Relations Commission, WRC, when the pension in payment is affected or there are proposed changes that could benefit. At present, if these changes happen more than six months after a worker has retired, they have no rights to access the WRC. The Bill will give rights to retired workers to be party to discussions and negotiations when talks between trade unions and employers may have direct effects on pension in payment benefits. At present, retired workers are excluded in industrial relations disputes that may impact their pensions. Retired workers often struggle to have their voice heard on their scheme’s trustee board. At present, no positions are currently reserved for retired members and, therefore, the Bill will copper-fasten a position for retired workers. Retired workers and their associations cannot access the WRC at the moment because of the definition, among others, of a "trade dispute" in legislation. This means even when substantial cuts or changes have happened to their pension in payment benefit, retired workers have no effective forum.

The Bill will change all of the above, allowing a fairer representation of retired workers. This is all the Bill seeks.

Mr. Gerry Foley:

I am chairman of the ARPS which represents 150,000 members. Because we are limited in time, I will only deal with certain issues.

Members have the documents we submitted. I will then address the definition of a “worker”, which was included in an individual way. The issue that arises regarding us is that in the 1990 Act, because we are not a “worker”, the Act did not cover us at all. We are exempt completely from any negotiations relating to our pensions and it is still there.

While we are dealing with this and the whole operation of it, I would like to thank Deputy Smith. My organisation met all of the public servants and the only one who came up with the Bill was the Deputy. I would like to pay tribute to her.

I raised an issue last night regarding the Lisbon treaty. We believe the Government may be in breach of the Lisbon treaty because of the fact that we are retired workers with no rights. The Chair might check that out. On a legal matter, which I have in my head here, it will make it easier for him anyway.

An issue came up when the former Minister of State, Deputy English addressed the committee way back. He said there was an issue where people could go and get everything looked after, but it did not relate at all to us or anyone in our organisation. I am just noting that for the benefit of the meeting.

We are asking that, in the debate on the Bill, members would be clear and help to keep the Bill there. Nobody, including any Government, introduced a Bill other than Deputy Bríd Smith, so that at least there would be some recognition of retired workers and it would be open to everyone. I reiterate that it is not open to our members at all, which causes a serious problem under the 1990 Act. Perhaps an amendment to that could be dealt with at some stage.

All we ask is that this Bill would be treated fairly and looked at in proper detail. If the committee wants us to come back again to speak about it, we would more than welcome that. I will leave it at that at the moment.

Ms Eileen Sweeney:

I thank everybody for the invitation to come here today to give them a view of our lived experienced of being excluded from the industrial relations process that reduced our pensions occupational defined benefit pension in payment income by up to approximately 22.3%.

RASA pensioners worked in Dublin Airport Authority, DAA, and Aer Lingus and are members of the DAA-Aer Lingus multi-employer cross-border defined benefit occupational pension scheme. While changes to this pension scheme have to be approved Government in advance and the employers, up to 2013 they had a ballot of all the pension scheme members.

In effect, employers have a veto and, if wound up with a surplus, this goes back to the employer. For up to 45 years, employees paid a percentage of their pay during their working life as a contribution to their multi-employer defined benefit cross-border occupational pension scheme and towards their pension income in retirement. This salary-based percentage rate of contribution increased through that period to maintain and protect this accrued post-retirement defined benefit. This pension and payment from this occupations pension scheme are deferred wages and the amount of benefit is established and fixed at date of retirement and paid for the life during the post-retirement decumulation phase.

However, at the end of January 2015, eight years ago this week, Irish pensioner members, not UK and European pensionable service, with an average age then of 72 years and now of 80 years, were individually advised by letter that their current pension and payment income established at the date of retirement was being unilaterally reduced without a ballot or mitigation from the beginning of the month by up to 20%. This reduction to their income followed on from an industrial relations process and negotiations that were ongoing for more than four years. Pensions were not allowed to be at the IR table where these negotiations took place. Pensioners' former employers and trade unions, along with trustees and the State, supported by significant legal actuarial teams, engaged in an extensive co-ordinated industrial relations negotiation process to bring in changes that reduced the accrued occupational pension scheme monthly pension and payment of pensioners.

The outcome of these IR negotiations resulted in employers and trustees submitting a funding proposal to the Pensions Authority that reduced our pensions and payment. This shows an ongoing relationship of retired members with their employer that is longer than six months. The RASA made numerous requests to all parties included in this process but all those requests were refused. We had no seat at the table. We were invited to make a submission and presentation to the expert panel - which was, after all, the negotiations - and we did so and it was complimented. A few weeks later, however, we were called back and told we were not stakeholders, so our submissions could not be considered. The Bill matters to every one of us and we would-----

Photo of Maurice QuinlivanMaurice Quinlivan (Limerick City, Sinn Fein)
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I thank Ms Sweeney but her time is up. I invite Mr. Nugent to come in briefly.

Mr. John Nugent:

I am a vice chairman of the NFPA. I am well placed to speak on and support the Bill put forward by Deputy Smith on the rights of retired workers. I am a former director of the ESB and was for 12 years a permanent member of the ESB's joint industrial council, which dealt with industrial relations, IR, disputes, including pensions. I was president of the ESB Officers Association, which was the largest trade union in the ESB during my term of office. Those experiences have given me valuable insight into pensions from a corporate, trade union and IR procedures perspective and I can only conclude that the provisions of the Bill before the committee are long overdue and have the full support of the ISCP, NFPA, Age Action Ireland and other affiliates, representing hundreds of thousands of pensioners, many of whom are experiencing pension poverty for the first time. Why are they experiencing pension poverty? I contend it is because of the abuse of power by pension providers and trade unions to the exclusion of pension representation with equal rights at the negotiating table when pension issues are being negotiated. In my written submission, I have given three examples, namely, the governance of defined benefit, DB, schemes, industrial relations and minimum funding standard, MFS, negotiations. What is the common thread here? Two of the stakeholders are at the table and looking after their own sectional interests, to the exclusion of the other stakeholder, and negotiating arrangements that impact severely on retired workers. As I have only two minutes to make this presentation, I trust the committee will take on board the entirety of my submission. I am happy to answer any questions members may have.

I will conclude by making three points. The Pensions Authority, the Financial Services and Pensions Ombudsman, the Equality Tribunal are unable to provide procedures, conciliation, arbitration for disputes between pensioner representatives and pension providers. The status quo is unacceptable to present and future pensioners and will lead to further pensions poverty for members' constituents. This submission is non-partisan and affects all pensioner constituents of elected representatives and is open to amendments. A denial to pensioners of the same rights as trade union members of the same pension scheme is unacceptable and only empowers further the abuses conducted by pension providers.

Photo of Maurice QuinlivanMaurice Quinlivan (Limerick City, Sinn Fein)
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I thank Mr. Nugent. I invite Mr. Collins to make his opening remarks on behalf of the ESB Retired Staff Association.

Mr. Tony Collins:

I am chairman of the national executive of the ESB Retired Staff Association. I thank the committee members for the opportunity to make this presentation on the Bill and to outline the reasons it is vital to ensure equality of representation for retired workers. While the ESB Retired Staff Association is a member of the collective network of retired workers under the auspices of the Irish Senior Citizens Parliament, this presentation draws on the lived experience of our association with ESB, as sponsoring employer, and as members of ESB defined benefit pension scheme, and to demonstrate how ESB responsibilities in respect of the pension scheme are intertwined with the ongoing operations of the scheme.

