Kathleen O'Meara (Labour)
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The Minister to speak on the amendments, unless he has a view on the Order of Business.

Séamus Brennan (Dublin South, Fianna Fail)
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I do, but I will make no comment. Have I responded to the points raised about amendments Nos. 24 and 25?

Kathleen O'Meara (Labour)
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The Minister has not responded to the points raised about amendment No. 25.

Séamus Brennan (Dublin South, Fianna Fail)
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Senator Ross asked me about the possibility of a second terminal at Dublin Airport. I have made it clear that I believe a second terminal is needed and that it should be an independent terminal. The Government is examining this matter at the moment and in the near future we will be able to make a final decision about it. The Senator asked me about the position of Aer Rianta on this matter. I understand its preference is for a fully Aer Rianta-owned terminal. The company accepts that extra capacity is needed but its preference is for a fully State-owned terminal building. That is my understanding of its position as conveyed to me over the past year or so. I would like to bring this matter to a conclusion sooner rather than later in order to provide clarity in aviation policy.

There are a number of issues to be dealt with, including this legislation, restructuring and the possibility of a new terminal. Senators Dooley and Daly also raised issues to do with Shannon Airport yesterday and spoke strongly about Aer Lingus's plans for Shannon. I am determined to deal with all these aviation issues as soon as possible so that there can be maximum certainty when the new authorities come into place. I will try to keep up the pressure to have all these issues dealt with in the weeks ahead.

Shane Ross (Independent)
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The Minister said he was in favour of a second terminal. Did he say his preference was for an independent second terminal?

Séamus Brennan (Dublin South, Fianna Fail)
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Yes.

Derek McDowell (Labour)
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I appreciate that the Government has not yet made a decision on this issue and that the Minister has said he expects one within a few weeks. I assume he envisages a process of expressions of interest and so on in deciding on the independent individuals or companies. Does he expect that he will prohibit the Dublin Airport authority from being party to any competition for operating the second terminal?

Séamus Brennan (Dublin South, Fianna Fail)
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I do not really want to get into this debate today, but the Senator has asked some straight questions. The Government is considering issues to do with the integration of the airport, where a terminal might be in terms of the master plan for the airport and residual freehold ownership issues. For example, the airport could have some type of emergency in which residual ownership is an issue, or it may need to change runways around. The Government is also considering the legitimate concerns of the trade unions about their members and their conditions of employment and the possible role of a regulator in terms of ensuring fair play and balance. The Government has not taken a decision on the second terminal at this time, although there is a statement in the programme for Government that it intends to examine the possibilities.

I sought expressions of interest last year and 13 groups replied. As I said earlier to Senator Ross, I hope we can bring this debate to a conclusion as soon as possible in full consultation with all the stake holders including Aer Rianta, the trade unions, the workers, potential investors and the Department of Finance. I am determined to bring certainty to aviation policy without much more delay. There is too much uncertainty in aviation policy at the moment. Some of this is because of my reform programmes, but it is also due to current market conditions.

Timmy Dooley (Fianna Fail)
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I am not overly concerned about Dublin Airport, but there is a view, which I share, that a second terminal at Dublin Airport which is not in State ownership could create a competitive environment within Dublin Airport, which could have an adverse effect on Shannon and Cork Airports. We accept to some extent that there are potential benefits associated with an element of competition among the three airports as they stand. Putting in place a second terminal at Dublin Airport adds a further dimension which would concentrate much of the competition within Dublin Airport and between the two entities. That has a potential negative effect and is not something I would like to see happen. However, this will be a Government decision to which neither I nor Senator Daly will be a party.

Derek McDowell (Labour)
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I move amendment No. 26:

In page 11, subsection (14), line 28, after "services" to insert ", subject to the transfer by the Irish Aviation Authority of the necessary expertise and assets,".

This relates to the provision of services by the aviation authority. I was not sure about the point of the original section. It implies that the aviation authority might in certain circumstances withdraw the provision of services to an airport, thereby creating a vacuum. It should be necessary to fill that vacuum; the aviation authority should not simply walk off the pitch. There should be some requirement for the authority to continue to provide expertise and assets so that the services necessary for maintaining an airport are provided on a continuing basis.

Séamus Brennan (Dublin South, Fianna Fail)
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I will clarify this for the Deputy. It is envisaged that the Irish Aviation Authority will continue to provide terminal services at the three State airports in the future. However, should any of the airport authorities decide to secure those services from an alternative source, the airport authority concerned must secure the consent of the Irish Aviation Authority. It will not be a requirement in such circumstances for the new provider of ATC services to take over the expertise and assets of the IAA at the airport. The new supplier must be free to provide its own staff and equipment if it wishes to do so. This is mainly an enabling provision which will ensure that if an airport authority wishes to get services from somewhere else, it must secure the consent of the Irish Aviation Authority before doing so.

Derek McDowell (Labour)
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Is there a guarantee that best practice and standards will be maintained on the provision of services?

Séamus Brennan (Dublin South, Fianna Fail)
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The IAA must ensure that.

Kathleen O'Meara (Labour)
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Amendment No. 27 in the name of Senator McDowell has been ruled out of order as it involves a potential charge on Revenue.

Kathleen O'Meara (Labour)
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Amendments Nos. 28 and 29 are related and will be discussed together by agreement. Is that agreed? Agreed.

