Thursday, 26 February 2004
Seanad Eireann Debate
An Cathaoirleach: Before we commence proceedings, I wish to announce a correction to the text of amendment No. 7. In the third last line, the words “behalf of” should be included after the words “on” and before the words “the Official Side”.
Minister of State at the Department of Education and Science (Mr. B. Lenihan): The amendment proposes to change superannuation to “pension” and, therefore, instead of “public service superannuation scheme” in the interpretation section, it will read “public service pension scheme”. This is for consistency of language used in the Bill. Elsewhere in the Bill, references are to public service pension scheme which is defined in the Bill.
Mr. O’Toole: As I am deeply suspicious about everything, although not about the Minister of State himself, I do not understand why the term has to be changed. Is this amendment simply for consistency? Does it impact on any group or section in the public service?
Mr. B. Lenihan: This definition sets out the bodies which come within the scope of the Bill. It is a broad definition to ensure that all public service bodies are covered. Due to this, some commercial State-sponsored bodies could fall within the definition. The intention is that they should not fall within the scope of the legislation. Schedule 1 lists any such commercial State bodies and subsection (g) of the definition excludes any body listed in Schedule 1. Bodies which have a pensions scheme made under the 1999 agreement between the Irish and UK Governments——
Mr. B. Lenihan: With regard to that interpretation, we seek to change “2001” to “2003” in the references to the Companies Acts 1963 to 2003. This amendment is to take account of the Companies Acts in the definition of “public service body”.
Mr. McDowell: I note the definition of “public servant” excludes five positions, namely the President, a member of the Judiciary, the Master of the High Court, a taxing master or a county registrar. Why have these five positions been excluded from the definition of public servant? There is no obvious reason for this.
Schedule 2 makes substantive amendments, running to almost five pages, to old enactments. Most pension laws date back to either Victorian times or the early days of the State. The 1980 regulations substantively amended the Victorian legislation and post-Victorian legislation. Why has it been decided to go about it in this way with this Bill? With 16 sections, the Bill is short, yet substantive amendments are listed in the Schedule, which is difficult for most of us to understand. Is there a bold or clear definition of the general retirement age? In so far as I can tell, it derives from the 1860s Acts as amended by the 1980 regulations. Without getting into the details of how one can amend a Victorian Act, which may not have survived the introduction of the Constitution on the establishment of the State, with a regulation in 1980, it is not obvious to the lay person how this comes about.
In dealing with amendments Nos. 2 and 3, the Minister of State said that the definition of a body in paragraph (g) under the definition of “public service body”, set out in section 1(1), refers specifically to the Companies Acts. He suggested that there are commercial semi-State bodies to which the Act may apply. Which bodies, other than the semi-State ones excluded, are included in the definition of public servant?
Does the definition of a secretarial office set out in the Ministerial, Parliamentary and Judicial Offices and Oireachtas Members (Miscellaneous Provisions) Act 2001, which amended previous Acts, refer to people who hold secretarial office within the Houses of the Oireachtas? If so we could usefully spend some time teasing that out. There are people who have been working for some time in these Houses as members of staff, whether called secretaries or not, who have very unsatisfactory pension arrangements. Will the Minister of State elaborate further on this?
Dr. Mansergh: Senator McDowell referred to the definition of the term “public servant”. On Second Stage, I said I was pleased that, for the purposes of this Act, I have been a public servant for over 25 years and, as a Senator, I continue to be one. One might ask why the President and members of the Judiciary are not public servants because if Oireachtas Members are they are too. I assume the Senator is referring to the meanings applied to this legislation, therefore, it is a purely practical definition. One would like to think that taxing masters are public servants when they approve high fees, but one sometimes wonders about that.
Mr. B. Lenihan: The rationale for the exclusion of members of the Judiciary from this legislation is that judges are different to other civil servants, primarily because they are appointed under Article 34 of the Constitution, which guarantees their tenure and terms of office. Their conditions cannot be varied by Acts of the Oireachtas. The retirement age for judges of the District Court is already 65 but for those in the Circuit, High and Supreme Courts it is higher. The position is the obverse of that with which this legislation deals.
Mr. B. Lenihan: In the Courts of Justice Act, wherein the retirement ages of judges are specified. In the Supreme and High Courts, retirement age is 72 and in the Circuit Court it is 70. In the District Court it is 65 but there is a statutory provision enabling the Minister for Justice, Equality and Law Reform to extend the tenure of a District Court judge from year to year after the age of 65. All these arrangements are set out in the Courts of Justice Act and there would be a major question about whether we could even embark on amending them given the constitutional position of the members of the Judiciary, who are independent in the exercise of their duties. They can be impeached but not removed from office otherwise than for stated misbehaviour if the Oireachtas adopts appropriate resolutions. For that reason it is not suggested that they are not public servants but simply that they are not so for the purposes of this legislation. Their legislation, enacted under the Constitution, regulates their position regarding tenure of office.
The tenure of office of members of the Judiciary goes back in constitutional history to the Bill of Rights in England in the 17th century. It is a constitutional fundamental, reflected in our Constitution, that the terms of office of members of the Judiciary are a matter with which the legislature cannot interfere. It would not have been open to us to pursue that course.
The President must be 35 years of age to be eligible for election to the office and the view has been taken that if a person serves as first citizen he or she should be entitled to a pension regardless and irrespective of the age of retirement. This might have interesting implications were the people to elect a 35 year old President, which has not yet happened. It is a constitutional office and it was also decided to include with those offices the quasi-judicial positions of the Taxing Master of the High Court and county registrars. This is true also of the Master of the High Court who for many though not all purposes has the position of a High Court judge, and while not a High Court judge exercises many judicial functions.
