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24 1983

POSTAL AND TELECOMMUNICATIONS SERVICES ACT, 1983

PART III

Provisions Applicable to Both Companies

Transfer of land.

40. —(1) On the vesting day all land which, immediately before that day, was vested in the Minister and was used for the purposes of functions assigned by this Act to one company and was not used in connection with the functions assigned to the other company and all rights, powers and privileges relating to or connected with such land shall, without any conveyance or assignment, stand vested in the first-mentioned company for all the estate or interest for which immediately before the vesting day it was vested in the Minister but subject to all trusts and equities affecting the land subsisting and capable of being performed.

(2) All land vested in the Minister immediately before the vesting day and used partly in connection with functions assigned to one company and partly in connection with functions assigned to the other company and all rights, powers and privileges relating to or connected with such land shall, subject to such exceptions as may be specified by the Minister, without any conveyance or assignment, stand vested on the vesting day in the postal company for all the estate or interest for which immediately before the vesting day it was vested in the Minister but subject to all trusts and equities affecting the land subsisting and capable of being performed.

(3) The Minister may on his own initiative and shall on the application of either company issue a certificate in respect of specified land certifying, as he thinks proper, that the land vested in one or other company under this section or did not so vest in either company and the certificate shall be conclusive evidence of the facts so certified.

(4) (a) The postal company shall make appropriate arrangements with the telecommunications company for the provision of facilities to the latter company for the use of land referred to in subsection (2) which on the day immediately before the vesting day was being used in connection with the functions assigned to the telecommunications company under this Act.

(b) If the companies fail to agree on any arrangement the disagreement shall be referred to the Minister and the companies shall comply with such directions as the Minister may give them in the matter.

(5) Arrangements under subsection (4) may be made by way of lease, licence or other form of agreement at such rents or consideration and on such other terms as may be agreed between the two companies and in fixing the terms of any such agreement regard shall be had to that portion of the cost of the land which had been borne by advances under the Telecommunications Capital Acts, 1924 to 1981.

Transfer of other property.

41. —(1) On the vesting day all property other than land, including choses-in-action, which immediately before that day was the property of the Minister and was used in connection with the functions assigned by this Act to either company shall stand vested in that company without any assignment.

(2) The Minister may on his own initiative and shall on the application of either company issue a certificate in respect of specified property, certifying, as he thinks proper, that the property vested in one or other company under this section or did not so vest in either company and the certificate shall be conclusive evidence of the facts so certified.

(3) Every chose-in-action transferred by subsection (1) to a company may, after the vesting day, be sued on, recovered or enforced by the company in its own name and it shall not be necessary for the company or the Minister to give notice to the person bound by the chose-in-action of the transfer effected by that subsection.

Transfer of rights and liabilities.

42. —(1) All rights and liabilities of the Minister arising by virtue of any contract or commitment (expressed or implied) entered into by him or by the Commissioners of Public Works in Ireland or by the Industrial Development Authority on his behalf before the vesting day in relation to functions assigned to either company under this Act shall on that day stand transferred to that company.

(2) The Minister may on his own initiative and shall on the application of either company issue a certificate in respect of a specified contract or commitment certifying, as he thinks proper, that the rights and liabilities of the Minister thereunder were transferred on the vesting day to one or other company under this section or were not so transferred to either company and the certificate shall be conclusive evidence of the facts so certified.

(3) Every right and liability transferred by subsection (1) to a company may, on and after the vesting day, be sued on, recovered or enforced by or against the company in its own name and it shall not be necessary for the company or the Minister to give notice to the person whose right or liability is transferred by this section of such transfer.

Exemption from stamp duty.

43. —Section 12 of the Finance Act, 1895, shall not apply to the vesting in a company of any property or rights transferred by this Act or on any lease, licence or other form of agreement under section 40 (4).

Acquisition of land.

