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SELECT COMMITTEE ON ENTERPRISE, TRADE AND EMPLOYMENT debate -
Tuesday, 27 Oct 2009

Labour Services (Amendment) Bill 2009: Committee Stage.

This meeting has been convened for the purposes of consideration by this committee of the Labour Services (Amendment) Bill 2009.

I welcome the Minister of State at the Department of Enterprise,Trade and Employment, with responsibility for labour affairs, Deputy Dara Calleary, and his officials Mr. Pádraig Ó Conaill, principal officer, labour market policy, and Mr. Niall Monks, assistant principal officer, labour market policy. I thank them for their attendance.

The suggestion is that the Bill be considered until 12.30 p.m. and if we have not concluded by that time we shall reconvene at 2 p.m. If we still have not concluded by 6 p.m. a further meeting will be arranged. Is that agreed? Agreed.

It is proposed to group the following amendments for the purposes of debate, Nos. 2, 13, 14, 24 and 25; Nos. 6 and 8; Nos. 16, 17 and 22, and Nos. 18 to 21, inclusive, and 23, 26, and 27. Is that agreed? Agreed. All other amendments which are not grouped will be discussed individually.

Section 1 agreed to.
SECTION 2.

Amendment No. 1 in the name of Deputy Willie Penrose has been disallowed as it is outside the scope of the Bill.

I am shocked. The amendment sought to ensure, in section 2, that employment training would include education in functional literacy and numeracy. The amendment was proposed because of the long-held concern within the literacy community that FÁS has not done enough to encourage literacy and numeracy education in its courses. I propose this amendment on behalf of my colleague, Deputy Ruairí Quinn, the Labour Party spokesperson on education and science. This amendment would oblige FÁS to offer employment training courses which include a literacy and numeracy education component. I submit that would be a useful addition to its list of functions.

The original Labour Services Act 1987 makes no mention of literacy training and in many respects that Act was a product of its time. If we were creating FÁS for the first time today, I have no doubt we would include literacy education as one of its core functions. Furthermore, this amendment would alter section 17 of the Labour Services Act 1987 and would allow the Minister to give a written direction to FÁS to provide appropriate literacy and numeracy courses. The importance of literacy cannot be underestimated when it comes to retraining and upskilling. We all spoke widely about that in the House. There are approximately 500,000 people in the country who have problems with functional literacy. That is a staggering percentage of our population and it is highly likely that many of those are on dole queues and applying for FÁS courses. I submit it is vital that FÁS's operations reflect the needs of those who wish to use its services.

This amendment has been carefully worded. We are not proposing that FÁS suddenly assumes responsibility for the provision of literacy education — far from it, we know that is a different function — on the contrary, we are trying to ensure that FÁS has a statutory obligation to help those who are in training programmes. I ask people to note the difference. The issue concerns those participants in training programmes who have literacy difficulties. It is not to give a widespread function to FÁS which is beyond its remit and, in fairness, would create problems. That is the reason I am perturbed this amendment has been ruled out. It was carefully drafted to ensure it complies with the terms and obligations and statutory functions of FÁS.

Perhaps I can help the Deputy. The advice is that the Bill specifically relates to the make-up and accountability of the board of FÁS and not the functions of FÁS. For that reason, unfortunately—

Then there will be no earth-shattering changes to FÁS today. In that context I ask the Minister of State to bring back that amendment to the Government as it is an area in which he may have an interest. I am not seeking to widen its functions but I ask that, when people on FÁS training programmes have literary or numeracy problems, FÁS make a solid attempt to assist those people to ensure they are in a position to progress. Obviously, I accept the Chair's ruling.

As the amendment has been ruled out of order, I do not think it would be appropriate to discuss it, but perhaps we can talk about it later.

Amendment No. 1 not moved.
Section 2 agreed to.
SECTION 3.

Amendment No. 2 is in the name of Deputy Morgan.

Can somebody else move it on his behalf?

Yes, that is permissible. If somebody so wishes. I point out to members that amendments Nos. 2, 13, 14, 24 and 25 are related and will be discussed together. We can come back to amendment No. 2 when we reach amendment No. 13, if members agree. Is that agreed? Agreed.

Amendment No. 2 not moved.

I move amendment No. 3:

In page 3, between lines 30 and 31, to insert the following:

"(9) No compensation upon leaving office shall be payable to the Director General or any other officer or employee unless the terms of the compensation are approved by a committee appointed by Dáil Éireann for the purpose.".

Obviously there was significant public comment and disquiet on recent events. This is to ensure there is a control on golden handshakes to senior staff by having the terms of compensation approved by a committee of Dáil Éireann. It would not necessarily have to be this committee but a committee specifically set up by Dáil Éireann to deal with this matter.