Derek McDowell (Labour)
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I move amendment No. 28:

In page 12, subsection (5), line 39, after "restructuring" to insert "and following consultation with the Dublin Airport Authority".

These amendments relate to the memorandum and articles of association of the companies. As the section is currently drafted, it provides that these are entirely a matter for the Minister. He mentioned earlier that he envisages dealing with these over the next few weeks. As matters stand, the Minister is not required to seek the approval, agreement of the company or, as far as I can tell, consult with the company before changing its memorandum and articles. As a matter of courtesy there should be some consultation and, ideally, agreement between the Minister and Aer Rianta before they are changed and the new ones put in place.

Séamus Brennan (Dublin South, Fianna Fail)
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Section 9(5) provides that "the memorandum and articles of association of Aer Rianta may be amended in such manner as may for the purpose of the restructuring be determined by the Minister with the consent of the Minister for Finance". This is an enabling provision in the event that any amendment is required to Aer Rianta's memoranda and articles to take account of the restructuring. After the Dublin appointed day, this subsection will no longer be relevant as Aer Rianta will have been renamed the Dublin Airport authority and it will not be possible for Aer Rianta to seek the approval of the Dublin Airport authority. The proposed amendment is not in keeping with the sequence of events envisaged under the Bill and therefore I cannot accept it.

With regard to amendment No. 29, the reason for the provision that the initial memorandum and articles of association for Cork and Shannon is drawn up is that it is considered that the Minister, with the consent of the Minister for Finance, should draft memoranda and articles tailored to the specific statutory remit being given to the companies during this transitional phase. After the appointed day for these authorities, their memoranda and articles will change to make them consistent with the Act of 1998 which, therefore, keeps the correct sequence.

Derek McDowell (Labour)
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The sequence was not my concern nor did I intend to upset it. My intention was simply to ensure there would be a measure of consultation and agreement with the companies before their memoranda and articles were changed. As matters stand, the power is vested in the Minister without the need for consultation.

Séamus Brennan (Dublin South, Fianna Fail)
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I confirm there will be consultation.

Michael Kitt (Fianna Fail)
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Amendments Nos. 30, 31 and 32 are related and may be taken together.

Derek McDowell (Labour)
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I move amendment No. 30:

In page 13, subsection (8), line 8, after "shall," to insert "following consultation with regional and local development associations and Chamber of Commerce and ".

The intention of amendment No. 30 is to provide that there will be consultation with regional and local development associations, specifically the chamber of commerce. We relate that, as the section does, to the articles of association.

The main purpose of the restructuring effort is to facilitate local and regional development. Its purpose is not just to facilitate the development of the airports but through them to facilitate the development of trade, industrial development and development generally in the regions contiguous to the two airports, Cork and Shannon. Given this and in a spirit of consultation and co-operation with the local interests, we should begin by requiring that the two boards, as soon as possible following their establishment, consult with regional and local development associations — which are easily identified — and the chambers of commerce on a range of issues of local importance. This arises particularly in the context of Shannon and I have no doubt the local commercial interests there will have a serious amount to say on how the airport might be managed and marketed in the years ahead. Similarly, we know that with regard to Cork the local chamber of commerce and business interests have been to the fore in making the case for the airport and its maintenance and development in recent years. This amendment seeks to give these interests some sort of statutory role, albeit a consultative one, in the process.

Séamus Brennan (Dublin South, Fianna Fail)
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I sympathise with what the Senator is trying to achieve here. However, this is happening. Appointments for Shannon and Dublin have already been made and the Senator can see the quality of the persons appointed. Appointments will be made for Cork shortly and we will have similar quality persons there.

The amendment seeks that we consult local development associations and chambers of commerce. I did that in appointing the two designate boards. If we put the requirement to consult chambers of commerce into the legislation, it makes it too prescriptive. If we make that requirement we might get letters from the IFA, the NRA and everybody else who also want to be included and the Bill would stretch on for about 40 sections. It is better not to get into naming associations in legislation of this sort. However, I reassure the Senator that I have taken, and will continue to take, account of the opinions of regional and local development associations and chambers of commerce.

Derek McDowell (Labour)
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I am satisfied with the assurances given by the Minister.

Brendan Daly (Fianna Fail)
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Section 9 (11) relates to the appointment of a chief executive by the boards. In Shannon, and I presume the same is true for Cork, there is already a director who is the equivalent of a chief executive. Will the Minister clarify how the position of the person who is currently the director or chief executive of Shannon will be affected by the appointed of the chief executive of the new board? Will we have a situation where we have a former chief executive, regarded as a director, superseded by a new chief executive appointed by the board? What will happen in this situation given the undertakings given that staff and the people involved will not be discommoded by the new arrangement? I would like clarification from the Minister on this matter.

There is also detail in the Schedule relating to the appointment of the chief executive. In the Schedule the new chief executive can be removed by the directors, without the consent of the Minister. This is quite severe as we all know there have been problems with chief executives from time to time. Under the Schedule the chief executive would be ex officio a member of the new board. What relationship will there be between him and the existing director whom I regard as the chief executive? Will we have chief executive I and chief executive II?

