Financial Emergency Measures in the Public Interest (No. 2) Act 2009

1.. Interpretation.

1.— In this Act—

“Civil Service” means the Civil Service of the Government and the Civil Service of the State;

“Minister” means the Minister for Finance;

“public servant” F1[, subject tosection 2A(inserted by the Financial Emergency Measures in the Public Interest Act 2013),] means—

(a) a person who is employed by, or who holds any office or other position in, a public service body,

(b) a member of either House of the Oireachtas or of a local authority (within the meaning of the Local Government Act 2001),

(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, F2[…]

(d) the holder of a qualifying office,

F3[(e) a judge who was appointed to judicial office before the commencement ofsection 10of the Financial Emergency Measures in the Public Interest (Amendment) Act 2011, or

(f) a military judge appointed under Chapter IVC of Part V of theDefence Act 1954(as amended by theDefence (Amendment) Act 2011),]

but does not include the President F4[…]);

“public service body” means—

(a) the Civil Service,

(b) the Garda Síochána,

(c) the Permanent Defence Force,

(d) a local authority for the purposes of the Local Government Act 2001,

(e) the Health Service Executive,

F5[(f) an education and training board,]

(g) a body (other than a body specified or referred to in the Schedule) 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 public service pension scheme exists or applies or may be made,

(h) a body (other than a body specified or referred to in the Schedule) that is wholly or partly funded directly or indirectly out of money provided by the Oireachtas or from the Central Fund or the growing produce of that Fund and in respect of which a public service pension scheme exists or applies or may be made,

(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), (f), (g)or(h) relates and in respect of which a public service pension scheme exists or applies or may be made;

“public service pension scheme” has the same meaning as in the Financial Emergency Measures in the Public Interest Act 2009;

“qualifying office” has the same meaning as it has in section 13 (inserted by the Oireachtas (Allowances to Members) and Ministerial, Parliamentary and Judicial Offices (Amendment) Act 1977) of the Ministerial and Parliamentary Offices Act 1938, that is to say—

(a) a ministerial office within the meaning of that section (as amended by the Oireachtas (Allowances to Members) and Ministerial and Parliamentary Offices (Amendment) Act 1973), or

(b) a secretarial office within the meaning of that section (as amended by the Oireachtas (Allowances to Members) and Ministerial, Parliamentary and Judicial Offices (Amendment) Act 1983 and the Ministerial, Parliamentary and Judicial Offices and Oireachtas Members (Miscellaneous Provisions) Act 2001);

“ relevant provision” means—

(a) a provision of any Act other than this Act,

(b) a provision made under any Act, including any instrument, circular or other document,

(c) a provision of or made under any statute or other document to like effect of a university or other third level institution,

(d) a provision of any circular, instrument or other document, not made pursuant to an enactment, and

(e) a provision of any agreement or contractual arrangement, whether written or not;

“remuneration” means emoluments to which Chapter 4 of Part 42 of the Taxes Consolidation Act 1997 applies or is applied and payable by or on behalf of a public service body to a public servant for his or her services as a public servant;

“subsidiary” means a subsidiary within the meaning of the Companies Acts.

2.. Reduction in public servants’ remuneration.

2.— (1) A relevant provision that fixes the remuneration, or any part of the remuneration, of F6[a public servant, other than a public servant referred to inparagraph (e)or(f)of the definition of that term insection 1,] shall be taken to have been amended, with effect on and from 1 January 2010, in accordance with this section.

(1A) A relevant provision that fixes the remuneration, or any part of the remuneration, of a public servant referred to in paragraph (e) of the definition of that term in section 1 shall be taken to have been amended, with effect on and from 1 January 2012, in accordance with this section.

(2) Where the remuneration of a public servant is fixed by a relevant provision, then, subject to subsections (3) and (4), the relevant provision shall be taken to have been amended so that the remuneration is—

(a) in the case of persons to whom Table 1 to this section relates, reduced in accordance with that Table, and

(b) in any other case, subject to subsection (7), reduced in accordance with Table 2 or Table 3 (as the case requires) to this section.

(2A) The provisions of subsections (1) and (2) and Table 1 to this section shall, for the purpose of the application of those provisions to the remuneration of the holders of certain offices specified in this subsection, have effect on and from 1 January 2011 as if the reductions provided for in subsection (2) and that Table were as follows and a relevant provision that fixes the remuneration, or any part of the remuneration, of the holders of any of those offices shall be taken to have been so amended with effect on and from that date:

(a) in the case of the Taoiseach, a 25 per cent reduction of remuneration in lieu of a reduction of 20 per cent of remuneration;

(b) in the case of the Tánaiste, a 19.5 per cent reduction of remuneration in lieu of a reduction of 15 per cent of remuneration; and

(c) in the case of a Minister of the Government, a 19.5 per cent reduction of remuneration in lieu of a reduction of 15 per cent of remuneration.