Retired workers do not have a voice nor do they have any body or organisation to refer to with grievances once they are retired longer than six months. We believe that access to the industrial relations machinery of the State is a basic right for workers and former workers but retired workers can only refer grievances they may have with their former employer up to six months post retirement. The Bill would eliminate that six-month restriction and give retired workers equality of treatment under the law. We cannot be expected to accept that only employee members of a pension scheme have a right to representation with the sponsoring employer and, if necessary, the WRC while retired workers have no such right.

The role of the pensions ombudsman is limited to complaints by individual pensioners in respect of maladministration by the trustees of a scheme, and only after the fact. It will not accept a complaint from pensioners acting collectively or represented by a body of their choosing. This leaves the sponsoring employers out of the picture entirely and in no way addresses the concerns of pensioners, which are far wider than any narrow issue of maladministration by the trustees of a scheme.

The remit of the Pensions Authority under the Pensions Act concerns itself almost exclusively with trustees’ compliance with the Act. This remit excludes individual pensioners or groups of pensioners and offers nothing by way of arbitration or direct assistance.

The Equality Tribunal, too, has a six-month time restriction post retirement, as I and my ESB colleagues discovered many years ago when we took a case to the tribunal which was overruled and failed on the six-month time limit. The case was never heard. An appeal to the Labour Court produced the same ruling.

Section 50 of the Pensions Act provides for a one-month consultation period for pension scheme members where trustees intend to restructure a pension scheme and reduce benefits. This one-month consultation period for members is totally inadequate and of no practical value as the only recourse that pensioner representative groups would have during this period would be to the courts, a very costly exercise for which retired workers do not have the financial resources.

With all of the aforementioned options virtually closed to retired workers, it is of the utmost importance that legislation is introduced without further delay to give pensioner groups a voice and a right to representation and arbitration procedures at the WRC.

As regards the sponsoring employer, in the context of ESB defined benefit pension scheme, the ESB as sponsoring employer has financial obligations to the pension scheme, appoints the scheme actuary and approves the appointment of pension scheme trustees. It also has full control of pension scheme rules and approves changes thereto and, in some instances, negotiates changes to pension scheme governance without retired workers being party to the process.

During 2022 there were two examples of the ESB holding a consultation process with employee members only on pension scheme rule changes. Retired worker members of the same scheme were excluded from this process, even though the scheme rules apply to all members. When they retire, workers have completed the terms of their contracts of employment but the employer’s pension promise delivery only commences when the employee retires, where the pension is a defined benefit scheme. It follows that the employer must support that scheme if the scheme is otherwise unable to meet the employer’s pension promise, at least in respect of already retired members.

An employer that engages under industrial relations processes with employee members of a scheme should not be permitted to impose reduced terms on already retired former employees unless pensioners are made a part of this industrial relations engagement process, alongside employee members of the pension scheme. This was not the case in 2010 when an agreement on pensions, between the ESB and trade unions and management, excluded retired workers, nor did they have a vote on the terms of the pension agreement, which directly affected retired workers. This agreement has had, and continues to have, a serious impact on their future financial security. Retired workers have no forum within which to challenge this unfair and inequitable practice of changing the terms and conditions of their retirement. This proposed Bill will, however, give retired workers that right to challenge any changes to their pension rights. Pensioners are not seeking to participate in general industrial relations matters but only on those issues related to pensions. Any industrial relations processes dealing with pension issues should be confined to pension issues only and should not embrace other matters.

I will move to redress mechanisms for retired workers. Defined benefit pension schemes are collective funds for all scheme members. Employers engage with employee members collectively on pension issues but they do not engage with pensioner members. This has a significant adverse consequence for pensions in payment. At this level there are no redress mechanisms. Creating equality of representation for all members of a scheme is what this general scheme is about. The pension promise, as a condition of employment, is the pension promised by the employer and not that of the pension scheme trustees. The pension scheme is the vehicle for delivering on the employer’s pension promise.

As retired ESB workers, we have no right to representation with the ESB on pension issues, nor do we have access to the State’s industrial relations machinery for dispute resolution, while employee members of the same pension scheme have both. This proposed Bill is designed to rectify this exclusion of retired members and to provide for equality of representation for all members of the scheme, which is the least one should expect where the pension fund is a collective one. I emphasise that this does not go beyond issues involving the pension scheme and will not otherwise encroach on employer and employee relations in any other area. In the words of the Chief Commissioner of the Irish Human Rights and Equality Commission:

The principle of participation underpins human rights and equality - making sure that the voices of those who are most affected by any issue, are part of any discussion or action on it. And not just a bit part, but a meaningful one where they are listened to and heard, in an accessible way, with respect and transparency.

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.

Photo of Maurice QuinlivanMaurice Quinlivan (Limerick City, Sinn Fein)
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I thank Mr. Croke. I will now invite members to address the issue with the representatives. I call Deputy O'Reilly. She will be followed by Deputy Flaherty.

Photo of Louise O'ReillyLouise O'Reilly (Dublin Fingal, Sinn Fein)
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I thank the witnesses for being with us and for their comprehensive statements. I appreciate they did not have time to read them into the record but we received their full statements and have engaged with those. I want to go back to something the former Minister of State, Deputy English, said in the Dáil. On 30 June 2021, he stated: "I will get a chance during the time allowed under the amendment to engage ... the Government requires more detailed analysis and consultation about this legislative proposal." The witnesses might give us some detail, given the commitment made on the record of the Dáil by Deputy English, on how much consultation happened, what the nature of that was and whether there has been any outcome to that consultation.

Mr. Gerry Foley:

My people met Deputy English in Meath. He also met with the committee. He never came back after that. He said he would meet with us over a period of time but no meeting was ever set up, for the record.

Photo of Louise O'ReillyLouise O'Reilly (Dublin Fingal, Sinn Fein)
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He referred to the detailed analysis the Government was carrying out. Was the Government in touch looking for facts, figures, information or anything relating to that?

Ms Sue Shaw:

No. To clarify, we as a group of representatives had one meeting with the Minister of State. He informed us of the consultation process that was about to be rolled out. That consultation process amounted to written submissions. It was not a consultation. It was written submissions. After that, we were informed that the Government would come back to us with further questions and he hoped to meet with us again shortly. He did not. There has been no report and no recommendations. There was no detailed analysis that we are aware of. I am not saying that did not happen but that analysis was not shared in a further meeting that could have been followed through on. It did not happen. Our sense is that the consultation was half-hearted.

Photo of Louise O'ReillyLouise O'Reilly (Dublin Fingal, Sinn Fein)
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That is a fairly stark contradiction to what the Government representative said on the record of the Dáil. At the time, some Deputies who spoke expressed some concern about the cynical practice of just kicking something down the road for 12 months and not intending to do anything about it. It is very unfortunate that this has happened. Notwithstanding that-----

Ms Sue Shaw:

If I could also comment on that point, many of the members sitting around the table here have had colleagues and advocates who were battling this for a long period and who have passed away. For many of our members there is a sense that this is a cynical ploy to outlive us. It is very much kicking the can.

