Public Service Management (Recruitment and Appointments) (Amendment) Act 2013

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Number 47 of 2013

PUBLIC SERVICE MANAGEMENT (RECRUITMENT AND APPOINTMENTS) (AMENDMENT) ACT 2013

ARRANGEMENT OF SECTIONS

Section

1. Definition.

2. Amendment of section 2 of Principal Act.

3. Amendment of section 7 of Principal Act.

4. Amendment of section 8 of Principal Act.

5. Insertion of new section 34A in Principal Act.

6. Insertion of Part 6A in Principal Act.

7. Insertion of Part 7A in Principal Act.

8. Amendment of Part 1 of Schedule 2 to Principal Act.

9. Insertion of additional Schedule in Principal Act.

10. Short title.

SCHEDULE

Insertion of a Schedule 3 in Principal Act

Acts Referred to

Number 47 of 2013

PUBLIC SERVICE MANAGEMENT (RECRUITMENT AND APPOINTMENTS) (AMENDMENT) ACT 2013

AN ACT TO ENABLE THE REDEPLOYMENT OF MEMBERS OF STAFF IN THE CIVIL SERVICE AND CERTAIN OTHER SECTORS OF THE PUBLIC SERVICE TO OTHER POSITIONS IN THE PUBLIC SERVICE (WHETHER THE CIVIL SERVICE OR OTHER FOREGOING SECTORS); TO PROVIDE FOR REGULATIONS CONCERNING SICK LEAVE IN THE PUBLIC SERVICE; FOR THAT PURPOSE TO AMEND THE PUBLIC SERVICE MANAGEMENT (RECRUITMENT AND APPOINTMENTS) ACT 2004, AND TO PROVIDE FOR RELATED MATTERS.

[24th December, 2013]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

Definition.

1.— In this Act “Principal Act” means the Public Service Management (Recruitment and Appointments) Act 2004 .

Amendment of section 2 of Principal Act.

2.— Section 2(1) of the Principal Act is amended—

(a) in the definition of “appointment”, by inserting “but does not include redeployment pursuant to Part 6A” after “section 6”,

(b) by substituting the following for the definition of “public service body”:

“ ‘public service body’ means, other than for the purposes of Parts 6A and 7A—

(a) the Civil Service,

(b) the Garda Síochána,

(c) a local authority within the meaning of the Local Government Act 2001 ,

(d) the Health Service Executive,

(e) an education and training board, and

(f) such other body or bodies as may be prescribed by the Minister by order under section 6 in accordance with that section,

and reference to ‘public service’ shall be read accordingly;”,

(c) by inserting the following after the definition of “officer of the Houses of the Oireachtas”:

“ ‘pre-existing public service pension scheme’ has the meaning it has in section 5 of the Public Service Pensions (Single Scheme and Other Provisions) Act 2012 ;”,

and

(d) by inserting the following after the definition of“scheduled occupation”:

“ ‘Single Public Service Pension Scheme’ means the scheme established by Chapter 2 of Part 2 of the Public Service Pensions (Single Scheme and Other Provisions) Act 2012 ;

‘superannuation benefit’ has the meaning it has in section 1 of the Public Service Superannuation (Miscellaneous Provisions) Act 2004 ;”.

Amendment of section 7 of Principal Act.

3.— Section 7 of the Principal Act is amended—

(a) in subsection (2) by deleting paragraph (a), and

(b) by substituting the following for subsection (4):

“(4) Nothing in this section shall be read as affecting—

(a) the application of section 34(1)(i) to appointments to which this section applies, or

(b) the operation of Part 7A.”.

Amendment of section 8 of Principal Act.

4.— Section 8 of the Principal Act is amended—

(a) in subsection (2) by substituting “for the purposes of any provisions of this Act other than Parts 6A and 7A,” for “for the purposes of this Act,”, and

(b) in subsection (8) by substituting “for the purposes of any provisions of this Act other than Parts 6A and 7A” for “for the purposes of this Act”.

Insertion of new section 34A in Principal Act.

5.— The Principal Act is amended by inserting the following section after section 34:

“Additional functions of Public Appointments Service.

