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Select Committee on Social Affairs debate -
Wednesday, 19 Feb 1997

SECTION 22.

Amendment No. 164 is next and amendments Nos. 168, 188 and 200 are alternatives to it. Amendment No. 184 is consequential on No. 200 and Nos. 268 and 311 are related. Amendment No. 313 is an alternative to No. 311. All these are to be discussed together, by agreement.

I move amendment No. 164:

In page 19, lines 34 to 45, to delete subsection (1) and substitute the following:

"(1) Any employee or officer who, immediately before the commencement of this Act, is employed by any one of the universities listed in section 4 shall not, while in the service of the university, receive less remuneration, or be subject to less beneficial conditions of service than the remuneration and conditions of service to which he or she was entitled immediately before the coming into effect of this Act.".

Amendment No. 311 states that "No one in receipt of a pension from any of the universities listed in section 4 shall be subject to less beneficial pension arrangements than those to which he or she was entitled prior to commencement of this Act." We were endeavouring to copperfasten in legislation the remuneration rights and conditions of existing officeholders, staff and employees of universities. It is a very important measure and the Minister has come forward with a similar amendment, prefacing it with "to remove any doubt." We noted for example that the Minister for Arts, Culture and the Gaeltacht had a similar provision in the National Cultural Institutions Bill from the outset. That ringfenced the pay and conditions of staff in the national cultural institutions before a new regime took over.

We feel this is necessary and made that point on Second Stage. We have received numerous representations from associations representing university staff. Some are still concerned and one union, the MSF, learned yesterday that IFUT had had an opportunity to meet with the Minister to discuss concerns but they had not. MSF sought a meeting and, although it was correct that IFUT, a representative body, met the Minister, MSF and, other staff associations are angry that they did not. Real fears have been expressed by deputations from the staff of the universities and, as far as I was concerned, there was no hype on Second Stage as the Minister suggested.

The original Fifth Schedule seemed to suggest that future governing bodies had the right to alter pension schemes. That is an emotive issue. As we move into a new situation with new governing authorities, the staff should be crystal clear that there will be no diminution of their pension rights or reduction in pension entitlements as a result of the new provision. We need to protect employees' rights as society and the state sector change with former civil servants joining new independent authorities. The bus workers union took their employers to the High Court not long ago. It is a very pertinent amendment with a relevance beyond the university sector to areas where the State may be embarking on new ventures.

The need for this amendment has been recognised by the Minister. It was a glaring omission from the Bill. Members received considerable lobbying on the matter. People were fearful. There has been growing concern about employing people on a contract basis. People in permanent employment fear that they might be engaged on less favourable terms. There were serious concerns regarding tenure. While the amendments are worded slightly differently the object is the same. What is important is not which amendment is adopted but that the principle is accepted.

I indicated in my Second Stage speech that there had been concerns among some university staff that the Bill would worsen their pay and conditions. On numerous occasions I asserted that the Bill would not have this effect. However, that did not seem to alleviate their concerns. Opposition Deputies felt it was a matter worth pursuing and they made comparisons with other legislation where new corporate bodies were being created. The National University of Ireland, Maynooth, is the only new corporate body being created by this Bill. In that case safeguards are already provided in the Bill. In other cases no provisions were necessary. However, I share the concerns raised and I am prepared to put the matter beyond doubt through amendment No. 188. My amendment removes any doubt by declaring that the tenure, pay, allowances and pensions of existing staff will be no less beneficial after the passing of the Bill.

I have also tabled an amendment which will maintain the status quo in respect of conditions of service, restrictions and obligations of staff. I do not support amendment No. 168 concerning future staff. They will be governed by the terms and conditions set out in the Bill, the various charters and statutes of the universities and employment contracts freely negotiated between the universities and their employees. It would be inappropriate to legislate in a way which would result in unchanged terms and conditions for staff in perpetuity. That would place a legislative straitjacket on the universities.

I do not support amendment No. 200 in the name of Deputy Keogh regarding employees of educational institutions incorporated into universities under section 8 having no less favourable conditions of service. Such an approach binding all universities is excessively intrusive and would potentially limit flexibility. Normal rules of fairness and justice would apply in any amalgamation of institutions. In addition, normal industrial relations procedures would apply in any such case.

Amendment No. 184 says that a university cannot alter the pension arrangements of existing staff. I support the thrust of this amendment, but it is not necessary to state it twice. This is already provided for in amendment No. 188.

The effect of amendment No. 268 would be to make unclear the future status of those who are now employed by St. Patrick's College, Maynooth. Therefore, I cannot support this amendment.

Amendments Nos. 311 and 313 would have the effect of ensuring that the pension arrangements of those already in receipt of pensions from universities would not be less beneficial after the passing of the Bill. This would be the case. However, the Deputies are clearly of the view that the matter needs clarification and in the circumstances I will bring forward an amendment on Report Stage.

The Minister will return with an appropriate provision in place of amendments Nos. 311 and 313. The Department is aware that many staff representatives received legal opinion on this issue.

Amendment No. 168 deals with future staff. It would be a pity if there evolved over time a two tier system of pay and conditions in the universities. Quality is a core issue and the last thing I would like to see is the emergence of a yellow pack worker. One could argue that that is already happening in terms of grades and status. I recently had an interesting meeting with the construction federation. We all know what happened in the construction industry where employment trends over the past ten years have been towards part-time, low cost employees. There is no reason that could not happen in the university sector but if it did happen, it could have a detrimental impact on quality. While members of the CIF thought they were doing well by subcontracting, for example, there is now a shortage of apprentices because sub-contractors do not take on apprentices and builders are short of quality staff. They admit that they allowed the situation deteriorate to a state where they have to advertise for quality staff.

The last thing we want in the university sector are university heads or governing bodies reducing overall standards by bringing in yellow pack workers with yellow pack conditions in the interests of costs. The banks did it. Those concerned with finance may not like my amendment but long term and in the interests of quality, all we are seeking is an assurance that anybody employed after the commencement of the Bill will not be subject to less beneficial conditions of service and remuneration. We should send a message to the universities that this is what we want.

It would place a legislative straitjacket on the universities. Whatever message the Deputy wants to send through his contribution to this debate, to legislate in a way which would result in unchanged terms and conditions for staff in perpetuity would be inappropriate because conditions and terms of employment are something into which the universities enter freely and negotiate freely with their employees. What has been freely entered into with existing staff is protected. To determine points of negotiation for future employees would not be permitted in legislation. However, I take the point about not having yellow pack jobs in the universities.

