Education (Amendment) Bill 2012: Report Stage (Resumed) and Final Stage

Tuesday, 7 February 2012

Seanad Éireann Debate
Vol. 213 No. 4

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An Cathaoirleach: Information on Paddy Burke  Zoom on Paddy Burke  Amendment No. 8 has been discussed with amendment No. 7.

Government amendment No. 8:

Amendment agreed to.

Government amendment No. 9:

[307]Amendment agreed to.

Government amendment No. 10:

In page 8, line 47, to delete “Garda” and substitute “An Garda Síochána”.

Minister for Education and Skills (Deputy Ruairí Quinn): Information on Ruairí Quinn  Zoom on Ruairí Quinn  On Committee Stage I accepted an amendment from Senator Power, which allows the Minister of the day, in making regulations on the use of unregistered people, to impose a requirement that they be vetted by the Garda.

An Cathaoirleach: Information on Paddy Burke  Zoom on Paddy Burke  Amendment No. 10 is a Government amendment.

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  Yes, but it originated from a Committee Stage amendment tabled by Senator Averil Power from the Fianna Fáil Party. There is a new regime in this office. Senator Power proposed an amendment which allows the Minister of the day, in making regulations on the use of people to impose a requirement that they be Garda vetted. The purpose of my amendment, on advice from the Parliamentary Counsel, is to give the Garda its full title, An Garda Síochána, and does not change the substance of the proposed amendment. I thank the Senator for her amendment.

Senator Averil Power: Information on Averil Power  Zoom on Averil Power  I thank the Minister for accepting the amendment. It is an important issue and it is good that we have been able to reach a consensus on it.

Amendment agreed to.

Senator Averil Power: Information on Averil Power  Zoom on Averil Power  I move amendment No. 11:

I outlined the rationale for this amendment on Committee Stage. Members from all parties expressed support for it. I am concerned about the growing evidence that schools are relying all too easily on retired teachers, people who are on pension, and giving them job opportunities before giving substitution work to young teachers who are unemployed and not only need the money but also the experience. Young teachers cannot get the substitution work to give them teaching experience at present and they cannot get a permanent job because they do not have the experience, not having built up the necessary hours of teaching experience. The Minister expressed support for the amendment and I was glad to hear last week that he would accept it. I hope that is still the case, but the Minister appeared to indicate otherwise before we adjourned.

This is a serious issue and if there is an area where restriction is needed in legislation, it is here because it presents a real problem. I hope we can maintain the consensus that we had last week.

An Cathaoirleach: Information on Paddy Burke  Zoom on Paddy Burke  Is there a seconder for the amendment?

Senator Maurice Cummins: Information on Maurice Cummins  Zoom on Maurice Cummins  I second the amendment in order that it can be discussed.

[308]Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  On Committee Stage I made a commitment to reviewing this amendment and indicated my agreement in principle to the inclusion of provisions for determining the terms and conditions of registered teachers who are in receipt of an occupational pension and are re-employed in schools. I have examined the issues on this provision and my officials have engaged with the Office of the Parliamentary Counsel on the matter. As a result of the concerns expressed by the Parliamentary Counsel over constitutional issues, the drafting office has advised that it would be necessary to explicitly stipulate the circumstances, conditions and requirements of the regulations which could be made under this provision. While we could go down that road, I am concerned that it would impose unnecessary restrictions on the Minister of the day to deal with changing teacher supply and demand.

While we have a large pool of unemployed teachers available for employment, this may not always be the case. Under section 24(3), the terms and conditions may be determined by the Minister, with the consent of the Minister for Public Expenditure and Reform. This is effectively what has happened in the issuing of circular 31/2011 last year, which prioritises unemployed registered teachers over retired teachers, however, in the interests of education, it also prioritises retired registered teachers over unregistered teachers.