The Schedules are a tribute to the Parliamentary Counsel because the primary provision, which the Senator mentioned, was contained in section 3 setting out the abolition of the obligation to retire on age grounds, and section 10, which deals with pensionable age generally. Instead of simply enacting the core provisions of this measure as an express provision, the principle is contained in each of those sections, namely, the removal of the compulsory retirement age in section 3, and the 65 year old pensionable age in section 10. Rather than rely on the doctrine of implied repeal, the Parliamentary Counsel has catalogued the previous enactments which this repeal affects and has set them out in extenso in the schedule. The measure cannot be criticised on the basis that the Parliamentary Counsel went back through the Statute Book and identified the items with which those core amending provisions dealt. All the bodies excluded are listed in the schedule.
Mr. B. Lenihan: ——or if it does not fall within the definition of a public service body. I discussed that provision when I moved the technical amendments regarding the Companies Acts. Some commercial sponsored bodies could fall within the definition and for that reason there was an express exclusion in Schedule 1. Otherwise it is a matter of interpretation.
The definition of a qualifying office refers to the Taoiseach, Minister, Minister of State and former parliamentary secretaries, the predecessor post to that of the Minister of State. It does not refer to staff of the Houses of the Oireachtas.
Mr. McDowell: I am not trying to make arcane points about the law but I raised this matter because it seems that the basic statement, in so far as there is one, is that the retirement age is not 65 or that it could be lower in some circumstances, seems to derive from the 1980 regulations. Is that fair?
Mr. McDowell: Why did the Minister of State choose to use primary legislation to amend the regulations? It seems odd that the regulations would have amended primary Acts in the first place but that being the case, why the opposite approach now? I am not sure that something of this nature should be an issue for legislation. It is primarily a matter of industrial relations and for negotiation with particular bodies or groups of workers within the Civil Service. I imagine the trade union movement would take that position. Rather than reducing what is a very important issue to workers, many of whom work in extremely diverse jobs, to one sentence in one subsection of a Bill that states that everybody should retire at 65, we should just allow industrial relations to take it course and acknowledge that many different cases have special circumstances, which will require particular regulations, public service agreements etc. While I accept we are not yet discussing it, section 3 represents a blunt instrument and is inappropriate.
The Minister has spoken about judicial appointments legislation. While I do not intend to delay the House on this matter, if the provisions for the retirement age of judges are set out in legislation then surely it has to be open to the Oireachtas to amend such legislation. There can hardly be a general principle that while judges are entitled under the Constitution to work forever, nobody else is so entitled, notwithstanding the fact that it is a constitutional office. I made the point to highlight that judges, the President and the Taoiseach are separate. If we accept there are particularities relating to many different offices, why go down the road of making a general rule?
Mr. McDowell: We decided to deal with a number of queries on section 1, which relate to particular definitions, together. Perhaps we should have dealt with them discretely. However, we are taking them together as the Cathaoirleach asked me to do so. I am following up on the response the Minister of State gave on commercial bodies that are included. I cannot think of any. I ask the Minister to give some examples, as I am sure this information would be of interest to the workers in those bodies.
Dr. Mansergh: Part of the dimension of the Bill is what one might call economic confidence. We are dealing well in advance with pensions that will create considerable liabilities for the public finances in 20 or 30 years’ time. I accept the Senator’s point that in practice many matters will be negotiated with the social partners.
Mr. B. Lenihan: We are not aware of any commercial bodies that are included. Essentially, the purpose of the definition is to exclude all non-commercial bodies. The Senator is quite right in what he says about judges and court officers. It is open to the Oireachtas to amend the courts of justice legislation for new entrants to the Judiciary. However, I made the point more generally to stress that it has always been the legislative practice to deal with the Judiciary under the courts of justice legislation rather than as a subset of some other legislation. This would appear to be appropriate legislative practice given the constitutional mandate to provide by legislation for the Judiciary.
Mr. O’Toole: The term “general age” is confusing. I have never come across the term before in previous legislation. Senator McDowell raised a very valid point. Through the legislation there is mention of raising the general age to 65. Is that not correct?
Mr. O’Toole: The point I am making is that is not in the section. By way of interpretation we have excluded certain people by name. We have special measures attaching to people from other groups in other parts of the legislation. There might be a reason for that lack of consistency in approach. The Minister has explained that the President, members of the Judiciary etc. are included as they were dealt with in previous legislation. However, later in the Bill other groups are mentioned and we have amended legislation. Why did we not make reference to the relevant legislation? As we are amending legislation in one place, I would assume that any legislation, which is not amended and on which we are silent, stands. If these people were covered by earlier legislation, why are they included in the interpretation? The Minister said their entitlements and age of retirement are covered by legislation already and some parts relate to the Constitution. Therefore that clearly stands. However, if we go to the trouble of amending legislation to cope with other groups, why did we not do the same for this group?
Mr. B. Lenihan: We are talking about the definition of a public servant in this section. The definition of a public servant might be taken to encompass a judge, the President, the master of the High Court, a taxing master or a county registrar. For that reason they are expressly excluded in the definition of a public servant. The other categories referred to by the Senator can clearly be addressed in the appropriate sections in which they are mentioned. For many of the other categories, the pensionable age is addressed in section 10. Within the definition of a public servant it was considered desirable to include an express reference to these individual office holders, who are addressed in previous legislation, lest they be construed unintentionally as public servants for the purpose of the legislation.
I should have replied to Senator McDowell on the question about the regulation. The 1976 Act gave power to the Minister to make regulations and the 1980 regulations were made under that legislation. However, the Attorney General has advised we should not use regulations to amend primary legislation.