F9[(2B) The provisions ofsubsections (1)and(2)and Table 1 to this section shall, for the purpose of the application of those provisions to the remuneration of the holders of certain offices specified in this subsection, have effect on and from the commencement ofsection 6(c) of the Financial Emergency Measures in the Public Interest (Amendment) Act 2011 as if the reductions provided for insubsections (2)and(2A)(in the case of the holders of the offices referred to inparagraphs (a),(b)and(c)) and that Table were as follows and a relevant provision that fixes the remuneration, or any part of the remuneration, of the holders of any of the offices specified in this subsection shall be taken to have been so amended with effect on and from that commencement:

(a) in the case of the Taoiseach, a 29.96 per cent reduction of remuneration in lieu of a reduction of 25 per cent of remuneration;

(b) in the case of the Tánaiste, a 24.83 per cent reduction of remuneration in lieu of a reduction of 19.5 per cent of remuneration;

(c) in the case of a Minister of the Government, a 24.83 per cent reduction of remuneration in lieu of a reduction of 19.5 per cent of remuneration;

(d) in the case of a Minister of State, a 15.96 per cent reduction of remuneration in lieu of a reduction of 10 per cent of remuneration;

(e) in the case of the Ceann Comhairle, a 24.83 per cent reduction of remuneration in lieu of a reduction of 15 per cent of remuneration;

(f) in the case of the Leas-Cheann Comhairle, a 15.96 per cent reduction of remuneration in lieu of a reduction of 10 per cent of remuneration;

(g) in the case of the Attorney General, a 24.83 per cent reduction of remuneration in lieu of a reduction of 15 per cent of remuneration; and

(h) in the case of the Comptroller and Auditor General, a 21.15 per cent reduction of remuneration in lieu of a reduction of 15 per cent of remuneration.]

(3) F10[…]

(4) Subject to subsection (7), where a public servant is entitled as part of his or her remuneration to the payment of an allowance and the allowance—

(a) is not reimbursement of any expense actually incurred, and

(b) is expressed as a specified percentage or specified proportion of another part of the remuneration (referred to in this section, including the Tables, as “basic salary”) of a public servant to whom the relevant provision applies,

then the public servant’s basic salary, for the purposes of calculating the amount payable as the allowance, is his or her basic salary reduced in accordance with subsection (2) and Table 2 or Table 3 (as the case requires) to this section.

(5) Nothing in this section affects any allowance or payment which is a reimbursement of an expense actually incurred.

(6) This section has effect notwithstanding—

(a) any provision 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.

(7) Where the application to a public servant ofsubsections (1) to (6) and Table 2 to this section would, because of the varying percentage rates provided for by that Table, result in his or her annual remuneration being lower than would be the case if he or she had been on a lower level of remuneration, then his or her annual remuneration shall after the reduction not be less than the highest it would have been had his or her annual remuneration, before such reduction, been on the lower level of remuneration. For the purposes of this subsection, the Minister may by direction modify the application of the reduction in the remuneration of a public servant concerned in such manner as the Minister thinks fit to avoid a substantial inequity arising from the application of subsection (2) and that Table.

Table 1

Holders of certain offices and other public servants

Table 2

Public servants with rates of basic salary over €125,000

Table 3

Public servants with rates of basic salary not over €125,000

Table 4

Allowances to which section 2(3) relates

2A.. F11[Public servants’ remuneration: reduction, with effect from 1 July 2013, for certain public servants.

2A.—(1) In this section—

(a) a reference to a relevant provision shall, other than in the case of a public servant to whomsection 10(2) of the Financial Emergency Measures in the Public Interest Act 2013 relates, be read as a reference to that provision as it has effect, subject to any direction given undersection 6, by virtue of the operation ofsection 2;

(b) a reference to the annual remuneration of a public servant is a reference to the public servant’s annual basic salary, together with any fixed, periodic allowance that is—

(i) reckonable for the purposes of calculating a pension entitlement of the public servant, and

(ii) paid to the public servant as part of his or her annual remuneration,

and, for the purposes of this section, the definition of‘public servant’insection 1shall apply as if inparagraph (e)of that definition the words‘who was appointed to judicial office before the commencement of section 10 of the Financial Emergency Measures in the Public Interest (Amendment) Act 2011’were omitted.

(2) A relevant provision that fixes the remuneration, or any part of the remuneration, of a public servant whose annual remuneration exceeds€65,000 shall be taken to have been amended, with effect on and from 1 July 2013, in accordance with this section.