I fully agree with and support the sentiments expressed by Senator Power on this issue and on the issue of principle there is no disagreement, however, if the only way to regulate it by secondary legislation is to put unnecessary restrictions and stipulations in primary legislation this is not desirable. If any aspect of it needed to change, further primary legislation would be needed. This is not in the interests of flexibility and I remain unconvinced that this best serves the needs of a changing society. Reluctantly, I am therefore unable to accept this amendment.

The Seanad has no role or function if we cannot act as legislators. I am not in a position, because of constraints on time and I must consult the Minister for Public Expenditure and Reform, but unless we arrive at a situation where all the resources and talents of the Legislature can be invoked and mobilised, we are not in a republic doing our job. I have much more loyalty over the length of my time in politics to the Houses of the Oireachtas than for the time I have been Minister, but I am constrained by collective responsibility and must reluctantly accept this advice.

Senator Averil Power: Information on Averil Power  Zoom on Averil Power  I will take the opportunity to reread the amendment, for the benefit of members of the House. It states:

I do not believe that is too prescriptive. I do not understand the advice the Minister has been given. All that the amendment states is that where all reasonable efforts have failed to secure an appropriately qualified registered teacher, that conditions apply to the re-employment of retired teachers. That leaves a great deal of scope for the Minister of the day. We have an acute problem with the high level of unemployment and the number of young teachers who are looking for work. It should always be the case, whether it is in five, ten or 20 years time, that all reasonable efforts should be taken to give a temporary post to a person who is out of work over a person who is on a pension, regardless of the economic context. I appreciate that things will change.

[309]I acknowledge that the Minister is being genuine and is acting on the advice he has been given, but I do not understand it. I assume that officials in the Department had looked at the amendment tabled on Committee Stage and it appeared last week that the Minister did not have a concern about it. I will put this amendment to a vote, because I believe the interpretation of the current wording is too narrow.

  7 o’clock

It is not my intention to tie the hands of the Minister or of any future Minister. I would not support an amendment if I thought that would be outcome. I acknowledge that we need to be sensible, in terms of providing for future circumstances. However, I do not believe that acceptance of this amendment would tie the hands of any future Minister. I am flexible in regard to the language, and I refer in the amendment to “The Minister may from time to time prescribe” conditions for the re-employment of retired teachers following “all reasonable steps” having failed to secure a quality teacher who is not retired. The Minister may prescribe whatever he likes, having looked at the issue in the context of the times. I do not see how that ties the hands of a Minister.

This is an important issue and as others articulated in the House on Committee Stage, it is an issue of concern that was raised with the Minister. This is a reasonable way of dealing with it.

Amendment put.

The Seanad divided: Tá, 15; Níl, 24.

Information on David Cullinane  Zoom on David Cullinane  Cullinane, David. Information on Mark Daly  Zoom on Mark Daly  Daly, Mark.
Information on Terry Leyden  Zoom on Terry Leyden  Leyden, Terry. Information on Marc MacSharry  Zoom on Marc MacSharry  MacSharry, Marc.
Information on Paschal Canice Mooney  Zoom on Paschal Canice Mooney  Mooney, Paschal. Information on David P.B. Norris  Zoom on David P.B. Norris  Norris, David.
Information on Brian Ó Domhnaill  Zoom on Brian Ó Domhnaill  Ó Domhnaill, Brian. Information on Darragh O'Brien  Zoom on Darragh O'Brien  O'Brien, Darragh.
Information on Ned O'Sullivan  Zoom on Ned O'Sullivan  O'Sullivan, Ned. Information on Averil Power  Zoom on Averil Power  Power, Averil.
Information on Kathryn Reilly  Zoom on Kathryn Reilly  Reilly, Kathryn. Information on Jillian van Turnhout  Zoom on Jillian van Turnhout  van Turnhout, Jillian.
Information on Jim Walsh  Zoom on Jim Walsh  Walsh, Jim. Information on Mary M. White  Zoom on Mary M. White  White, Mary M.
Information on Diarmuid Wilson  Zoom on Diarmuid Wilson  Wilson, Diarmuid.  