Looking at the nursing profession, for example, those with least negotiating clout have always been student nurses — those entering the profession — and their pay and conditions were eroded by successive Governments who looked after those in secure positions. That also happened in other areas. Even in the vocational education sector, the TUI has campaigned on the increased number of part-time teachers in the vocational education committee and PLC sector. The proportion has continued to grow and new teachers had no rights, although the introduction of EPT status has given them some rights. There has been an improvement this year as more permanent positions have been allocated. We could see how, over time, a trend built up. People who come in on the lowest rung of the ladder have least clout in terms of fighting for conditions.

Ultimately, it did not lead to good relations and because of sheer numbers and the TUI's persistence, the State had to appoint additional permanent employees. There was a danger that the service was losing out because those who are part-time look elsewhere and may tend not to give a life long commitment to an institution.

Youthreach is a classic example of how a good concept has been undermined over the years by a lack of permanency and conditions for staff. Youthreach is an instrument to eliminate disadvantage for early school leavers. It tries to provide a mechanism to allow them to return to education. However, the terms and conditions for staff on that scheme, who are dealing with the most disadvantaged students, are the worst in the education system. I see the Minister's difficulties with the amendment but it hits a core point in terms of how we should treat staff in education. There should be standards to which we should aspire and we should lead the way.

The role of staff associations and trade unions in the partnership will not be affected by this legislation. Those representing employees and negotiating with employers will continue to have a role. I do not want to take from that. I note the Deputy's points about the successful campaign by the TUI. I repeat it would be inappropriate to legislate in the way the Deputy suggested. That does not take from the merits of negotiated settlements freely entered into by associations, trade unions and employers. It would not be appropriate to incorporate that in this legislation.

Often the trade unions tend to look after the big boys and those on the bottom rung of the ladder are not looked after in many national agreements.

Amendment put and declared lost.

Amendments Nos. 165 and 169 are related and may be discussed together. Is that agreed? Agreed.

I move amendment No. 165:

In page 19, subsection (1), line 35, after "statute" to insert "or regulation".

As I outlined in the discussion on amendment No. 129, the process of making statutes, especially in university institutions governed by charters, is a formal procedural one. It has been represented to me that requiring universities to set out their appointment procedures in statutes could create difficulties for some. Accordingly, I propose amendment No. 165 to ensure that a university can have more flexibility through the making of regulations in deciding on and updating its appointment procedures. However, the procedures are determined and provided for and I consider it desirable that, in the interests of openness, they be widely known. It will be necessary under section 29 for any regulations which are made under this subsection to be published.

In addition to the requirement that appointment procedures be set out in statute or regulation, Deputy Keogh has proposed in amendment No. 169 that any delegation of powers to the chief officers by governing authorities would be subject to the statutes of the university. This would necessarily be the case and the amendment is, therefore, unnecessary and one I cannot support.

The Minister said some universities would have a difficulty. Section 22(1) states: "Subject to subsection (2), a university may, in accordance with procedures specified in a statute, appoint such and so many persons to be its employees as it thinks appropriate,". The Minister is including "or regulation" after "statute".

They need to be published so that people know what is happening.

What difficulties have some universities?

Some universities have statutes and others have regulations.

Which have regulations?

There are timescales as regards making statutes which could delay this, so it can be done by regulation. As long as the procedures, whether by statute or regulation, are published, I am satisfied they will be widely known and for that reason I propose this amendment.

I am still not clear. Is the reason some universities have a problem with this that they do not have statutes?

There are different ways of doing this.

Is there is a significant difference between specifying something in a statute or a regulation?

We had a long discussion on this when we debated amendment No. 129. This amendment means that having accepted that we can do this by statute or regulation, we can publish it.

Sitting suspended at 1.30 p.m. and resumed at 6 p.m.

Deputies asked about the making of statutes and regulations. The process of making statutes, especially in those universities governed by charters, can be formal. It was put to me that asking universities to set out their appointment procedures in statutes could create difficulties. The Deputy asked for an example: under its charter, Trinity College statutes must be agreed by the Fellows and that process could take a number of months. Whatever the process, I want it to be published.

In the Bill as published, provisions relating to the process for the appointment of employees required these matters to be set out in statute. This amendment proposes that the governing authority can make regulations on these matters but such regulations also must be published. The board will decide whether to do it by statute or by regulations — that is its choice. This will ensure that a university will have more flexibility through the making of regulations in deciding upon and updating appointment procedures. The important aspect of the process is not whether the procedures are set out in regulation or statute by the body but that, however they are arrived at, they are set out in some format for all to see by the governing authority.

I understand the Minister's point. IFUT wanted the new procedures for academic staff to be more formal on the basis that an academic staff member might, for instance, threaten the intellectual authority of the powers that be within the university, so a more formal method would be of benefit to him or her. The appointment of other staff is made in accordance with employment practices. This is a tortuous process and one would not wish it to be held up inordinately but the union has put forward an interesting point. That is why I proposed amendment No. 169 to delete "such conditions as it thinks fit" and substitute "the statutes of the university", as it would formalise the procedure. These amendments do not seem to seek the same end.

Many statutory lectureships, positions and office holders are appointed by statute which confers on them certain rights, guarantees and tenure — this relates to the notion of academic freedom. My worry is that from now on universities will be able to employ staff on the basis of regulations, not statute, and the expectation is that they will do so. That is related to an earlier amendment about terms and conditions.

It is intended that the appointments are carried out as procedures which can be adopted by statute or by regulation. The procedures or the statute would then be widely available. Rather than tying up the procedures each time — they can take time under statute — they could be done by regulation but the end result for staff organisations, candidates and so forth, is that whatever happens will be published. It is for transparency rather than the time factor that I am proposing this amendment. Any procedure that would be changed could be done by regulation. The requirement is that the information is published. I am satisfied that we will not encounter any difficulty with that.

Amendment agreed to.

We are moving to amendment No. 166. Amendments Nos. 189, 233, 238, 244, 258, 286 and 287 form a composite proposal. Amendment No. 166 is consequential on amendment No. 286; amendments Nos. 190, 193, 195, 197, 198 and 199 are alternatives to amendment No. 189. Amendments Nos. 245 to 248, inclusive, are alternatives to amendment No. 244. Amendments Nos. 166, 189, 190, 193, 195, 197, 198, 199, 233, 238, 244 to 248, inclusive, 256, 286 and 287 are to be taken together. Is that agreed? Agreed.