Timmy Dooley (Fianna Fail)
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I support Senator Daly on this matter which I have discussed with him at some length. The concern is that whereas the Bill sets out clearly the capacity for the board to appoint a chief executive, there is somebody currently acting in that capacity. While the person does not have that title, he certainly acts in that capacity in the absence of autonomy being established.

While I recognise the legislation sets out the capacity of the board to appoint a chief executive and that there appears to be nothing in the legislation precluding the current director applying for that job, I am not sure if this is strong enough to maintain and protect the level of commitment and service the current director, Mr. Martin Moroney, has given to the company over a long period. The current director at Shannon Airport was previously the director of Aer Rianta International. The current strength of the company is due to his great level of skill, energy and entrepreneurship. It would be unfortunate if, as a result of the restructuring and the new board's powers, his role was not recognised or taken on board. I hope the Minister can clarify and give some comfort to Senator Daly and me in this regard. Mr. Martin Moroney is an integral part of the company and its future.

Mary O'Rourke (Fianna Fail)
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Will the Minister also clarify the position of the woman acting in the capacity of chief executive at Dublin Airport who has the title "acting chief executive"? The Bill states that employees' conditions will not be worsened and they will not be materially affected when it is enacted. On that basis, I presume that both incumbent chief executives at Shannon and Dublin Airports will not find their position materially affected by this Bill.

Séamus Brennan (Dublin South, Fianna Fail)
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These are legitimate concerns. Through this legislation, the Government and I have no intention of interfering with the careers of the fine chief executives and directors at Cork, Shannon or Dublin Airports. There are a number of protections in the Bill which ensure this. Section 9(11) states:

Prior to their respective appointed days, a Chief Executive may be appointed to Cork Airport Authority and to Shannon Airport Authority by such directors appointed under subsections (8) and (9) (if any) and section 29 (inserted by paragraph 14 of the Schedule) of the Act of 1998 applies to such appointments.

The legislation does not intend to discommode the leaders of these airports who I hold in the highest regard. At the same time the plcs must be free to make chief executive appointments, which is envisaged in the legislation.

Section 12(12), negotiated in detail with the trade unions, gives the statutory guarantee that no employee of the company can be brought to lesser terms and conditions or services of remuneration than they have currently. In the case of the chief executive of Dublin Airport, I am informed that the terms and conditions have yet to be signed under the 1998 Act. I agree with Senators that the best security and consideration should be given to the three persons who have led the three airports for so long and so well. They have my confidence and admiration. The legislation seeks to protect them and ensure they will not do worse when the Bill is enacted. However, some freedom must be given to the boards to officially appoint chief executives. I will be helpful as I can to ensure the best agreement is reached between all parties concerned.

Mary O'Rourke (Fianna Fail)
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A situation may arise where acting executives will be appointed to the three airport authorities. If the current incumbents are not to be materially affected, then there would be two people with the same status in the same airport.

Timmy Dooley (Fianna Fail)
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The issue of members of a board or chairmen taking on a quasi-executive role within State companies has bedevilled some of them in the past. How can it be ensured that such a negative impact does not arise with the three airport boards? Such scenarios also happen in the private sector. Recently, Independent Newspapers and Media had to come into line with best practice in ensuring the role of chief executive was separate from that of chairman of the board. A former Member, Dr. Brian Hillery, now holds the position of non-executive chairman of Independent News and Media. Maintaining a separation between the board and the chief executive, where defined roles are in place with no cross-approaches occurring, is critical. How does the Minister view the separation of roles between the board and the executive management?

Brendan Daly (Fianna Fail)
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No representations have been made to me by any of the people involved.

Mary O'Rourke (Fianna Fail)
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Nor me. I simply want to see common justice prevail.

Brendan Daly (Fianna Fail)
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I am raising this because of a possible flaw in the legislation. I noted another flaw in the Schedule which allows the board to appoint and dispense with executives without any consultation with the Minister for Transport. Two problems may arise from this. First, the new chief executive could be given terms and conditions much more favourable than the present chief executive. Second, a board can remove an appointment within a week. No State company board should have that authority without having to consult the relevant Minister. If terms and conditions of employment must be approved by the Ministers for Transport and Finance, it is, therefore, reasonable that the Minister should have the power of involvement when a chief executive is dismissed.

Séamus Brennan (Dublin South, Fianna Fail)
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The directors at Cork and Shannon Airports are direct employees in the sense of being directors rather than chief executives. Boards will have to have the freedom to appoint chief executives. I am taking on board what has been said by Senators and I will make it clear to the boards concerned that they must deal with these issues justly and fairly. The position at Dublin Airport is technically an acting chief executive. Terms and conditions have not been approved yet and the Dublin Airport authority will be required to conduct an open competition. I will convey the strong feelings of the House for absolute fairness and justice to the company. I agree with the spirit of what has been said.

Derek McDowell (Labour)
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I move amendment No. 33:

In page 13, subsection (1), line 30, to delete "The" and substitute "After the respective appointed days the".

The amendment relates to the issuing of share capital. It intends to clarify that the share capital will not be issued until such time as the Cork and Shannon authorities are up and running. I have never understood how Departments decide on how much share capital to issue in a share company, particularly when the Minister for Finance is the sole shareholder in the company. It has never been clear to me why it was decided that 38,000 shares should be issued. I assume it could be of relevance if there were to be any disposal or part disposal of shares in the future. It might also be important if an ESOT of some kind were to be formed within the company. Perhaps those who decided on this number thought of those issues but, if not, perhaps the Minister could explain the thinking behind it because I have never understood it.