34A.— In addition to the functions set out in section 34, the Public Appointments Service shall have the functions set out in Part 6A.”.

Insertion of Part 6A in Principal Act.

6.— The Principal Act is amended by inserting the following Part after Part 6:

“PART 6A

Redeployment

Interpretation of Part and operation of designations under it.

57A.— (1) In this Part—

(a) ‘basic pay’ means, in relation to the person the subject of the designation concerned, the amount of the person’s pay or salary, by virtue of the position held in the public service body, by the person immediately before the redeployment day, other than amounts in respect of—

(i) specific work or a specific duty undertaken,

(ii) unsocial or atypical hours worked,

(iii) shift work,

(iv) piece work, or

(v) overtime;

(b) ‘employee’ includes an officer and the holder of a position;

(c) ‘public service body’ means—

(i) the Civil Service,

(ii) that category of persons referred to in section 30 (g) of the Defence Act 1954 , namely civilians employed thereunder by the Minister for Defence,

(iii) a local authority within the meaning of the Local Government Act 2001 ,

(iv) the Health Service Executive,

(v) an education and training board,

(vi) any other body (other than a body referred to in Schedule 3 (inserted by the Public Service Management (Recruitment and Appointments) (Amendment) Act 2013)) established—

(I) by or under an enactment (other than the Companies Acts), or

(II) under the Companies Acts in pursuance of powers conferred by or under another enactment, and financed wholly or partly by means of money provided, or loans made or guaranteed, by a Minister of the Government or the issue of shares held by or on behalf of a Minister of the Government,

in respect of which a pre-existing public service pension scheme exists or applies or may be made, or in respect of which the Single Public Service Pension Scheme is applicable,

(vii) any other body (other than a body referred to in Schedule 3) that is wholly or partly funded directly or indirectly out of monies provided by the Oireachtas or from the Central Fund or the growing produce of that Fund and in respect of which a pre-existing public service pension scheme exists or applies or may be made, or in respect of which the Single Public Service Pension Scheme is applicable,

(viii) any subsidiary of, or company controlled (within the meaning given by section 10 of the Taxes Consolidation Act 1997 ) by, a body to which subparagraph (iii), (iv), or (vi) relates and in respect of which a pre-existing public service pension scheme exists or applies or may be made, or in respect of which the Single Public Service Pension Scheme is applicable,

and reference to ‘public service’ shall be read accordingly;

(d) ‘recognised trade union or staff association’ means a trade union or staff association recognised by the Minister for the purposes of negotiations which are concerned with the remuneration or conditions of employment, or the working conditions of employees of public service bodies;

(e) ‘redeployment day’ shall be read in accordance with subsection (2); and

(f) a reference to a person’s being redeployed to a position is a reference to the appointment of the person to the position as provided for by subsection (2).

(2) The designation, pursuant to this Part, of an employee for his or her redeployment to a position in another public service body operates, from the date that is specified in the designation in that behalf (in this Act referred to as the ‘redeployment day’), to effect the appointment of the person (subject to and as provided for in this Part) to that position; and such an appointment shall be deemed to have been made by that public service body.

(3) The functions conferred on the Public Appointments Service by this Part are performable notwithstanding the provisions of any other enactment and, in particular, the fact that the person, the subject of a designation under section 57B, is an employee of a public service body by virtue of the exercise of powers conferred by any other enactment.

Power to designate certain staff for redeployment.

57B.— (1) The Public Appointments Service may designate an employee of a public service body for redeployment to a position in another public service body, being a position that is, in the opinion of the Public Appointments Service, comparable to the position held by the employee before the redeployment day.

(2) Where a person who is designated under subsection (1) holds a position by virtue of a contract that is one for a definite period, he or she shall, on the redeployment day, be redeployed to such position in the specified public service body for the period which remains unexpired under the contract.

(3) A designation under subsection (1) shall be in writing and shall specify a day to be the redeployment day.

(4) A designation under subsection (1) shall be to a position that has been approved by the Minister for the purpose before the making of the designation.

Terms and conditions of redeployment.