Mr. McDowell: We could happily open a Pandora’s box in this area. I seek more information on the point I mentioned concerning the definition of a public servant. What is the status of the staff of the Houses of the Oireachtas, who are or will shortly become staff of the Houses of the Oireachtas Commission? From experience of dealing with Labour Party staff, there is a range of different pension arrangements. Are these people public servants and what regulations or enactments govern their pension arrangements? To what extent will they be affected by this legislation?
Mr. B. Lenihan: I declare an interest as a member of the Houses of the Oireachtas Commission. The staff of the Houses of the Oireachtas Commission are civil servants of the State. They are not civil servants of the Government, but of the State. They are within the definition of civil servants in section 1(1). The legislation applies to them.
Mr. McDowell: I ask the Minister to check this between now and Report Stage. There is an increased difficulty because of the legislation passed last year dealing with fixed-term contracts and the need to roll those into a permanent contract. I understand that rolled over fixed-term contracts cannot exceed four years. There is some doubt as to how this applies to Members’ secretaries. If they became entitled to permanent positions presumably employed under the Houses of the Oireachtas Commission, clearly there would be implications as to how the pension arrangements would apply.
Mr. O’Toole: Senator McDowell has opened up a very tricky area, which is crucial. I did not understand that those working in our offices as support staff were all civil servants of the State. This has many implications, including possible gains for members of staff. The question, as Senator McDowell says, deserves a fuller answer. This would give clear rights to people in terms of their entitlement to apply for positions, to be retained in positions and so on, which I would welcome. I would like clarification on this issue so we do not get ourselves into a mess.
Mr. B. Lenihan: I agree with Senator O’Toole. I was making clear to Senator McDowell that the staff of the Houses of the Oireachtas are civil servants of the State, but it is far from clear that where a Member engages a secretarial assistant by way of contractual fixed-term arrangement, such a person is a member of the staff of the Houses of the Oireachtas and therefore a civil servant. My understanding is that the contract is drafted in such a way that he or she is not.
To elaborate on the point I made earlier, under the Protection of Employees (Fixed-Term Work) Act 2003, the State is obliged to offer full-time jobs to people on fixed-term contracts once they have been renewed several times. What about people who have been on fixed-term, year-on-year contracts, who are taken into the Civil Service because of this Act? Are they considered new entrants under the Bill? If one is on a fixed-term contract now and is offered a full-time job in a year, is one a new entrant?
Mr. B. Lenihan: We might return to this matter on Report Stage. Civil servants of the Government or of the State are a defined, ascertainable group of persons. I am not clear about whether the group of persons to which the Senator is referring are in that category or not.
Mr. O’Toole: I will try to be helpful. I can give examples of two groups about which there is doubt. One, as Senator McDowell mentioned, consists of people covered by the legislation we passed last year, the Protection of Employees (Fixed-Term Work) Act, which ensures that employees become entitled to permanency after a number of years of continued contracts. People covered by this Act may be temporary but they will eventually become permanent. Another group about which there is doubt is unestablished civil servants, which are not mentioned in that part of the Bill, although there is reference to civil servants of the Government and of the State. There is a process under which unestablished civil servants can become permanent civil servants. It is not clear whether these are considered new entrants.
There is a lack of clarity in parts of the legislation. The Minister’s six advisers and those in every other Department know that nothing is as complicated as trying to sort out legislation such as this in a few years’ time when people begin to wonder about their entitlements. We have been through this before. The points raised by Senator McDowell must be dealt with so they may be clearly understood and people will know where they stand.
Acting Chairman: Senator McDowell and Senator O’Toole have raised an important point. Will they accept the Minister of State’s last comment that he will obtain clarification and return to the matter later? It might be better to deal with it in this way rather than trying to obtain a spontaneous answer if further research is needed. Will they agree to this? We will return to the matter.
Mr. B. Lenihan: I am happy to advise the House that an unestablished civil servant is not covered by this legislation. That is the current position, but they will later fall within the scope of the legislation.
Mr. B. Lenihan: They are civil servants. They are unestablished civil servants. They are not established under legislation; that is why the expression “unestablished” is used to refer to them. They have already arrived as civil servants.
This amendment deals with starting times when the Bill comes into operation. On Second Stage we discussed the importance and unimportance of the time period of 40 years. For the Minister to plan 40 years ahead showed him to be a visionary displaying good planning and management, but when I raised problems that might arise in 40 years I was met with the response that the plan would not come into operation for another 40 years, so what was I worried about? For this reason I am not sure how to pitch what I am saying.
We are talking about something that will only come into operation in 40 years. Rather than referring to some vague period six months after 1 April, the Bill should refer to six months after 1 April. This has the advantage of clarity and it is tidier, although it will not make a huge difference down the line. We will know that if there is doubt in the matter of when people take up employment and so on, the date will be set at 26 weeks after 31 March rather than 26 weeks after the last day of service prior to 31 March. The latter introduces variables and is difficult to implement. There is no great principle involved. It also gives people a chance to settle in and obtain a feel for the legislation.
Mr. B. Lenihan: I understand the intention behind Senator O’Toole’s amendment, but there is an issue of principle involved. In the budget, 1 April 2004 was announced as the effective date after which the new arrangements would apply and the Minister sees no reason to depart from this. Besides, if the amendment was accepted it would undermine the current link between a non-new entrant and the existence of an employment contract, whether explicit or implied, because the 26-week provision mirrors the periods used to define continuous employment in other employment legislation. The amendment would have the effect that any former public servant could rejoin the public service within 26 weeks of 31 March 2004 without being treated as a new entrant, regardless of the length of time between the ending of his or her former service and the commencement of the new period of service.