Níl
Information on Ivana Bacik  Zoom on Ivana Bacik  Bacik, Ivana. Information on Paul Bradford  Zoom on Paul Bradford  Bradford, Paul.
Information on Terry Brennan  Zoom on Terry Brennan  Brennan, Terry. Information on Colm Burke  Zoom on Colm Burke  Burke, Colm.
Information on Deirdre Clune  Zoom on Deirdre Clune  Clune, Deirdre. Information on Michael Comiskey  Zoom on Michael Comiskey  Comiskey, Michael.
Information on Martin Conway  Zoom on Martin Conway  Conway, Martin. Information on Maurice Cummins  Zoom on Maurice Cummins  Cummins, Maurice.
Information on Jim Darcy  Zoom on Jim Darcy  D’Arcy, Jim. Information on John Gilroy  Zoom on John Gilroy  Gilroy, John.
Information on Jimmy Harte  Zoom on Jimmy Harte  Harte, Jimmy. Information on Aideen Hayden  Zoom on Aideen Hayden  Hayden, Aideen.
Information on Fidelma Healy Eames  Zoom on Fidelma Healy Eames  Healy Eames, Fidelma. Information on Imelda Henry  Zoom on Imelda Henry  Henry, Imelda.
Information on Cáit Keane  Zoom on Cáit Keane  Keane, Cáit. Information on John Kelly  Zoom on John Kelly  Kelly, John.
Information on Marie Moloney  Zoom on Marie Moloney  Moloney, Marie. Information on Mary Moran  Zoom on Mary Moran  Moran, Mary.
Information on Tony Mulcahy  Zoom on Tony Mulcahy  Mulcahy, Tony. Information on Ronan Mullen  Zoom on Ronan Mullen  Mullen, Rónán.
Information on Catherine Noone  Zoom on Catherine Noone  Noone, Catherine. Information on Pat O'Neill  Zoom on Pat O'Neill  O’Neill, Pat.
Information on Tom Sheahan  Zoom on Tom Sheahan  Sheahan, Tom. Information on John Whelan  Zoom on John Whelan  Whelan, John.

Tellers: Tá, Senators Ned O’Sullivan and Diarmuid Wilson; Níl, Senators Jim D’Arcy and Marie Moloney.

Amendment declared lost.

Senator Rónán Mullen: Information on Ronan Mullen  Zoom on Ronan Mullen  I move amendment No. 12:

[310]Senator Averil Power: Information on Averil Power  Zoom on Averil Power  I second the amendment.

Amendment put and declared lost.

Government amendment No. 13:

Amendment agreed to.

Government amendment No. 14:

Amendment agreed to.

Senator Rónán Mullen: Information on Ronan Mullen  Zoom on Ronan Mullen  I move amendment No. 15:

This amendment relates to the Unfair Dismissals Acts. The Minister explained his refusal to accept this amendment on Committee Stage. I am trying to establish whether he can see where I am coming from. I am concerned about the requirements of the State and the possibilities under this legislation. If it is possible that the State might stop remunerating a teacher in certain circumstances, arising from the teacher’s failure to register, a stalemate could emerge. If a person is not receiving remuneration as a result of not registering, his or her school might have to bring in a substitute teacher. How long would such a situation be allowed to continue? If a school were ultimately to dismiss somebody, would it be fair for it to fall foul of the Unfair Dismissals Acts? Does the Minister agree that some comfort should be given to schools that might see fit to dismiss a teacher in this manner? I do not refer to arbitrary dismissals, but to those arising from ongoing stalemates that might result indirectly from the requirements of this legislation. The initial action would have been taken by the Department rather than by the school. I would welcome a response from the Minister in this regard.

I do not know if the Minister has had a chance to address a question I asked earlier. Perhaps I missed his reply, but I do not think I did. I asked why there is no reference in the proposed new section 24(3) to any requirement for the Minister to consult various bodies, including management bodies.

An Cathaoirleach: Information on Paddy Burke  Zoom on Paddy Burke  That aspect of the Bill has been dealt with.