57C.— (1) Save—

(a) in accordance with a collective agreement negotiated with any recognised trade union or staff association concerned or an agreement negotiated with the person concerned, or

(b) as provided for by law,

the pay of a person, the subject of a designation under section 57B, shall not be less than the basic pay to which he or she was entitled immediately before the redeployment day.

(2) The previous service with a public service body of a person designated for redeployment under section 57B shall be reckonable for the purposes of, but subject to, any exceptions or exclusions in:

(a) the Redundancy Payments Acts 1967 to 2012;

(b) the Protection of Employees (Part-Time Work) Act 2001 ;

(c) the Protection of Employees (Fixed-Term Work) Act 2003 ;

(d) the Organisation of Working Time Act 1997 ;

(e) the Terms of Employment (Infor-mation) Acts 1994 to 2012;

(f) the Minimum Notice and Terms of Employment Acts 1973 to 2005;

(g) the Unfair Dismissals Acts 1977 to 2007;

(h) the Maternity Protection Acts 1994 and 2004;

(i) the Parental Leave Acts 1998 and 2006;

(j) the Adoptive Leave Acts 1995 and 2005; and

(k) the Carer’s Leave Act 2001 .

(3) The provisions of a superannuation scheme or arrangement that immediately before the redeployment day govern the conditions applicable to or in respect of a person designated for redeployment under section 57B shall—

(a) save in accordance with a collective agreement negotiated with any recognised trade union or staff association concerned, and

(b) subject to subsections (4) and (5),

continue to apply to or in respect of that person.

(4) Notwithstanding subsection (3), a provision of a superannuation scheme or arrangement or collective agreement referred to in subsection (3) shall only have effect for the purpose of that subsection if it has been approved either—

(a) by the Minister, or

(b) by another Minister of the Government with the consent or concurrence of the Minister.

(5) Notwithstanding subsection (3)—

(a) the age at which superannuation benefits are payable, and

(b) the rate to be applied in respect of the accrual of service,

in relation to service that occurs after the redeployment day shall be those applicable in respect of the position to which the person is designated for redeployment. Service that occurs before the redeployment day shall be reckonable in accordance with the terms of the policy for the time being of the Minister with regard to transfer of service arrangements.

(6) Where the provisions of a superannuation scheme or arrangement referred to in subsection (3) confer a power to exercise a discretion that power shall, on and after the redeployment day, be exercisable by the public service body to which the person concerned is redeployed, by the trustees of the superannuation scheme of that body, or by the Minister, as appropriate.

(7) Unless the Minister consents in writing to other arrangements, the pension payments and other superannuation liabilities in respect of a person redeployed following a designation under section 57B shall become, on the redeployment day, the liabilities of the superannuation scheme or arrangement of the public service body to which he or she is redeployed, and such a person shall become a member of the relevant superannuation scheme or arrangement of that body (which scheme or arrangement shall, in relation to that person, be deemed to stand amended in such respects as are necessary to take account of any conditions that apply to or in respect of that person by virtue of subsection (3)).

(8) If such is not the case immediately before the redeployment day, a person redeployed under section 57B to a position in the civil service shall, from that day, be subject to and employed in accordance with the Civil Service Regulation Acts 1956 to 2005 and the Ethics in Public Office Acts 1995 and 2001.

Matters to be considered.

57D.— When making a designation under section 57B, the Public Appointments Service shall have regard to the following:

(a) the competencies and qualifications of the public service employee concerned, or of the general class of employee to which he or she belongs, as well as those competencies and qualifications required for the position, or general class of position, in respect of which the designation is to be made;

(b) the basic pay of the public service employee immediately before the redeployment day and the pay applicable to the position in respect of which a designation is to be made;

(c) the terms of any policy for the time being of the Minister, and, in so far as not inconsistent with that policy, any collective agreement negotiated with any recognised trade union or staff association concerned, relating to mobility or redeployment of public service employees; and

(d) such other matters relating to the recruitment, assessment, selection and employment policies, procedures and practices of any relevant public service employer concerned as it considers necessary.

Exclusions.