Photo of Louise O'ReillyLouise O'Reilly (Dublin Fingal, Sinn Fein)
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I thank Ms Shaw for that. That is her estimation of it. It is hard not to see an element of cynicism here. To talk at length about the need for in-depth and detailed analysis and consultation and all of that and then not to do it once you get out of the room smacks of kicking the can down the road. We have heard from ICTU on this. It had a concern which was addressed it in the submission but since that has not been read into the record the witnesses might elaborate on that. It had a concern that this could stray into other areas, that this group is there for the pension but it might have something to say about the break times or something like that. Can the witnesses give us an assurance that what they are seeking relates to pensions only and that there will be no other interference with the normal practice of industrial relations - not that there is anything normal about industrial relations - at the level of the workplace?

Mr. Gerry Foley:

My organisation only deals with pensions and nothing else. We are not getting involved in anything else. We just want the Bill to go through in some format and that it should be there for protection. There is no protection at the moment. Many people have said it here. It is a disgrace, really.

Photo of Louise O'ReillyLouise O'Reilly (Dublin Fingal, Sinn Fein)
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I hear you. I just wanted to put that on the record. Some of the people who had concerns about this said it would be like establishing another union that will sit at the table and exercise a veto. This is an issue I would have myself, although it is not huge. I have some small knowledge of the area of industrial relations. The ultimate sanction someone has when sitting around the table, if people cannot agree and they have gone through all the third-party mechanisms, is to ballot and withdraw labour. That option is not there for this group. It can exercise influence by being there and being part of the conversation but what will it do in the event that agreement cannot be reached? What will happen when there is an issue, when all parties are represented and when everybody rocks up at the Workplace Relations Commission but agreement cannot be reached and the normal industrial relations mechanisms are exhausted?

I refer to a range of issues, with pensions being one of them. At that point, clearly there is no capacity for the withdrawal of labour on the part of retired staff but there is on the part of their colleagues who are still in work. Does Mr. Collins expect that workers would withdraw labour to support his association's claim? Is the association's influence simply at the level of making an input and if so, how would that manifest itself? I ask because I know that when the talking runs out, you either hit the bricks or you go home.

Mr. Tony Collins:

For the record, I emphasised in my presentation that it is solely to deal with pension issues. If there was a situation as outlined by the Deputy, existing workers are going to be retired workers and will be affected by the very same issues that we have here. If they decided to exercise a right on their behalf then we have no control over that. Our mantra is that we just want to deal with the pension issues and I think I have mentioned that other matters should not be confused with pension issues. If discussions and negotiations take place, then they should be exclusively on pension issues. We have no control over what the workers may do. First, we need access so we want a seat at the table with the sponsoring employer because we feel we have a right to be there if our pension rights are being discussed. I have given a practical example of the ESB where we were not at the table and to this very day that agreement, which was in place back in 2010, has no end date. That agreement is still being called on by the sponsoring employer.

Photo of Louise O'ReillyLouise O'Reilly (Dublin Fingal, Sinn Fein)
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As Mr. Collins has quite rightly pointed out, the workers will be retired workers at some stage.

Mr. Tony Collins:

Yes, they will be retired at some stage but we do not control what they would do.

Photo of Louise O'ReillyLouise O'Reilly (Dublin Fingal, Sinn Fein)
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I appreciate that and just wanted to tease out that element.

Ms Eileen Sweeney:

Yes, we are only interested in our occupational pension scheme. We still have a relationship with that scheme. We accumulated-----

Mr. Tony Collins:

Yes.

Ms Eileen Sweeney:

-----funds into that scheme for up to 45 years. We were involved in changes and ballots during that period. Post that period we have the decumulation phase. We were protected up to 2030. Negotiations on our scheme started in 2009 or 2010 and, at that point in time, we were protected. The unions, employers and everybody else were involved in discussions around the occupational pensions scheme but all of a sudden in 2013, we were targeted for cuts in order to get the bottom line to work based on actuarial minimum funding standards, and we were excluded from that. We were part of the menu but not at the table. So existing employees, and deferred, would be extremely interested because we all live in fear and anxiety that the same thing can happen today, tomorrow or the next day without us. There is nothing to say we will not get the same letter next month or next week.

Photo of Louise O'ReillyLouise O'Reilly (Dublin Fingal, Sinn Fein)
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My question related to what happens when the talking runs out. I mean when you are at the table and everyone expresses their thanks for the lovely submission but then toddle on and just ignore it. How do the organisations present see that scenario working out at that stage?

Mr. John Nugent:

I spent 12 years of my life on the ESB industrial council dealing with disputes. Procedures are not only about negotiation. Procedures are about conciliation, negotiation and arbitration. During my 12 years, we managed to keep peace in the ESB in terms of industrial relations through that process of procedures. We are looking for similar procedures to be available to retired workers. As the Deputy has said quite rightly, we cannot go on strike. We will not be going on strike. We want to put up our arguments, whether it is in negotiation, conciliation or arbitration but we are not allowed to do that at the moment, which to me is a denial of basic human rights. I reiterate that it is not our intention whatsoever to interfere with the normal industrial relations procedures.

Photo of Louise O'ReillyLouise O'Reilly (Dublin Fingal, Sinn Fein)
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I do not imagine for a moment that it is but it is very important that anybody who is listening to this debate can hear very clearly, because some concern about that was addressed during the debate in the Dáil. It is very helpful for us to now have on the record exactly what Mr. Nugent has said, as it is extremely important. Some people may have an issue but that stems from a misunderstanding.

Mr. John Nugent:

Yes.

Photo of Louise O'ReillyLouise O'Reilly (Dublin Fingal, Sinn Fein)
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This committee meeting has provided the time and the space to clear up that potential misunderstanding, which is very important.

Mr. Collins gave an example of a scenario where the mechanism did not work. Clearly his organisation was left outside and its influence was denied so, therefore, the deal that was struck was not a good one. Is there an example of a company or organisation where a seat is provided? All or most of the trade unions will have retired members' associations, and those retirees have a right to go to conference and participate in the work of the trade union. Are there examples of good practice in workplaces that are big, small or middle sized? I mean, on a grace-and-favour voluntary basis but clearly not legally mandated and where retired members have had a chance to have an input. It might be that there is no example but, if so, it would be very helpful to know.

Ms Sue Shaw:

At the moment the Irish Nurses and Midwives Organisation, INMO, has a system that it is happy with but it is very supportive of this Bill because of hearing a shift and change in the tone. Yes, there are good practices. We know, from the broader membership of the ISCP, that this Bill is backed because there is a concern about the change.

Deputy Louise O'Reilly:That is a very useful comment. So we are not talking about massively reinventing the wheel-----

Ms Sue Shaw:

No.

Photo of Louise O'ReillyLouise O'Reilly (Dublin Fingal, Sinn Fein)
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-----or bringing people into an area where they may not be comfortable or having to break new ground. The Bill simply seeks to codify and cement the good practice, that exists already, into law. I share the concerns expressed by our guests in that when changes or the detrimental impacts start to happen that the people who are going to be at the business end of it will be left outside without a voice. It is good to know that there are systems of good practice, which we are simply taking and putting into law. All of that is useful to know for people who might get very excited and think that something massively new and scary is happening when, in fact, it is already happening.

Mr. Gerry Foley:

I stated the following in my presentation earlier. My organisation has 150,000 members but it has no rights and we are not deemed to have anything under the 1990 Act. It is very important to make that quite clear.

