Barry Ward (Dún Laoghaire, Fine Gael) | Oireachtas source

I welcome the Bill. It makes a lot of sense and we have all been waiting for it. I note it is one of 21 Bills flagged for priority under the first months of the new Government. That is reflected in the urgency with which we are bringing it in, and I welcome it.

As the Minister of State will know, the purpose of the Employment (Contractual Retirement Ages) Bill 2025 is to deliver a statutory provision which sets out that an employer may not enforce a commercial or contractual retirement age which is below the State pension age if the employee does not consent to retire. One of the points I planned to make is about the drafting. The State pension age is defined in section 2(1) not as 66 years but as having the definition that is applied in section 2 of the Social Welfare Consolidation Act 2005, which is 66 years. One of the questions I ask consistently in these debates is why on earth we make it so difficult for people to track down what the Bill says when it becomes law. It should not be so difficult to insert the age of 66, rather than referring to other legislation. I will come back to that point.

The Bill will create a new employment right, specifically for employees who are subject to a retirement age in their employment contract which is set below the age of 66. This is about giving them the choice and option to continue work if they want to do so. We have heard a lot about this. This Bill is about choice, which is very important. It is also part of a suite of welcome rights the Government has brought forward in recent years, for example, increasing the minimum wage and also in the context of workers auto-enrolment in pensions. These important measures improve the rights of employees.

The Act also sets out the procedure that is to be followed. Between three and 12 months before a person is due to retire, he or she must give a notice in writing to their employer. I do not know if "in writing" needs to be defined. Does that mean an email is sufficient? I would have thought it does but I wonder if that should be clarified in the legislation. It places a burden on the employee to notify the employer, which I do not have a problem with. More important, it gives the employee the right to indicate to their employer that they do not want to retire at the age of 66. This is important, not just because it comes from the pensions commission report of 2021 - it has taken that long for the Bill to be drafted and get to the floor of the Dáil - but also because we know there is a gap between the ages of 65 and 66. People are often told they must retire at 65 and then find themselves in limbo before they reach the pensionable age at 66. This means, appallingly and disrespectfully, they are required to sign on as if they are unemployed and unavailable for work when, in fact, they had a job and wanted to continue to work but were not allowed to do so. This Bill will fix that, which is important. One of its primary aims is to fix it and reflect the recommendations of the pensions commission. Bridging that income gap has to be an important part of what the Bill does.

The Bill does not impact on the retirement provisions in place for certain public servants such as gardaí, members of the Defence Forces and other people who are in specific, high stress, high impact jobs. I have heard other Members speaking about this. The Bill does not place an undue burden on employees who want to retire. They should also have the choice to retire at their contractual retirement age if they wish to do so. They should not have to do so, however. That is a very important point.

The Bill also sets out protections. As I said, this is another pro-employee measure. It sets out the potential ramifications for an employer which ignores the statutory provisions or declines to involve itself with an employee when he or she notifies it, under section 5, that he or she does not want to retire.

To reflect what other Members said, this is also about the pension gap that already exists. The Bill does not really do anything to bridge that gap or address the unfairness against women who were subject to the marriage bar and found themselves exiting employment before they had a chance to accrue pension rights or those who have spent time out of employment for various legitimate reasons, such as having a family or caring for an older person, which is so often the case and disproportionately affects women. The Bill does not do anything to address that. It cannot do everything but it is important to note we have not made the progress we need to make in that regard. This is, however, a welcome Bill and I note that ICTU has indicated its broad support for it in the context of the rights it provides for workers.

Section 10 provides that "an employer who, without reasonable cause, fails to provide an employee with a reasoned written reply" will be guilty of an offence and "liable on summary conviction". I welcome that the section also provides for a corporate offence, so individual directors will not necessarily escape, even if they have not been directly involved, and the company itself, if the employer is a company, does not escape either. Creating this criminal offence that can be enforced is really important. However, it is also worth noting that in speaking about increased rights for employees, whether it is the minimum wage, pension auto-enrolment or this measure, which is not in the same category, we should also acknowledge that in establishing these rights, we also place a burden on employers, particularly small and medium enterprises which have to comply with the law in this regard. While I support these provisions, the State, the Government and the Oireachtas need to acknowledge that this places an additional burden on employers. When those employers are small and have low turnover or low profit margins, it can place a strain on the business and its survivability. Very often, these are local businesses providing local services in communities. They are important local employers but also important local providers. In passing legislation such as this, we need to put in place supports for such businesses to ensure they remain viable and have what they need to continue in the teeth of increased employee rights and increased burdens on employers. As I said, this legislation should not necessarily place further burdens or expenses on employers in that regard because we are talking about people in their mid-60s, predominately between 63 and 66, who are, for the most part, perfectly capable of continuing to work.