I appreciate that contractual terms must be honoured in full, irrespective of the public outcry. We need to ensure there is no significant bumping up of pay offs, and a committee specifically set up to deal with the matter would be a useful control mechanism.

We will not accept this amendment. The Minister for Enterprise, Trade and Employment is responsible to the Dáil for the terms and conditions of the director general. The Minister of the day, in turn is responsible to this committee and the Committee of Public Accounts for the terms and conditions of the director general. That is an appropriate balance.

I support the amendment. The Minister of State said the Minister is responsible to the Dáil for the terms and conditions of the director general, but there is a lack of clarity on this point. The Labour Services Act 1987 states that pension arrangement should be subject to the scheme drawn up subsequent to the Act, which is the 1998 scheme, however the pension package given to Mr. Rody Molloy does not fall within that scheme and is well beyond it. The justification given by the Minister is that section 6(3) of the Act allows the Minister for Finance and the Minister for Enterprise, Trade and Employment to give the staff of FÁS any pension package they see fit without any constraints. That would be fine if Ministers acted responsibly but given that the Minister for Finance and the Tánaiste have interpreted that section of the Act to mean that they can give a director of FÁS any pension they choose, there is a need for further protection. I support the amendment on that basis.

It is important that there is significant control. A Minister is accountable to the Committee of Public Accounts, but we are not sure how additional payments are computed on the cessation of employment.

I appreciate what the Minister of State said, but perhaps he could look again to see if there is any way the thrust of my amendment could be incorporated so that there is an additional control mechanism. I would really appreciate if the matter could be looked at with a view to the Minister commenting on it on Report Stage.

Even if the Minister of State were to agree to a scenario where if the Minister is to approve a pension package that is not in accordance with the existing scheme it would come before the committee or be done by a statutory instrument rather than this bizarre interpretation of the Act.

We are happy to consider this suggestion and will come back to the Deputies before Report Stage.

I will withdraw the amendment on the understanding that the Minister will reconsider it before Report Stage.

Amendment, by leave, withdrawn
Section 3 agreed to.
SECTION 4.
Amendment No. 4 not moved.

I move amendment No. 5:

In page 4, to delete lines 27 to 30.

The director general is precluded from commenting on Government policy. I know there are good reasons for such guidelines, but a director general would be acutely aware of deficiencies and lacunae in particular areas and may bring this information to Government, who in turn may not react to it. As a consequence the Opposition or the wider public is not aware of the issue. I wonder if it is possible to find a mechanism for a director general to comment on what he or she really feels about an issue when appearing before the Committee of Public Accounts or another committee. At the end of the day, we live in a democracy and it should be possible to raise matters of policy that are causing public concern.

I am sure there are directors general who come before committees of the Oireachtas who would like an opportunity to comment on an issue but are unable to do so because of Government policy. I would like to see that loosened.

I do not agree with Deputy Penrose on that issue. We regularly discuss the permanent government, the Civil Service and the directors general would be part of that. If we have two governments side by side, we will have no policy and everything will be subject to contradiction. The director general should be loyal to the Minister of the day and that is the way the system operates. If that is not sufficient, he should have the right to go to the Taoiseach, who is the head of Government to state his case. If the director general does not work in tandem with the Minister, we will fall between two stools. I think Deputy Penrose understands that.

The Minister is responsible for policy. The Minister is politically responsible to the Oireachtas. The director general has ways and means of influencing policy within the Department and they are sufficiently robust.

I knew I would be beaten down by the Minister of State, but I did not expect the ancillary attack from Deputy Ned O'Keeffe. In the sight of that avalanche, I will withdraw the amendment.

I did not fight the Deputy.

Amendment, by leave, withdrawn.
Section 4 agreed to.
Sections 5 and 6 agreed to.
SECTION 7.

Amendments Nos. 6 and 8 are related and may be discussed together by agreement.

I move amendment No. 6:

In page 9, line 22, after "Foras" to insert the following:

"or the Department of Enterprise, Trade and Employment".

The Minister of State will not be shocked by my tabling this amendment as I had clearly indicated my intention on Second Stage. The whistleblower's protection is afforded to the FÁS officials and everyone else. It is important that it be extended to officials in the Department of Enterprise, Trade and Employment who are dealing with issues in this regard. It is just a simple amendment to extend the whistleblower's protection to cover the Department. It stands on its own merits and I urge the Minister of State to consider it.

There is a very strong case for having stand-alone legislation to protect whistleblowers. I understand that is included in the programme for Government. While I understand Deputy Penrose's point of view, I am not sure whether it would be appropriate to insert a provision to extend that protection to civil servants in the Department of Enterprise, Trade and Employment in legislation concerning FÁS. The problem we have is that whistleblower protections are cropping up in Bills left, right and centre. We really need a single piece of legislation to give that protection to everyone in the public service and even beyond.