Séamus Brennan (Dublin South, Fianna Fail)
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Amendment No. 33 would amend section 10(1) to specify the authorised share capital after the appointed day. This amendment is not in line with the approach of the Bill generally. Sections 6 and 10 are inter-linked. Section 6(2) and (3) provide that, after the passing of the Act, the Minister shall, following consultation with the Minister for Finance, form two public limited companies, namely Cork Airport authority and Shannon Airport authority. These companies are to be formed before the Cork and Shannon appointed days and will be responsible for undertaking the business planning in Cork and Shannon, and the other matters we discussed. The share capital requirements of the companies must be met as soon as the companies are formed, not after their appointed days. That is the latest position.

As public limited companies, Cork and Shannon will require a minimum issued share capital. Provision is made elsewhere in the Bill for the issue of further shares by these authorities to the Minister for Finance, after the appointed day for each authority. That share issue will reflect the transfer of assets. Section 10 includes standard provisions for the share capital of public limited companies established under statute. The proposed amendment is not consistent with the policy underlining the Bill, namely that the Cork and Shannon Airport authorities will be established as soon as possible after the passing of the Bill and will be responsible for business planning and the other functions provided for in section 8, in advance of the appointed days. Companies legislation uses the figure of 38,100 to cover minimum share capital. I am not sure who calculated it.

Derek McDowell (Labour)
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Is there any intention, or discussion under way, to create an ESOT within the new companies?

Séamus Brennan (Dublin South, Fianna Fail)
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No.

Derek McDowell (Labour)
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Has the issue arisen?

Séamus Brennan (Dublin South, Fianna Fail)
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No, and I have no proposals in that regard.

Kathleen O'Meara (Labour)
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Amendments Nos. 34 to 36, inclusive, are related and will be taken together by agreement.

Derek McDowell (Labour)
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I move amendment No. 34:

In page 14, subsection (1), line 30, to delete "Each" and substitute "After the relevant appointed days each".

This concerns a similar issue, namely to clarify the position of staff. The Minister has made clear that, in effect, the staff will be working to the interim boards of the new companies between now and next April. When exactly will the new companies appoint staff? This is relevant to the guarantees given to the existing staff in section 12. At what point do people working for Aer Rianta start working to the new companies?

Séamus Brennan (Dublin South, Fianna Fail)
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The general approach to staffing issues in section 12 is to provide for the standard enabling powers regarding the appointment of staff including some minor powers to hire staff to be given to Cork and Shannon before the appointed days, combined with a range of specific provisions covering the transfer of staff to Cork and Shannon after the appointed days, and the future terms and conditions of staff at all three airports. Section 12 was discussed extensively with trade union representatives, and was debated during the passage of the Bill through Dáil. Arising from these discussions, additional provisions have been included, and amendments made, to address the concerns raised. The Minister has therefore made every possible effort to address these in a reasonable and balanced way. Section 12, as it now reads, provides very adequately for the position of staff at the airports.

Amendments Nos. 34 and 35 concern enabling provisions at subsections (1) to (3), inclusive, each of which gives to the airports the power to appoint staff as they see fit. These are standard provisions covering the appointment of staff. The effect of the proposed amendments would be that the authorities could not appoint staff in their own right until after the relevant appointed day. In the case of Dublin this is unnecessary as the Dublin Airport authority will be established only on the Dublin appointed day and, therefore, this provision will be effective only from that day. In the cases of Cork and Shannon, however, it is considered appropriate that these companies have the power to take on at least a few staff during the transitional phase. It is expected that in considering such appointments and their terms and conditions, the authorities will have careful regard to their remit during this transition period.

Amendment No. 35 is not necessary as the wording is sufficiently clear. As regards amendment No. 36, section 12(6) is designed to provide a workable mechanism for addressing any disputes which may arise regarding the allocation of staff. The subsection allows for consultation with recognised trade unions and staff associations and it is envisaged that these consultations would have a bearing on the final decision made by the Dublin Airport authority. The subsection also includes the added safeguard of allowing the Minister to set criteria to be applied in resolving a dispute. In requiring the agreement of the trade unions and staff associations before staff could be designated, the substitute section could be very difficult to operate in practice with a possibility of protracted and open-ended disputes.

Derek McDowell (Labour)
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I am still unclear as to the position of staff recruited between now and the appointed days. Are they to be considered residual Aer Rianta staff who will get the benefit of the protections set out in section 12?

Séamus Brennan (Dublin South, Fianna Fail)
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That is a very detailed question, the response to which I must check carefully. Anybody who works for Aer Rianta remains there with the newly named Dublin authority until the changeover date, 30 April 2005, at the earliest. Then, subject to all the checks and balances built in, including the agreement of the Oireachtas, staff would transfer. There will be no staff transfers before 30 April 2005 at the earliest and then only after the checks and balances have been observed, if that is the will of the House, and the relevant Ministers are satisfied. I assume those conditions will cover staff taken on in the ordinary way. If the Senator permits me to double-check that, I will respond to him. I assume that would be the case.