The intention of this subsection is to take account of persons who have been in recent temporary employment in the public service and who will be employed again the public service in the near future, but are not actually serving on 31 March 2004. I am satisfied that the subsection as currently drafted achieves this effect.
Mr. Browne: How does the six-month ruling apply, for example, to people who go to Australia? Normally people go to Australia for a year. How will they be fixed when they come back? Why is a period of six months specified? For example, if a teacher who has not been granted a career break or leave of absence goes to Australia for a year, what will happen when he or she comes back?
Mr. B. Lenihan: If a person resigns his office he has made a conscious decision to terminate his contract of employment, so he can only come back as a new entrant in that instance. Naturally, if a person is on leave, paid or unpaid, there is no difficulty under the legislation.
Mr. Browne: Does the Minister agree that people who go to Australia usually go for a full year? Things have changed dramatically since the time, years ago, when people emigrated because they had no other option. Now they make a choice to go. I am concerned about this issue.
Mr. O’Toole: Under section 2(3)(b) a person is entitled to resume his or her office or position, or another office or position, within the public service. This refers to returnees in certain situations. It covers the right of people to return to a job in, for example, teaching, the public service or Civil Service. Does the Minister know what is being done here? I have listened to Members on the other side of the House and particularly to these go-ahead, progressive, market driven Ministers. Why not get some movement in the public service and allow people to leave and return? Let them go out into what the Ministers call the “real world”.
Ministers think that teachers and nurses do no work. We are aware of what they say so there is no need for this Minister to make excuses for them. They think nurses and teachers do not do anything and that they should go out into the real world. What does this legislation say to people who decide to take a break of four or five years? I am not referring to a career break but to somebody who decides to leave a public service position to start a company. It might or might not work out or the company might be sold but ultimately the person may wish to return to the Civil Service and will be a much wiser person with a great deal more experience to offer. However, that person will return with a deteriorated level of pension expectation. Is that a good idea? Will the Minister admit it is a good idea? He knows it is not. It is daft.
My suggestion of the 26 weeks prior to it softens the impact. I cannot find anybody in the Fianna Fáil Party or in the Cabinet who considers this good legislation, with the exception of the Minister and I have told him this. Nonetheless, we are charging ahead. Senator McDowell mentioned earlier that it should be left to industrial relations. A minefield is being opened with this Bill. People will spend the next 40 years negotiating in the Department of Finance on Merrion Street to sort out the problems that are being created by this section. My amendment would be a tiny amelioration, which is not an issue of principle.
The Minister outlined the principle in the budget and sees no reason for departing from it. However, he has made at least five significant changes in the Bill which contrast with what he said in his Budget Statement. They are on the record and, by the way, they were good ones. I approve and applaud each one. However, let us not stop there. Let us do whatever is necessary to ensure we make this in some way applicable.
Mr. B. Lenihan: I am sure the Minister has a high regard for nurses and teachers. I would not entertain the idea that there is any member of the Government who does not have the height of regard for them. I have great regard for the work done by teachers and nurses.
If there is leave, paid or unpaid, this legislation does not apply. The person does not become a new entrant if he or she is on paid or unpaid leave. If a public servant opts to resign, that creates a different position. Extensive mobility within the public service is provided for in the Bill. There are arrangements throughout the public service for leave of absence but if a person resigns, the contract of employment is severed. There is no need to explain that. Persons who sever their contract of employment generally, as adults, are aware of the step they are taking.
Mr. O’Toole: People can only come back into the public service if they are entitled to resume their office or position or another office or position. There is no entitlement to resume if somebody leaves. It has nothing to do with the contract of employment. The contract of employment covers the safe issues, such as career breaks, and matters that have been approved by the Department of Finance or the Department of Foreign Affairs. The Government is trying to get people to look beyond that type of thing.
Mr. B. Lenihan: If we amend the definition of a new entrant to dilute it even further, we will give an advantage to a particular group at the expense of other groups who might wish to join the public service.
Mr. B. Lenihan: We would give rights which are above and beyond those provided for in existing employment legislation to other workers in other contexts with regard to the continuity and discontinuity of employment.
Mr. O’Toole: I utterly reject that. Last night I had in my hand an offer which a person working in a financial institution received. The offer was a retirement of 33 sixtieths at 50 years of age. I will fight to the death the prevailing attitude that the public sector pension, which is good, is somehow above what is available in the private sector. I can produce a list of jobs at all levels in the private sector which have far better deals. It does not apply in all cases and building workers recently argued that point. However, it is unacceptable for somebody to decide not to do something for nurses, teachers, gardaí and civil servants because it would disadvantage the private sector. We all know people working in banks and other places who have far better deals.
We are not creating disadvantage for anybody. I am not asking for anything extra. There are many cases in private industry where people are encouraged to go to work in other parts the private sector. If they wish to return and a position is available, they will be given it. They do not return with rights but they have the same pension entitlement. However, that will not happen in the public service and the Civil Service. If a teacher leaves a position, tries to add something to the economic growth of this country in another venture but it does not work out and he or she wants to return to the service, he or she is utterly disadvantaged. That is wrong and is contrary to everything we are trying to do to grow the economy and in terms of flexibility. This is a belt and braces means of imprisoning people in positions.
Mr. McDowell: I wish to ask a question related to the amendment. This subsection appears to deal with situations where people are working for a public service body listed in the Schedule and moving into the Civil Service at some point in the next six weeks or in the six weeks before 31 March. Some arrangements have been made over the years with bodies which were moved or partly moved out of the public service. Team Aer Lingus is an example. It was separated from the public service and the Aer Lingus scheme and was effectively privatised. Employees were given letters of comfort and were told they would be entitled to return to the public service on terms that would apply to public servants. I am not asking about that case but I am aware that such an arrangement was made. The Minister will be aware that it was subject to legal challenge. Are there any other such arrangements involving bodies which were in the public service where people still hold letters of entitlement which allow them to return to the public service in the future? If so, it appears that those arrangements are being superseded, intentionally or otherwise, by this legislation.