57E.— (1) Without prejudice to subsection (2), this Part does not apply to the following:

(a) the President;

(b) a member of either House of the Oireachtas;

(c) a member of the European Parliament for a constituency in the State, being a member who is in receipt of the salary specified in section 2 (2) of the European Parliament (Irish Constituency Members) Act 2009 ;

(d) the holder of a qualifying office, within the meaning of section 13 (amended by section 11 of the Ministerial, Parliamentary and Judicial Offices and Oireachtas Members (Miscellaneous Provisions) Act 2001 ) of the Ministerial and Parliamentary Offices Act 1938 ;

(e) to the extent not otherwise provided by this subsection, an office holder within the meaning given to ‘office holder’ by section 2 of the Ethics in Public Office Act 1995 for the purposes of that Act;

(f) the position of special adviser within the meaning of section 19 of the Ethics in Public Office Act 1995 ;

(g) the position of an officer of the Houses of the Oireachtas;

(h) a position the appointment to which is made by the President;

(i) to the extent not otherwise provided by this subsection, an office holder under the Constitution;

(j) to the extent not otherwise provided by this subsection, a member of the Permanent Defence Force;

(k) to the extent not otherwise provided by this subsection, a member of the Garda Síochána;

(l) a position the appointment to which is made by the Government;

(m) to the extent not otherwise provided by this subsection, a position where—

(i) the appropriate authority (within the meaning of section 2 of the Civil Service Regulation Act 1956 ) with the consent of the Minister (where the Minister is not the appropriate authority) recommends the appointment of the person to that position, and

(ii) the Government, having considered such recommendation, decides that such appointment would be in the public interest;

(n) staff of the Central Bank of Ireland;

(o) staff of the National Treasury Management Agency;

(p) an Appeal Commissioner under section 850 of the Taxes Consolidation Act 1997 .

(2) The Minister may, having regard to the policy for the time being of the Government on the allocation of human and financial resources to different sectors of the public service, by order declare that this Part shall not apply to one or more public service bodies specified in the order and this Part shall accordingly not apply to the public service body or bodies specified in such an order that is in force.

Records.

57F.— (1) The public service body from which the person concerned is, or is proposed, to be redeployed shall, on being requested to do so by the Public Appointments Service, process personal data in relation to that person, and disclose them to the Public Appointments Service, where such processing and disclosure is reasonably necessary for the purpose of the exercise by the latter of its powers under this Part in relation to that person.

(2) The public service body from which the person concerned has been redeployed shall, on being requested to do so by the public service body to which that person has been redeployed, process personal data in relation to that person, and disclose them to the latter body, where such processing and disclosure is reasonably necessary for the purpose of—

(a) the exercise by the latter, as employer of him or her, of its powers in relation to that person, or

(b) the carrying out by the latter, as employer of him or her, of its duties in relation to that person.”.

Insertion of Part 7A in Principal Act.

7.— The Principal Act is amended by inserting the following Part after Part 7:

“PART 7A

SICK LEAVE REMUNERATION

Interpretation of Part.

58A.— (1) In this Part—

‘condition’ includes, if the Minister so determines and makes (whether in respect of the whole of a period claimed to be sick leave or portion of such a period) provision in that behalf in the regulations concerned, a condition that a medical practitioner of a class specified in the regulations certify in writing that the public servant concerned is unable to attend to his or her duties due to illness or injury;

‘public service body’ means—

(a) the Civil Service,

(b) that category of persons referred to in section 30 (g) of the Defence Act 1954 , namely civilians employed thereunder by the Minister for Defence,

(c) the Garda Síochána,

(d) a local authority within the meaning of the Local Government Act 2001 ,

(e) the Health Service Executive,

(f) an education and training board,

(g) to the extent not otherwise provided by this definition, any other body (other than a body referred to in Schedule 3 (inserted by the Public Service Management (Recruitment and Appointments) (Amendment) Act 2013)) established—

(i) by or under an enactment (other than the Companies Acts), or

(ii) under the Companies Acts in pursuance of powers conferred by or under another enactment, and financed wholly or partly by means of money provided, or loans made or guaranteed, by a Minister of the Government or the issue of shares held by or on behalf of a Minister of the Government,

in respect of which a pre-existing public service pension scheme exists or applies or may be made, or in respect of which the Single Public Service Pension Scheme is applicable,