Photo of Louise O'ReillyLouise O'Reilly (Dublin Fingal, Sinn Fein)
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I thank our guests for clarifying and for their evidence. I cannot stay for the whole session but I will catch up on the debate. I will stay for as long as I can.

Photo of Joe FlahertyJoe Flaherty (Longford-Westmeath, Fianna Fail)
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I thank all of the speakers for attending and giving us an invaluable insight into this hugely important area. I have a particular interest in the ESB as I grew up in Lanesborough at the foot of the power station and surrounded by a lot of ESB staff. Many of those staff are retired and this is a key issue for them. A number of weeks ago I met Mick Casey, who is seated behind me with a stick so I shall be careful about what I say. I should have sat further away so I could eyeball him. He is a very enthusiastic chairman of the national pensioners federation. He gave me an invaluable insight into the situation and I came reasonably armed for this debate. It is great to get the opening statements as they give us a great insight into this matter.

The main thing is that the Bill will eliminate the six-month ban on going before the WRC, which is welcome. I will now focus on issues that have not been addressed in the Bill, which is the main thing to be done by this committee.

I refer to access to the Financial Services and Pensions Ombudsman. Currently, access is only for an individual and a group is precluded from going. Were I to try to summarise the key issues, that would be one of them. Do the witnesses have any indication from the discussions they have had either with officials or the Minister's office that they are receptive to a change within the confines of this Bill?

Ms Sue Shaw:

Unfortunately, due to the lack of engagement with the then Minister, we have no indication as to whether there was an openness to or willingness for that. However, each of the people at the table can speak to their experience of having gone through the current provision of spaces. They can reference that. Ms Sweeney and Mr. Collins may wish to engage.

Mr. John Nugent:

We have probably been dealing with this issue for 15 years. I have met the current Tánaiste. We have met Ministers including the current Taoiseach, Deputy Bruton and others who are all very sympathetic to the position of pensioners but who, at the end of the day, did not pursue the issue we wanted. We have heard nothing. We have had promises that they would have a look at this issue, but we have heard absolutely nothing. We feel as though we have been kicked around by-----

Photo of Joe FlahertyJoe Flaherty (Longford-Westmeath, Fianna Fail)
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Is this a uniquely Irish situation? Does Mr. Nugent have some insight? Is it a case that people can go collectively to the ombudsman, or a similar body, in Europe or the UK?

Mr. John Nugent:

I have been to the ombudsman with the issue. As my colleague has pointed out, the ombudsman cannot deal with the issue because of legal restraints on the Financial Services and Pensions Ombudsman. We have been to the Pensions Authority, the equality tribunal and the appeals system in the Workplace Relations Commission and because of the six-month rule in the law in particular, we have not been able to properly pursue the issue. That is why we are pursuing the Industrial Relations (Provisions in Respect of Pension Entitlements of Retired Workers) Bill, promoted by Deputy Bríd Smith. We are trying to get rights and procedures for retired workers.

Photo of Joe FlahertyJoe Flaherty (Longford-Westmeath, Fianna Fail)
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Mr. Nugent referenced the six-month rule again. That will change for the WRC, but it will not change for the equality tribunal or the Labour Court. Is that correct?

Mr. John Nugent:

My understanding is that it will change. However, people could only pursue equality issues.

Photo of Joe FlahertyJoe Flaherty (Longford-Westmeath, Fianna Fail)
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They will not be with regard to pensions.

Mr. John Nugent:

We are looking for the same rights as workers in the same pension scheme have with regard to procedures, including conciliation and arbitration.

Ms Sue Shaw:

The individual right to go beyond that will still stay in place in the areas the Deputy mentioned. However, it will be noted that there has been a WRC hearing. That needs to go with it.

Ms Eileen Sweeney:

To answer the Deputy's question, for which I thank him, we knocked at every single door. We were told that the Financial Services and Pensions Ombudsman cannot deal with class actions or groups. Rather, it deals with individuals. It also tends to be after the event. The negotiations were going on intensively for approximately four and a half years. Our views were not listened to. Some people met us out of courtesy and some just picked our brains and all of our information. When the Government set up an expert panel on the issue for stakeholders to make submissions, RASA made a submission on behalf of pensioners. The panel met everybody and was very courteous but later said we were not a stakeholder and that it could not talk to us. The Pensions Authority were involved in discussions on draft proposals. There was a whole pile of draft proposals around the place. Even two weeks before the proposals signed off, we met the Pensions Authority, which said it did not yet have a funding proposal. However, there was such a proposal within a few weeks and we were told - unilaterally - that up to 20% of our pension and payment was gone. The existing structures are not there. The WRC and the Labour Court were heavily involved. We got letters from the Labour Relations Commission, LRC, to say it was not allowed to talk to us.

Mr. Tony Collins:

I refer to what I had said in my presentation about the members of the same scheme. How can one have a situation in a collective DB scheme on behalf of all scheme members where only the employee members can sit down to defend their rights? The retired members do not have that right, nor do they have the right to go the WRC to fight their case. The existing workers have such a right.

Mr. Gerry Foley:

It does not necessarily have to be the WRC. It could be anyone that the Government might decide to set up on its side of the table, in other words, to give us some rights. I know the committee will have people who will come before it from the other sides, such as from the WRC, who will probably say different things. My point is that we just need somewhere we are looked after. We are not being looked after at present.

Photo of Joe FlahertyJoe Flaherty (Longford-Westmeath, Fianna Fail)
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Has the Financial Services and Pensions Ombudsman given any reason for his claim that he cannot take a class or collective case? What is the position in the UK or Europe? Can a group take come up with agreements?

Ms Sue Shaw:

Our understanding is there is no model we can fully follow. However, we believe the Government could set out such a model and take a lead. We have not found, anywhere in Europe, a model we could offer to the Government to follow.

Photo of Joe FlahertyJoe Flaherty (Longford-Westmeath, Fianna Fail)
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I will play the devil's advocate. The Government could say it is not being done anywhere. However, Ms Shaw would say that does not mean we should not do it.

Ms Sue Shaw:

Aside from playing the devil's advocate, what I am saying is the Government has up to 500,000 retired workers. Deputy O'Reilly asked us where one goes when the talking stops. We come to the members. Our constituents will go to them because they are the ones who legislate. Seeing that it is not done anywhere else and saying the Government does not need to do it hardly responds to the 500,000-odd voices asking the Government to do something about this.

Ms Eileen Sweeney:

My understanding is that most of the occupational pension schemes in Europe are insurance based. Ireland, the UK and the Netherlands tended to have a DB pension scheme. We have a DB scheme. They are protected. There is considerable income protection and security in employment. In our scheme, the cuts did not apply to the UK people or non-Irish pensionable service. There is more protection. We were the only ones who were hit.

Mr. Tony Collins:

We still have a relationship with the sponsoring employer as we retire. Our pensions are deferred wages. We have the relationship for our lifetime. To have the existing workers sitting down to negotiate on pension rights and the retired workers not be there is an equality issue. We need to be there to defend those rights. I have given examples. In our case, it was the ESB, where we were not at the table. To this very day, the agreement, which has no end date and has been there for the past 13 years, is still being applied. We are still being negatively affected by the agreement. Our relationship is with the sponsoring employer. We should have that right to negotiate with them. Like the existing workers, we should be able to go somewhere for dispute resolution. As my colleague, Mr. Foley, said, it does not have to be the WRC, but one wants a body that has an equal standing and the same authority as the WRC.