Mr. B. Lenihan: I am not aware of the terms of such arrangements for the purposes of today’s debate. However, if such arrangements are contractually in existence and agreed upon, they are not in any way affected by this legislation. They continue to stand. That issue is not germane to this Bill.
The Civil Service Commission and Local Appointments Commission arrange for recruitment to public service positions. If we were to legislate that in the case of a resigned public or civil servant, he or she had an extensive right of return to the service, it would be to the disadvantage of others such as school leavers who might wish to join the service.
The issue is simple and deals with equity. The Act gives recognition to the fact that people in the Garda training college in Templemore are deemed not to be new entrants. The same recognition should be extended to trainee and student teachers in colleges of education. I can give many reasons for this. First, there is no equity in the Act. People doing their B.Ed. are only qualified to do one job when they finish. They have made a decision and have the clear expectation on the basis of the decision they took when they entered college. They have a legal case in terms of expectation and of the position that existed when they started college. Little would be lost by extending to them the same approach and understanding as is properly being extended to recruits in the Garda college.
I asked somebody why the extension was granted to people in the Garda college and not to other groups and was told that it was due to the fact that they were covered and recognised by legislation. That is irrelevant to whether they will be covered by this legislation. This is a question of equity and the provision as it stands is grossly unfair. Any reasonable person can see that these student teachers have made a decision to enter a college of education and that their qualification only entitles them to be employed in a primary school. On that basis they should be regarded as being new entrants on the day they walk into the colleges of education. I ask the Minister to accept this reasonable amendment.
Mr. Browne: I agree with Senator O’Toole. Unfortunately, a B.Ed. degree is of no use outside of the teaching area. People who have committed themselves to teacher training colleges will be snookered by this. If an exception is made for trainee gardaí, the same should be done, on the grounds of equity, for students who have committed themselves to the different colleges of education, whether Froebel, Coláiste Mhuire in Marino, Coláiste Phádraig in Drumcondra, Mary Immaculate College of Education in Limerick or the Church of Ireland college of education. I urge the Minister to give careful consideration to the amendment.
Mr. B. Lenihan: Senators O’Toole and Browne made an eloquent plea on this issue. However, the Minister is of the view that he must stick to the strict contractual link that exists in the contract of employment. The person who attends a teacher training college does not have a contractual link until he or she is engaged as a primary school teacher. That distinction is reflected in the legislation. The Minister is not disposed to accept the amendment because it would undermine the current link between the non-new entrant and the existence of an employment contract, either explicit or implied.
In the case of a person training to be a primary school teacher, there is no direct link with employment on completion of the training and an application for a position has to be made. The Minister is not prepared to make a special arrangement for a particular group in a particular type of training establishment where no contractual employment agreement exists. Provision has been made in the Bill for trainees from the Garda college in Templemore because there is an implied contract of future employment in the Garda Síochána, subject to satisfactory completion of training.
Mr. Browne: I want to move from that point to teachers. In fairness to them, does the Minister of State know of any case of a newly qualified teacher walking into a job unrelated to education on the day after qualifying with his or her B.Ed.? I do not know of any. The qualified B.Ed. must also spend the first year after qualification doing a diploma before being recognised as fully qualified.
Ms Ormonde: I am joining this debate without having done much reading on this issue. Senator Browne stated that he does not know of anybody who entered training college and qualified with a B.Ed. who did not go into teaching. The area is wide open. Many people make different choices. At 18 years of age a person may enter training college but at 21 the person may have a different philosophy regarding the direction his or her life should take. Some come out from teacher training college and do not enter the teaching profession.
Mr. Browne: My point was that 99% of graduates with a B.Ed. go into teaching, because unfortunately, the B.Ed. degree is not useful for getting jobs in areas outside of education. That is the specific point I made. I genuinely do not know of anyone who left college with a B.Ed. who entered a different area of work without having to do some other course. My point is that a B.Ed. degree is specific. It allows a person to get a job in the teaching profession and curtails the person from joining other areas. Many teachers who wanted to leave teaching found afterwards that the B.Ed. degree was not worth much to them outside of the teaching profession.
Ms Ormonde: My point is that it is possible for people who have completed a course, whatever course it is, be it teacher training or whatever, to decide to enter other professions after they qualify. I do not see anything stupid in that statement. If the Senator does, I might revert his comment to him, but I will not do that.
Mr. McDowell: I endorse the point made by Senators Browne and O’Toole. It does not matter much whether an individual decides to stay in the teaching profession or not. The fact is that when they entered teacher training they did so in the expectation that certain conditions of employment would be available to them and, by and large, they do go on to be teachers. It is reasonable to preserve that expectation, which is the principle behind the amendment.
Mr. McDowell: I will raise it under the section. The point at issue with this amendment is the preservation of the expectation of people in the public service who are in a course of training. I wanted to ask about nurses.
Mr. McDowell: We have been debating the issue already. The Minister of State has justified this provision on the basis that a provision has been made for gardaí. We must relate it to other professions and other courses of training to which it is clearly relevant. We are not saving time if I have to go back on it later.
Mr. O’Toole: On a point of order, I tabled an amendment to which in his response, the Minister of State justified why recruit gardaí were dealt with in a certain way. He went to great lengths to explain their contract and the reasons this could not be related to the teaching profession. In terms of the response, it is perfectly in order. I intend referring to that connection made by the Minister of State who was not ruled out of order.
