As I noted a few minutes ago, we want to see our newly qualified teachers gain as much experience as possible. I agree with Senator Power and others and perhaps we can examine the issue.
Education (Amendment) Bill 2012: Committee Stage (Resumed)
SECTION 6
Debate resumed on amendment No. 35:
In page 8, after line 51, to insert the following:
"(10) The Minister may from time to time prescribe the conditions attaching to the employment of an appropriately qualified and registered retired teacher, in circumstances where all efforts to secure an appropriately qualified registered teacher who is not retired fail.".
—(Senator Averil Power).
I support the spirit of this amendment and I spoke to the matter on Second Stage. Perhaps the amendment would be improved by the insertion of the word "reasonable". The term "all efforts" is a very onerous requirement to be placed on a school which may be looking for a teacher at short notice. To be fair, all reasonable efforts should be expended.
I agree with the sentiments of the amendment. There is nothing worse in our current economic position than having a retired teacher who is on a pension and in receipt of a gratuity going back to the classroom and getting paid. The only circumstances where a retired teacher should be in a classroom is in a voluntary capacity. That may sound harsh but if such people wish to give of their service to help a school or community in further education, there should be a system where we can avail of the vast experience on a voluntary basis. Under no circumstances should a retired teacher on a pension be remunerated. I suggest that idea should percolate across the public service.
Does Senator Power accept the amending words proposed by Senator Hayden?
Should I withdraw the amendment and table it again on Report Stage if it were to include the word "reasonable"? What is the procedure?
It should be tabled again on Report Stage.
I will withdraw the amendment and table it again on Report Stage with the amending term.
I will accept that amendment on Report Stage.
I thank the Minister and Senator Hayden for suggesting the improvements.
Amendment, by leave, withdrawn.
Amendment No. 36 not moved.
Government amendment No. 37:
In page 9, lines 5 to 8, to delete all words from and including "organisations," in line 5 down to and including "both," in line 8 and substitute the following:
"organisations and with recognised trade unions and staff associations representing teachers or other staff as appropriate, appoint, suspend or dismiss".
Amendment agreed to.
Government amendment No. 38:
In page 9, line 9, after "are" to insert "remunerated or".
Amendment agreed to.
Government amendment No. 39:
In page 9, line 35, after "being" to insert ", or to be,".
Amendment agreed to.
I move amendment No. 40:
In page 9, between lines 38 and 39, to insert the following:
"(14) The Unfair Dismissals Acts 1977 to 2007 shall not apply to the dismissal of a person employed in a teaching position in a school where the dismissal follows directly from the cessation of the remuneration of that person out of monies provided by the Oireachtas.".
The amendment provides for the insertion of a subsection (14). Where the Department declines to further remunerate an unregistered teacher and the school cannot pay the teacher, who may have a continuing contractual right of employment with the school, the school and the Department may be sued for unfair dismissal if the school is forced to dismiss the teacher. Since the situation would be brought about by the Department of Education and Skills, the school should not be liable in the situation and it should be given immunity from suit by the teacher in question for unfair dismissal. It is a reasonable amendment which I hope the Minister will favour.
The provisions contained within the Bill prohibit the Department or vocational education committee from paying an individual who is employed in a school in the place of a registered teacher in a post to be funded by the Oireachtas. Effectively, the Senator's amendment would appear to insulate an employer from legal consequences of the dismissal of every teacher whose registration with the Teaching Council lapses. That is a step too far and I will explain the reason. The Bill does not provide for a direction to dismiss the employee. That is primarily for two reasons. First, most teachers are employed by the board of management of their school. The relationship between the teacher and the Department is not one of employer for most purposes. An exception to this is pay. To provide that a person would be automatically dismissed from his or her job if not registered would require the Minister to interpose himself between the teacher and his or her employer, usually the school's board of management. Therefore, section 30 is couched around a prohibition to pay salary if a person is not registered.
Second, it may be the case that a person can register with the Teaching Council, possibly within a short space of time, therefore dismissing him or her from a teaching position would seem to be inappropriate and unfair. I am not sure that it is likely that he or she would be employed for a minimum of two years. If I am correct the provisions of the Unfair Dismissals Acts do not take effect until after two years.
Is it not one year?
Yes, but it is unlikely in that duration of time that a person would stay in the position as unregistered. The most fundamental point as far as the Department and I are concerned is that we do not wish to confuse the employer-employee relationship, which would be the effect of incorporating the provision in the legislation.