I move amendment No. 166:

In page 19, subsection (1)(c), line 45, to delete "subsection (9)" and substitute "section 46".

The Higher Education Authority is a statutory body established by the Higher Education Authority Act, 1971. Under the Act, the Higher Education Authority has a statutory function which is to co-ordinate State investment in higher education. It allocates resources to the university and it advises the Minister on general policy issues arising in the higher education area. Therefore it has developmental and funding roles. While the funding role is provided for in some detail in the 1971 Act, the developmental and support functions are expressed in a more general way. The Bill redresses the balance by setting out a number of areas where the Higher Education Authority and the universities may work together in the interests of the university sector.

Some commentators on the Bill, including some of the Deputies who expressed concern on Second Stage, claim that the provisions and the agenda of the Bill involves the Higher Education Authority in the day-to-day operation of the universities. There was never such an agenda. Some claimed that the provisions in the Bill were unnecessary as the Higher Education Authority already had the necessary powers. Those two positions are contradictory. While the powers which are provided for in this Bill are very consistent with the support and developmental role of the HEA, the authority does not have the powers in a specific or statutory way. The Bill provides certainty for all concerned and an opportunity to allow the universities and the Higher Education Authority to develop their partnership.

The functions conferred on the Higher Education Authority in the Bill can be considered under three categories — an advisory function, reporting and review function, and a function in relation to consistency in the format of annual reports and accounts. For those who genuinely believe that the Bill was conferring new and intrusive powers on the HEA, part of the problem may have lain in the manner in which the functions were interspersed with other provisions. There was a suggestion that they be drawn together under one heading. I now propose to draw together the support and developmental functions into one chapter so the matter can be studied. This involves amendments Nos. 189, 233, 238 and 244.

In proposing these amendments, the amendments proposed by Deputies Martin and Coughlan — amendments Nos. 190,193,195,197,198,199, 245, 246, 247 and 248 — are not necessary. The Higher Education Authority will assist the universities in achieving the objectives of Chapters IV, VII and VIII and as part of that process, under the proposed amendment No. 285, the Higher Education Authority will review the strategic development plans, the quality assurance procedures and equality policy and will issue reports as appropriate.

Furthermore, in combination with the new section 46, section 45 simplifies the guidelines relating to the numbers or grades of employees of the university and provides that a proportion of the budget of the university may be applied to the different activities of the university. Under this section the Higher Education Authority may review these matters having regard to any guidelines issued and will issue reports. The detailed provision which has been included in sections 22 and 33 relating to the publication of disagreements between a university and the Higher Education Authority in Iris Oifigiúil is deleted. I am satisfied that the objectives of transparency which these provisions aimed at can be adequately met in the provisions as I propose to amend them.

In conducting reviews and issuing reports under section 45, the Higher Education Authority will carry out two responsibilities — it will provide an objective view of the issues under review from a statutory body which has a sector-wide remit and it will also, through its reports, provide a valuable mechanism for accountability and transparency in the affairs of universities in these areas which are of considerable public interest. Under the new section 46 amendment No. 286 is proposed. This amendment deals with the guidelines which may be issued by the Higher Education Authority relating to the number of grades of employees of the university or the proportion of the budget to be applied to the different activities of the university. The guidelines fall very much within the support and developmental role of the Higher Education Authority which is also provided for in section 45.

I outlined in my Second Stage speech that I considered the guidelines would provide the Higher Education Authority and the universities with a formal opportunity for dialogue on important issues relating to the management of a university. They also allow the Higher Education Authority in a formal and statutory way to bring to the attention of a university best practice procedures nationally and internationally. I have already indicated on a number of occasions that the guidelines would not be binding on a university as the university would retain autonomy to act as it considered best. In spite of my assurances on the matter, these concerns have remained and the proposed provision in amendment No. 286 puts the matter beyond doubt.

Staffing costs are by far the biggest cost factor in a university budget. These costs are borne substantially by public funds. The scheme of the Bill is to provide autonomy for the universities in relation to staffing and the counterbalance that that autonomy must be proper accountability. An integral aspect of the accountability is the provision of information to the funding authority which is the HEA.

The Bill, as published, contains a requirement that universities publish a statement on staffing matters each year. Representations have been made to me to the effect that this would create compliance difficulties for universities as a proportion of the benefits gained. I propose to delete this requirement. However, under amendment No. 287 in the new section 47, I propose to retain the requirement that universities should, when requested, provide the Higher Education Authority with information on staffing matters. It has also been said to me by the universities and the Higher Education Authority that it was unnecessary to confer a specific power of inspection of information in relation to university staffing to the authority. Given that the Bill, as amended, will require the universities to furnish whatever staffing information the Higher Education Authority seeks and the chief officer will now be designated accounting officer for the university, I have decided to delete this power of inspection in the interests of further ensuring that the institutional autonomy of universities is preserved to the greatest possible extent.

The relationship between An tÚdarás and the universities was one of the major bones of contention relating to this Bill. The existing sections are unacceptable. I was surprised by their nature and their inclusion. They applied to the allocation of budgets to various sectors of universities, the issuing of guidelines by An tÚdarás in that respect and in the context of strategic plans and staff.

In the original Bill, an over-intrusive involvement by An tÚdarás was suggested on university staffing issues and budgetary matters. Without being offensive in saying so, most people found it ridiculous and baffling to An tÚdarás, a funding body, issuing guidelines to the universities on staff levels and budgets. If the universities did not agree with those guidelines the matter would then be sent to arbitration. Both sides would make their views known and if agreement was still not reached, it would be published in Iris Oifigiúil. I could never quite understand the reasoning behind that process.

On Second Stage, I stated that people who settle their tax affairs are generally mentioned in Iris Oifigiúil and the heads of the universities are aghast at the prospect of joining them. In any ordinary relationship with a funding authority, it is all very well to say that guidelines by their nature cannot be enforced, so people need not fear them. However, anyone who is in receipt of 100 per cent funding from any group will want to be on good terms with that group and will want to play ball with it. They will not want to run foul of the group — that is the nature of human relationships. Without question, that could pose a potential problem because even in the amendments I note that An tÚdarás will still issue guidelines. The Minister’s amendment No. 286 states:

(1) An tÚdarás may, following consultation with all or any of the chief officers, issue guidelines on——

(a) the numbers or grades of employees of the university, or

(b) the proportion of the budget of the university to be applied to the different activities of the university.