The Government approach in this area is dictated by a Government decision of March 2006 in which it was decided that the whistleblowers approach would be done on a sectoral basis. As this Bill relates specifically to FÁS, we are keeping the provisions specifically related to FÁS. It would be worth the Government's while to consider Deputy Varadkar's approach and it will be considered.

Deputy Rabbitte pursued this matter vigorously and was assured by Government that it would be placed on the Statute Book. It was kicked to touch and indeed kicked out of the ground, so to speak, and never found again. Eventually the Bill withered and died on the vine. Deputy Rabbitte has a long track record advocating this on behalf of the Labour Party. I appreciate the Minister of State's point of view. Deputy Varadkar's point is well made.

It is in the programme for Government, but the Minister of State seems to be somewhat ambiguous about it. Perhaps it is in the Green Party version of the programme for Government and not in the Fianna Fáil one.

Amendment, by leave, withdrawn.

I move amendment No. 7:

In page 9, between lines 37 and 38, to insert the following:

"(3) This section applies to a communication——

(a) that would, but for this section, constitute a breach of duty by the person who made it, or

(b) in respect of which, another person would, but for this section, have a cause of action against the person who made it.”.

This is a technical amendment relating to disclosure to other bodies included on the guidance of the Office of the Attorney General. Its purpose is to tighten up the whistleblowing provision and ensure consistency across the organisation.

Amendment agreed to.
Amendment No. 8 not moved.

If amendments in a person's name are not moved, do they not fall?

We are talking about amendment No. 8. We are moving on to amendment No. 9 in the name of Deputy Morgan.

Amendment No. 9 not moved.

I move amendment No. 10:

In page 10, to delete lines 17 to 22.

The special definitions of "employee" and "employer" limit the scope of the whistleblower's protection to employees of FÁS. We believe that is inappropriate. Other employees, for example, within the Department itself, should also be protected. I believe I have argued this on the previous amendment. I anticipate that the Minister of State's reply will be similar to the previous one. Rather than hold up the committee, which needs to get to a number of good amendments from my colleagues, I withdraw the amendment.

Amendment, by leave, withdrawn.
Amendment No. 11 not moved.

I move amendment No. 12:

In page 11, line 7, to delete "offence." and substitute the following:

"offence.

(2) A person guilty of an offence under this section shall be liable——

(a) on summary conviction, to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months or both, or

(b) on conviction on indictment, to a fine not exceeding €100,000 or imprisonment for a term not exceeding 3 years or both.”.

This amendment will strengthen the protection for whistleblowers. We also want to discourage false and vexatious complaints. Provision for the penalty for making false statements was not included in the original Bill and is addressed in the amendment.

While I understand the Minister of State's point of view, someone might make a complaint in good faith which might turn out to be false. I would be concerned about that. Deputy Varadkar might make a complaint in good faith about something I did. He might make some inquiries and get corroboration following which he goes to the chairperson and complains. After further inquiry by the Minister and the relevant officials it might turn out to be a bag of smoke and have no substance. I would be concerned about that aspect. While I accept the amendment, perhaps the Minister of State might run it past the Attorney General.

We will review it before Report Stage.

I would not for a second countenance not penalising someone who is mala fide or sets out to deliberately make a false complaint. The stronger the penalty to deter that type of thing the better.

Amendment agreed to.
Section 7, as amended, agreed to.
Amendments Nos. 13 and 14 not moved.
Section 8 agreed to.
SECTION 9.

I move amendment No. 15:

In page 11, line 20, to delete "chairman" and substitute "chairperson".

This amendment proposes to use gender-neutral language in line with modern drafting. I am sure the Office of the Attorney General would accept that.

It is legally understood that the masculine form refers to every form so we do not feel—

I am waiting for Deputy White to support me on this.

I note the Deputy's interest in gender balance.

Is that the same in all legislation?

Deputy Varadkar seems to know something.

If we are going to change "chairman" to "chairperson" should we not have "director or directoress general"?

As a paid-up member of the grammar police, I am not aware of any word "directoress".

As a paid-up member of the vocabulary police, I have never heard of a word "chairperson". It has only been invented in the past ten or 15 years.

"Director" is neutral.

Amendment put and declared lost.

Amendments Nos. 16, 17 and 22 are related and may be discussed together by agreement.

I move 16:

In page 11, line 21, to delete "10 ordinary members (including" and substitute the following:

"8 ordinary members (including a worker director and".