(h) any other body (other than a body referred to in Schedule 3) that is wholly or partly funded directly or indirectly out of monies provided by the Oireachtas or from the Central Fund or the growing produce of that Fund and in respect of which a pre-existing public service pension scheme exists or applies or may be made, or in respect of which the Single Public Service Pension Scheme is applicable,

(i) any subsidiary of, or company controlled (within the meaning given by section 10 of the Taxes Consolidation Act 1997 ) by, a body to which paragraph (d), (e) or (g) relates and in respect of which a pre-existing public service pension scheme exists or applies or may be made;

‘public servant’ means—

(a) an employee or officer of, or the holder of a position in, a public service body,

(b) to the extent not otherwise provided by this definition, a person holding a position the appointment to which is made by the Government,

(c) an officer of the Houses of the Oireachtas,

(d) the Ombudsman, or

(e) the Comptroller and Auditor General;

‘relevant person’ means a public servant falling within a class of public servants specified in the regulations concerned;

‘sick leave’ means a case in which a public servant is unable to attend to his or her duties due to illness or injury.

Regulations concerning payment of remuneration during sick leave.

58B.— (1) Without prejudice to subsection (5) and subject to subsections (2) and (7), the Minister may make regulations providing for the payment of remuneration, in circumstances specified in the regulations and subject to such conditions as are specified therein, to a relevant person during a period of sick leave on his or her part, and that remuneration shall be (as the Minister determines and specifies in the regulations)—

(a) the whole amount of the remuneration that would otherwise accrue to the person,

(b) a percentage specified in the regulations of the whole amount referred to in paragraph (a), or

(c) in respect of an initial number of hours, days or weeks of sick leave on the part of that person occurring, in a given period, the whole amount referred to in paragraph (a) and then, in respect of a number of hours, days or weeks of sick leave on that person’s part (whether they are a continuation of the initial occurrence of sick leave in that period or are a separate occurrence of such leave in that period) a percentage specified in the regulations of that whole amount.

(2) Regulations under subsection (1) shall contain a provision that no remuneration shall be paid in respect of any part of a number of hours, days or weeks of sick leave (on the relevant person’s part) that exceeds a number, specified in the regulations, of hours, days or weeks of sick leave (on that person’s part) that may occur in a given period.

(3) Each of the references in subsection (1)(c) to a number of hours, days or weeks, and each reference in subsections (1) and (2) to a given period, is a reference to a number of hours, days or weeks or, as the case may be, a period that the Minister determines and specifies in the regulations for the purpose of the particular provision concerned.

(4) In making regulations under subsection (1), the Minister shall have regard to—

(a) the need to limit the circumstances in which the public service bodies can undertake the commitment of financial resources in making payments in cases in which they are unable to receive the benefit of the services of their public servants,

(b) the resources available, for the time being, to the Exchequer to pay the remuneration of public servants,

(c) without prejudice to paragraph (b), the obligations of the State under the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union done at Brussels on 2 March 2012,

(d) with respect to the specification of conditions for an entitlement to be paid remuneration during a period of sick leave, the desirability of having in place a satisfactory means of verifying that the public servant concerned is unable to attend to his or her duties due to illness or injury, and

(e) the need to protect the health of public servants,

whilst taking account of the desirability of there being a measure of provision, as appears to the Minister to be appropriate and just, for making payments to public servants who are unable to attend to their duties due to illness or injury.