(2) Guidelines issued under subsection (1) shall not be binding on a university,

That was put in to say "Don't worry; you can ignore the guidelines". I am not sure the Higher Education Authority even sought this measure. From day one we saw that the Higher Education Authority proposed the deletion of most of this section. Given that the Higher Education Authority is the body that advises the Minister on higher education policy, one wonders what consultation took place with it prior to the publication of the Bill.

Some people did not know how to interpret the HEA's public advertisement at the time because it was worded rather ambiguously. However, reading between the lines I took the view the Higher Education Authority was basically saying it had a good relationship with the universities as things stand. The Higher Education Authority has certain powers under the Higher Education Authority Act, 1971, but the Bill was upsetting the balance and could potentially undermine that relationship. I would personally favour the deletion of the entire section. I know people want to save face by leaving in the guidelines issue, but why would someone issue guidelines unless they wanted them implemented?

Officially the position now is that it cannot do anything to anybody if the guidelines are not adhered to. It could make for a tense relationship if, for example, the Higher Education Authority disagrees with a university about the allocation of money or budgets to a particular faculty but the university is determined to pursue the funding of that discipline. We could see an ongoing standoff between the Higher Education Authority and the university if the Higher Education Authority continues to issue guidelines which the university says are not correct. There may be a view that people can twist arms quietly. The fear has been expressed that, on the surface, people could say "You do not have to look at the guidelines", but off the record people may say we are giving you the money and if you will not play ball we have ways and means. I do not want to be too dramatic about it but that fear has been expressed.

We are talking about an area that was the subject of great concern and the Minister's amendments recognise this. While I welcome the fact that she seeks to amend the provisions that were offensive to the universities, and to all of us, I am flummoxed about what the guidelines are supposed to achieve. I agree with the point Deputy Martin made. If there are guidelines, how far do you go with them? Will there be dialogue with the universities? If there is a point of dissension, do the universities have the power to ignore the guidelines? If so, what is the point of having them? Is it unnecessary to include most of these guidelines because, as amendment No. 286 states: Guidelines issued under subsection (1) shall not be binding on a university, and if a university departs from those guidelines An tÚdarás shall not, as a result of such departure, impose restrictions or conditions on the use of moneys paid to the university by An tÚdarás or otherwise limit moneys payable to the university by An tÚdarás".

What will happen here? I do not understand the thinking behind this. How will they arrive at these guidelines? Will it follow consultation with all the chief officers? It seems unnecessary to go that far, bearing in mind that the universities were vehement in trying to protect their autonomy when the original provisions of the Bill were published.

The Higher Education Authority is more than a funding body. It was formed under an Act of 1971. It has the function to co-ordinate investment but it also has a function to advise the Minister on general policy issues arising in the higher education area. I cited three pillars as being core values that would not change: first, the NUI and the University of Maynooth; second, the governing body's composition would reflect the community; and third, the assurance that while we would allow the universities their autonomy, there must be transparency in the decisions they take.

Through this legislation there is a role for the Higher Education Authority. Because it is a statutory national education body established to look at the whole remit of higher education, the Higher Education Authority is the right one to put in place guidelines that would have access to best practice. As the Deputy mentioned, my amendment No. 286 states: "An tÚdarás may, following consultation with all or any of the chief officers, issue guidelines on. . . ". Who better to do this than the Higher Education Authority? In dealing with their own cases, the universities should have guidelines for the sector managed by the Higher Education Authority which makes access to best practice easier. In addition, if there is disagreement there is a mechanism through the Committee of Public Accounts that will involve exchanges of views. There is a place for guidelines. Guidelines form the policy basis for many of the issues dealt with by the Department. Just because guidelines are not mandatory and punishable does not take from their effectiveness. The first guidelines by the Department with which I became involved were those on bullying. Putting guidelines in place was considered best international practice. In the section on the HEA, it will be easier to see its role. While I will be conscious of the autonomy of the university, the Higher Education Authority is not only a funding body but it also has powers to advise on policy. It is the apposite body to put in place the mechanism for balancing the accountability and transparency provisions that form the third pillar of this legislation.

It is not unusual that guidelines would be established. I had to go a long way to assure the universities that I was acknowledging their autonomy when putting in place transparent mechanisms so that when guidelines are laid down it will not be done behind closed doors or on the basis of a nod and a wink or on whatever basis the Deputy is suggesting. There will be no need for that. There is a mechanism in the legislation to secure the objective of transparency and that will be adequately met in the provisions. I am satisfied with it. It will achieve the purpose I set out to achieve.

This is an unnecessary provision. There is already a relationship between the Higher Education Authority and the universities. They meet annually and discuss the budgets to be allocated to each university. They also discuss higher education issues. The implication is that, by being included in the Bill, the guidelines are more than advice——

They are guidelines.

——they carry an extra dimension. This is not a question of the Higher Education Authority stating that it is of a certain opinion. Under this provision the Higher Education Authority can say: "We think you should". That represents an interference in the autonomy of the universities. It could also restrict their capacity to be flexible in terms of payment rates and so forth for staff.

The Minister is talking about detailed involvement in amendment No. 286. It refers, for example, to the number of grades of employees and the proportion of the budget to be applied to the different activities of the university. The Minister, when speaking on Second Stage, gave the impression that the Higher Education Authority would continue to allocate a budget to the universities and that it would be up to the universities to administer and allocate the budget in accordance with their strategic development plans. On the one hand we have passed a section dealing with the functions and aims of the universities. Do we not trust them now? This is a fundamental question of trust. One can introduce all the legislation in the world to try to control people and to put a framework on institutions but if there is no trust of those one charges with developing a particular service, one will get nowhere. People can be imaginative and innovative in trying to fool other people and circumventing regulations.

I trust the governing bodies to manage their affairs. In the last ten to 15 years they have done particularly well in the absence of the type of resources they would like to receive. To issue guidelines on the numbers or grades of employees in a university is too detailed a provision. There is no need for it. Once such a provision is included the implication is that the guideline is something more than a guideline or advice.

If the Higher Education Authority already has an advisory role with regard to the governing bodies, is its operation not acceptable? Does it work adequately or does it need to be strengthened? Obviously, this provision is a dilution of what was originally intended to be included in the Bill. Did that mean there was grave dissatisfaction with the way the universities would accept advice?

