Damien English (Meath West, Fine Gael) | Oireachtas source

I move amendment No. 1:

To delete all words after “That” and substitute the following: “Dáil Éireann acknowledges and resolves that the Industrial Relations (Provisions in Respect of Pension Entitlements of Retired Workers) Bill 2021 be deemed to be read a second time this day 12 months, to allow for consultation between the Minister for Enterprise, Trade and Employment, the Minister for Social Protection and the Minister for Public Expenditure and Reform, with unions and employers and the Industrial Relations bodies, which will allow for full discussion and exploration of legal and technical issues that may arise, such as increased business costs and business viability, as a result of the proposals and to consider other options for change which might be available, and which would make it more suitable for collective bargaining.”

I thank Deputy Bríd Smith and her colleagues for giving the House an opportunity to debate this issue concerning retired persons in receipt of occupational pension benefits. This legislative proposal is premised on the idea that retired persons who are members of such schemes should be granted access to the industrial relations machinery of the State. The rationale for this access is to ensure that retired persons are given a voice in industrial relations processes with regard to matters affecting occupational pensions and other issues. I appreciate there is an argument that the necessity for this inclusion in collective representation is based on the belief that pension entitlements are a form of deferred wages and that any changes affecting pension schemes are unfair to the retired workers. I fully understand that several former workers of semi-State companies feel aggrieved that they may not have received increases to their pensions in recent years. I did not get a chance to engage yesterday with the former workers who were protesting outside Leinster House but I have received emails and phone calls on the matter and have had conversations with many such workers. I will get a chance during the time allowed under the amendment to engage further with them on this issue.

The premise of ensuring that a person has a voice in matters affecting him or her is perfectly reasonable. It is obvious that Deputy Bríd Smith and her colleagues have engaged extensively with retired persons and their associations in the preparation of the Bill. I commend the Deputy on this work and on her interest in the matter. I know the effort involved in bringing forward legislation that one believes will have a positive impact and I accept that the Deputy believes the Bill will have a positive impact. It is clear that the proposal is attempting to address the specific concerns or, to use the legal term, the mischiefs that the representative associations have identified to the Deputy. The Bill is an attempt to address that but the difficulty is that, as a Government, we have to look at the overall and wider picture, rather than just the individual concerns. That is why the amendment proposes allowing time for us to tease this out and work through it. The proposal in the amendment to allow a period of 12 months is about ensuring we can make a genuine attempt to examine the issue and engage on it with parties from across the sector. Of course, that would involve engaging with the retired workers affected, such as those who protested yesterday and have been contacting us. That is a natural part of the work we would do.

Before I touch on the proposals relating to the Pensions Act, which are a policy matter for the Minister for Social Protection, I wish to flag policy considerations in my areas of responsibility and some of the issues with which we have difficulty and concerns that we have to try to tease out and work through. The matter is not as straightforward as just accepting the Bill, although I accept it is a genuine attempt to deal with the grievances of the retired workers in question. Traditionally, industrial relations revolve around the relationship between workers or employees and their employers. A trade dispute means any dispute between employers and workers which is connected with the employment or non-employment or the terms or conditions of employment or those affecting the employment of any person. The term "non-employment" has been extensively considered by the courts and is understood to mean dismissal, redundancy or a person seeking employment with a given employer. A retired person is legally understood to be retired. In legal terms, a person cannot have a dual designation of "worker" and "retired" at the same time. A person is one or the other and a retired worker cannot actively be involved in a trade dispute involving matters of employment and non-employment. This legislative proposal would introduce a novel element and change to this established tradition and, as such, it needs to be fully examined and investigated and worked through.

Industrial relations disputes involve a totality of the terms and conditions of existing workers, matters which, in the main, do not affect retired persons. The policy underlying industrial relations dispute resolution mechanisms in Ireland is to maintain industrial harmony and to ensure fairness in workplaces. A concern that my Department has to work through is that the inclusion of a third category of participants to trade disputes, with narrow singular interests in the collective bargaining process, may distort the interests of those parties for whom the process was originally designed. The inclusion of a third party to such negotiations may deter legitimate parties involved in the trade dispute from agreeing to engage in dispute resolution processes in the first place. This could have the unintended consequence of undermining the overall policy rationale for industrial harmony. I know that certainly is not something Deputy Bríd Smith wishes to do. I am not saying it is what she is trying to do; I am just saying these are the issues about which we have concerns and have to try to work out.