Photo of Joe FlahertyJoe Flaherty (Longford-Westmeath, Fianna Fail)
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I return to Mr. Collins's submission and the sponsoring employer section. The second-last paragraph refers to access to the ombudsman for a class or group of workers. It states:

Retired workers have no forum within which to challenge this unfair and inequitable practice of changing the terms & conditions of their retirement. This Bill will give retired workers that right, i.e. to challenge any changes to their pension rights.

Just to be clear, this refers to an individual worker rather than a group. Is that correct?

Mr. Tony Collins:

No, it would be a group of workers. It would be a representative group. We have a representative association within the ESB. It does not have the right to negotiate on behalf of pensioners. That large representative organisation within the ESB should have the right to represent the larger cohort of retired workers.

Photo of Joe FlahertyJoe Flaherty (Longford-Westmeath, Fianna Fail)
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We are probably halfway there in that regard and we need to follow through and give pensioners access to the Financial Services and Pensions Ombudsman. The door has been opened in that regard. Is that correct?

Mr. Tony Collins:

There is the right to also be at the table with the sponsoring employer, because we still have that relationship. That is the issue here. We have a relationship with the sponsoring employer. There may have been some exchanges in the Dáil that indicated the relationship of a retiree or former worker is with the trustees of a scheme when he or she retires. It is not with the trustees. The trustees manage the investments and the scheme on behalf of the retired workers.

Photo of Joe FlahertyJoe Flaherty (Longford-Westmeath, Fianna Fail)
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Yes.

Mr. Tony Collins:

The funds that are in there have been built up by workers over a period of time. The trustees are only trustees of that scheme. Our relationship is with the sponsoring employer as our pensions are deferred wages and will be there for the lifetime of the pension. Therefore, we need to have access to that sponsoring employer.

Photo of Joe FlahertyJoe Flaherty (Longford-Westmeath, Fianna Fail)
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I am running out of time. As a Government member, I am in a different position from some other members in that I must find value in the Bill but must also find some ways to square the anomalies. My point to go back to the Minister is the door is open to address this in relation to the Financial Services and Pensions Ombudsman. The Government has gone some degree of the way but not the full way.

Mr. Tony Collins:

Yes.

Photo of Maurice QuinlivanMaurice Quinlivan (Limerick City, Sinn Fein)
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I ask Mr. Foley to be very brief.

Mr. Gerry Foley:

I will make a point of information. In 2014, we decided to set up the Alliance of Retired Public Servants. The only reason we set up the organisation was that we had nowhere to go, and we still have nowhere to go. I am just making the observation. We have got nowhere since, other than Deputy Bríd Smith bringing in the Bill, even though we have been around to meet all the political parties. The Deputy was the only one to produce legislation. It is important that we have somewhere to go. To come back to what I said earlier, the country is still in breach of the Act that was brought in. I want to make that quite clear. The members will want to be careful when they are looking at it for themselves.

Mr. John Nugent:

May I have one minute?

Photo of Maurice QuinlivanMaurice Quinlivan (Limerick City, Sinn Fein)
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Please be very brief.

Mr. John Nugent:

Yes. The Pensions Authority, the Financial Services and Pensions Ombudsman and the equality tribunal are all involved after the event when negotiations have concluded and people have been balloted. I cannot stress enough what we are looking for are procedures, namely, negotiation, conciliation and arbitration, on behalf of retired workers similar to what active members of the scheme have. We are looking for the same facilities. After the event has proved to be absolutely useless for retired workers.

Photo of Richard BrutonRichard Bruton (Dublin Bay North, Fine Gael)
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This is a very difficult issue because we have a lot of underfunded defined benefit schemes in the country. How can the underfunding of such schemes be resolved by arbitration? How should that be done?

Mr. Tony Collins:

Underfunding is a separate issue. As I said clearly, in a defined benefit scheme the risk should be with the employer. If there is a pension promise in the contract of employment, it comes into play when the employee retires and the employer is obliged to-----

Photo of Richard BrutonRichard Bruton (Dublin Bay North, Fine Gael)
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Is Mr. Collins saying the employer has an obligation to make good any deficiency in a defined benefit scheme? Is that ultimately-----

Mr. Tony Collins:

In the true definition of a defined benefit scheme the balance of cost is clear if there is a deficit-----

Photo of Richard BrutonRichard Bruton (Dublin Bay North, Fine Gael)
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I am just trying to understand this. As I understand it, what is happening is people are living much longer-----

Mr. Tony Collins:

Yes.

Photo of Richard BrutonRichard Bruton (Dublin Bay North, Fine Gael)
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-----than at the time the commitments were made. At the time, they probably said in good faith a contribution of X by the worker and Y by the employer will fund this. In many of these funds that is not proving sustainable. Is Mr. Collins saying arbitration in all cases means the employer has to make good the deficit?

Mr. Tony Collins:

There is no deficit in the ESB scheme but, in general, the answer is "Yes".

Photo of Richard BrutonRichard Bruton (Dublin Bay North, Fine Gael)
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This issue is much wider.

Mr. Tony Collins:

Yes.

Photo of Richard BrutonRichard Bruton (Dublin Bay North, Fine Gael)
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It seems employers have made promises they cannot fulfil in these commitments. Mr. Collins says the matter should be resolved by arbitration but it seems the only outcomes can be either the employers make bigger contributions or the workers make bigger contributions to top up a fund in deficit.

Mr. Tony Collins:

There have been situations where employers have walked away from defined benefit schemes. To take that further, there is a concept, one that has applied in other countries, that there should be a debt on the employer to make good. That should be in legislation if we want to carry that further. That is the point I am making.

Photo of Richard BrutonRichard Bruton (Dublin Bay North, Fine Gael)
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That is a fairly substantial change in policy.

Mr. Tony Collins:

It is not being dealt with in this particular Bill.

Photo of Richard BrutonRichard Bruton (Dublin Bay North, Fine Gael)
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However, this is what makes the issue so difficult; it is opening up this territory.

On Waterford Crystal, a ruling was made that the Government had an obligation to have a compensation fund where the fund has run out. I want to get an understanding of the situation. The Waterford Crystal Pension Action Group is a group of workers who were excluded from getting the benefit because they accepted voluntary redundancy. What was the scale of the benefit lost? Per worker, roughly speaking, how much have the members who accepted voluntary redundancy and are now outside the scheme typically suffered?

Dr. John M. Hearne:

It was quite considerable. We did not get a pension. What we got through litigation was around €700 per year of service. In the redundancy package it was €1,000 per year of service but we were not given our options. The trustees were legally obliged to offer us our options but we did not get them, so there was no option. There was one option, which was to take it or leave it. We had no option but to take it.

Photo of Richard BrutonRichard Bruton (Dublin Bay North, Fine Gael)
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What was the scale of the commitment the European Court of Justice ruled the State had? I think one of the witnesses mentioned a figure of 49%. Was the ruling of the court that the Government should pick up half the deficit? Does that court case set a precedent?

Dr. John M. Hearne:

The ECJ suggested compensation should be in excess of 49%.

Photo of Richard BrutonRichard Bruton (Dublin Bay North, Fine Gael)
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Okay.

Dr. John M. Hearne:

In the UK, it was 90% because a pension protection fund had been set up there.

Photo of Richard BrutonRichard Bruton (Dublin Bay North, Fine Gael)
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That was funded by every employer. It was a global fund with a new PRSI levy or something.