Senator Rónán Mullen: Information on Ronan Mullen  Zoom on Ronan Mullen  I asked this question earlier. Perhaps the Minister would like to give me some kind of an answer. He might not have got around to it earlier. I submit to the Chair that my question is of relevance to the section of the Bill we are considering.

[311]An Cathaoirleach: Information on Paddy Burke  Zoom on Paddy Burke  Is the amendment being seconded?

Senator Averil Power: Information on Averil Power  Zoom on Averil Power  I will second it for the purposes of debate. I asked the Minister last week to clarify whether an issue arises in this regard. I expressed concern last week about the possibility of the Department telling a school to let a teacher go because he or she does not meet the criteria set out in this Bill. Even though the school would not have made this choice, its board of management would be liable in the event of a case being taken. The Minister undertook last week to clarify the matter for the House. I am seconding Senator Mullen’s amendment for the purposes of getting a response from the Minister.

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  My advisers share my opinion that this amendment, which has been tabled by Senators Mullen and Quinn, would have the effect of encouraging schools to indiscriminately dismiss teachers whose registration with the Teaching Council has lapsed. We consider that this proposal is disproportionate and overly indiscriminate. Therefore, we do not intend to accept it. The provisions of this Bill, combined with section 30 of the Teaching Council Act 2001, prohibit the payment of a person employed as a teacher in a school unless he or she is a registered teacher. The only exception to this is when it is necessary to employ an unregistered person due to urgent, temporary or occasional staffing needs. Therefore, the pay of a teacher is stopped if his or her registration lapses. I am advised that the effect of this amendment would be to encourage a school to dismiss a teacher for allowing his or her Teaching Council registration to lapse, and to ensure that such a person would not even be entitled to make a claim for unfair dismissal. In my considered view, this proposal is too indiscriminate and disproportionate. It would mean that a person whose registration lapses for a day could be dismissed summarily and without recourse to the Employment Appeals Tribunal. That is the interpretation our people have put on it.

If a teacher allows his or her registration to lapse, a number of courses of action are open to the employer and to the teacher. The circumstances which may arise may be varied. A teacher might allow his or her registration to lapse for a number of days. An individual might take some time to become registered. An individual who has allowed his or her registration to lapse for a short period may wish to continue to attend the school in the interim period. In the case of a longer period during which the unregistered person is prevented from being paid by the State, he or she may wish to avail of unpaid leave, such as a career break, pending his or her registration with the Teaching Council. Under these circumstances, there is no termination of the employment of the unregistered person — he or she simply cannot be paid from Oireachtas funds while he or she remains unregistered. If a teacher absents himself or herself from school without approval, established grievance and disciplinary procedures may be followed to resolve the situation. Even in such circumstances, I consider that the normal employment law protections, including access to the Employment Appeals Tribunal for a claim of unfair dismissal, should be available to the teacher. The effect of this amendment would involve interposing the Minister in the employment contract by essentially permitting the immediate dismissal with impunity of a teacher who has allowed his or her registration to lapse. I suggest that runs counter to the concept of equal treatment and fair procedures. It is not something we should seek to enshrine in legislation. Accordingly, I do not propose to accept this amendment.

Senator Rónán Mullen: Information on Ronan Mullen  Zoom on Ronan Mullen  I fail to see how this would involve “interposing the Minister”. The purpose of the proposal is to establish a protection for schools in circumstances where, for example, a stalemate may emerge which gives rise to an awkward situation for the school and in which the school could be prevented from taking any action other than to appoint a substitute.

[312]I do not propose to prolong the discussion on this matter. The essence of the Minister’s comments is that the amendment is too indiscriminate. Will he consider discussing with his officials the possibility of introducing an amendment in the Dáil to make this provision less indiscriminate and prevent the type of mischief that could arise in schools as a result of the circumstances I have described? As I indicated, under the legislation, it will be a State requirement that a person have a registration. Is it possible that a person who is unregistered for a long period and is not receiving remuneration from a school could arrive at a school and sit in the staffroom every day, potentially for years, and the school would not be in a position to do anything about it? This may be an extreme scenario but we must legislate with such circumstances in mind. Were such a case to arise, the school would not be able to do more than appoint a substitute, which would be unfair to someone else down the line. While it may well be that the Minister’s officials view such a possibility as being in the realm of the imaginary, as I indicated, we need to legislate with such scenarios in mind. I ask the Minister to consider, in advance of the Bill being brought before the Dáil, whether an amended version of my proposal could be introduced in the other House?