The universities are being given more autonomy in procedures for appointing staff. This provision is about the autonomy being matched by transparency. The Higher Education Authority is not just a funding authority but has a support and developmental role. In giving more autonomy to universities there is still a role for the Higher Education Authority in ensuring the decisions taken by the universities are transparent.

The means by which the Higher Education Authority arrives at its funding and the allocation of resources have reference to the budgets and spending of the universities. I am prepared to tell the universities they can take certain decisions even if the Higher Education Authority may have indicated in the guidelines what it believes the decisions should be. I will allow the universities to make the decision but there must be transparency in so far as we will know the decision is a departure from the Higher Education Authority guidelines. There will be clear understanding by the governing bodies that they are departing from the guidelines and that this will be noticed. Making decisions behind closed doors allows the universities more power or autonomy in decision making but they do not have carte blanche.

The Higher Education Authority allocates the resources and has a role in policy issues arising in the higher education sector. This section of the Bill allows me to put in place a mechanism whereby the principle of transparency will be realised.

I accept the Minister's remarks about transparency. Nobody has a problem with that. However, removing the guidelines does not exclude the possibility of the process being transparent, even if accountability is seen after the event. The proposed provision implies that one can go so far and no further, although it is more gently worded. One can have transparency without providing for guidelines within which the universities may operate. If one accepts the point about trusting the governing bodies to make the right decisions, that does not mean they should not be accountable for public money that is expended. We all must accept that principle. Providing guidelines does not automatically ensure there is transparency. That comes from accountability.

Amendment No. 285 reads:

An tÚdarás, in furtherance of its general functions under section 3 of the Higher Education Authority Act, 1971, shall assist the universities. . .

I like the word "assist" because it encapsulates what we are trying to achieve.

in achieving the objectives of Chapters IV, VII and VIII of Part III and may review—

(a) strategic development plans prepared in accordance with section 30,

(b) the procedures established in accordance with section 31,

(c) the policies set out in the statement provided for in section 32 and their implementation, and

(d) the matters referred to in section 46, having regard to any guidelines issued in accordance with that section and information provided in accordance with section 47,

and may, following consultation with the universities, publish a report, in such form and manner as it thinks fit, on the outcome of any such review.

That amendment already provides for a transparent process. If transparency is being sought, amendments Nos. 285 and 287 cover it adequately.

Amendment No. 287, deals with information on staffing. It reads:

A university shall provide An tÚdarás with such information as An tÚdarás may from time to time request relating to the number of employees employed by the university, their composition by grade, their terms and conditions of employment (including their remuneration, fees, allowances, expenses and superannuation) and any other related matters.

If amendment No. 286 is disregarded and amendments Nos. 285 and 287 are examined, it will be seen that there is an ocean of transparency in so far as the Higher Education Authority can demand every detail from universities of who they have on their payrolls. That information can then be published.

There must be guidelines.

Guidelines are not needed.

I understand transparency to mean knowing how universities recruit staff, at what rates, how much and in what context they are paid——

The HEA, as the funding mechanism, is also interested. There must be a basis on which decisions are made and guidelines are laid down for that purpose. It has been my experience that, where such guidelines are laid down, they allow for access to best practice. Guidelines are, therefore, important and I will press this amendment.

That confirms my worst suspicions.

Decisions will not be arbitrary. They will be based on guidelines. There is no shying away from their existence. Not only those who make decisions but those affected by them will have access to the guidelines on which the Higher Education Authority makes its decisions. This is how national and international best practice is introduced across sectors and the guidelines are very important for this purpose.

That proves that this is a control mechanism and not an innocent provision which will not affect anyone.

No one suggested it was innocent.

No, but subsection (2) of amendment No. 286 puts on record that "Guidelines issued under subsection (1) shall not be binding on a university," and if a university departs from them, it will not lose any money, suffer or have any restrictions imposed or have any limitation placed on money payable to it.

These are guidelines, not statutes.

The reason for including them was to deal with the fear that, if the guidelines were not abided by, the Higher Education Authority would victimise the institution which transgressed. That is putting it crudely.

The guidelines are important. They were not intended as a punishing mechanism but for the introduction of best practice. This is very important.

Let us examine exactly what the guidelines propose to do. An tÚdarás may issue guidelines on (a) the numbers or grades of employees of the university or (b) the proportion of the budget of the university to be applied to the different activities of the university. Apart from whether a university departs from the guidelines and if they are binding, if An tÚdarás issues guidelines about how many or in what grade or capacity people are employed by a university or what proportion of its budget is applied to its different activities, then this is obviously a direction to a university to operate in a certain way and to develop in certain areas. That could have grave implications if there was a serious dispute as to how a university should proceed in any particular faculty.

For example, if a university felt it was not up to speed in the field of business and that it was an area for serious development but a disagreement arose with the Higher Education Authority on that point, who wins or what happens? The university will proceed in the belief that it is right and that this is the way it wishes to go. What is the point then of the guidelines from An tÚdarás? I do not understand why these guidelines are necessary if a university is allowed autonomy in the development of certain of its activities.

There was a row for many years about whether there should be a dental school in Cork or Dublin. I could imagine the guidelines which the Higher Education Authority would issue in those circumstances. I see this as a control mechanism for directing universities which has implications for the relationship between them and the HEA. Who determines and interprets best practice? Universities may not be perfect but they have become quite adept at developing best practice and the State is in no position to lecture or issue guidelines to them on best practice in third level education. This is classic statist legislation saying we think you should do certain things.

Just give them all the money and they can do with it what they wish.

We are not giving them all the money.

The Higher Education Authority has that role; that is the point I have been making.

This is one of the most important sections of the Bill. Its importance can be gleaned from the fact that a whole page has been deleted by the Minister. I welcome that aspect of the amendments — that the section has been substantially reworded. However, even in that rewording I have problems with amendment No. 286. In some respects, universities have been better than the State in terms of best practice.

The Higher Education Authority is a body with more than a funding function but it is constrained by the budget allocated to it by the Department of Finance and budgetary and financial matters are often uppermost in its deliberations. If the steering committee report is examined, it will be seen that the Department of Finance inserted a qualifier and put in a minority report which undermined the main thrust of the steering committee's findings on the future development of third level education. The Department of Finance representative on the committee said they did not agree with the projected number of third level places.