44. —(1) Each company may, in accordance with the Second Schedule , acquire compulsorily any land or any easement or other right over land for the purpose of providing a site for, or approaches to, any building or structure intended to be used for the purpose of its exclusive privilege under section 63 or 87 , as the case may be.

(2) No person shall be entitled to acquire compulsorily, except with the consent of the Minister, any land or any easement or other right in respect of land vested in either company.

(3) A company shall not be entitled to acquire under this section any land, easement or other right belonging to the State or a State authority except with the consent of the State authority concerned.

(4) The telecommunications company shall not be entitled to exercise any rights under the Telegraph Acts, 1863 to 1916, in relation to the execution of works affecting any land, easement or other right belonging to the State or a State authority except with the consent of the State authority concerned.

Provisions applicable to staff transferred to companies.

45. —(1) (a) The postal company shall accept into its employment on the vesting day in accordance with the terms of this Act every person who immediately before the vesting day is a member of the staff of the Department of Posts and Telegraphs and is designated by the Minister for employment by that company.

(b) The telecommunications company shall accept into its employment on the vesting day in accordance with the terms of this Act every person who immediately before the vesting day is a member of that staff and is designated by the Minister for employment by that company.

(2) Save in accordance with a collective agreement negotiated with any recognised trade union or staff association concerned, a member of the staff of the Department of Posts and Telegraphs who is transferred on the vesting day to either company shall not, while in the service of the company, receive a lesser scale of pay or be brought to less beneficial conditions of service than the scale of pay to which he was entitled and the conditions of service to which he was subject immediately before the vesting day.

(3) Until such time as the scales of pay and conditions of service of staff so transferred are varied by the company, following consultation with recognised trade unions and staff associations, the scales of pay to which they were entitled and the conditions of service, restrictions, requirements and obligations to which they were subject before their transfer shall continue to apply to them and may be exercised or imposed by the board or the Chief Executive, as the case may be, of the relevant company while they are in its service. As provided in subsection (2), no such variation shall operate to worsen the scales of pay and conditions of service applicable to such staff immediately before the vesting day, save in accordance with a collective agreement negotiated with any recognised trade union or staff association concerned.

(4) The conditions in regard to tenure of office which are granted by either company in relation to a member of the staff so transferred shall not, while he is in the service of the company, be less favourable to him than those prevailing for the time being in the civil service; any alteration in the conditions in regard to tenure of office of any such member shall not be less favourable to him than the prevailing conditions in the civil service at the time of such alteration, save in accordance with a collective agreement negotiated with any recognised trade union or staff association concerned. If a dispute arises between either company and any such member as to conditions prevailing in the civil service, the matter shall be determined by the Minister for the Public Service after consultation with the Minister.

(5) In relation to staff transferred to either company, previous service in the civil service shall be reckonable for the purposes of, but subject to any other exceptions or exclusions in, the Holidays (Employees) Act, 1973 , the Minimum Notice and Terms of Employment Act, 1973 , and the Unfair Dismissals Act, 1977 .

Superannuation.

46. —(1) Each company shall prepare and submit to the Minister a scheme or schemes for the granting of pensions, gratuities and other allowances on retirement or death to or in respect of such members of the staff of the company as it may think fit.

(2) Every such scheme shall fix the time and conditions of retirement for all persons to or in respect of whom pensions, gratuities or allowances are payable under the scheme, and different times and conditions may be fixed in respect of different classes of persons.

(3) Subject to subsection (4), every such scheme may be amended or revoked by a subsequent scheme submitted and approved of under this section.

(4) Every scheme under this section shall provide for not less favourable conditions in respect of persons who, immediately before the vesting day, were members of the staff of the Department of Posts and Telegraphs than those to which they were entitled immediately before the vesting day.

(5) Disbursement of pensions, gratuities and other allowances which may be granted to or in respect of persons who, immediately before the vesting day, were members of the staff of the Department of Posts and Telegraphs shall not be on less favourable conditions than would apply if the benefits referred to had continued to be paid out of moneys provided by the Oireachtas.