I already made my point on this in my Second Stage speech and the Minister of State, Deputy Calleary, will be in no doubt about where I stand. Deputy Varadkar made the point equally strongly and probably more eloquently than I did on that Stage, especially on worker directors. I welcome the provision to reduce the number of board members from 17, which was far too many, to 11, comprising ten ordinary members and a chairman, with the director general to be an ex officio member. I also welcome the provision for rotation of membership to ensure that people are not there forever and a day. However, there is scope to reduce the board further and business can be done more effectively and efficiently with a smaller board.

Having said that, my main concern with this aspect of the legislation is not the size of the board but the failure to allocate a place for a worker director. Such directors have proved their worth over the years in the ESB and Bord na Móna, for example. I am acutely aware of the role played by a colleague of mine, Mr. Mark Nugent, as a worker director in Bord na Móna. Members will be aware of his activities in Bellacorick and places like that. Here was a worker director who assumed the chairmanship of the board at a time when difficult decisions had to be made. It is sometimes argued that worker directors will always do what they are mandated to do by their workers, but in the case of Mr. Nugent, he stood up for what was right for the company in general, as I am sure the Minister of State will acknowledge.

There is a role for a worker director on the new board of FÁS but there is no such provision in the legislation. I understand there were two worker directors on the outgoing board. I appreciate that the board is being reduced, a move which I welcome, but I propose that room be made for one worker director on the newly constituted board. Worker directors have played a very positive role in the past and can do so in the future. Such directors may bring a different perspective and dimension in terms of knowledge and perspective. For instance, a person who has dealt with young people applying for apprenticeships or community employment schemes will have garnered important experience over the years. Such a person might be aware that there is scope to expand a community employment scheme to incorporate a stronger rehabilitative element for young people with mental illnesses or experiencing other difficulties. If such a person is a worker director, he or she can make strong proposals in that regard at board level and can offer insight to other members who are not au fait with that issue. I spoke to people who found the FÁS rehabilitation programme very worthwhile and inclusive, and tremendous results have been achieved in integrating such persons back into their communities. This is just one example of an area where a worker director’s expertise can be useful in offering guidance on where the focus should be in terms of expanding a particular programme or sphere of activity.

I strongly urge the Minister of State to consider this amendment. I feel so strongly about the issue that I will put it to a vote. Deputy Varadkar spoke vehemently on this matter on Second Stage and I hope he will support me in this regard. This issue is of fundamental concern to the Labour Party.

I agree with the points made by Deputy Penrose and do not propose to repeat them. The Minister of State may choose any one of amendments 16, 17 or 22, all of which have the same objective. The first problem with the existing FÁS board is that it is too large, and the proposed reduction in the legislation is welcome. The second problem is that the board has in the past represented sectional rather than corporate interests. Elected worker directors are increasingly the norm across the State and semi-State sector, including in RTE and Bord na Móna. In the wake of the scandal at FÁS, we should not forget that most of these issues came to light because of the whistleblowing actions of several staff members who saw that directors were engaged in unacceptable activities and did the right thing by the agency by reporting what was going on. We should also remember that a large number of FÁS staff members are demoralised and are suffering abuse similar to that endured by bank officials simply because some persons at the top of their respective organisations were up to no good. The omission of a worker director may suggest an implication on the part of the Government that FÁS workers are partially to blame for the debacle. The reality is that the majority of them are not culpable. For those reasons and the reasons put forward by Deputy Penrose, I ask the Minister of State to reconsider these amendments.

Perhaps the Minister of State has had the benefit of divine inspiration since yesterday.

I value the role of worker directors, particularly the outgoing worker directors of FÁS, but the objective of this legislation is to bring that organisation into line with the other agencies under the remit of the Department of Enterprise, Trade and Employment, namely, IDA Ireland, Enterprise Ireland and Science Foundation Ireland, the boards of which include worker directors. The director general, in his or her new capacity as ex officio member of the board, will be in a position to represent the various interests of staff. I endorse the points made by Deputies Varadkar and Penrose in regard to the staff of FÁS, the majority of whom are excellent people who work very hard. I value their role into the future. However, in line with our objective in the legislation of entirely reforming the structure of the board, the solution we have offered for the selection of the board is more in keeping with the direction being taken in those other agencies which come within the aegis of the Department.

While I support the principle of worker directors, the system of electing those directors can cause problems where they are compromised by the popular vote of their union or by the management structure. Deputy Penrose referred to the case where the Bord na Móna worker director led the way in trying to sort out the difficulties that have arisen in that organisation. One does not find many worker directors making those types of decisions because they would be unlikely to be re-elected. I respect the role played by unions, but worker directors elected in that way may be compromised when a crisis arises in the particular organisation.

We must be careful to avoid being too critical of FÁS, which has been in existence for a long time and has played a leading role in Irish society. Worker directors are a fact of life in the modern world but there is, as I have indicated, an inherent weakness in the system. I accept the role of worker directors in principle but we must have a different system for their election.