We would be naive to suggest the Higher Education Authority is not constrained by financial or budgetary parameters. Third level policy, as directed to universities is often directed as much by the Department of Finance as by the Department of Education and the HEA. I can see the downward pressures and they are not necessarily about best practice. However, the guidelines may be about cutting the cloth according to your measure or allocating a certain amount and a guideline may be issued saying so much should not be allocated to a given faculty or discipline in a university or there should not be so many staff in a certain area.

I do not accept the argument that it is all about best practice. Funding is about trying to prune and cut back. That is what has happened in terms of the Higher Education Authority because of budgetary considerations.

That direction has been expanded.

I know that.

Why is the Deputy talking about constraints?

It is still subject to constraints. We will be subject to constraints in the next few years because of budgetary circumstances; we are subject to them because of the Maastricht Treaty. There was no capital funding this year. It will always be subject to financial constraints. That is inevitable no matter who is in power. In recasting the section, I suspect there was a view that we had to keep something in as regards the guidelines and control mechanisms. This is not just about transparency. There is enough there to cover the transparency angle. In addition to that, amendment No. 285 is wide ranging and gives the HEA, in addition to their powers under the 1971 Act, considerable powers in reviewing the strategic plan of a university's procedures and policies. Even if amendment No. 286 was not agreed, the Higher Education Authority would still enjoy considerable powers —access to all information and the capacity to make it public, which means nothing could be done behind closed doors. I do not know why the Minister insists on including it.

It is a reasonable balance and there is no way universities have complete freedom to appoint staff. The Higher Education Authority has a role providing advice. It also has a function in this legislation to provide a transparent mechanism. I reshaped the legislation to include this in one section. The Deputy will see the role of the Higher Education Authority in the guidelines. It is an authority that looks at the overall section whereas each university looks to its own community. I will press this amendment as it provides a reasonable balance.

Can we agree that the amendment be made?

Is that to delete subsection (9)?

We are dealing with amendment No. 166. All the others are being discussed with it.

The debate is on amendment No. 166 but we will go through them individually on voting terms.

Yes, but we have to deal with this one first.

Amendment agreed to.

I move amendment No. 167:

In page 19, subsection (1), between lines 45 and 46, to insert the following:

"(d) the capability of the university to provide the full range of its services through the medium of Irish.".

Section 22 (1) states:

Subject to subsection (2), a university may, in accordance with procedures specified in a statute, appoint such and so many persons to be its employees as it thinks appropriate, having regard to——

I want to include my amendment in the following provisions. It is the same type of argument. We must ensure there is the possibility to deal with the services provided by the university through the medium of Irish so there is a continuum for people who can speak the language and wish to develop it at third level. If there are students who speak the language, the staff will obviously have to provide that service. That is reasonable and is not putting a great onus on the staff.

We are talking about a full range of services. While I have examined Deputy Keogh's proposed amendment, the Bill already proposes a range of provisions aimed at imposing statutory duties on universities in respect of the Irish language. Care has to be taken that, as in all other aspects of the Bill, we do not intrude in an excessive or statist way on the degree of institutional autonomy and academic freedom of the university. A provision along the lines proposed by Deputy Keogh would leave little autonomy to the university. Providing a full range of services through the Irish language would have significant resource implications for universities, would further limit their autonomy in resource allocation would place significant restrictions on recruitment and personnel policy and it would represent serious intrusion on academic freedom. I do not think the Deputy would consider that intrusion necessary.

I take her consistent theme of support of the Irish language at third level on board. However, we have strayed beyond the support for the Irish language in the provisions in the Bill into an area where every service offered in the university is included. The universities are not capable of meeting this provision. Accepting an amendment on these lines would have implications in all areas of university life, from recruitment to resources to personnel. I cannot consider the amendment.

If the introduction to section 22 said a university "shall", I would agree with the Minister. I am trying to provide an enabling mechanism in saying the university "may". We have to consider at what stage is the Irish language and try to further enthuse universities in the use of the language in its services. If there were an enabling mechanism, it would make people aware that there are courses, other than degree courses, which might be pursued through the medium of Irish.

There are other areas of universities, to which the Minister referred, that might profit from use of the language. I am not making demands but the universities should be asked to reflect on this in a more positive sense than they have to date. They should also be asked to consider what could be done to provide a range of services. Will the Minister consider this matter before Report Stage and alter the wording of the amendment? We should place an onus on the universities without being overly proscriptive.

I support the amendment. It says much about the State's attitude to Irish that we recoil at the idea of any institution being in a position to provide a full range of services through the language and they have no obligation to do so. I do not intend any criticism of the Minister, that is merely the way the situation evolved. Even local authorities are lax in terms of providing services through Irish, despite the fact that citizens have a constitutional right to avail of any State service in this way. In that context, people have refused to pay parking fines because they received notice of them in English.

A number of universities are quite proactive in promoting Irish on campus and do not see this as an obligation. However, there is room for improvement. I do not believe that the amendment is overly proscriptive. The real issue of autonomy was debated at our last meeting in respect of guidelines and the HEA. It does not concern a mere amendment proposing the provision of services through the Irish language. It is over stating the case to place that on the same level as our earlier discussion.

The spirit of the amendment could be accommodated and Deputy Keogh indicated her openness to its rewording. We do not want to be too proscriptive about the Irish language but we want to be proscriptive about other issues. We do not want to force the issue in respect of something as fundamental as the Constitution. This issue illustrates a certain hypocrisy towards the Irish language on the State's behalf.

I wish to refer again to the objects and functions of universities. Section 11(d) states that it is the object of a university to "promote the official languages of the State, with special regard to the preservation and promotion of the Irish language and cultures". Deputy Keogh suggests that this is aspirational and must be taken into account. However, section 16 (6) states:

In performing its functions a governing authority, or a committee where appropriate, shall—

(a) have regard to the promotion and use of the Irish language and the promotion of Irish cultures. . . .

It is fine to state that what we debated on the previous section represents the essence of the Bill. However, we must be careful that when a Bill is placed on the Statute Book its various sections are of equal importance.