Deputy Ruairí Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  I will consider what the Senator has suggested and communicate with him thereafter.

Amendment, by leave, withdrawn.

Bill, as amended, received for final consideration.

Question proposed: “That the Bill do now pass.”

Senator Averil Power: Information on Averil Power  Zoom on Averil Power  I thank the Minister for accepting the amendment tabled by the Fianna Fáil Party. We will revisit the issue of untrained personnel when the Bill comes before the Dáil as we remain concerned about the provisions in place in this area.

Senator Rónán Mullen: Information on Ronan Mullen  Zoom on Ronan Mullen  I thank the Minister for engaging so fully with the House, irrespective of whether he accepted our amendments, and his many comments and insights in the debate. As I made clear, I have concerns about aspects of the Bill. I am conscious also that the Minister has sought to give some reassurances on how the legislation will be implemented. I appreciate the various comments he made on the specific needs of particular schools, whether Gaelscoileanna, schools with a certain ethos or schools for children with special needs. While I would prefer that the Bill contained more references to “agreement” and fewer references to “consultation”, nonetheless I hope the debate will inform the approach the Minister and his Department take in their interaction and liaison with various representative bodies. This would be in everyone’s interest given the importance of education and all that is at stake.

Senator Jim D’Arcy: Information on Jim Darcy  Zoom on Jim Darcy  I thank the Minister for bringing the Bill before the House and showing generosity in accepting amendments where it was possible to do so. I also thank his officials for their input. I am pleased the Teaching Council has been given oversight in the area of continuous professional development for teachers. This new power will have a significant effect on the quality of teaching and learning in schools. I thank the Opposition, in particular Senator Power, for its constructive approach to the legislation.

Senator Mary Moran: Information on Mary Moran  Zoom on Mary Moran  I thank the Minister and his officials for bringing the Bill before the House. I welcome the time afforded to the legislation and the many discussions we have had on it. I also thank my fellow Senators for their excellent contributions. As with Senator D’Arcy, [313]I am pleased the Bill provides for greater powers of oversight for the Teaching Council and introduces compulsory professional development for teachers.

Minister for Education and Skills (Deputy Ruairí Quinn): Information on Ruairí Quinn  Zoom on Ruairí Quinn  I thank Senators for their compliments and join them in complimenting the backup staff the Department has provided for me in respect of the Bill. Subject to the agreement of the Whips, I will soon introduce Committee Stage of the qualifications legislation, that is, a Bill to merge the three qualifications bodies in one entity. There was a delay in finalising amendments to the Bill because we are proposing to recognise, on a new basis, the National University of Ireland, with a redefined role for the future. I have sent to the Joint Committee on Jobs, Social Protection and Education the heads of a Bill to transform the local education and training boards, otherwise known as vocational education committees. I have found this process of consultation very helpful.

I have been a Member of the Oireachtas for much longer than I have been a member of Cabinet in any Government and my primary loyalty lies with the Oireachtas. The Houses have a role to play in the deliberative consideration of legislation and in teasing out the meaning of the sections and subsections of Bills. The process of scrutiny by the Houses and the public manner in which we do our business, with the Fourth Estate and anyone else able to observe us, is an integral part of our democracy and one I intend to uphold in the legislation I bring before the Houses in future. I thank the Seanad for its co-operation.

Question put and agreed to.

An Cathaoirleach: Information on Paddy Burke  Zoom on Paddy Burke  When is it proposed to sit again?

Senator Maurice Cummins: Information on Maurice Cummins  Zoom on Maurice Cummins  Ar 10.30 maidin amárach.


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