Dr. John M. Hearne:

I am not sure what the intricacies were but in the Waterford Crystal case, the average was 82%. Some with less service and fewer contributions got 90%. Others with greater contributions and longer service got 82% but the balance was made up in the lump sum because they got €1,200 per year for their service. Basically, everyone got the same.

Photo of Richard BrutonRichard Bruton (Dublin Bay North, Fine Gael)
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To meet the group's need, if I understand this correctly, would probably require a new scheme that covers not just Waterford Crystal but a general scheme. I take it this is the challenge for the Government. It is not just one case, it is probably about setting up a scheme that covers all similar cases that could arise.

Dr. John M. Hearne:

As regards defined benefit schemes, there are still 490 such schemes in the country. The big ones would be in Glanbia, Kerry Group and so on. It is unlikely, following various changes in the Pensions Act 1990, that it will happen again. If it does happen again, the Government will have use central funding to clear the balance.

Photo of Richard BrutonRichard Bruton (Dublin Bay North, Fine Gael)
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I am conscious of time and I want to share time with Deputy Stanton.

Mr. John Nugent:

I want to respond to the piece about under funding. I assure the committee that arbitration has and does deal with underfunding in pension schemes. I have personal experience where, at one time in the ESB, contributing members were asked to increase their contributions by 2% in return for further funding from the company. It can be done and it is done in arbitration.

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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I thank all the witnesses for attending. I have listened very carefully to what they had to say. I have picked up the level of experience and knowledge before the committee today and I respect it hugely. I am a little intimidated that the witnesses know so much about this issue. That is obvious and I thank them for it.

I note the witnesses mentioned public consultation and that a public consultation call for requests issued last year on retired workers access to industrial relations mechanisms for pension-related issues. Submissions were requested by 22 April last year. They were to be reviewed in May and there was supposed to be further consultation and discussion. There is work going on with this in the Department at the moment. We know this because it has sought consultation and papers. In my experience of how this place works, given the summer recess and the budget just after Christmas, that is not a huge amount of time. It is important that we give this public consultation a kick-start, invite the Minister or some of his officials in to see where it is at and what they have done with the submissions the organisations before us made to that consultation and see what reaction we can get. It is our job now to give that a push to see where it is going and what will be the next steps of the Department and Minister.

I am heartened that public consultation occurred and I am sure very detailed submissions were made by everybody who is interested and involved. Now is the time to move on. There has been enough time to digest and analyse those submissions and come up with a reaction. Our next steps should be to invite the Minister and officials to the committee to see what reaction we will get. I am not sure if the witnesses had any reaction to the submissions. I take it from what Ms Shaw said that her association has not had anything back. I suggest the Department is probably still reviewing the submissions. We now need the reaction.

Ms Sue Shaw:

In fairness, in June 2021 the Minister requested a one-year deferral for detailed analysis and we assumed that that period would be put to use. It took some time for the request for written submissions to come out and the submissions were made promptly by arrangement. I agree that we could have expected to hear back or at least to have some broader consultation. I do not mean this disrespectfully, but asking for a written submission is not a consultation.

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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I agree with Ms Shaw.

Ms Sue Shaw:

We expected that once the written submissions were provided, a consultation process would begin based on those submissions. We have no doubt the Bill may need tweaking and amendments, but the principle is in place that there are six months in which one can go to the WRC. That principle is in place. We are not looking for something that does not exist but an extension of it to include the organisation.

We would welcome an intervention from the committee seeking a consultation process with us, provided that does not kick this down the road even further. The more we go out to consultation, the more our members will say that is what is happening.

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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My time is limited. We have had quite a lot of legislation in this committee since it was set up and the Chairman has been working members very hard. We have not been idle. We need to take up this issue.

The documentation from the Department in the request for submissions states, "Section 50 of the Pensions Act 1990 provides that the Pensions Authority may make a direction to reduce pension benefits payable to, or respect of, all scheme member cohorts (active, deferred and pensioner members) in order to satisfy the funding standard, and continue to allow the scheme to operate." It then refers to the various limits by which benefits can be reduced. The witnesses will be familiar with this. Reference is made to the risks to the scheme of underfunding, an issue raised by Deputy Bruton, and also to other protections. The call for submissions document states: "In addition, the Pensions Authority plays an important regulatory role in relation to occupational schemes and the Financial Services Ombudsman adjudicates on pension appeals taken by individuals as an avenue to vindicate their rights." I take it this is true. What I am taking from the presentations is that the organisations present want to be able to formally have a seat at the table. When do they want that to happen? Is it when pensions only are being discussed? When and how often does that happen in the organisations we are talking about?

Mr. John Nugent:

There is normally an actuarial review every three years in pension schemes, or there may be minimum funding standards submissions made to the Government. When there is any issue surrounding pensions, we would expect and hope to be at the table. For instance, the governance of the ESB pension scheme was negotiated between the company and the ESB group of unions to the exclusion of pensioners, who are major stakeholders in the pension scheme.

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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I will stop Mr. Nugent there as my time is tight. There is one group that represents the pensioner body in the ESB. Is that correct?

Mr. John Nugent:

Yes.

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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Mr. Nugent wants that group to be formally recognised, which is not the case at the moment, and to have a seat at the table.

Mr. John Nugent:

Absolutely.

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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Does Mr. Nugent want to see the roles of the Financial Services and Pensions Ombudsman and the Pensions Authority in this matter enhanced as well?

Mr. John Nugent:

As I said, it is a very difficult for pensioners after the event if two of the three stakeholders come to an arrangement by which they look after their own sectional interests.

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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I get that. I have one final question because the clock is ticking. More than once, Mr. Nugent has mentioned arbitration. Is he referring to binding arbitration?

Mr. John Nugent:

When I was on the ESB's industrial council arbitration in individual cases was binding but we did not see binding arbitration in group cases. As I have pointed out, we are more interested in the influence and input into the process. We cannot and will not go on strike on the issue. We want to be at the negotiating table to put the position of retired workers into the mix of the procedures.

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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I get that.

Ms Sue Shaw:

Just to clarify, it is my understanding that all arbitration is binding.

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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This is why I asked the question. I wanted to find out what Mr. Nugent meant by it. There is a difference.

Photo of Marie SherlockMarie Sherlock (Labour)
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I thank all the witnesses who have attended. I also thank Deputy Bríd Smith for bringing forward this legislation. I am aware that we are going into our second year of waiting for progress on this legislation. The frustration of all the witnesses with their individual circumstances or cases is clear, particularly in relation to pension cuts and changes to pension income, in which they have had no hand, act or say. Ms Sweeney spoke about 2015 and Mr. Collins spoke about 2022 in the context of not being brought into the consultation.

I also want to pick up in something Mr. Foley said about process and procedure. I want to break it down a little because I think about this in terms of information.

What information do the witnesses get about their pension benefit? The second point, as regards engagement and consultation, has been touched upon already. The third point is about having a say and the last point is about the right of appeal. What information is given to the witnesses when there are changes to their pensions, or on an annual basis? Trustees have to prepare an annual report every year. Is there any information regarding the trustees' investment strategy or where the benefit is? There is a three-year actuarial review but from my experience of working in a trade union, the level of information given to both contributors and beneficiaries is quite poor. I would like to hear the witnesses' experience about the information they get.