We must acknowledge that currently there is no legal obligation on any employer to offer a pension scheme to its staff. The introduction of a legal entitlement for retired persons to have a seat at the negotiating table because of said pension entitlement might make occupational pension schemes a less attractive proposition for employers. I know that is not something the Deputy wishes to encourage and we would not like to see it happen either. It is not a desirable policy prospect and I am sure it is not something that any Member of this House intends to bring about. I am not saying Deputy Bríd Smith intends to do so; I am just flagging the issues that have to be addressed.

It has already been recognised that there is legitimacy, in time-limited circumstances, for retired persons to seek redress from the industrial relations bodies. In 2015, the Industrial Relations Acts were amended through the insertion of section 26A to the 1990 Act. It allows a retired person to access the industrial relations bodies for a period of six months post retirement in respect of matters arising pre-retirement. This six-month timeframe within which to make a complaint for matters arising post retirement commences on the date of retirement or the date on when the grievance became known or ought to have become known. Section 26A was inserted into the 1990 Act to address the injustice whereby persons were unable to address work-related issues that may have come to light only after retirement, even though they related to matters that had arisen pre-retirement. It ought to be noted that there are exceptional circumstances in which the Labour Court will extend the six-month time limit associated with the date of retirement on a case-by-case basis where the justice of the case so requires. That is a decision it can make.

The second policy area within my remit relates to the Trade Union Acts, which provide for the licensing of bodies carrying on negotiations relating to fixing wages and other conditions of employment. My Department and I have a concern with the drafting in the Bill that appears to suggest that an entity purporting to represent the ill-defined category of "retired worker", who may very well be actual workers, could rely on the exemption to the requirement for a negotiating licence and ability to refer disputes relating to occupational pension terms to the industrial relations machinery of the State to seek access to public service pay negotiations. Such entities have no role in the determination of the terms and conditions of public service employees or the negotiation of any aspect of pay or remuneration. Any unintentional consequence of such an exemption needs to be addressed and worked through. I am again flagging our concerns in this regard.

As regards the proposed amendments to the Pensions Act 1990, scheme trustees already have duties and responsibilities under trust law, the Pensions Act 1990, as amended, and other relevant legislation. The duties of pension scheme trustees include administering the scheme in accordance with the law and the terms of the trust deed and scheme rules, as well as ensuring compliance with the requirements that apply to these schemes. Trustees must act in the best financial interest of all scheme members, whether active, deferred or retired, and must serve all beneficiaries of the scheme impartially. Although section 62 of the 1990 Act, or the regulations made under that section, do not currently specifically provide that member trustees must include at least one pensioner member or provide that member trustees must include one or more active members, they do provide an opportunity for such membership by either cohort and pensioner members may avail of that opportunity to become scheme trustees or nominate others to act on their behalf.

The proposed amendment in section 10 of the Bill appears to give a guarantee of preferential treatment, in the elections for trustees, of pensioner member candidates where such candidates have been nominated. However, as I have stated, the position is that those appointed as trustees have a fiduciary duty to represent all members, be they active, deferred or pensioner, of a scheme impartially and to act in the best financial interests of all members. If there is a conflict of interest, then a person’s duty as a trustee must take precedence over other interests. Accordingly, any trustee who acts in the interests of pensioner members above the interests of another cohort of the scheme would be in breach of this fiduciary duty.

The proposed amendment does not provide for any guaranteed selection or appointment in respect of other scheme cohorts and, therefore, the preferential treatment of pensioner members provided by this proposed amendment could be viewed as inequitable and discriminatory. Again, I am sure that is not something Deputy Bríd Smith would like to see happening. If this proposal was accepted as it is currently drafted, the effect of the proposed amendment at section 10 could result in a preponderance of pensioner members being selected to the trustee board, to the exclusion of other member cohorts. I assume that is not the intended outcome.

Regulations made under section 62 of the Pensions Act are subject to section 59A of the 1990 Act, which has been recently amended to require that trustees must satisfy good repute and integrity requirements on an individual basis, and qualifications, knowledge and experience requirements on a collective basis. Accordingly, any amendment to section 62 or to the 1990 Act in general, must be considered with the recent amendments to that Act in mind. Any guarantee in respect of the selection or appointment of pensioner trustees would have to be framed in such a manner as to ensure such pensioner trustees will satisfy those requirements as, otherwise, such a person, or the trustees as a whole, may be in breach of section 59A of the 1990 Act.

With the foregoing, the Government requires more detailed analysis and consultation about this legislative proposal. The Bill introduces amendments that have wider consequences than those stated for the target audience. These must be carefully considered but the Government is willing to look at these issues. As I stated at the outset, I understand this is a genuine attempt to correct certain concerns. The Government, however, has a duty to take into account the wider picture and fully interrogate this legislation. We are prepared to do that. I hope the Members opposite will accept our amendment to give us time to do that.

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