(3) Where the remuneration of a public servant is fixed by a relevant provision, then the relevant provision shall be taken to have been amended so that the remuneration is reduced in accordance with the Table to this section.

(4) Where the application to a public servant ofsubsections (2)and(3)and the Table to this section would result in his or her annual remuneration being reduced to less than€65,000, then those subsections and that Table shall only operate to reduce his or her annual remuneration to€65,000.

(5) Where a public servant is entitled as part of his or her annual remuneration to the payment of an allowance and the allowance—

(a) is not reimbursement of any expense actually incurred, and

(b) is expressed as a specified percentage or specified proportion of another part of the remuneration (referred to in this subsection as‘basic salary’) of a public servant to whom the relevant provision applies,

then the public servant’s basic salary, for the purposes of calculating the amount payable as the allowance, is his or her basic salary reduced in accordance with subsections (2) and (3) and the Table to this section.

(6) This section has effect notwithstanding—

(a) any provision 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.

Table

Reduction in Remuneration of Public Servants Earning More Than €65,000

2B.. F12[Alteration of remuneration (other than basic salary) or working time of public servants.

2B.—F13[…]]

3.. Certain pension rights not affected.

3.— (1) This section applies to—

(a) a person who was at some time before 31 December 2009 a public servant but is on 1 January 2010 F14[in receipt of a pension under a public service pension scheme]

(b) a person who was a public servant on 1 January 2010, but ceases to be a public servant on or before—

(i) 31 December 2010, or

F15[(ii) a later date specified by the Minister by order in accordance withsubsection (3),

and who, on ceasing to be a public servant, is entitled to payment of a pension under a public service pension scheme in respect of his or her service as a public servant or a person who was at some time before the date specified undersubparagraph (ii)a public servant and has a preserved benefit in a public service pension scheme in respect of which the preserved pension age of the person falls on or before that date, and]

F16[(c) a person who becomes entitled to payment of a public service pension as a spouse, civil partner or child of a former public servant to whomparagraph (a)or(b)applied.]

(2) The amendments taken to have been made by section 2 shall be disregarded for the purpose of calculating any pension entitlement (including an entitlement to a lump sum and an entitlement to periodic payments of pension) of a person to whom this section applies.

(3) For the purpose of making an order pursuant to subsection (1)(b)(ii), the Minister shall take into account such legal, superannuation and personnel management issues affecting public service bodies as he or she considers appropriate, and shall consult with any person or body that he or she considers appropriate.

(4) In this section—

F18[“civil partner”has the meaning it has in theCivil Partnership and Certain Rights and Obligations of Cohabitants Act 2010;]

“preserved benefit” has the meaning it has in the Public Service Superannuation (Miscellaneous Provisions) Act 2004;

“preserved pension age”, in relation to a preserved benefit in a public service pension scheme, means the age of the public servant or former public servant concerned at which the preserved benefit becomes payable to him or her under the scheme.

4.. Further amendment, etc., of relevant provisions.

4.— (1) Subject to subsection (2) and section 6, a purported amendment (other than an amendment by Act of the Oireachtas) of a relevant provision amended by section 2 F19[or 2A] that would have the effect of increasing the remuneration payable to a public servant is of no effect.

F20[(2) An amendment of a relevant provision amended bysection 2or2Athat would have the effect of increasing the remuneration payable to a public servant may only be made, and shall have such effect—

(a) where—

(i) the amendment is made by the Minister, including where it is made for a purpose referred to inparagraph (b), and

(ii) the relevant provision is not—

(I) a provision of an Act of the Oireachtas, or

(II) a relevant provision that is made under an Act of the Oireachtas, save where that relevant provision is so made by the Minister,

or

(b) where—

(i) the amendment is made by a person (other than the Minister)—

(I) for the purposes of complying with any order of a court in respect of which there is no stay in being, or

(II) for the purposes of complying with any enforceable determination of the Labour Court in respect of which there is no stay in being,

and

(ii) the relevant provision is not—

(I) a provision of an Act of the Oireachtas, or

(II) a relevant provision that is made under an Act of the Oireachtas, save where that relevant provision is so made by the person first-mentioned insubparagraph (i).]

(3) Every order or determination to which F21[subsection (2)(b)(i)] relates shall be deemed to be stayed—

(a) until the expiration of the period for appeal, including any period of extension duly ordered,

(b) in the case where an appeal is instituted, until that appeal is withdrawn, determined or otherwise disposed of,

unless for stated reasons the High Court considers it just and equitable to direct otherwise having regard to the exceptional circumstances of the case and having taken into account the public interest.

5.. No power to pay remuneration above rate determined in accordance with section 2, etc.

5.— (1) F25[…]