Amendment put.
The Committee divided: Tá, 5; Níl, 7.

  • Clune, Deirdre.
  • Flanagan, Terence.
  • Morgan, Arthur.
  • Penrose, Willie.
  • Varadkar, Leo.

Níl

  • Brady, Cyprian.
  • Calleary, Dara.
  • Fitzpatrick, Michael.
  • Mulcahy, Michael.
  • O’Connor, Charlie.
  • O’Keeffe, Edward.
  • White, Mary.
Amendment declared lost.
Amendment No. 17 not moved.

Amendments Nos. 18, 21, 23, 26 and 27 are related and amendments Nos. 19 and 20 are alternatives to amendment No. 18 and to each other. Amendments Nos. 18 to 21, inclusive, 23, 26 and 27 will be discussed together. If the question on amendment No. 18 is agreed, amendments Nos. 19 and 20 cannot be moved.

I move amendment No. 18:

In page 11, to delete lines 23 to 31 and substitute the following:

"(2) The members of An Foras shall be appointed in the following manner:

(a) The Minister shall submit the names of 11 people to the Chairperson of the Joint Oireachtas Committee on Enterprise, Trade and Employment.

(b) A person to whom paragraph (a) applies shall on the request of the Joint Oireachtas Committee on Enterprise, Trade and Employment, which shall occur within 30 days of the nomination under paragraph (a), on the request of that Committee, give evidence to the Committee on—

(i) his or her suitability for appointment to the position of member of An Foras,

(ii) his or her qualifications for appointment to the position of member of An Foras,

(iii) such other matters pertaining only to the appointment of a member of An Foras.

(c) The Joint Oireachtas Committee on Enterprise, Trade and Employment shall be required to approve or decline the nomination of a person under paragraph (a) to the Minister within 7 days of the evidence under paragraph (b) having been completed.

(d) Where the Joint Oireachtas Committee on Enterprise, Trade and Employment approves the nomination of a person under paragraph (c) the Minister shall order their appointment by resolution of Dáil Éireann.

(e) Where the Joint Oireachtas Committee on Enterprise, Trade and Employment declines the nomination of a person under paragraph (c), it shall be required to state to the Minister the reasons for its decision in subsequent private session of that Committee, where requested by the Minister.

(f) Where the Committee declines the nomination of a person under paragraph (c), the Committee may recommend two persons, who have not already been nominated under this section, for consideration in respect of each outstanding vacancy.

(g) Where the Committee declines the nomination of a person under paragraph (c), the Minister shall nominate two persons, who have not already been nominated under this section, for consideration in respect of each outstanding vacancy. In making a nomination under this paragraph, the Minister shall first have regard to the recommendation made by the Committee under paragraph (f).

(h) Where the Committee declines the nomination of a person under paragraph (c), and the Minister makes a submission under paragraph (g), the Committee may invoke its powers under paragraph (b) in respect of the alternative nominees.

(i) Where the Committee declines the nomination of a person under paragraph (c), and the Minister makes a submission under paragraph (g), the Committee shall be required to make a recommendation from the alternative candidates submitted under paragraph (g) to fill the remaining vacancies on An Foras.

(j) The Chairperson of the Joint Oireachtas Committee on Enterprise, Trade and Employment shall, with the approval of that Committee, nominate one of the appointed members as Chairperson of An Foras.”.

The purpose of these amendments is to give the Oireachtas a role in deciding the composition of the new board of FÁS. The Bill represents an improvement but it is not right that the Minister should have carte blanche to appoint almost anyone she likes. In different ways these amendments give the various Oireachtas committees a role in deciding on how the board is constituted. Amendment No. 18 is the best example but it is probably the most complicated as well. It requires that the Minister would make her appointments and that they would then be vetted by an Oireachtas committee. If any of the appointees is not considered to be acceptable then the Minister would have an opportunity either to make alternative nominations or the committee itself could select a panel of nominees from which the Minister could choose.

The amendment I would push to a vote is No. 21, which is interesting in the sense that it is exactly the process chosen by the Minister for Communications, Energy and Natural Resources, Deputy Eamon Ryan, for the new Broadcasting Authority of Ireland. It is an inferior model to the one I propose but it is one the Greens should be able to support. Therefore, I intend to press amendment No. 21.

Members are asked to note the following correction to amendment No. 21 in the name of Deputy Varadkar. In the second line of the amendment as circulated the word "shall" should not appear.

In amendment No. 19, I seek to have the committee, irrespective of who the members of it are at any time, make recommendations on nominations to public boards. That would afford an additional level of accountability and scrutiny. It has been demonstrated recently that the more scrutiny we have, the better.