(6) A scheme submitted by a company under this section shall, if approved of by the Minister with the concurrence of the Minister for the Public Service, be carried out by the company in accordance with its terms.

(7) No pension, gratuity or allowance shall be granted by either company on the resignation, retirement or death of a member of the staff of the company otherwise than in accordance with a scheme under this section.

(8) Where a superannuation allowance falls due for payment to or in respect of a person to whom subsection (4) applies in the period beginning on the vesting day and ending immediately before the coming into operation of a scheme submitted by a company and approved of under this section, the allowance shall be calculated and paid by the company in accordance with such superannuation scheme, or such enactments in relation to superannuation, as applied to such person immediately before the vesting day and, for that purpose, his pensionable service with the company shall be aggregated with his previous pensionable service.

(9) The Minister for Finance shall make such contribution as may, with his consent, be specified in a scheme or schemes under this section towards the pensions, gratuities and other allowances related to reckonable service given before the vesting day which may be granted to or in respect of persons who, immediately before that day, were members of the staff of the Department of Posts and Telegraphs, and such scheme or schemes shall, with the like consent, fix the manner and times of the payment of such contribution.

(10) (a) Notwithstanding anything in the Superannuation Acts, 1834 to 1963, and the Superannuation and Pensions Act, 1976 , the Minister for the Public Service may delegate to each company the payment of pensions, gratuities and other allowances to or in respect of such persons who were members of the staff of the Department of Posts and Telegraphs and who retired or died before the vesting day as he may specify.

(b) Any delegation under paragraph (a) shall provide for not less favourable conditions than would apply if the benefits referred to had continued to be paid out of moneys provided by the Oireachtas.

(c) Each company shall make payments in accordance with any such delegation to it and shall be reimbursed by the Minister for Finance in respect thereof in such manner and at such times as may be specified in the articles of association of the company.

(11) Moneys required to be paid by the Minister for Finance under this section shall be advanced out of the Central Fund or the growing produce thereof.

Provision for certain welfare funds.

47. —A fund or trust, the objects of which are the provision of benefits for the relief of persons who are or who have been officers or servants of the Minister or of the relatives or dependants of such persons, may be administered by the trustees or managers of the fund so as to include provision for members of the staff of either company and their relatives and dependants and any deed, rules or regulations of the fund or trust shall be construed and have effect accordingly.

Users' Councils.

48. —(1) The Minister shall establish for each company a Council to be known as the Users' Council.

(2) Each Council shall consist of not less than 10 and not more than 20 members to be appointed by the Minister.

(3) Each appointment shall be for a period of not more than 3 years.

(4) A Council may settle its own rules of procedure.

(5) A person who is, for the time being, entitled under the Standing Orders of either House of the Oireachtas to sit therein as a member or who is a member of the Assembly of the European Communities shall, while he is so entitled or is such a member, be disqualified from becoming a member of a Council or a member of the staff of a Council.

(6) A member of a Council who is nominated as a member of Seanad Éireann or as a candidate for election to either House of the Oireachtas or to the Assembly of the European Communities or is appointed to such Assembly shall thereupon cease to be a member of the Council.

(7) A member of a Council may resign his office by letter addressed to the Minister and the resignation shall take effect on the date of receipt of the letter by the Minister.

(8) The Minister may remove a member of a Council from office.

Functions of Users' Councils.

49. —(1) Subject to subsection (2), the functions of a Users' Council shall be—

(a) to consider any complaint or representation made to it by or on behalf of a user or a prospective user of the services provided within the State by the company under the powers granted to the company by section 63 or 87 , as the case may be;

(b) to consider any matter, other than matters of internal management, related to such services which appear to the Council to warrant consideration;

(c) to advise the Minister or the appropriate company on any matter relating to such services on which the Minister or the company, as the case may be, seeks the Council's advice;

(d) to publish an annual report and to present the report to the Minister who shall cause a copy of the report to be laid before each House of the Oireachtas.