Derek McDowell (Labour)
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The Minister said relatively few would be taken on in the interim. It would be of some importance to those individuals to know where they stand. The Minister also said they would in effect be employed by the interim boards and therefore, presumably, not form part of the staff at Dublin Airport authority and not explicitly get the benefit of the statutory guarantees here. It is important for anyone employed between now and next April to know that he or she is working in a grade comparable to those who already work with the company.

Séamus Brennan (Dublin South, Fianna Fail)
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There is a significant difference between temporary, seasonal and permanent staff and that distinction will remain. Temporary staff will not be covered.

Derek McDowell (Labour)
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I understand that. Will people employed when these companies are set up, and next April or whenever the appointed day comes, be considered employees of Dublin Airport authority, then to be transferred to each of the three companies and enjoy the benefits of section 12(6) or 12(7)?

Séamus Brennan (Dublin South, Fianna Fail)
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Subject to checking, if they are taken on in a permanent capacity, they will transfer to the authority of the airport to which they are assigned. That must be negotiated. If one is taken on in Shannon Airport tomorrow as permanent staff under all the normal trade union consultative arrangements, I assume one is then a member of the staff at that airport and whatever the legislation says about staff at that time must be worked through. In other words, one will transfer to the Shannon Airport authority after the end of April 2005.

Timmy Dooley (Fianna Fail)
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I compliment the Minister on this section because the shared services section in Aer Rianta employs many staff in the Shannon area and it is important that it be handled carefully. I would be concerned if there was any effort to transfer people from Shannon to Dublin. I know many of the staff members who live in the region and have mortgages and families there. We need flexibility and I am delighted to see that the decision will be taken in consultation with the unions and the worker-directors and the people concerned for the best interests of the staff. I welcome the provision for the Minister to set criteria because broad criteria may be needed, to include more than simply the business elements. Flexible criteria are required to accommodate people living in the area who have mortgages and young families. It would be inconsiderate to transfer them from Shannon to Cork or Dublin.

Derek McDowell (Labour)
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The issue I raised has not been resolved. I was confused by the Minister's initial response that it is appropriate for the interim boards to have the power to hire between now and the appointed day. This implies that those hired would be in limbo and not employees of Dublin Airport authority which has guarantees under the provisions of the Bill. As employees of the interim board, they would be in an in-between situation. In that instance, they might not have a guarantee that their conditions would be maintained. I would be happy if the Minister would put it on the record that the conditions of people employed by the interim boards will be maintained after the appointed date.

Séamus Brennan (Dublin South, Fianna Fail)
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I am trying to give the Senator clarity on this matter. Aer Rianta personnel who remain in Dublin or transfer to Cork and Shannon are covered under section 12(9) and section 12(12) which reassure them their terms and conditions will not be lessened.

I am informed that personnel of Cork, Shannon and Dublin authorities who are recruited directly will not be covered under section 12(9) and section 12(12). However, I will get further clarification on this matter before we conclude.

Fergal Browne (Fine Gael)
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I move amendment No. 37:

In page 15, between lines 38 and 39, to insert the following subsection:

"(9) Any superannuation benefits awarded to or in respect of a person who was assigned or transferred to Aer Rianta from the Department of Transport and Power under Office Notice 4/68 and the terms and conditions relating to those benefits shall not be less reasonable than the entitlements existing immediately before accepting Aer Rianta conditions of employment.".

When Aer Rianta was established in 1968 the Department at that time was the Department of Transport and Power. Some people transferred from that Department to Aer Rianta. Aer Rianta assumed responsibility for the management of Shannon and Cork Airports on 1 April 1969, but negotiations relating to the acceptance of Aer Rianta conditions took years to conclude. This is in compliance with the term of notice 4/68. The majority of staff signed up to Aer Rianta in 1973 and 1974. In the meantime Civil Service pension conditions were revised and approved in January 1972. Therefore, it is important the proposed amendment takes account of the matter. A small number of people are out of pocket by €5,000 to €10,000 in their pension as a result. Can the Minister clarify how many people are affected and the amount of money in terms of pensions? Can the position be rectified without this amendment being pressed? As Senator White mentioned the then Minister of Transport and Power, Mr. Childers, was involved in——

Mary White (Fianna Fail)
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I was referring to 1957 and the Minister for Finance, Mr. MacEntee.

Fergal Browne (Fine Gael)
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Erskine Childers was involved in the negotiations at that time.

Mary White (Fianna Fail)
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I am correct.

Fergal Browne (Fine Gael)
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That is usual. It is interesting to note that people who transferred to Aer Rianta were given a pension that was one eightieth of their retiring salary for each year of service and a lump sum of one thirtieth of retiring salary for each year of service. Things have changed.

Brendan Daly (Fianna Fail)
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I raised this issue on Second Stage. Similar representations were made to me regarding the small number of personnel who transferred from the former Department of Transport and Power to Aer Rianta in 1969. They feel that as a result of this legislation their pensions will decrease by the amounts mentioned. It will also affect widows and other pensioners. Perhaps the Minister would clarify the position as it is a cause for concern.

Mary White (Fianna Fail)
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As all comments are recorded, I would like to clarify the comments I made yesterday. In 1937 the Minister for Finance was Mr. Seán MacEntee and the Minister for Industry and Commerce was Mr. Seán Lemass. Senator Browne misunderstood the era to which I referred.