I am satisfied that what Deputy Keogh set out to achieve vis-�-vis the use of the Irish language and the role of the universities in respect of its use in education and its promotion is adequately dealt with in earlier sections. However, under the wording of the proposed amendment, a Bill could be passed which sought fully bilingual staff. This could affect choices within universities on staff, personnel matters, etc. I am confident that, with the provisions regarding the objects and functions of universities, and the functions of the governing authority, the governing bodies, under earlier sections of the Bill, will have recourse to the aspiration expressed in the amendment. From my reading of it, there would be significant resource implications for universities if the text of the amendment were to be tested as something passed in statute. For that reason, I cannot accept the amendment.

Ní aontaím faoin mhéid a bhí le rá ag an Aire faoi seo mar níl muid ag caint fá daoine ag iarraidh teagasc san ollscoil. Tá muid ag caint faoi seirbhísí. Tá mise ar Chomhchoiste na Gaeilge agus tá a fhios againn go raibh muid ag déanamh sárobair chun brú a chur ar an earnáil phoiblí, go mbeidh siad ábalta seirbhísí a thabhairt do daoine trí mheán na Gaeilge. B'fhéidir go mbeidh muid ábalta dhul ar ais aris mar gheall ar an leasú seo — tá a fhios agam go bhfuil muid ag caint faoi gach seirbhís a bheith tri meán na Gaeilge. Ach ag an am céanna tá daoine ag cur brú orainne ollscoil úr a thógáil go mbeidh achan duine abálta achan rud a dhéanamh trí Ghaeilge. Anois sílim féin nach mbeidh seo in ord, ach tá Gaelscoileanna ann anois agus tá scolieanna lán-Ghaelacha sa dara leibhéal agus tá daoine b'fhéidir ag fanacht ar chúrsaí triú leibhéal a bheith acu trí meán na Gaeilge. Tá a fhios agam go bhfuil an ceart acu. I nGaillimh tá cúrsaí tri mheán na Gaeilge agus tá siad abálta a gcuid scrúdaithe a dhéanamh trí mheán na Gaeilge. Sílim fein go bhfuil sé i gceart ag chúpla dena seirbhísí atá le fáil in san ollscoil a bhieth ar fáil trí Ghaeilge, is ceart é sin d'achan duine -dona daltaí agus dona tuismitheoirí— agus a bheith ábalta a chuid oibre a dhéanamh trí mheán na Gaeilge.

Níl a fhios agam cén conspóid atá ag an tuarascáil atá déanta ag an Chomhchoiste mar gheall le seirbísí a bheith ar fáil. Sílim féin go bhfuil sé i gceart nuair a ghlaofaidh tú ar ollscoil go mbeidh siad ábalta a fhreagairt as Gaeilge agus as Béarla, go mbeidh cuid dena seirbísí le fáil trí Ghaeilge agus go mbeidh daoine ann san ollscoil ábalta caint i nGaeilge agus seirbhísí a thabhairt do dhaoine nuair atá siad ag iarraidh rud éigin.

B'fhéidir go bhfuil sé in am dhul ar ais arís, mar gheall ar an leasú seo, mar sílim féin go bhfuil sé in ord go mbeidh daoine ábalta a gcuid oibre a dhéanamh trí mheán na Gaeilge agus nach bhfuil tú ag caint chomh mór faoi daoine ag teagasc trí mheán na Gaeilge. Tá cuairteoirí ann, tá ollaimh ag tabhairt cúirteoirí, cúirte na hollscoileanna agus rudaí mar sin ann. Níl muid ag caint fá rudaí mar seo, tá muid ag caint faoi seirbís a thabhairt trí mheán na Gaeilge. Sílim féin go bhfuil rudaí os comhair an Rialtais ag an am seo chun é a thabhairt mar cheart go mór mór san earnáil phoiblí agus gur ceart rud éigin a dhéanamh faoi, b'fhéidir ní ag an choiste seo ach sa Dáil i gceann cúpla seachtaine.

As Deputy Coughlan said, people should expect that there would be use of the language in the course of their work.

Question put and declared lost.

I move amendment No. 168:

In page 19, lines 46 and 47, and in page 20, lines 1 to 3, to delete subsection (2) and substitute the following:

"(2) Any employee or officer who, immediately after the commencement of this Act, is employed by any one of the universities in section 4 shall not, while in the service of the university, receive less remuneration, or be subject to less beneficial conditions of service than the remuneration and conditions of service which apply to those employees or officers of equivalent status and grade who were employed before the commencement of this Act".

Question put and declared lost.

I move amendment No. 169:

In page 19, subsection (2), lines 46 and 47, to delete "such conditions as it thinks fit" and substitute "the statutes of the university".

Question put and declared lost.

I move amendment No. 170:

In page 20, subsection (2), lines 1 and 2, to delete "employment or suspension" and substitute "appointment".

This is a technical amendment. It removes the reference to the delegation of suspension powers. This is not necessary in the context of the revised subsection (5) which deals with the issue of suspensions and dismissals.

The provision will then state:

"A governing authority may, subject to such conditions as it thinks fit, delegate to the chief officer any of the functions of the governing authority or the university relating to the appointment of employees of the university and the determination of selection procedures."

Why would the governing authority give that much power to the chief executive? Why is this amendment being included?

We are putting the terms of employment in place. A governing authority may delegate to a chief officer the conditions it sees fit for different levels of employment within the university.

According to the section, a governing authority may delegate to a chief executive officer a full range of powers in terms of appointing individuals. It should be doing that anyway.

The provision allows the governing authority the freedom to do so.

The Minister is concentrating a great deal of power in one individual.

The governing authority has to decide to confer the power; I am not giving it. It will be reflective of all the communities of the university. This has never happened.

Amendment agreed to.

I move amendment No. 171:

In page 20, subsection (2), line 2, after "employees" to insert "or officers".

Question put and declared lost.

Amendments Nos. 174, 177, 178 and 185 are related to amendment No. 172 and amendment No. 179 is an alternative to amendment No. 178. All may be discussed together.

I move amendment No. 172:

In page 20, lines 4 to 6, to delete subsection (3) and substitute the following:

"(3) A university may, in accordance with procedures specified in university statute, which procedures shall include the approval of the Academic Council, appoint such and so many persons to be members of the academic staff as it thinks appropriate, having regard to the efficient use of its available resources, the requirements of accountability for the use of monies provided to it by the Oireachtas and the policy relating to pay and conditions in the Public Service as from time to time determined by the Government.".