It is important to recognise that the age demographic of society is changing all the time. We are living longer and better. People into their 60s and 70s are perfectly capable of living productive employed lives and contributing in the way they want to. They should not be denied the opportunity to do that. The difficulty is that up to this point, the State has been telling people they have to stop working at a certain point. There has often been a substantial discrepancy between those working in the private sector and those working in the public sector. Where we have full employment, we should look at measures, exactly like those contained in this Bill, to ensure that people who want to continue working are allowed to do so. That is not to ignore the institutional memory that comes with people. The experience and length of service they have means they often know better how to do the job than somebody who is coming in. There are examples even in the public sector. In the Judiciary, for example, this will not change, although I am open to correction in this regard. At the moment, other statutory instruments require judges in the superior courts to retire at 70 years of age and judges in the District Court to retire at 65. Why do we insist on putting those measures in place? Why do we insist on placing these arbitrary limits on the ability of people to continue working?

Judges in the High Court, the Court of Appeal or the Supreme Court have an expertise that is unrivalled in many sectors. They have experience in those judicial positions that is of enormous value to this State and yet we have this arbitrary 70-year cut-off where they cannot work, even though many of them would be perfectly able to continue and it would benefit us enormously if they did. Let us not just be myopic about this and look at this in the context of contractual employment. We should also be looking at removing arbitrary age bars for those public servants who are in a position to continue to deliver beyond them. This does not mean there should not be a choice for those people but there should be the opportunity for us to review them. Not everyone can continue, or wants to continue, beyond that but we should be looking at a balancing mechanism which allows us to not lose the institutional memory that comes with it.

It is worth looking at other examples close to home. The United Kingdom, for example, repealed its default retirement age of 65 in April 2011, so we are quite far behind in catching up with them. In the UK, there is no state or default retirement age and employers are prohibited from implementing a compulsory retirement age, much in the same vein as this legislation. Germany has a statutory age limit for when an employee becomes eligible for a state pension which is between 65 and 67 years, depending on the date of birth of that employee. The statutory retirement age is not mandatory and employment contracts do not end automatically when a certain age is reached or at a time when the employee is entitled to the statutory pension. The receipt of any kind of pension does not constitute a sufficient reason for termination either.

I note this legislation talks about a good and valid reason or a reasonable basis for requiring a person to retire if they serve a notice to the employer. Does the Minister have any view on what constitutes a reasonable basis for such a thing? It is undoubtedly something that will ultimately be interpreted by the courts and there will be cases where it is borderline but has the Minister any views on what constitutes such a reason?

It is worth acknowledging at this point that so much of our employment legislation and employment rights legislation has been handed down to us from the European Union. We have benefitted massively from our membership of the European Union in terms of being informed as to how we should progress to make life easier and better for employees. This legislation certainly improves that and helps bring us in line with much of the legislation that exists across the European Union.

I said I would come back to points relating to drafting. One of points I frequently make in legislative debates is that we should be looking at passing consolidating legislation, particularly when we are passing an amending piece like this, which is very difficult to read. Two examples that spring to mind relate to section 6. Section 6 of the Act refers to rulings made under section 41 or section 44 of the Workplace Relations Act 2015, which is defined in the Bill. When reading this, you must go back to the 2015 Act, unless you are an employment lawyer, to find out what a ruling under section 41 or section 44 is. It seems to be a totally unnecessary burden to put on the reader that they must consult another piece of legislation but it gets worse in section 7, which amends the same Act of 2015. For example, if we look at section 7(a), it amends section 36(5) of the Workplace Relations Act 2015. Really what it does is create a new paragraph in subsection (5) but it does so by way of three amendments. Section 7(a) states:

... in section 36(5) [of the 2015 Act],

(i) in paragraph (c) will be amended by the substitution of "National Minimum Wage Act 2000," for "National Minimum Wage Act 2000, or".

Instead of just taking the paragraph it wants to insert and rewriting it, it makes three amendments to change commas, add in or and change the list of provisions provided in section 36(5) of the 2015 Act.

The next paragraph does exactly the same for section 41(7) of the 2015 Act. It cannot be read in the absence of reading the 2015 Act and going through it in a careful way to ascertain exactly what is being said.

See this speech in context