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37 2001

LOCAL GOVERNMENT ACT, 2001

Chapter 4

Local Authority Personnel

Definitions (Chapter 4).

155. —In this Chapter, except where the context otherwise requires—

“appropriate Minister” has the meaning given by section 156 ;

“Board” means the body established under article 4 of the Local Government Management Services Board (Establishment) Order, 1996 (S.I. No. 410 of 1996), or any other body established by the Minister under section 3 of the Local Government Services (Corporate Bodies) Act, 1971 , or otherwise, to provide services similar to those of the Board;

“Local Appointments Commissioners” means commissioners appointed under section 3 of the Local Authorities (Officers and Employees) Act, 1926 ;

“local authority” includes a joint body.

Appropriate Minister.

156. —(1) In this Chapter “appropriate Minister” means—

(a) where the duties of a particular employment or employments of a particular class, description or grade relate wholly or mainly to the functions of a Minister of the Government other than the Minister, such Minister of the Government,

(b) in all other cases, the Minister.

(2) If any question or dispute arises as to whether the duties of a particular employment or employments of a particular class, description or grade relate wholly or mainly to the functions of a Minister of the Government other than the Minister, the matter shall be referred to the Minister for determination and the decision of the Minister shall be final.

(3) The appropriate Minister, may amend or revoke any declaration made or deemed to have been made or any direction given by him or her under this Chapter.

Application (Chapter 4).

157. —(1) Subject to the provisions of subsections (2) and (3), this Chapter applies to every employment under a local authority and to every employee of a local authority.

(2) (a) For the purposes of this Part, an employee of a local authority includes every person who is, immediately prior to the commencement of this section, a holder of an office under a local authority.

(b) The fact that a person is employed by a local authority on the commencement of any provision of this Chapter is not a ground for contending that such provision does not apply in relation to him or her.

(3) For the purposes of this Chapter, the following offices are deemed not to be employments under a local authority and every holder, as such, of any of those offices is deemed not to be the holder of an employment under a local authority—

(a) the office of coroner or deputy coroner under the Coroners Act, 1962 ,

(b) the offices under the Courthouses (Provision and Maintenance) Act, 1935 , of caretaker and assistant to the caretaker of courthouse accommodation,

(c) the offices under the Pounds (Provision and Maintenance) Act, 1935 , of poundkeeper and assistant to a poundkeeper.

(4) For the purpose of this Chapter, a payment to a person by virtue of section 142 (2) is not a ground for contending that the person is an employee of a local authority.

Provisions relating to the employment of persons by local authorities.

158. —(1) (a) Subject to this Chapter, Chapter 2 of this Part and the Local Authorities (Officers and Employees) Acts, 1926 to 1983, a local authority may employ such and so many persons as the local authority may, from time to time, think proper.

(b) A local authority shall determine the remuneration and conditions of employment of its employees and may, from time to time, alter the remuneration and conditions of employment of such employees.

(c) The appropriate Minister may, in relation to—

(i) any employment for which he or she is the appropriate Minister, or

(ii) such employments for which he or she is the appropriate Minister as belong to a particular class, description or grade of employments,

declare any specified age to be the age at which an employee is to cease to hold employment under a local authority.

(d) The appropriate Minister may at any time direct that any of the functions conferred on a local authority by this Chapter shall, in relation to an employment or employments for which he or she is the appropriate Minister, be exercisable either generally or in relation to a particular local authority or to specified local authorities, only with his or her consent, or subject to such other conditions or requirements as may be so directed.

(2) A local authority in exercising any function referred to in subsection (1) in relation to an employment for which the Minister is the appropriate Minister, shall, subject to paragraphs (c) and (d) of that subsection, have regard to any guidelines, codes of practice or other guidance issued by the Board in relation to such function.

(3) The functions conferred on an elected council or a Cathaoirleach by this Part, other than those referred to in sections 145(1) and 148, do not apply or extend to employees of a local authority or to the performance of any executive function in relation to such employees or their direction, supervision, service, remuneration or discipline and any resolution which claims to so apply or extend is invalid.

Staffing and organisational arrangements.

159. —(1) The manager shall for the purposes of discharging the responsibilities set out under section 149 make such staffing and organisational arrangements as may be necessary for the purposes of carrying out the functions of the local authorities for which he or she is responsible.