Why would it necessarily introduce that effect? The proposal surely operates to the benefit of the school primarily and not the Department. It does not import the notion that the Department is in the role of employer.
It is because we would be the third party. We would cease the payment and become activated in the court on the basis that we had withdrawn money from someone on the basis that we had deemed that he or she would have to be dismissed because he or she was not qualified. If one gives a person the right to invoke the Unfair Dismissals Acts one is embroiling the Department of Education and Skills for having terminated money because one was not a qualified or registered teacher. A good lawyer such as Senator Mullen would conjoin not just the board of management but the Department as well. We do not want to become involved in such cases.
The proposed amendment provides that the legislation shall not apply.
That is the very point I make, namely, that we do not want any connection being made with unfair dismissals legislation. It is not necessary.
There is not an implication that the unfair dismissals legislation shall apply anywhere. It is a reassurance to schools that they shall not find themselves in an invidious position.
I can return to the matter on Report Stage but the advice I have is that we do not want to specifically introduce a reference to other legislation that comes under the jurisdiction as it does not apply. I put it to the Senator that his amendment is redundant.
I am somewhat confused. Perhaps the Minister could circulate an explanatory note or discuss the issue in more detail on Report Stage.
I will clarify the matter on Report Stage.
It seems unfair that a school would have liability if someone had to be dismissed solely because the Department would not pay them. I am not sure if I understand the issue properly or if the Minister is giving contradictory interpretations. It would be helpful to have clarity before the next Stage.
I would also welcome an explanatory note because it seems that there could be a question of fairness at stake. I am intrigued by the niceness, in the 18th century sense of the word, of Senator Mullen's constancy when he is dealing with monetary matters but he seems less troubled by the dismissal of people on grounds where their lifestyle comes into conflict with the management of the school.
Senator Norris is straying from the amendment.
I beg your pardon.
That is quite extraneous but I shall resist any temptation to respond.
I thank the Minister for accepting some of the amendments tabled. It is probably the first time it has happened in this Seanad. It is welcome and constructive. I wish to make a point about a teacher who is pregnant at the time she is dismissed. The Unfair Dismissals Acts apply in cases where someone has been employed for less than a year implying that legal issues could arise if a person is pregnant. Has that situation been considered? In light of the fact that many primary school teachers in particular are women, perhaps it is an issue that could arise from time to time.
I do not have anything to add to what I have said. We will come back to the matter on Report Stage. There are precise legal niceties involved and I want to be well briefed on them in order to clarify the points.
Amendment, by leave, withdrawn.
Question proposed: "That section 6, as amended, stand part of the Bill."
If the House will bear with me on the matter, there is a further technical amendment to section 6(12), which I am advised may not proceed as an administrative amendment and must be tabled for the approval of the House. I will revert to the issue on Report Stage. I apologise for confusing the House.
Question put and agreed to.
Section 7 agreed to.
SECTION 8
Government amendment No. 41:
In page 9, line 41, to delete "section 24(7)" and substitute "subsection (8)* of section 24".
Amendment agreed to.
Section 8, as amended, agreed to.
SECTION 9
Government amendment No. 42:
In page 9, lines 44 and 45, to delete "the following section for section 33:" and substitute "for section 33 the following section:".
Amendment agreed to.
I move amendment No. 43:
In page 10, line 2, after "Minister" to insert the following:
"following consultation with recognised trade unions representing teachers".
The amendment proposes to insert a provision to the effect that the Minister would consult recognised trade unions representing teachers.
The Senator is free to resubmit the amendment on Report Stage. I would prefer not to recognise some of the educational partners.
It is for the purpose of the registration of teachers.
The trade unions are also handsomely represented on the Teaching Council. I do not think it is necessary. They nominate their own members either by direct elections or by nominees in addition to that. The amendment is not necessary. I am happy to examine the matter in detail and to revert to the Deputy on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 44:
In page 10, to delete lines 32 to 37.