Amendment No. 22 has already been discussed. On No. 23 I propose that rather than appointments being just made by the Minister, they should be confirmed by the Dáil. It is an issue worthy of accountability and democratic oversight. It is important that that would happen.

Similarly, amendments Nos. 26 and 27 seek the approval of the committee for any such appointments. That is an important element. Amendment No. 27 is slightly different. We have seen instances recently in FÁS where the Minister told the board more or less to get on with the job. I got the impression that the attitude of the senior Minister was that they should hold their fire and see if the issue would go away. I specifically included the phrase "acting in ministerial capacity" because irrespective of who the Minister is, he or she should be on his or her toes at all times and proactively pursuing any issues that arise in any public body for which he or she is responsible. That did not happen in a number of cases recently. I do not just refer to the Tánaiste and Minister for Enterprise, Trade and Employment. I wish to tighten up the legislation through the amendment to ensure there is better oversight and accountability and that Ministers would take their responsibilities seriously.

My amendment is No. 20. It is in line with the amendments moved by my colleagues though it is probably less fastidious. It inserts a provision specifying Oireachtas scrutiny of the appointment of board members to FÁS. That is important. I accept that the Tánaiste and Minister for Enterprise, Trade and Employment, the Minister for Social and Family Affairs and the Minister for Education and Science are to choose ten ordinary members and the chairman would come from among them. The director general is ex officio. Where are those members to come from? Are they to arrive like mushrooms out of the ground? Who will have divine inspiration to nominate them? Will there be three from each of the Departments?

Will there be three from Donegal?

We are entitled to approve the board membership. I said previously to the Minister of State, Deputy Calleary, that it is important to impose a limitation on the term a member can serve. It is important to bring freshness and newness into the board and, accordingly, to limit membership to two terms, for example. As I understand it, half of the board will be regenerated on a regular basis, which will both retain experience and introduce freshness. That is an important and useful tool in terms of board membership.

How does one evaluate an individual for board membership? There must be some independent scrutiny and oversight. We do not want what happens in America with judicial and other appointments. We do not need the kind of publicity associated with that. Deputy Varadkar has simplified the process and set out how people should put forward their suitability, qualifications and other relevant details.

If I were to put myself forward for a legal board I would submit the fact that I practise as a legal person, if I was a doctor I would outline that, or in the case of Deputy Morgan, a businessman. I would outline my qualifications and years of service and then it would be up to somebody to make a judgment. I would be surprised if the people put forward were rejected. The Minister of State, Deputy Calleary, will ask me why in the name of God anyone would put themselves forward for that type of process. I accept that point. I am not so naive to think that would not be a factor, but it would be preferable to having the huge process that I have often watched in America in terms of judicial appointments. It makes for great television viewing but I would not want the approval process to be on that level. The stipend for being a board member would not warrant that type of invasion of personal freedom. Nevertheless, it is important that we know that candidates have the credentials to serve on a board, not just the board of FÁS but other boards.

As Deputy Varadkar indicated, the Minister for Communications, Energy and Natural Resources has introduced a system to appoint board members but the former's system is more circumscribed, in so far as it sets out guidelines on the establishment of a panel and the number of members on it. Much thought has been put into amendment No. 21. I applaud Deputy Varadkar on that. At least the Minister for Communications, Energy and Natural Resources has opened up the gap and allowed some degree of public scrutiny. I noticed an advertisement recently in a newspaper in that regard. That is commendable. It is an important step and we should not dismiss it lightly. As a first step the Minister should consider something of that nature, as it would open up the process.

I know many people who would be good board members who have the necessary skills, credentials, expertise, qualifications and suitability but they have never been asked to join any board. Many people are civic minded and would like to give of their time but they have never been approached to do so. Perhaps I should send their names to the Minister and let her carry out the evaluations on them. However, that is not the way. If we propose people they should have a CV and set out their background and other relevant details.

Rather than have the big umbrella of scrutiny that goes with the American system we should devise a system that is not overly invasive and would not deter people from putting themselves forward. One has to take a balanced approach. Some members of my own party might take a different view from mine, but I do not want an overly invasive process. Nevertheless, one should be confident that board members are capable, suitable and have the qualifications. That is a basic requirement. After that, I could not give a sugar. If a member is not doing his or her job on a board then the board should move to dismiss him or her. If a member of a board is not up to speed in terms of his or her job on the board and the board is of the view that the member concerned is not making an adequate contribution or doing X, Y and Z, it should be within the competence of the board to take steps to have that person removed from the board. That is not a function to be exercised by the Minister. He or she has passed that function to the board and has allowed it to get on with its work. However, if a board is not doing its work in an appropriate manner, the Minister will take a view on that in his or her capacity as the Minister with overall responsibility for the matter.