Mr. Gerry Foley:

I can speak with authority about the ESB scheme. There is an annual report but with regard to information, the trustees of the ESB pension scheme refuse to talk to the pensioners' organisation. They absolutely refuse. It should be remembered that the power in pension schemes is vested in the pension provider. The pension provider appoints all the trustees of a pension scheme. It is outrageous that if you look for information on your pension scheme outside the annual report, you are refused.

Photo of Marie SherlockMarie Sherlock (Labour)
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That is not good enough. There is an issue, as the witnesses know, particularly with defined benefit pensions. Some pensions are in great health while others are not. The starting point is that people must be afforded information about the health or otherwise of the pension. They can then understand if decisions need to be made.

I would like to pick up on the proposal for a forum. Defined contribution pensions are different because there are only two parties in a defined contribution pension. If you were originally a contributor but are now a beneficiary, the two parties involved are the beneficiaries and the sponsoring employer. In defined benefit pensions, there are three parties: the contributors, who are the existing workers; the beneficiaries; and the sponsoring employer. When the witness spoke about a forum, did they mean one involving three parties or two parties? How do they see it working? Do they see pensions being taken out of the conventional industrial relations machinery or system within a particular firm?

Mr. Gerry Foley:

We see the pensioners' organisation being at the table even in respect of the health of the pension scheme. At the moment, nearly the majority of stakeholders, with regard to the numbers in the pension scheme, and many pension schemes, are totally excluded from the process. Trustees have a fiduciary duty to ensure that all members of a pension scheme are treated equally. As my colleague, Mr. Collins, referred to recently, in this situation, there are two schemes in operation within one pension scheme. There is one for active members and one for retired people. It is essential that the voices of retired workers are heard in every aspect when pensions are being discussed, whether it is the health of the pension or the need to attend to a deficit in the scheme, etc. They must have their input, which is what we are seeking from the committee.

Photo of Marie SherlockMarie Sherlock (Labour)
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I would like to tease through the concept of having a voice. Having a voice is one thing, while being able to influence the outcome is different. For example, if you are not happy with the proposal on the table, there can be a threat of a strike. How do the witnesses see their role in that? There is a separation between consultation and having a voice at the table, and actually influencing the outcome. I wish to tease that through to understand what the witnesses think.

Mr. Gerry Foley:

We would accept arbitration at the end of the day. We cannot go on strike. We want all of our issues in the mix of the negotiation and procedures. Eventually, if it goes to arbitration, we would accept that unless it was a horrendous outcome. I have been on the council of the ESB for 12 years and in the normal course of events the arbitrator's recommendations are accepted.

Photo of Marie SherlockMarie Sherlock (Labour)
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I wish to pick up on something Mr. Croke spoke about. The Waterford Crystal situation is long and complicated. He referenced 2023 and suggested that he is hopeful of a conclusion or development this year. Where will that come from? What gives him such optimism?

Mr. Walter Croke:

It is as a result of the meeting we had with the former Minister of State, Deputy English. As the Senator said, it is complicated. It goes back 30 years. We explained to him that under the Pensions Act 1990, in 1992 we were entitled to three options. We only ever got one. Since 1992, the Irish Pensions Trust Limited has insisted that we were given the options and that we chose to accept a refund of our contributions. In accepting one of the three options, you would have had to indicate to the trustees of the fund, based on the three options they supplied you with, which choice you made. The individual would have signed in relation to their choice, the trustees would have signed to witness the choice and Waterford Crystal would have signed to witness the choice also. From very early on in this situation I said I never got those three options. The formula is there and the method based on which I was supposed to get these options is there. I would have signed these options, as would the trustees and sponsors. I could have torn mine up or burned it but there are another two copies attesting to the fact that I agreed to this option. I asked to see those-----

Photo of Marie SherlockMarie Sherlock (Labour)
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I want to get an answer.

Photo of Maurice QuinlivanMaurice Quinlivan (Limerick City, Sinn Fein)
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Very quickly. Your time is well up Senator.

Photo of Marie SherlockMarie Sherlock (Labour)
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I appreciate that but this is vitally important. Is there a proposal from the Minister? Has Mr. Croke seen something to suggest that there will be a development this year? It would be great if there is, but it is not clear to me whether there has been anything from the Minister.

Mr. Walter Croke:

No, we are still waiting to hear from the Minister. That is why we are still holding out.

Dr. John M. Hearne:

When we met the Minister, he took on board what we were saying. It may have been aspirational or he may have wanted to progress this into the future but we have been advocating for our rights for 30 years. We got a letter on 13 October, after 30 years, from the pension provider stating that it does not have our option forms. In other words, it completely breached the Pensions Act 1990 by not giving us our forms. We were recognised by the pension provider in the period of 2009 to 2010 as deferred pension holders. As such, we should be included in Government compensations.

Photo of Paul MurphyPaul Murphy (Dublin South West, RISE)
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I thank the witnesses for coming before the committee, for their presentations and for their campaigning work on this issue. Barely a week goes by when I do not get letters from constituents about this issue. The phrase "Nothing about us without us" sums up this issue. As someone made the point earlier - I think it was Mr. Collins - we are dealing with deferred wages in this case.

That is what occupational pensions are. The reality as it is at the moment is that Mr. Collins's deferred wages and those of the hundreds and thousands of retired workers represented by the association can be changed without any input whatsoever by them. The ask that the retired workers have is not a very substantial one. It is quite minimal given the situation they are in. The point has been made that it would have no impact in any other aspect of industrial relations. This relates purely to the situation where we are dealing with changes to pension schemes and it has no impact on any ability to engage in strike action. It does not give one the right to engage in strike action or anything like that. It is purely about being at the table at the WRC.

The view contained in IBEC's submission - this certainly seems to be the Minister's position - is that employers who have occupational pension schemes have effectively no obligations to retired workers and there is no need or right for those workers to be involved in any discussions around that. Can the witnesses spell out, maybe in relation to the ESB, what the impact of that position is, what that has meant for them as retired workers, and how they have been able to be treated as a consequence of being completely excluded from the process?

Mr. Tony Collins:

Just to give a practical example, as I said in my statement, when the agreement was made back in 2010, the retired workers were not at the table. There were two parties to that agreement, namely, the trade unions and the employers, and they negotiated an agreement that affected retired workers. There should not be a situation where the employer and the trade unions come together to affect the pensions of people who are already retired. Certainly, the retired workers did not have a seat at the table. If they are going to do something to affect the incomes of retired workers, the retired workers should be at the table. To this very day, 13 years on, we are still seeing the effects of that. The problem is that the agreement is in place and is still being used and we have no right to be there to try to renegotiate it or to overturn it. There is no end date on it. I have never seen a situation where there is an agreement without an end date. I am sure those who are familiar with industrial relations will appreciate that an agreement starts on a particular date and it has to end. This agreement has absolutely no end date. That is a practical example of how we are still being affected.

There have been other issues in the past year. The governance and rules of the scheme apply to all members. They have had consultation a process and negotiations with the employee members of the scheme on those issues. There have been two rule changes during the past year. The retired workers were not involved or included in that process, nor did anybody speak to them. The changes just went through seamlessly and we had no involvement at all in the process. That is the effect it has had.