(2) The functions of a Users' Council shall not extend to the consideration of any matter concerning the services referred to in subsection (1) which relates to public order or security.

(3) (a) The Minister, after consultation with the Minister for Trade, Commerce and Tourism, the company concerned and any other Minister who appears to the Minister to be concerned, may confer on a Users' Council such additional functions in relation to protecting the interests of users of the services referred to in subsection (1) as the Minister thinks proper and specifies in the order. Any such order may provide for the performance of the additional functions subject to conditions specified in the order and may contain such incidental and supplementary provisions as the Minister thinks necessary or expedient for giving full effect to the order.

(b) The Minister, after consultation as aforesaid and with the Users' Council concerned, may by order amend or revoke an order under this subsection.

(c) When an order under this subsection is proposed to be made by the Minister, a draft of the order shall be laid before each House of the Oireachtas and, if a resolution disapproving of the draft is passed by either such House within the next subsequent twenty-one days on which it has sat after the draft is laid before it, the order shall not be made.

(4) The Minister shall, after consultation with the Council, provide each Council with staff and accommodation and, in respect of staff, after consultation with the appropriate company and with the consent of the Minister for the Public Service.

(5) A Council may, with the approval of the Minister, given with the consent of the Minister for the Public Service, employ advisers to assist the Council in its work.

(6) The expenses of a Council shall form part of the expenses of the Minister in the administration of this Act.

(7) The Minister may—

(a) reimburse members of a Council for reasonable expenses incurred by them by virtue of their membership;

(b) recover from the appropriate company the costs incurred by its Council.

(8) Each company shall—

(a) advise its Users' Council of major plans and major projected developments in relation to any service referred to in subsection (1) (a), and

(b) furnish to its Users' Council such information as may be necessary to enable it to fulfil its functions (including, in particular, information necessary to enable the Council to respond expeditiously to complaints or representations made to it in accordance with subsection (1) (a)).

(9) A company shall not be required to advise its Council of any plans or projected developments which relate to public order or security or to obligations arising under any international agreement or from membership of an international organisation or under a specific direction of the Minister.

(10) Any amount to be paid to a Council under this section shall be determined by the Minister after consultation with the appropriate company.

(11) Any difference between a company and its Users' Council as to the information to be furnished to the Council under this section shall, at the request of either party, be determined by the Minister whose decision shall be final.

Appointment of interim postal and telecommunications boards.

50. —(1) As soon as may be after the passing of this Act the Minister shall appoint an interim board for each company which shall be entitled, respectively, An Bord Poist or, in the English language, the Interim Postal Board and An Bord Telecom or, in the English language, the Interim Telecommunications Board.

(2) The Interim Board for a company shall have the following functions—

(a) to prepare for the assumption of the powers, duties and responsibilities to be assigned on the vesting day to that company under this Act,

(b) to perform at the request of the Minister any of the functions to be assigned under this Act to that company.

(3) An Interim Board shall consist of such number of members not exceeding 12 as the Minister may decide.

(4) (a) The Minister shall appoint to be a member of the Interim Postal Board—

(i) the person who was appointed by him on the nomination of staff organisations as a member of the Interim Board for Posts (An Bord Poist) which was established by the Minister before the passing of this Act, and

(ii) the postmaster who was appointed by him as a member of that Interim Board for Posts.

(b) The Minister shall appoint to be a member of the Interim Telecommunications Board each person who was appointed by him on the nomination of staff organizations as a member of the Interim Board for Telecommunications (An Bord Telecom) which was established by the Minister before the passing of this Act.

(5) While the appointment of a member of an Interim Board may be made without limit as to time, a member shall, unless his membership earlier ceases by death, resignation or termination, cease to be a member on the vesting day.

(6) An Interim Board may settle its own rules of procedure.