Perhaps amendments Nos. 43 and 44 should have been discussed together because the point is an overall one in that the provision in the Bill relating to the registration of teachers seems to be overly prescriptive for primary legislation. In practical terms, it appears to make it impossible for a person to apply for a renewal of registration in circumstances in which he or she is abroad for employment purposes and so on. Under the proposed section 33(2), the council is authorised to make regulations generally. It would be better if these matters were thrashed out in discussions on the regulations. Since the previous amendment concerned the holding of discussions with interest groups, I am sorry I did not ask for the amendments to be discussed together. When debating earlier sections, we discussed the need for people not to be precluded simply because they happened to be abroad when their registrations lapsed. The council should think through the implications properly and not be so prescriptive. It might reach the same conclusions, but not tying the matter down in primary legislation would allow for the implications to be considered first.
Senator Averil Power's amendment seems to make a good deal of sense, as subsection (4) is unnecessarily rigid. It is good to be flexible. The example given was that of a person on holidays for a few days, who was ill or experiencing a family emergency and so on. It is possible that matters such as registering can be overlooked for a short period. Therefore, the provision appears to be rigid and as such, a certain degree of flexibility should be allowed in these matters. Perhaps the Minister might undertake to consider the issue and revert to us with a reason on Report Stage.
Subject to confirmation, I understand the Teaching Council has been consulted on this issue, but I will take on board the spirit of the Senator's comments. These days, one can apply online, regardless of where one is. For example, one could use an Internet café.
If one is computer literate.
I will check, but my understanding is that the Teaching Council was consulted on the matter. Given that the Senator has raised the issue, we will have an opportunity to revert to the House on Report Stage.
In the old days one was automatically sent a reminder concerning one's driving licence and so on. For example, if one is like me and has a ten year driving licence, one does not remember having applied for the licence on 4 July or whatever the date was ten years ago. Would it be possible for a reminder to be sent? If so, people would have no excuse and Senator Averil Power and I would have little sympathy for them.
It is welcome that the Minister will consider some of these points and revert to the House on Report Stage. I urge him to consider the €90 charge for registering with the Teaching Council. It is a large amount if a teacher does not find a job. There should be a means of reclaiming at least a portion of this amount if someone does not secure gainful employment after six months. This is the least we could do for qualified teachers who cannot find jobs and are in receipt of social welfare payments.
I am advised that the Teaching Council maintains the practice that Senator David Norris advocated, in that it sends reminders. Considering the matter again, therefore, would be unnecessary.
I see.
If I understand the spirit of Senator Martin Conway's comments, it is a matter for the Teaching Council which represents 60,000 teachers. We should not prescribe in primary law——
When it does not show humanity, the measure needs to be prescribed.
The Teaching Council must be re-established by the end of March and I am sure those seeking election to it can address this matter.
I have a certain sympathy for what Senator Averil Power is trying to do. In the legal profession, while one remains a registered solicitor, one can be defined as practising or non-practising. When the Teaching Council introduces potentially onerous requirements in terms of continuing professional development, CPD, further education and so forth, it may be an issue for younger teachers, in particular, who find themselves abroad for a period and are not in a position to participate in such courses. The matter should be given further consideration to take these requirements into account. Perhaps a soft period might be allowed for those who are unable to comply with the requirements within certain timeframes, particularly where CPD is concerned.
The Teaching Council will undoubtedly be monitoring this debate, but I will bring the matter to its attention. In my profession there is a category of unemployed or retired architects. The same applies in other professions. One's qualifications are not in any way invalidated but one's income status, to which Senator Martin Conway referred, is registered. The Teaching Council will make its own decision and I am not in a position to direct it regarding minutiae, nor would I want to do so.
Is the amendment being pressed?
No, but we might revisit the matter on Report Stage. The amendment might be overly prescriptive, but I will not press it now.
Amendment, by leave, withdrawn.
Government amendment No. 45:
In page 10, line 45, after "other" to insert "relevant".
Amendment agreed to.
Government amendment No. 46:
In page 11, lines 2 and 3, to delete "under subsection (7) shall," and substitute "under subsection (7), shall,".
Amendment agreed to.
Section 9, as amended, agreed to.
SECTION 10
Government amendment No. 47:
In page 11, lines 10 and 11, to delete all words from and including "the" in line 10 down to and including "section 38:" in line 11 and substitute the following:
"for paragraph (a) of subsection (1) of section 38 the following paragraph:”.
Amendment agreed to.
Section 10, as amended, agreed to.
Section 11 agreed to.
Title agreed to.
Bill reported with amendments.
When is it proposed to take Report Stage?
Next Tuesday.
Report Stage ordered for Tuesday, 7 February 2012.
When will the House sit again?
Ag 10.30 maidin amárach.