(2) Subject to this Part the functions of a local authority may be discharged through or by the employees of that authority or any other local authority for which the manager is responsible.

(3) An employee of a local authority shall—

(a) perform such duties as may from time to time be assigned to him or her in relation to his or her employment and as may be appropriate to any particular function of any local authority for which the manager is responsible, and

(b) carry out such instructions as may be duly given in relation to the performance of his or her duties.

(4) Where by an agreement or arrangement under Part 10 or otherwise a local authority exercises or performs a function of another body or provides a service to another body,

(a) it is the duty of every employee of the local authority to perform such duties appropriate to the nature of that function or service as the local authority may decide, and

(b) in case the other body is a local authority, it is the duty of every employee of that local authority to refrain from performing such duties appropriate to the nature of that function or service as that local authority may decide.

(5) (a) An employee of a local authority shall not engage—

(i) in any gainful occupation, other than as an employee of the local authority, to such an extent as to impair the performance of his or her duties as an employee of the local authority, or

(ii) in any occupation which might—

(I) conflict with the interests of the local authority, or

(II) be inconsistent with the discharge of his or her duties as a local authority employee.

(b) Without prejudice to the generality of paragraph (a), an employee of a local authority, the qualifications for whose post are wholly or in part professional, shall not engage in private practice in the profession in which he or she is employed by the local authority or local authorities or in any cognate profession.

(c) Where an employee of a local authority is in breach of paragraph (a) or (b), the local authority shall determine the appropriate disciplinary action to be taken, which action may include suspension with or without pay or termination of employment or such other action as the local authority considers appropriate.

(d) In considering the action to be taken under paragraph (c) a local authority may have regard to the need to uphold public confidence in the integrity of the discharge of its functions.

Qualifications for employment.

160. —(1) (a) The appropriate Minister may declare qualifications of such classes and descriptions as he or she thinks fit for a specified employment under a local authority or for such of the employments as belong to a specified class, description or grade.

(b) Before declaring under this section qualifications for any employment under a local authority to which the Local Authorities (Officers and Employees) Acts, 1926 to 1983, apply, the appropriate Minister shall consult with the Local Appointments Commissioners.

(c) A person is not to be appointed to any employment under a local authority for which qualifications are for the time being declared under this section unless he or she possesses those qualifications.

(d) For the purposes of this section, the fact that a person has been recommended by the Local Appointments Commissioners for appointment to any employment shall be conclusive evidence, in the absence of fraud, that he or she possessed at the time of such recommendation the qualifications for the time being declared under this section for such employment.

(e) Where the appropriate Minister declares under this section qualifications for a specified employment, additional qualifications for that employment are not to be fixed by a local authority without the consent of the appropriate Minister.

(2) (a) The Minister may, by order (in this section referred to as a “transfer order”), provide that declarations of qualification which would otherwise properly be made by him or her under this section for employments specified in the transfer order shall be made by the Board.

(b) Whenever a transfer order is in operation, the Board has the power to amend any qualifications previously declared by the Minister in relation to any employment to which the order relates.

(c) A transfer order shall not prejudice the right of the Minister to make or amend any qualifications declared under this section.

(d) Where the Board declares qualifications by virtue of a transfer order, such declaration has effect as if it had been made by the Minister.

(e) The revocation of a transfer order by the Minister does not affect any existing qualifications declared by the Board unless otherwise expressly provided for in the order.

(3) (a) Notwithstanding subsections (1) and (2), a local authority may, from time to time, fix qualifications for any employment provided a declaration under subsection (1) in relation to such employment is not in force.

(b) Whenever qualifications are declared under this section by the appropriate Minister, or by the Board by virtue of a transfer order, in relation to a particular employment, any qualifications previously fixed by a local authority in relation to such employment shall cease to have effect.

(4) (a) Any qualifications declared by the Board under this section may be amended or revoked by the Minister or the Board.

(b) A local authority may amend the qualifications for any employment fixed by it under subsection (3).

(5) A declaration made under section 21 of the Local Government Act, 1941 , before the commencement of this provision shall, on and from such commencement, be deemed to have been made under this section.

Restrictions on local authority employment and membership of a local authority.

161. —(1) (a) Subject to paragraph (b), a member of a local authority is not to be employed by a local authority.