In allusion to Deputy Varadkar's amendment, I am glad to say that the Minister, Deputy Ryan, has opened up the field. If anyone read the relevant section in the revised programme for Government, he or she would have noted there is considerable reform of nominations to State boards and public bodies. It is envisaged there would be a committee and the Minister would have to pick a certain number of people from it and consider if they would suit his or her needs. That is the way to proceed. Nominations have been less than open sometimes in the past. This is the way to move forward. The programme for Government will revolutionise the way in which appointments are made to State boards.

The FÁS debacle has opened up the issue of appointments. Reflecting on the history of the board of FÁS it was made up mainly of representatives of the employers and representatives of the employees. Even God almighty could not select a better team than that and we know about the difficulties that arose in that organisation. Corporate governance has come into play in the past few years and boards have various committees, be it a remuneration committee, an audit committee or a computerisation committee, which do not report to the board, nor is there an obligation on them to do so. The system is collapsing in that respect. Auditors have a role to play. Are boards being properly informed of problems that have arisen within an organisation? A board member works by and large in a voluntary capacity, for which he or she receives only a small remuneration. Members do not work full-time for the board. A board meets once a month. The turnover for FÁS is very large and it is difficult for an ordinary board to assess that. Regardless of what system is put in place, one will not get the ideal person. God almighty has not created him or her.

Another element that comes into play is loyalty to the Minister. The Minister has responsibility for regulating the organisation. If he or she does not have the loyalty of the board, the Government and the Minister will not make progress. That is the problem that exists. I take a different view from others on this matter. Boards of State organisations involve the concept of loyalty to the Government and the Government of the day regulates the organisations. The Minister must have an input into the selection of persons who will be appointed to the board.

Before the Minister of State replies, I ask that a member nominate Deputy Fitzpatrick to the take the Chair.

I propose that the Deputy take the Chair.

I second that.

Deputy Michael Fitzpatrick took the Chair.

I have considerable sympathy for the arguments put forward by the three Deputies. As Deputy White said, the issue of nominations will be pursued under the revised programme for Government. There are pros and cons to the system and we need to examine the international experience in this area. Deputy Penrose put his finger on the biggest con in this respect, namely, how to get a person to sign up for a job on a State board. It should be said that the majority of people who have had such appointments have served our country well. What needs to be worked out in the context of the programme for Government is how to get people to sign up for a job on a State board and how to have an appropriate level of scrutiny that does not frighten people away.

Even though he is not in the Chair, I will give the Chairman a commitment that if this committee was to make proposals or put forward names for the first board, I will ask the Tánaiste to give them weight on the basis that they come from this committee. We are making fundamental changes to the board of FÁS on this occasion. As was said, the rotation policy will lead to freshness in it. Perhaps by the time we come to the first rotation the new policies will be in place in terms of the programme for Government.

At one level I welcome Minister of State's comments in regard to his offer to the committee. I acknowledge that Deputy Calleary has acted honourably and responsibly in his position and I have no doubt he will continue to do so. I have confidence in him in that regard, but I would not have such confidence in others, particularly in light of recent experience. I do not want to heap everything around the neck of FÁS, as it were, as that would not be fair, but there are other examples of practices in public bodies.

Therefore, it is useful to begin spreading the burden of selecting people for board positions. If I were the Minister, I would want to receive the names of nominees and to be advised of potential nominees. None of us has the wisdom of Job. We all need advice, as is demonstrated all the time, regardless of the Minister in office. It is shortsighted on the part of the Minister not to accept the intent of the amendments, which is to cast the net wide and to make sure we do not overlook a person who has a particular gift to contribute to a board.

Amendment, by leave, withdrawn.

I move amendment No. 19:

In page 11, to delete lines 23 to 28 and substitute the following:

"(2) The Members of An Foras shall be nominated by the Minister, after having received recommendations from the Joint Oireachtas Committee on Enterprise, Trade and Employment and after consultation with the Minister for Education and Science and the Minister for Social and Family Affairs, from among persons who have experience of, and expertise in matters connected with—".

Amendment put and declared lost.

I move amendment No. 20:

In page 11, line 24, after "Minister," to insert the following:

"with the approval of a committee of Dáil Éireann nominated for the purpose".

Amendment put and declared lost.

I move amendment No. 21:

In page 11, between lines 31 and 32, to insert the following:

"(2A) (a) The Joint Oireachtas Committee on Enterprise, trade and Employment shall, for the purposes of making recommendations to the Minister under this section and making recommendation in respect of any casual vacancies or other vacancies as they arise on An Foras, may establish a panel, for such duration, and consisting of such number of persons as the Joint Oireachtas Committee thinks proper.