Kathleen O'Meara (Labour)
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The Senator should confine her comments to the section.

Mary White (Fianna Fail)
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Those Ministers had a passion for this State and a vision for an airport authority and a national airline.

Séamus Brennan (Dublin South, Fianna Fail)
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I thank the Senators for moving this amendment. Senator Daly raised the matter on Second Stage yesterday and has pressed the point with me on many occasions. I considered the issue overnight and I understand that a representative of a small group of Aer Rianta pensioners who transferred to the company from the Civil Service in the early 1970s wrote to the Secretary General of the Department of Transport highlighting an anomaly in their pension scheme. Departmental officials examined the issue and concluded that a change to these pension provisions was not required. However, I am not opposed to officials re-examining the issue. As it has been raised on Committee Stage I will urgently look into the matter to see how the Department can be of help. The issue has no connection with the proposed legislation.

Fergal Browne (Fine Gael)
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I am willing to withdraw the amendment if the Minister guarantees to return to the issue raised by myself and Senator Daly.

Séamus Brennan (Dublin South, Fianna Fail)
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I will return to the issue and contact both Senators on the matter.

Kathleen O'Meara (Labour)
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We will discuss amendments Nos. 38, and 39 to 44, inclusive, together.

Derek McDowell (Labour)
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I move amendment No. 38:

In page 15, lines 39 to 45, to delete subsection (9) and substitute the following:

"(9) Save in accordance with a collective agreement negotiated with any recognised trade union or staff association concerned, a person in the employment of Aer Rianta, before the Dublin appointed day or who is transferred to the Shannon or Cork Airport Authorities on the relevant appointed day, shall be brought to no less beneficial conditions of service or remuneration (including conditions in relation to tenure of office) than the conditions of service or remuneration (including conditions in relation to tenure of office) to which he or she was subject immediately before the relevant appointed day.".

The amendments relate to section 12 which deals with the existing workforce's terms of conditions of employment. There is a need to clarify the nature of consultation and negotiation with the trade unions. The terms and conditions of employment of existing workers are guaranteed. Are they guaranteed ad infinitum or until such time as there is agreement with the trade unions to change them? As it stands, it is intended that the boards will meet with the trade unions within a short period of time to renegotiate the terms and conditions of employment of the existing workforce. Subsection (12) specifically requires consultation with regard to terms and conditions of employment for a period of six months following the enactment of the Bill. Three of the proposed amendments seek to tighten this provision and require that the negotiation period is extended six months from the appointed day, namely the date on which staff are transferred. The amendments seek to ensure there will be a requirement of agreement with the trade unions before new terms and conditions of employment are established, rather than just providing for consultation with the trade unions which could be perfunctory. It is not clear what will happen should the parties fail to reach agreement within the required six-month period. Will the power to set conditions revert to management? I assume it will. In that instance, is management bound by a guarantee given in an earlier subsection that they cannot worsen the conditions of employment of individual workers? If management is not bound by that guarantee, then the guarantee is only effective for six months. That is not worth a great deal.

Fergal Browne (Fine Gael)
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Fine Gael is concerned about this section of the Bill, and we have tabled amendment No. 43 to counteract it. We feel there is a mistake in the Bill and the amendment reads "In page 16, subsection (12), line 31, to delete "(4)" and substitute "(3)"." The main difficulty is that subsection (4) deals with worker-directors while subsection (3) deals with the pay and conditions of the chief executive. This is a technical mistake in the Bill. We have received legal advice to the effect that the Bill is fundamentally flawed and is in conflict with the Air Navigation and Transport (Amendment) Act 1998 and requires amendment. We will push this to a vote because there is a flaw in the Bill.

Séamus Brennan (Dublin South, Fianna Fail)
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Subsection (9) referred to by Senator McDowell has been very carefully crafted after extensive discussions with trade unions. Every word was carefully negotiated through a number of long nights. I am satisfied it is balanced in guaranteeing that staff will not be brought to any less beneficial conditions of service or remuneration, including conditions in regard to tenure of office, than those to which they were subject immediately before the relevant appointed date. That section gives substantial protection to staff.

Amendment No. 43 is not necessary because the drafting in section 12(12) is in order. The reference to section 29(4) of the 1998 Act is correct as this refers to the position before "the Dublin appointed day". The new text of section 29, as inserted by paragraph 14 of the Schedule, only applies after that day so, therefore, that matter is correct. Overall, section 12 is designed to give maximum protection to existing workers at our three State airports. If the Seanad agrees, they will now have a statutory undertaking that they cannot do worse than they are currently doing. Many of us around here would love to have that guarantee.

Derek McDowell (Labour)
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I am still not quite clear that the guarantee set out in section 12(9) is as solid as the Minister clearly believes it is. The subsection states: "Save in accordance with a collective agreement negotiated with any recognised trade union." It then goes on to state that the conditions of workers will be no worse than they had been. However, section 12(11) states that without prejudice to subsection (9) the form of any new collective agreement shall be the subject of discussion for a period of not more than six months. What it does not say is what happens in the event that there is no agreement within that period of six months. It appears to envisage that there will be agreement on new terms and conditions within six months, but that is by no means a given. Neither is it clear whether the guarantee is only good for six months. It is possible to infer that, having sat down with the trade unions for six months and having failed to reach agreement, management would take back the power to establish the terms and conditions. That may not be governed by subsection (9) which on the face of it appears to give guarantees.