(5) Regulations under subsection (1) may provide in exceptional cases (that is to say cases defined in the regulations by reference to the serious nature of an illness or injury that has occasioned a relevant person’s being on sick leave (which may extend, if the Minister considers appropriate, to the circumstances involving a period of the person’s rehabilitation following an illness or injury of that nature)) and notwithstanding the provision otherwise made by the regulations, for all or any of the following:

(a) that there may be paid to the person remuneration, in respect of the time of his or her sick leave, for a period longer than would otherwise be the case under the regulations;

(b) that there may be paid to the person remuneration, in respect of a particular period of the time of his or her sick leave, of an amount that is greater than the percentage (of the whole amount referred to in subsection (1)(a)) specified in the regulations under subsection (1)(b) or (c);

(c) that the provisions of the regulations shall operate subject to such other modifications as the Minister determines and specifies in the regulations, which may include provision—

(i) limiting the total period in respect of which, in a foregoing case, remuneration may be paid to a relevant person, or

(ii) conferring a power on a person specified in the regulations to determine, in a foregoing case, that after the lapse of a particular period of the time of a relevant person’s sick leave, no further remuneration shall be paid in respect thereof.

(6) Regulations under this section—

(a) may contain such incidental, supplementary or consequential provisions as the Minister considers appropriate, including provisions delegating to the public service body concerned the determination of any matter in respect of which the regulations provide that a determination shall be made, in particular a determination—

(i) as to whether an illness or injury is of a serious nature,

(ii) as to what is an appropriate period of rehabilitation in the circumstances concerned, and

(iii) as to what is satisfactory certification, in writing, by a medical practitioner of any relevant matter; and

(b) may—

(i) if the regulations apply in respect of more than one class of public servant, make different provision for the different classes of public servant to which the regulations apply, and

(ii) otherwise make different provision for different classes of case.

(7) Where, before the commencement of section 7 of the Public Service Management (Recruitment and Appointments) (Amendment) Act 2013, a period of sick leave, on a relevant person’s part, has begun and continues after the commencement of that section, the arrangements that were in existence before the commencement of that section in respect of the payment of remuneration to that person during his or her sick leave shall continue to apply in respect of so much of that period of sick leave as falls after that commencement and regulations under this section shall not apply to that person until such time as he or she is able again to attend to his or her duties.

(8) For the avoidance of doubt, nothing in this section prejudices the operation of the Social Welfare Acts or instruments made thereunder.

(9) Every regulation under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

Application of Part.

58C.— This Part has effect notwithstanding—

(a) any provision made by or under—

(i) any other Act,

(ii) any statute or other document to like effect of a university or other third level institution,

(iii) any circular or instrument or other document,

(iv) any written agreement or contractual arrangement,

or

(b) any verbal agreement, arrangement or understanding or any expectation.”.

Amendment of Part 1 of Schedule 2 to Principal Act.

8.— Schedule 2 to the Principal Act is amended in the third column of Part 1 by substituting “Section 11” for “Section 14” opposite the reference in the second column to the Aviation Regulation Act 2001 .

Insertion of additional Schedule in Principal Act.

9.— The Schedule, numbered “3” and set out in the Schedule to this Act, is inserted after Schedule 2 to the Principal Act.

Short title.

10.— This Act may be cited as the Public Service Management (Recruitment and Appointments) (Amendment) Act 2013.

SCHEDULE

Insertion of a Schedule 3 in Principal Act

Section 9

“SCHEDULE 3

Bodies to which the Definition of ‘Public Service Body’ (as it relates to Parts 6A and 7A) does not apply

1. Any body corporate established by Act of Parliament before 6 December 1922 that, upon its establishment, was of a commercial character.

2. Bord Gáis Éireann.

3. Bord na gCon.

4. Bord na Móna.

5. Córas Iompair Éireann.

6. Coillte Teoranta.

7. Cork Airport Authority, public limited company.

8. Dublin Airport Authority, public limited company.

9. Electricity Supply Board.

10. EirGrid.

11. A harbour authority within the meaning of the Harbours Act 1946 or company to which section 7 of the Harbours Act 1996 relates.

12. Horse Racing Ireland.

13. Irish Bank Resolution Corporation Limited.

14. Irish Aviation Authority.

15. Irish National Stud Company Limited.

16. An Post.

17. An Post National Lottery Company.

18. Raidió Teilifís Éireann.

19. Shannon Airport Authority, public limited company.

20. Teilifís na Gaeilge.

21. Railway Procurement Agency.

22. Voluntary Health Insurance Board.

23. A subsidiary of a body to which this Schedule relates.”.