Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697803861558.pdf (Ireland)
Department of Justice and Equality Reasoned response to the request for a money message in respect of the Employment Equality (Abolition of Mandatory Retirement Age) Bill 2016, sponsored by Deputy John Brady July 2019 1 Background Article 17.2 of the Constitution provides that “Dáil Éireann shall not pass any vote or resolution, and no law shall be enacted, for the appropriation of revenue or other public moneys unless the purpose of the appropriation shall have been recommended to Dáil Éireann by a message from the Government signed by the Taoiseach.” A message under this provision was sought in respect of the above Bill.
The reason furnished by the Bills Office is as follows: “The request is based on the potential additional costs associated with the proposed abolishment of the mandatory retirement age where persons are willing and able to continue in their jobs, particularly with regard to the difficulty in estimating whether the cost to the Exchequer of public sector employees continuing in employment would be offset by the delay in taking up State pensions.” Response The Government is unable to issue a message under Article 17.2 for the following reasons.
1.

The Government does not accept that mandatory retirement ages should be outlawed in the circumstances provided for in the Bill and, therefore, cannot recommend the appropriation of such public moneys as may be necessary for this purpose.

2.

The pre-committee scrutiny of the Bill undertaken by the Joint Oireachtas Committee was inadequate.
The Report, issued in June 2017, only gives the views of the sponsor, Deputy John Brady, the conclusions and observations of the Joint Committee, and the observations of the Minister.

There is no indication of wider consultation or that the views of all the main interests affected by the Bill were sought.

3.
3.

Since the Second Stage debate and the Report of the Joint Oireachtas Committee, there have been a number of developments that facilitate continued working beyond the retirement age originally envisaged.

These are as follows:  the Minister of State at the Department of Business Enterprise and Innovation published a new Code of Practice on Longer Working in December, 2017 (Industrial Relations Act 1990 (Code of Practice on Longer Working) (Declaration) Order 2017, S.I.

No 600 of 2017).
No 600 of 2017).

The Code of Practice sets out guidance and best practice for employers, employees and their representatives to follow during the engagement in the run up to retirement.

It also considers the issue of responding to requests to work beyond the current retirement age in the employment concerned;  in April 2018, the Irish Human Rights and Equality Commission published Guidelines on Retirement and Fixed-Term Contracts.
These Guidelines provide assistance to both employers and employees to ensure that older workers, who wish to continue in employment, are not discriminated against.

They consider 2 practical issues that arise from granting fixed-term contracts to employees who are over a compulsory retirement age and explain how these issues may be addressed by both employers and employees; and  the Public Service Superannuation (Age of Retirement) Act 2018 has become law.
This raises the compulsory retirement age of public servants recruited before April 2004 from 65 to 70.

(Public servants recruited since that date already had a retirement age of 70 or are subject to no compulsory retirement age.

); 4.

The Bill is intended to apply to existing contracts of employment and would set aside the retirement provisions in such contracts.
The Attorney General has advised that legislation of this nature may be susceptible to legal challenges, having regard to Article 15.5.1° of the Constitution, which precludes the Oireachtas from declaring unlawful acts which were not so at the date of their commission.

5.

The Bill can be regarded as an undue interference with contractual relations and a disproportionate interference with constitutionally protected property rights.

6.
6.

The Bill would give a discretion to employees to retire at the age originally agreed in their contract of employment or to continue working while affording no discretion to the employer.

7.

The Bill may have some unfavourable implications for older workers and pensioners in relation to the the age tax credit for persons aged over 65 and the exemption from PRSI available to those aged 66 and over.

8.
8.

The impact of the Bill on defined benefit schemes and their sponsoring employers and employees is uncertain.

It is incumbent on the sponsor to assess this and all other consequences that enactment of the Bill would entail.

9.

Similarly, the cost implications for the Exchequer arising from this Bill are uncertain and could be very significant.

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