Brian Hayes (Fine Gael)
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On the Minister's response to amendment No. 43 and the issue raised yesterday in the drafting section, whether it is before the commencement day is not the issue. The issue is a direct reference to the Air Navigation and Transport (Amendment) Act 1998. A clear mistake has been made. With respect to the Minister, he has explained away the drafting mistake in terms of whether it is before the day or after the day but that is not the point.

This is not a major issue but it is clear that if there is a reference to the role of the chief executives of each of these companies, it needs to be correct. One of the few tasks we have in this House is to ensure that where legislation is passed, it is not flawed. The advice given to our party on the matter was clear; there is a drafting error. Yesterday the Minister said that having consulted his own legal advisers in the Department of Transport and the Attorney General's office, he was satisfied there is not a problem. However, it is clear that the reference is incorrect and I do not see why the Minister has a difficulty in amending it now. The difficulty probably relates to the fact that it would have to go back to the other House for approval and the Bill would not be passed until such time as the other House would ratify the amendment. We have a duty to ensure that when we pass Bills they are accurate. The Minister's explanation is not on the ball. It does not refer to the substance of Senator Browne's amendment. There is a role for the Parliamentary Counsel in this legislation. The House cannot pass Bills that are defective, even if the defect is relatively insignificant.

Mary O'Rourke (Fianna Fail)
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I have been waiting to contribute on this matter which was highlighted in newspapers yesterday. Following from that I telephoned Ms Lane, the Clerk of the Seanad, who advised me to telephone the Office of the Attorney General. In the course of my investigations I learned yesterday that Matheson Ormsby Prentice had drafted the Bill. A Minister is entitled to bring a Bill to an outside body, although it is very rarely done and I never did so. In pursuit of his duty, the Attorney General must stamp each Bill which comes before Cabinet and he duly stamped the Bill at a late stage. I am also of the belief that this is a clear error. That is not to cast any slight upon Matheson Ormsby Prentice; its workers are not draftsmen from the office of the Chief Parliamentary Counsel but an outside firm of solicitors. We want this point to be publicised.

It is clear there is a deficiency and I say this in sadness rather than anger. This bears out what I said yesterday about the legislation being deficient and faulty, although no doubt we will all be drummed into the lobbies to support it. One of the scant duties we have is to scrutinise legislation. It gives me no joy to say that the legislation is deficient and faulty in section 12(12). The cross reference is to the 1998 Act which I introduced. I took out the Act and studied it this morning to check the reference. It is a drafting error by the well-known firm, Matheson Ormsby Prentice, which I am sure it would accept. I did not contact the firm because that is not my job but I will when the Bill is passed. This error makes the legislation both deficient and faulty.

I know a lot about the Minister, Deputy Brennan, and he knows a lot about me. We could each make known a great deal of information about each other and that would go on for ever, although not in my case. Anyway, we will see. We have all of that in common. A fault can occur in any Bill. Even draftsmen of the greatest experience can make a drafting fault. There is a difficulty in that we are not empowered because the Minister must go back to the Dáil. I would like him to listen to this point, please. If we know there is a drafting error and the Minister does not want to go back to the Dáil, where does that leave us? If the staff of Departments and other offices to which I have referred, some of whom I have spoken to, know in their heart of hearts that the error which has been discovered is a genuine drafting error, is it not better to leave it?

We should be satisfied that we have a proper Bill. If one is a "not-content", as they say in the House of Lords, is it not better that the particular drafting error should be addressed now, rather than the Bill being challenged after it has been passed by the House? I repeat that the legislation is deficient and faulty. As Leader of the House, I have a right to point that out.

Fergal Browne (Fine Gael)
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When I give talks in schools, I am often asked what the Seanad is about. I respond by saying that it is a safety net if things go wrong. I point out that some countries have just one parliamentary chamber, which can be good or bad, and I argue that we have two Houses of Parliament, so that if a faulty Bill is passed by the Dáil we can amend it. Similarly, if a faulty Bill is passed by the Seanad, Deputies can amend it. This is a classic case of a small issue — it is simply a question of deleting "(4)" and replacing it with "(3)".

Brian Hayes (Fine Gael)
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That is right.

Fergal Browne (Fine Gael)
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It will save the Minister time and effort in the long run. I appreciate there are difficulties regarding the summer recess, but I presume they can be overcome by arranging a quick recall of the Dáil. Perhaps the change can be made by the transport committee.

Mary O'Rourke (Fianna Fail)
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No.

Fergal Browne (Fine Gael)
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Perhaps not.

Mary O'Rourke (Fianna Fail)
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The Senator should not say that to his pupils.

Mary White (Fianna Fail)
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I would not go to that place.

Timmy Dooley (Fianna Fail)
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We are not that well paid.

Mary White (Fianna Fail)
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We should not go to that place — they get the story wrong.

Fergal Browne (Fine Gael)
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I am sure the Dáil can be recalled, with the full co-operation of all concerned, for a quick meeting to ratify any amendments to the Bill, thereby ensuring that Aer Rianta will be able to proceed on 1 September. If such measures are not taken, the Bill might be the subject of a court case and Aer Rianta might have severe difficulties on 1 September.