(b) The Minister may by order—

(i) designate such class, description or grade of employments to which paragraph (a) does not apply,

(ii) specify such conditions under which paragraph (a) does not apply.

(2) This section comes into operation and has effect on and from the ordinary day of retirement of members next after the enactment of this Act.

(3) Where an order under this section is proposed to be made, a draft of it shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving of the draft has been passed by each House of the Oireachtas.

(4) Any order made under section 25 of the Local Elections (Petitions and Disqualifications) Act, 1974 , and in force before the commencement of this provision shall, on and from such commencement, be deemed to have been made under subsection (1) (b) and may be amended or revoked accordingly.

Modification of restriction on being employed under certain related bodies.

162. —(1) (a) In this section, “section 70(1) as applied” means section 70(1) of the Local Government Act, 1925 , as applied by section 26 of the Vocational Education Act, 1930 , as continued in operation for the purposes of such application by section 21(5) of the Local Government Act, 1955 , and as read in accordance with—

(i) section 25(6) of the Local Elections (Petitions and Disqualifications) Act, 1974 , and

(ii) section 12 of the Regional Technical Colleges (Amendment) Act, 1999 .

(b) Without prejudice to section 6 , and notwithstanding the repeal of section 70(1) of the Local Government Act, 1925 , and section 21(5) of the Local Government Act, 1955 , by this Act, section 70(1) as applied continues to have full force and effect.

(2) (a) After consultation with the Minister for the purpose of paragraph (b), the Minister for Education and Science may be order designate a class, description or grade of employments.

(b) For so long as an order under this subsection is in force, section 70(1) as applied shall not apply as regards an employment which is of a class, description or grade designated by the order.

(c) Any order made by the Minister for Education and Science under section 25(2) of the Local Elections (Petitions and Disqualifications) Act, 1974 , and in force immediately before the commencement of this subsection shall be deemed to have been made by that Minister under this subsection.

(d) After consultation with the Minister, an order under this subsection (including an order under this paragraph) may by order be amended or revoked by the Minister for Education and Science.

(3) Where an order under subsection (2) is proposed to be made, a draft of it shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving of the draft has been passed by each House of the Oireachtas.

Amendment of Local Authorities (Officers and Employees) Act, 1926.

163. Section 6 of the Local Authorities (Officers and Employees) Act, 1926 , is amended by the substitution of the following for subsection (5):

“(5) Subsection (4) of this section shall have effect subject to the proviso that where the local authority specifies a period (not less than one month) within which the person who is recommended by the Commissioners is to take up duty and notify the person of the period so specified, the local authority shall not appoint that person unless such duty is taken up within that period.”.

Amendment of Unfair Dismissals Act, 1977.

164. —Section 2(1) of the Unfair Dismissals Act, 1977 , is amended by the substitution of the following for paragraph (i):

“(i) a manager for a local authority for the purposes of section 144 of the Local Government Act, 2001,”.

Savers (Chapter 4).

165. —(1) The Local Offices (Irish Language) Regulations, 1966 (S.I. No. 221 of 1966), made under sections 13 and 19 of the Local Government Act, 1941 , shall remain in force after the commencement of the provisions repealing those sections and, by regulations made by the appropriate Minister by virtue of this subsection, may be amended to the same extent as provided for by those sections or may be revoked.

(2) Every declaration made under section 23 of the Local Government Act, 1941 , which is in force in relation to a person on the commencement of the provision repealing that section remains in force in relation to him or her after such commencement and, by declaration made by the appropriate Minister by virtue of this subsection, may be amended to the same extent as provided for by that section or may be revoked.

(3) (a) Notwithstanding the repeal of section 10 (as amended by section 12 of the Local Government Act, 1955 ) of the Local Government Act, 1941 , where an appeal under that section has been made to the appropriate Minister before such repeal, that appeal shall continue to be considered and may be determined under that section.

(b) Notwithstanding the repeal of section 26 (as amended by section 41 of the Local Government Act, 1946 ) of the Local Government Act, 1941 , where a request under that section for the consent of the appropriate Minister has been made before such repeal, that request shall continue to be considered and may be determined under those sections.

(c) In this subsection, “appropriate Minister” has the same meaning that it has in Part II of the Local Government Act, 1941 .