(7) A person who is, for the time being, entitled under the Standing Orders of either House of the Oireachtas to sit therein as a member or who is a member of the Assembly of the European Communities shall, while he is so entitled or is such a member, be disqualified from becoming a member of an Interim Board or a member of the staff of an Interim Board.

(8) A member of an Interim Board who is nominated as a member of Seanad Éireann or as a candidate for election to either House of the Oireachtas or to the Assembly of the European Communities or is appointed to such Assembly shall thereupon cease to be a member of the Interim Board.

(9) A member of an Interim Board may resign his office by letter addressed to the Minister and the resignation shall take effect on the date of receipt of the letter by the Minister.

(10) The Minister may remove a member of an Interim Board from office.

(11) The remuneration of members of an Interim Board shall be determined by the Minister with the consent of the Minister for the Public Service and shall not be less than that paid to them as members of the Interim Board for Posts (An Bord Poist) or the Interim Board for Telecommunications (An Bord Telecom) established by the Minister before the passing of this Act.

(12) Expenses incurred by an Interim Board shall form part of the expenses of the Minister in the administration of this Act.

(13) The accounts of an Interim Board shall be kept in such form as may be required by the Minister, with the consent of the Minister for Finance, and shall be audited by the Comptroller and Auditor General.

(14) Each Interim Board shall stand dissolved on the vesting day and its rights and liabilities shall stand transferred to the appropriate company on that day.

Loss-making services provided by direction of the Minister.

51. —(1) Where—

(a) the Minister considers, having regard to the statutory obligations of the postal or telecommunications company to provide postal or telecommunications services, that specified postal or telecommunications services should be provided or maintained in the public interest and, with the consent of the Minister for Finance, so directs the board of the company concerned, and

(b) that company considers that provision of such services is not necessary by reference to its statutory functions to provide postal or telecommunications services, and

(c) that company satisfies the Minister that, over a period of at least 12 months, it has sustained a loss in the provision or maintenance of such services,

the Minister shall certify that the services were provided or maintained in accordance with a direction by him and such certificate shall entitle the company to increase its charges to compensate for the losses incurred provided such losses were not allowed for in any previous increase in charges.

(2) The Minister may require an audit of the books and records of the company concerned to determine that such losses have been incurred and are likely to continue to be incurred and were not allowed for in any previous increase in charges.

(3) Before giving a direction to the company to provide or maintain services the Minister shall obtain details from the company of the cost of providing such services and the company shall supply such information to the Minister on request.

Non-application of certain enactments to companies.

52. —(1) The Restrictive Practices Act, 1972 , and the provisions of the Mergers, Take-overs and Monopolies (Control) Act, 1978 , relating to monopolies shall not apply in relation to the exercise by either company of its exclusive privilege under section 63 or 87 , as the case may be.

(2) The Prices Acts, 1958 to 1972, shall not apply to activities carried on by or on behalf of either company.

Power of Commissioners of Public Works to undertake work.

53. —(1) The Commissioners of Public Works in Ireland shall have power to undertake work at the request of either company.

(2) In the exercise of the power conferred by subsection (1), the said Commissioners shall, in respect of any new work undertaken by them at the request of either company on or after the vesting day, be deemed not to be a State authority for the purposes of the Local Government (Planning and Development) Acts, 1963 and 1976, and, accordingly, section 61 shall apply.

Charge of rates on property of companies.

54. —Property vested in either company on the vesting day shall, from the commencement of the next following financial year, cease to be exempt from the rate chargeable by a local authority notwithstanding that the property may appear as exempt on a valuation list.

Transitional provision regarding taxation of motor fleet.

55. —Where an application for a motor vehicle licence is made to a licensing authority before the vesting day by an interim board appointed by the Minister under section 50 , the application shall be granted if it is accompanied by a certificate from the Minister or from an authorised officer of the Minister certifying that the vehicles to be covered by the licence are the property of the Minister and will be assigned in accordance with section 41 to the company concerned on the vesting day.