Acting Chairman: I accept the point, which is one of information rather than order. In the presentation of his amendment, Senator O’Toole specifically correlated the primary teacher and the garda, which prompted the Minister to respond to that.
Mr. McDowell: I do not want to delay matters so I will save the issue of nurses for a few moments. I wish to ask the Minister of State about the issue to which he referred, which the Acting Chairman deemed to be in order, namely gardaí. He specified that gardaí had an implied contract. I am not quite sure what that means. Does it mean they have an actual contract of employment before they enter Templemore or does the contract begin on completion of training? If it is only an implied contract then it is simply an expectation that could also be applied to other bodies, including teachers.
Mr. B. Lenihan: It is not a mere expectation. It is an implied contract that on completion of satisfactory training that person will take up duties and be assigned as a member of the Garda Síochána in a definite post.
Mr. B. Lenihan: It is a right to serve with the Garda Síochána on completion of training. I am not clear if it is written, but there have been numerous court decisions in this area. The position of a member of the Garda Síochána is more analogous, but not in all precise terms, to a person who is enlisted in the Defence Forces under the 1954 Defence Act. Where a person is attested in the Defence Forces he or she immediately becomes a member of the Defence Forces subject to full military discipline. The question of training is simply a part of the general aspect of military duties. Once a person commences training at Templemore he or she is subject to the full disciplinary rigour of being a member of the Garda Síochána. On satisfactory completion of the training course the person is assigned to a definite posting in the force.
Mr. B. Lenihan: I do not wish to discuss nurses, but I wish to employ them to illustrate a point, which is, the dangers of extending this category beyond the Garda Síochána to bodies which have expectations. If one extended the categories, as in the proposed amendment, this would encourage a type of debate that would be replicated in other categories.
Mr. O’Toole: We are talking about an exception and I ask, therefore, that another exception be made. The relationship between different categories has to be a fair reference point. Will the Minister of State indicate what is the position of Army cadets? Are they similar to teachers? The aim of my amendment is to protect the position of teachers. Army cadets are not included in the legislation in the way gardaí are. Are they new entrants when they finish their cadet and college course, let us say if they do a degree course in NUI Galway? Are they new entrants when they come back into the system at that point?
Mr. O’Toole: I want to make this clear. This will not go away. We will go through debates for the past 17 years where it will be seen to be perfectly in order to make appropriate references and connections with different groups in order to illustrate cases. I cannot accept that something can be ruled out of order in that way. It is not fair.
Acting Chairman: I made a ruling in regard to Senator McDowell. I will allow him to raise the matter when we discuss the section. It is relevant to the section but not to the amendment. I make the same ruling regarding Senator O’Toole’s point on the Army.
Mr. O’Toole: Excuse me, a Chathaoirligh. If my point were out of order then the amendment would have been ruled out of order. The aim of the amendment is to create an exception and, in terms of argument, it is necessary to make comparisons and relativities with other groups which may be excluded under this section. There is no other way to present the argument.
Senator O’Toole tabled an amendment on which I allowed discussion. The points raised by the Senator are germane to the section and I will allow them under discussion on the section. I will also allow the Minister of State to respond. That is my ruling and I ask Senator O’Toole to respect it. This is not intended to obstruct the debate in any shape or form, but I am in the Chair and this is my ruling.
Mr. O’Toole: I use the same approach to connecting arguments, as is normal parliamentary procedure in this House, the other House and any other parliament I have seen. I am clear on what can be ruled in or out of order. It would be completely out of order for us to discuss at length the issue of nurses, cadets, gardaí or whatever, but it is quite in order to raise issues about them to make a connection and to seek information. The Minister of State has taken one group in the section, which I accept and do not wish to discuss, but I say that there should be other groups and I proposed one. In terms of justifying the argument for that, I inquired about the position of other groups. The House needs to know this in order to help it reach a conclusion on this matter.
Acting Chairman: I do not disagree with that point. However, from the point of view of structuring this debate, I ruled that this matter will be discussed and the Minister of State will respond when we discuss the section, which is after the next amendment. I ask Senator O’Toole to respect that decision. It does not obstruct debate in any way or adjudicate on the quality or relevance of the question, but it is not germane to the amendment. Is the amendment being pressed?
Mr. Browne: As Senator O’Toole pointed out, the principle of an exception has already been established in terms of the gardaí. All this side of the House wishes to establish is that it be extended to new entrants in the colleges of education.
In response to Senator Ormonde, far more gardaí are involved in other duties outside the force than teachers working outside of teaching. The point I made was about the B. Ed. being very specific in terms of getting jobs afterwards. People who enrolled in the colleges, including those who registered in the postgraduate course last September and this month, were thinking of 35 or 40 years ahead. Retirement age would have been a factor in the making of their decision. That goal post has now been moved and it is proper that an exception is made for that group of people.
Mr. O’Toole: The position is that we have to take this through as we see it. When students are making decisions about their future at leaving certificate stage, as Senator Ormonde said, they might change their minds many times along the way either before they make a final decision on filling in the form or when they make their choices afterwards. There are choices to be made at all times and we have to allow for that. The focus of our interest is those who followed through on the choices they made. If these people do not continue on to become teachers then, as Senator Ormonde said, it does not affect them. This is a group of people who opted for a profession. After making a decision they need to get themselves trained and qualified. At that stage they have given a life commitment to a chosen career, although that might change along the way. However, it does not matter because even if they entered the profession in the current circumstances for five years, they would still have a preserved pension entitlement which they could draw at 60 years of age. That is a simple example of what I am talking about. There is a clear statable legal case in this respect and we should be mindful of this when processing legislation. It is reasonable that we should make sure young people are employed on the basis of the conditions that obtained when they opted in. This is not rocket science but simply involves treating people in a fair way. We have, in the legislation, allowed garda recruits to be treated differently to those in teacher training college and I ask that they be treated in the same way.