(b) Persons placed on a panel established under paragraph (a) shall have experience of or have shown capacity in one or more of the following areas and shall be chosen with a view to representing the public interest—

(i) the functions of An Foras, or

(ii) finance, trade, commerce, corporate governance or public administration.

(c) The Joint Oireachtas Committee shall, insofar as is practicable, endeavour to ensure that among the persons placed on a panel under paragraph (a) there is an equal balance between men and women.

(d) The Joint Oireachtas Committee shall have sole responsibility for the selection and placing of candidates on a panel established under paragraph (a).”.

Is the Deputy pressing the amendment?

Amendment put.
The Committee divided: Tá, 5; Níl, 7.

  • Clune, Deirdre.
  • Flanagan, Terence.
  • Morgan, Arthur.
  • Penrose, Willie.
  • Varadkar, Leo.

Níl

  • Brady, Cyprian.
  • Calleary, Dara.
  • Fitzpatrick, Michael.
  • O’Connor, Charlie.
  • O’Keeffe, Edward.
  • Power, Seán.
  • White, Mary Alexandra.
Amendment declared lost.
Amendments No. 22 and 23 not moved.

I move amendment No. 24:

In page 11, line 34, to delete "Minister" and substitute "Oireachtas".

Amendment put and declared lost.
Amendments Nos. 25 and 26 not moved.

I move amendment No. 27:

In page 13, line 1, after "may" to insert the following:

", acting in Ministerial capacity or under the direction of Dáil Éireann,".

Amendment put and declared lost.

I move amendment No. 28:

In page 13, line 2, after "Foras" to insert the following:

"or any person who is classified within An Foras as a Director or Assistant Director General,".

The Bill allows the Tánaiste and Minister for Enterprise, Trade and Employment to effectively dismiss board members either for under performance or where it is expedient to the efficiency of FÁS. This amendment would extend that power to allow her to do the same with regard to the director general and the directors should they be under-performing or should it be expedient to the functioning of FÁS that they be dismissed.

We do not feel it is appropriate for the Minister to be involved in staff and HR matters within the organisation.

Amendment put and declared lost.
Section 9 agreed to.
SECTION 10.
Question proposed: "That section 10 stand part of the Bill."

The section is opposed by Deputies Varadkar and Penrose.

This issue concerns the position of the worker directors. We seek the repeal of the section which excludes worker directors from being eligible to be board members. Deputy Varadkar and myself have already dealt with this issue and, indeed, voted on it, and it is still our view that this is a retrograde step. Worker directors are representative of staff and 99.99% of staff have done an excellent job at FÁS, above and beyond the call of duty, which we must acknowledge. They have worked extremely diligently and are top professionals in their jobs, and we would like to see them as representatives at board level. However, as we have moved an amendment in that regard and have been defeated, I see no sense in moving the issue again. I will withdraw my opposition on the understanding that the matter might be considered for Report Stage.

I concur with Deputy Penrose.

Question put and agreed to.
SECTION 11.
Amendment No. 29 not moved.

I move amendment No. 30:

In page 17, to delete lines 18 to 19 and substitute the following:

"(4) An application under this paragraph shall be made to the Circuit Court sitting in the Circuit in which is situated the place of work (within the meaning of the Safety, Health and Welfare at Work Act 2005) at which the employee is normally employed by the employer."

This is a technical amendment which reflects the regional structure of FÁS and its ability to use the Circuit Court in this regard.

I agree with the amendment, which reflects the regional dispersal of the FÁS structure and will allow people to use the lower court in that regard.

Amendment agreed to.
Section 11, as amended, agreed to.
SECTION 12.

I move amendment No. 31:

In page 17, lines 20 and 21, to delete ", upon the commencement of section 11,".

I put the amendment forward because there is no reason that the renumbering of the Schedule as Schedule 1 should not have effect on the date of enactment of this Bill rather than on the date of the commencement of section 11. It should apply from the date of enactment given that section 11 needs a commencement order to bring it into effect. That would be sensible and I ask the Minister of State to reflect upon it carefully before he turns it down.

We are not very clear on the purpose of the amendment. We may engage in discussion with the Deputy before Report Stage.

In that context, I will withdraw the amendment to allow the Minister of State to consider it. I have been advised there is no reason the renumbering of the Schedule as Schedule 1 should not have effect from the date of the enactment of the Bill rather than from the date of commencement of section 11. It should be contemporaneous. In any event, the Office of the Attorney General and the Parliamentary Counsel can consider the matter before Report Stage.

Amendment, by leave, withdrawn.
Section 12 agreed to.
Section 13 agreed to.
Title agreed to.

I thank the Minister of State and his officials for attending.

Bill reported with amendments.
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