Photo of Paul MurphyPaul Murphy (Dublin South West, RISE)
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I will make one other point about that. The suggestion made earlier, which is often made in this debate, is that this is really about the underfunding of pension schemes. It seems to me that is a conflation of two issues. Sometimes there may be an overlap of those two issues. I understand this can arise in situations where there is no question of underfunding of pension schemes whatsoever. Deputy Bríd Smith gave her own experience as a shop steward of an instance in which that happened. Indeed, underfunding can be provoked by changes that the employer proposes to make to reduce their own contributions. This can involve creating a crisis to justify such a reduction. Can Mr. Collins expand a little on that?

Mr. Tony Collins:

My colleague, Mr. Nugent, has had vast experience in the whole industrial relations process from his time in the ESB. He has clearly pointed out that if there is an underfunding situation, there was ways to deal with it. During my working life, I had to pay additional contributions to the scheme when there was an underfunding situation. This was done so that the scheme could recover. That was reversed once the underfunding issue was dealt with. Underfunding is an issue that can be dealt with by the existing workers. There has never been a situation in the ESB where an industrial relations agreement has affected retired workers. That agreement in 2010 was the first time the incomes of retired workers were affected by an industrial relations agreement on pensions. Before that, it was dealt with by the employer making additional contributions to the scheme or the employees making additional contributions, perhaps for a temporary period of time. That is how the underfunding was dealt with. I reiterate what I said earlier: there is no underfunding issue currently in the ESB scheme. There may be underfunding in other schemes, but there is certainly none in the ESB at the moment.

Photo of Paul MurphyPaul Murphy (Dublin South West, RISE)
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I presume the witnesses have seen the submissions by other organisations on this issue, for example from IBEC and so on. Do they have opinions on those?

Mr. John Nugent:

I certainly do. It is in my written submission. First, I was glad to see the support the Bill has received from all the contributors to the public consultation. I was certainly heartened to see that SIPTU has given support to the workers on this particular issue. It increases the substantial support that is there now for this Bill, not only from the retired workers but also from SIPTU supporting it on behalf of the active members of the scheme. There is a fairness to be sorted out here.

I think the IBEC submission was the only negative submission to the public consultation process. I want to refer the committee to a particular sentence in it which sums up the IBEC position. It states that once an employee retires or leaves the employment, the employer no longer budgets for persons external to the business, nor should they have to, nor do these employers take part in any further benefit negotiations as they have no consideration to offer. How appalling is it for an organisation essentially to say to retired workers that once they go out that door, they have no more rights whatsoever? They have no relation to the sponsoring employer. It is absolutely appalling.

Photo of Maurice QuinlivanMaurice Quinlivan (Limerick City, Sinn Fein)
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As everybody who has indicated to speak has spoken, I will invite Deputy Bríd Smith to speak as she is the sponsor of the Bill. We do not usually have sponsors here in the meeting.

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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The last couple of sentences summed up what I wanted to say. I ask those present to pardon me as my voice is a bit compromised. Since I have got to know this group of people who are working on the need for their voices to be heard, it really has brought things home to me. An awful lot of these people are public sector and semi-State workers who saw their pensions hit so hard, particularly during the austerity years. They are the people who built the State and who stayed in jobs for 40 or more years, sometimes 45 or more years. They stayed in these jobs and were dedicated to them. When they retired, they were told they were worthless pieces of whatever and did not have any voice at the table when something as fundamental as the income they have to live on when they are older was being stripped down. It is slightly different from my own experience but nevertheless, and I say this in response to Deputy Bruton's questions, pensions are often used in pay negotiations for employers to get a result that is favourable to them. If they are going to give an increase of 5% or 10%, they look to cut things off other bits. It is a way of tailoring their costs and their responsibilities. I - mea culpa- was party to such negotiations as a young woman, and without realising it I was willing to just say "yes, cut the pension, so what?. It did not matter to me and I probably did not stay in this job and neither did my mates.

To not have a pension or be at the table to say what that would do to the retired workers in their day-to-day, week-to-week life, is a real injustice. What the core of this Bill is trying to do is to address an historic injustice. In this case, the disregard shown to over half a million retired workers when their pension scheme is altered or subject to change during negotiations is just unacceptable. In this day and age, when we are dealing with climate Bills and all sorts of challenges we always talk about justice, transition, voices at tables and inclusion, which is a great new modern word, but this is a cohort of people who are deliberately excluded. It has been a very dramatic experience in their lives over the last few years.

As we can all see, none of us is getting any younger but the people who have worked so hard on this who are sitting around the table need this to be moved on at a better pace than it has been. Deputy Stanton said that there is lots of legislation before this committee and I understand that. I am on a similar committee where we deal with lots of legislation but we need to try to move this on. My appeal today is that this committee should try to understand and be clear that the intent of this Bill is to address an historic injustice. It is open to amendment. We are not saying "that is it; we will accept nothing less than this". The effect of the Bill will be to change one simple fact, namely that up to six months after someone leaves work they have a forum to go to. The Bill would change it so that six months after a change is proposed to be made to a person's pension scheme, he or she is allowed to be party to negotiation consultation and arbitration.

I want to thank the Office of Parliamentary Legal Advisers, OPLA, who are very experienced and good drafters of Bills and who worked for a year helping to draft this Bill. Their patience and experience was important in this. They were in no way sloppy in how they looked at this. They took the core of the issues around which we need to get pension organisations and their representatives around the table when their own pension schemes are being changed due to pension negotiations by employers and others. That is really important. In doing that, they took into account how they needed to redefine what an industrial dispute looked like and what a retired worker looked like. All that is in the Bill, which has 13 sections and it is dealt with in a detailed way. I ask the committee to take this seriously and not to think that these people have no skin in the game; they absolutely do. To have one's voice listened to is important whether people realise that or not. This is not just about IR matters between existing workers and their employers; it is about the lived experience that we heard around the table today and the consequences that arise when that is not taken into consideration. They are not here today but representatives of an organisation as hoity-toity as RTÉ who were on this group gave us evidence of the absolute poverty they experience on their pensions in the period when they cuts were brought in. I was quite shocked to hear how much people's living standards had been reduced and will remain reduced because they have no access to a forum in which they will be listened to. The Bill seeks to give them access and to give them a voice around the table and a process of being heard. Having to go to an ombudsman is not sufficient and often going as an individual rather than a collective totally weakens a person's position.

The OPLA went to great lengths to ensure that the proposals in the Bill were robust. We are open to amendments and we want to see it progress in the committee. I thank the Chair and the committee for their time.

Photo of Maurice QuinlivanMaurice Quinlivan (Limerick City, Sinn Fein)
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I thank the Deputy. That concludes our consideration of the matter today. I thank all the representatives for assisting the committee in its consideration of this important matter today. The committee will consider this matter further as soon as possible.

Mr. Gerry Foley:

I thank the committee.

Mr. Tony Collins:

I thank members for listening to all our contributions and for their interaction and for the questions that were asked to give clarity to the situation. We hope that we can progress it from here.

Ms Eileen Sweeney:

I also thank the committee for its time and consideration. I remind members that in our written submission, the public consultation and the pre-meeting that there are more details.

Mr. Gerry Foley:

We thank all the Deputies.

Photo of Maurice QuinlivanMaurice Quinlivan (Limerick City, Sinn Fein)
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I want to pass on apologies from Deputy Matt Shanahan who had to leave. He had a prior engagement. He had intended to speak.

The joint committee went into private session at 12.45 p.m. and adjourned at 12.50 p.m. sine die.