Students make a choice to become teachers, they spend three years attending college and then they take up their duties. I do not know if the same applies to Army cadets. All I am saying is that the system is not fair. My amendment would introduce some equity into the system and I appeal to the Minister of State to accept it.
Mr. Mooney: I have listened with great interest to Senator O’Toole and have great sympathy with his position. There is a degree of inequity in the separation of teachers and gardaí, both of whom are employed by the State after their training. I appeal to the Minister of State to reflect on the contribution made forcibly by Senator O’Toole. Will he consider some form of transition period, perhaps of 12 or 18 months, that might offer some flexibility to those who signed on for teacher training prior to the commencement date for new entrants? This would at least introduce some flexibility to the proposed arrangements, which are very arbitrary.
Notwithstanding the very valid comment made by Senator Ormonde that one might not become a teacher in the short term or long term after attending teacher training college, young people considering a career are certainly of the view that they will commit themselves to the teaching profession after signing up for teacher training college, notwithstanding that this view might change when they are a little older and other opportunities might present themselves.
At the precise time a student signs up for teacher training college, there is also a student signing up at the Garda Training College in Templemore. The latter student might also leave the Garda after a year or two but he will be treated differently under the proposed legislation. This is discriminatory and there is a valid case for revisiting the issue.
Mr. Fitzgerald: I admit to being a little confused. Given my background, I am very sympathetic towards some of the sentiments expressed by Senator O’Toole. However, I am not at all sure that there is such a closeness between the different circumstances outlined. Consider the case of a primary teacher and a member of An Garda Síochána. I have always understood that there is no contract involved when a leaving certificate student enters training college and that there is no job involved until such time that the student graduates and seeks a job thereafter. I had experiences lately that showed me how tenuous my position in the House is as a former teacher. I will not go into the details but it reinforces the point I am making.
I have always understood that a student’s entry to the Garda Training College was part of a contractual arrangement — maybe I am wrong and I am open to correction — and that there was a continuum between one’s training and one’s entering the workforce. Until now, I have not understood that there was such a continuum pertaining to primary teachers. While I am very sympathetic towards the principle of Senator O’Toole’s point, I anticipate a number of difficulties. Perhaps the Minister of State will enlighten me. If we were to allow the same continuum to operate in the case of primary teachers — I was one and still officially am — as operates in the case of gardaí, would we not be faced with the same dilemma with regard to university graduates who become secondary teachers or third level teachers? What distinction can we draw legally, constitutionally if relevant, or in terms of equity between primary and secondary teachers? If we can draw a distinction, it is great.
If a leaving certificate student enters university to do a primary degree with a view to becoming a teacher, should he or she not be in the same position as my daughter, who has just entered teacher training college? Should that student not have an equal case in terms of equity and legal definitions of contracts? Am I missing the whole point? If such a student does not have an equal case, the question that has been posed by Senator O’Toole, as I understand it, covers much more than primary teachers. Sympathetic as I am to the issue of primary teachers and the need for Government to make a commitment to them and support them, I anticipate difficulties. If my reasoning is wrong, will the Minister of State indicate this to me clearly? If it is wrong, I will be very supportive of an amendment on Report Stage to support the proposal being put forward.
Mr. Browne: I thank Senator Fitzgerald for his contribution. He has certainly reconfirmed my beliefs and has certainly made a valid point about existing Higher Diploma in Education students. They could be included also. There is an exception being made regarding gardaí. If a survey was carried out on the number of people who trained as gardaí but who are no longer in the Garda and the number of teachers who obtained a B.Ed. degree as opposed to a BA degree — this is because a BA presents a different range of possibilities — but who are no longer in the teaching profession, I would love to know the results. A B.Ed. is a very specific degree for primary teaching. As the Minister of State well knows, there are very few jobs one can get with it, apart from in politics. One needs to supplement such a degree with another.
I believe I am correct in saying that the students who attend colleges of education to do a B.Ed. are subsidised by the Government because the Government knows they will enter teaching after they qualify. Does this not in effect constitute a sort of contract? The idea of the contract is a bit spurious. We all realise those who do a B.Ed. are doing so to teach. All we are asking for is an extension of the exception to a small group of people who are already in the system who were not aware that the goalposts would be move when they entered it.
Mr. Mooney: Having worked in RTE for the past 25 years, I realise that if a survey were carried out, it could be guaranteed that three quarters of those with a BA are not teachers. I question whether those who do a BA in university only end up as teachers.
Mr. Mooney: I thank Senator Browne. I stand corrected if I am wrong. I understood the Senator to have said that those who take BA degrees become teachers as there are few other job opportunities open to them.
Mr. Mooney: I thought the Senator said BA. I bow to the greater wisdom of Senator Fitzgerald who works in the teaching profession. I made my intervention with the Minister in an attempt to argue within the narrow context of the amendment, which is specific to teacher training colleges. Of course, one can argue about another range of categories where people with the necessary skills could, and do, work as teachers. However, the proposed legislation refers to the Garda Training College and the amendment refers to teacher training colleges. Notwithstanding any of the valid arguments that have been made vocally and eloquently by Senators Fitzgerald and Browne, I suggest that the Minister of State revisits the issue in the narrow context of the amendment proposed. I suggest that this affects the vast majority of those who wish to take up primary school teaching.
Mr. O’Toole: That is the point I was making. I was looking at the precise terminology. The colleges of education are there for the single purpose of producing teachers. When I was in college there was a requirement that qualifying teachers commit to teaching in the State for at least the first five years of their career. This was seen as a payback for the costs of the development. The B.Ed. is a specialist qualification that qualifies the person for one job only. What the graduate decides to do is another matter. It is precisely analogous to the Garda college, nursing colleges and cadetships. I understand that nursing colleges are in some way covered if they are attached to hospitals.