Mary O'Rourke (Fianna Fail)
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The Bill will be challenged.

Fergal Browne (Fine Gael)
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If the Minister accepts amendment No. 43, he will save a great deal of effort and work in the long run.

Séamus Brennan (Dublin South, Fianna Fail)
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I fully acknowledge, as always, the rights and duties of Senators in pointing out what they regard as flaws in legislation.

I wish to state, in the strongest possible terms, that there is no flaw in section 12(12). Senator Browne's amendment No. 43 is not necessary. Section 12(12) was added to the Bill on Report Stage in the Dáil to address concerns that the legislation should explicitly provide that employees who continue to work at Dublin Airport "after the Dublin appointed day, shall not, while in the service of Dublin Airport Authority, be brought to less beneficial conditions" and terms, except by way of a collective agreement.

For the purposes of clarity, section 12(12) also states that "in the case of the person carrying out the duties of the Chief Executive of Aer Rianta" — such a person is also an employee, of course — the terms and conditions applicable before the Dublin appointed day "must be determined in accordance with section 29(4) of the Act of 1998", which is the relevant statutory provision.

The Schedule to the Bill amends the Air Navigation and Transport (Amendment) Act 1998 with effect from the Dublin appointed day. Accordingly, the reference to section 29(4) of the 1998 Act in section 12(12) of the Bill is correct. The reference to section 29(3) is only applicable after the Dublin appointed day.

Section 13(8) makes clear that when the Dublin Airport authority is appointing a chief executive officer following an open public competition, it must do so in accordance with section 29 of the 1998 Act, as amended by the Schedule to this Bill. That will take place after the Dublin appointed day.

I wish to state clearly that the Office of the Chief Parliamentary Counsel, the Office of the Attorney General and our outside legal advisors deliberately drafted section 12(12) in this way. There is no question of going back to spot an error, or suddenly having to amend the section. The wording of the section is the result of deliberate drafting on the part of the Office of the Chief Parliamentary Counsel, the Office of the Attorney General and our outside advisors, all of whom concur exactly with what I am saying here. There is no flaw whatsoever in section 12(12) that needs to be amended in the manner proposed in amendment No. 43. That is included in the stamped copy of the Bill provided to me by the Office of the Attorney General, the Office of the Chief Parliamentary Counsel and our outside advisers.

I acknowledge fully the rights and duties of Senators in indicating where they believe problems may exist. My job is to explain the situation.

Brian Hayes (Fine Gael)
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The Minister stayed close to his script in giving an explanation that was convoluted, to say the least. If this matter comes before a court, I do not doubt that the judge will simply refer to the last line of section 12(12). He or she will find that a mistake has been made, but there is no unintended mistake in that. It is beyond me to understand why the Minister has chosen not to amend section 12(12) at this stage, especially given the clear mistake and omission in the last sentence of the section. The section in question has been referred to by many Senators on all sides of the House.

The problem was highlighted yesterday by the Leader of the House, who said that the legislation is "rushed". One glitch has been spotted now, but how many other glitches are in the Bill? The Minister might consider that it is ultimately a matter for the courts to decide at some time in the future. It may be that another Minister is responsible for the issue at that time because there will be a Cabinet reshuffle after the summer. It is not good enough that the Minister has not conceded the point that has been made by Senators on all sides of the House and amended the legislation accordingly.

Derek McDowell (Labour)
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We have diverged somewhat.

Mary O'Rourke (Fianna Fail)
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Yes.

Derek McDowell (Labour)
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Two net issues are being discussed here. The first issue, which I was attempting to highlight, is the question of whether the guarantee in section 12(9) will survive a failure to come to an agreement after a six-month consultation period. We did not really clarify that matter, as we diverted into the other issue.

Séamus Brennan (Dublin South, Fianna Fail)
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I meant to come back to that. Section 12(9) includes a guarantee that a person cannot "be brought to less beneficial conditions of service" or employment, "save in accordance with a collective agreement negotiated with any recognised trade union". Section 12(11) provides for negotiations for a period "of not more than 6 months from the passing of this Act". The best way to explain it is to say that there will not be a diminution of terms and conditions unless there is a collective agreement. The Bill provides for a period of six months for such an agreement to be reached. Section 12(11) establishes in legislation the principle of collective bargaining, which was sought during the negotiations on the Bill with the trade union movement. The words on which we should focus are "save in accordance with a collective agreement". The employees in question cannot be worse off in the absence of such an agreement. I presume that any agreement worth its salt will make employees better off, rather than worse off.

Fergal Browne (Fine Gael)
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I move amendment No. 43:

In page 16, subsection (12), line 31, to delete "(4)" and substitute "(3)".

Rory Kiely (Fianna Fail)
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In accordance with the Order of Business, as amended, and as it is now after 2 p.m., I am required to put the following question: "In respect of each of the sections not disposed of the sections are hereby agreed to, the Schedule is hereby agreed to, the Title is hereby agreed to and the Bill is accordingly reported to the House without amendment."

I wish to point out that the time for this vote will be short. The bell will ring for two minutes and the voting will take place two minutes after that.

Rory Kiely (Fianna Fail)
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When is proposed to take Report Stage?

Mary O'Rourke (Fianna Fail)
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Report and Final Stages will be taken at 3 p.m.