Liability for loss occurring before vesting day.

56. —(1) Any claim in respect of any loss or injury alleged to have been suffered by any person arising out of the exercise by the Minister before the vesting day of functions assigned to either company by this Act shall, after that day, lie against the appropriate company, whether or not a claim was made against the Minister before that day, and not against the Minister.

(2) Any claim made or proper to be made by the Minister in respect of any loss or injury arising from the act or default of any person before the vesting day shall, where the claim relates to functions assigned to either company by this Act, be regarded as made by or proper to be made by that company and may be pursued and sued for by that company as if the loss or injury had been suffered by the company.

(3) Subsections (1) and (2) do not apply to a claim against or by a State authority.

Continuance of pending legal proceedings.

57. —All legal proceedings pending immediately before the vesting day to which the Minister is a party shall be continued with the substitution for the Minister of—

(a) the postal company, where the proceedings relate to functions assigned to that company by this Act, and

(b) the telecommunications company, where the proceedings relate to functions assigned to that company by this Act.

Continuance of certain notices, certificates, declarations and bonds.

58. —From the vesting day—

(a) every notice, certificate and declaration given by or to the Minister,

(b) every court order directed to any person, and

(c) every bond given by any person to the Minister,

which relates to functions assigned under this Act to the telecommunications company or the postal company, as the case may be, shall, where its operation, effect or term has not ceased or expired before the vesting day, continue in force and have effect as if the functions of the Minister were on that day performable by such company.

Continuance of licences and permissions granted by the Minister.

59. —(1) Every licence or permission granted by the Minister under the Post Office Acts, 1908 to 1969, or the Stamp Duties Management Act, 1891, and in force immediately before the vesting day, shall continue in force as if granted by the postal company or by the telecommunications company, as the case may require.

(2) Every licence or permission granted by the Minister under the Telegraph Acts, 1863 to 1953, which relates to the exclusive privilege assigned to the telecommunications company under section 87 and is in force immediately before the vesting day, shall continue in force as if granted by the telecommunications company.

Continuance of planning consultations.

60. —For the purposes of section 84 of the Local Government (Planning and Development) Act, 1963

(a) any consultation which is completed before the vesting day between the Minister and a planning authority in relation to the construction or extension of a building which from that day is to be used in connection with the functions assigned by this Act to either company shall have effect as if the company were a party to that consultation,

(b) any such consultation which is commenced by the Minister but which is not completed before the vesting day in relation to the construction or extension of any building which from that day is to be used as aforesaid shall be completed by the company concerned and not by the Minister.

Restriction of liability of companies under Planning Acts.

61. —(1) In the case of any development (not being exempted development for the purposes of the Local Government (Planning and Development) Acts, 1963 to 1982, or any development to which section 60 relates) commenced by either company during the period of two years from the vesting day, permission under Part IV of the Local Government (Planning and Development) Act, 1963 , shall not be required if the following conditions are complied with, namely—

(a) that the company consults with the planning authority concerned to such extent as the Minister for the Environment may determine, and

(b) that, if any objection which may be raised by the planning authority is not resolved, or if any condition specified by the planning authority is not acceptable to the company, the company consults with that Minister on the objection or condition, as the case may be, and

(c) that, in carrying out the development, the company complies with such conditions (if any) as the planning authority or that Minister, as the case may be, may specify.

(2) (a) When consulted under subsection (1), the planning authority or the said Minister, as the case may be, shall have the same power to specify conditions as is conferred by section 26 of the Local Government (Planning and Development) Act, 1963 , in relation to an application under Part IV of that Act.

(b) Section 27 of the Local Government (Planning and Development) Act, 1976 , shall apply with any necessary modification where development, not being exempted development as aforesaid or any development to which section 60 relates, has been commenced by either company but has not been, or is not being, carried out in accordance with the provisions of this section.