It seems reasonable to approach this as a matter of equity to ensure that the expectations of students currently in college are maintained and preserved. I ask the Minister of State to consider this. Perhaps the Department can look at it between now and Report Stage and give some indication of movement on it.
Mr. Fitzgerald: I do not see the analogous precision that Senator O’Toole does. While there is a close analogy, the big distinction is the continuum. I consider this to be relevant and await a reply from the Minister of State. I am supportive of what he says and I hope his suggestion is workable. I hope it can be introduced and that the Minister for Finance sees the wisdom and relevance of what he is saying.
This argument is strongly supported from a number of perspectives. The difference I see is that there is no continuum. I understand there is no continuum in nursing colleges either. It was not my understanding that a nursing student was automatically guaranteed a continuum into employment from nursing college. Irrespective of the specific nature of the primary school teaching degree course, a student in a primary school teaching college is not given a guarantee of a continuum into employment. Therefore, there is no contractual arrangement other than a commitment entered into by the student to take the degree programme with the specific target of working as a primary school teacher.
This distinction remains in my mind and I would like the Minister of State to address it. Perhaps I am posing unnecessary and unwarranted questions. I am supportive of the sentiments the Minister of State has expressed.
I reiterate the point that when a student enters a training college, there is no contract guaranteeing a job on graduation. Students sometimes undertake a Higher Diploma in Education simply to do a module in an area that interests them. While a majority of students that undertake the higher diploma in education may teach when they graduate, the principle is that a BA or B.Ed. provides a rounded
education that will allow students to do other things. It is different for students at the Garda college.
Mr. B. Lenihan: I agree with Senators Ormonde and Fitzgerald that a person starting training in any area, including teaching, has no guarantee regarding the jobs market or the terms or conditions that will apply to their employment on the completion of training. There has always been a chasm in law between a right and an expectation. The provision of this legislation deals with those who have rights, not expectations.
The point Senator Fitzgerald makes is correct in so far as Senator O’Toole’s amendment brings us on to the slippery slope between the right and the expectation. When secondary school teachers and nurses were introduced in the discussion, we found ourselves well down the slippery slope. This is the difficulty the Minister has on the issue. It is much easier to have a clear-cut rule that those who have a clear position of right are defined on one side while those with expectations are on the other. The legislation has been drafted in this way. For this reason, I cannot accept the amendment.
Mr. Browne: It is fair to say that 100% of B.Ed. graduates will end up teaching at primary level or in another area. I am sure that if a survey was conducted in the college of education and asked B.Ed. graduates why they were taking a course, they would respond by saying that it is because they want to teach at primary level. It is disingenuous to introduce the BA argument. I picked up Senator Fitzgerald’s point about existing Higher Diploma in Education students who are going to do secondary school teaching.
To return to the contract element, the bottom line is that there are far more gardaí involved in areas other than policing — such as the security industry — where they use their training than there are teachers in other areas. Senator Mooney has spoken with a good deal of common sense. Perhaps the Government is following the Ryanair example where it has recently asked cabin crew to pay for their training. As far as I know, B.Ed. students are greatly subsidised by the Government in their training. The Government knows it will get a return on its investment as B.Ed. graduates will become primary school teachers. This surely proves there is an effective contractual arrangement in place.
I would like to see the figures for the number of graduates from the teacher training and Garda colleges for the last few years to determine what percentage has stayed specifically in the area their training prepared them for. It might be entirely different to what the Minister of State and Senator Ormonde have said.
Mr. Fitzgerald: While it supports the argument, it does not establish the right and this is the problem. There is a chasm between supporting the argument and establishing the right. While I would be delighted to support the closing of this gap, I foresee enormous difficulties. The Minister of State referred to slippery slopes and I would be inclined to agree with him. I am extremely supportive of the principle involved, if we can close the gap.
Mr. Browne: The B.Ed. degree consists of education and arts elements. While one may have qualified with a B.Ed. degree including, for example, French, the arts content would only account for, at best, an exception for a first year arts course at UCD. A person with a B.Ed. degree in French from St. Patrick’s College who wishes to do a pure French degree in university must go back into second year. The point is that because the degree is specific to teaching, it is ultimately of little value outside the teaching profession.
|Bannon, James.||Bradford, Paul.|
|Browne, Fergal.||Burke, Ulick.|
|Coghlan, Paul.||Coonan, Noel.|
|Finucane, Michael.||Henry, Mary.|
|McDowell, Derek.||Norris, David.|
|O’Meara, Kathleen.||O’Toole, Joe.|
|Phelan, John.||Ryan, Brendan.|
|Bohan, Eddie.||Brennan, Michael.|
|Callanan, Peter.||Cox, Margaret.|
|Daly, Brendan.||Dardis, John.|
|Dooley, Timmy.||Feeney, Geraldine.|
|Fitzgerald, Liam.||Glynn, Camillus.|
|Hanafin, John.||Kett, Tony.|
|Kitt, Michael P.||Leyden, Terry.|
|Lydon, Donal J.||MacSharry, Marc.|
|Mansergh, Martin.||Minihan, John.|
|Mooney, Paschal C.||Morrissey, Tom.|
|Moylan, Pat.||O’Brien, Francis.|
|Ó Murchú, Labhrás.||O’Rourke, Mary.|
|Ormonde, Ann.||Phelan, Kieran.|
|Scanlon, Éamon.||Walsh, Jim.|
|White, Mary M.||Wilson, Diarmuid.|
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