This deals with appointment of staff and to the issue of academic freedom and independence. We want to include the university's right to do what is proposed in the amendment and delete subsection 3 which is far too loose. We are anxious to copperfasten academic freedom, the approval of the academic council and the specification in a university statute of the appointment of members of the academic staff. That is the way it is at present and we want it to continue in that manner. I detect a move away for the statute based method of appointing academic staff in recent amendments. It is the contention of IFUT, and others, that the fact that academic staff are appointed by statute is central to their independence.

Amendment No. 174 states that members of academic staff of a university shall be appointed subject to terms and conditions of employment as set down in a statute of the university. That is proposed so as to ensure the Bill enshrines the primacy of statute as the method of employing and appointing academic staff. A statute gives them tenure which is central to their independence and makes them secure from any potential punishment that might be meted out to them for being too independent in their views or too outspoken on any issue.

Amendment No. 178 states:

In page 20, lines 7 to 14, to delete subsection (4) and substitute the following:

"(4) A university shall not be accountable to An tÚdarás where private endowments are concerned."

Subsection (4) states:

There shall be paid by a university and by a corporation, to which section 12 (2) (c) relates, to the employees of the university, such remuneration, fees, allowances and expenses as may be approved by the Minister with the consent of the Minister for Finance from time to time, and any departure from such levels of remuneration, fees, allowances and expenses may occur only with the approval of the Minister, with the consent of the Minister for Finance.

This subsection is not necessary. It involves two Ministers having to sanction the remuneration of the payment and employment of staff by private corporations that have a relationship with a university or that may be under the control of the university. The recent Iona placement on the New York Stock Exchange is a classic example of the type of success that has been achieved by companies incubated and developed on campus. If university staff work on these projects, they should be allowed to continue. We should not be imposing such controls. The university should not be accountable to An tÚdarás in respect of private endowments as this is a control mechanism. We are trying to free universities, trust them in what they do and allow them to develop vigorous and enterprising partnerships with the private sector.

The primacy of statute is the basis on which academics should be appointed. People may get tired of the arguments which IFUT have advanced, but it sees the concept of academic freedom as being tied up with how academic staff are appointed and the statute offers the best protection of academic freedom. We just want to enshrine that in the Bill.

On private endowments which are made to universities, section 22(4) seems to suggest that the pay and remuneration which a private corporation might offer is subject to the approval of the Ministers for Finance and Education. We should be careful at all times to allow for flexibility. Often some of these corporations may want to appoint staff to a university who would need inducements so flexibility is very important in terms of remuneration and pay.

There is no question but that the best and the brightest are attracted by good salaries. One of the more depressing features in universities is that we are losing many of our best postgraduates to third level institutions in Europe and America simply because those countries have superior postgraduate funding structures. Some of the postgraduate packages being offered to Irish graduates by European and American universities are vastly superior to those on offer here. In the CIRCA report, a professor in Exeter summed up the situation when he estimated that one could establish another Irish university with those graduates who are all over the world involved in postgraduate research in a range of institutions. We need to be flexible. We must not seek too much control over staffing and remuneration.

I support the amendments tabled by Deputies Martin and Coughlan and draw attention to my amendment, amendment No. 179. These concern the type of flexibility which the universities are allowed. I am not happy with amendment No. 177 in the name of the Minister because it gives and then takes away. Amendment No.177 states:

A university may depart from levels of remuneration, fees, allowances and expenses approved under subsection (4) where the governing authority is satisfied that it is necessary to meet the objects of the university, but may do so only in accordance with a framework which shall be agreed between the universities and An tÚdarás.

I am quite happy for the university to be accountable to An tÚdarás but I do not see why An tÚdarás should be involved in putting together a framework on remuneration, fees, etc.

I support the argument put forward by Deputy Martin with regard to a corporation. We must be realistic about the type of remuneration offered by corporations. We should let the universities have their head in this regard because there are all sorts of implications for the likes of the Iona project and any developmental field in which people within a university might be involved. In order to ensure the retention of somebody who is a great asset to the university, the university should have the capacity to offer levels of remuneration above and beyond what is proposed in any framework. Again, this refers to autonomy without saying that the universities should not be accountable for public moneys because they should be.

I do not support the deletion of section 22(1) and its replacement as proposed by Deputies Martin and Coughlan in amendment No. 172. I do not consider there should be a statutory requirement that the Academic Council should have to approve all statutes with regard to appointments. Such a requirement would result in much reduced freedom for the university to respond as circumstances within it require. It is my view that the proper role for the Academic Council in the appointment of staff is a matter to be determined from time to time within the university community and not set in stone, as proposed, in legalisation.

I do not support the proposal of Deputies Martin and Coughlan in amendment No. 174 that section 22(3) be deleted and replaced with a simple requirement that terms and conditions be set out in statute. I do not oppose the idea that a university set the terms and conditions of its staff in statute but I do not consider that it should be a requirement in legislation.

Section 22 deals with a range of issues relating to the staff of the universities. At present practice in university institutions varies greatly. Strict controls apply to DCU and the University of Limerick and there are no statutory controls in some of the other institutions. Given that staff are the most important component of an effective university and staff costs account for the largest share of the universities' budget, it is appropriate that this important area should be placed on a clearer statutory footing. However, I am satisfied, as I outlined on Second Stage, that the external controls which require advanced approval for detailed decisions of the universities are not appropriate because of the importance of the autonomy of the universities.

Therefore, the approach I have taken has been one to provide in this section for statutory recognition of the rights of universities to appoint staff as they think fit. The decision as to who to appoint, what post to create and fill, what level and how to allocate the staff within the faculties and the departments are all matters for each of the universities. They are required only to have regard to the efficiency and accountability for public funds, public pay policies, the university budget and the Higher Education Authority guidelines. The reason for this is that a requirement that public pay norms are adhered to is a normal and prudent measure to ensure that the State is not presented with bills for which it has not budgeted and cannot afford.

I recognise that universities have a need from time to time to develop pay and condition packages to attract particular staff. We all agree on that and the Bill, as published, allows for this. However, the universities are concerned that the requirement that departures be subject to the approval of the Ministers for Finance and Education would prove to be too cumbersome. For that reason, I propose amendment No. 177 to provide for more flexible arrangements for a university to pursue its objectives. It will provide that the universities and the Higher Education Authority will develop a framework to take account of such instances.

The important purpose of the framework will be to ensure that there are no repercussive effects in the public sector generally deriving, for example, from pay relativity or linkages or other conditions of employment which could form a basis for comparative claims for other groups. It allows the universities to reply in their own way without setting in stone, or indeed in any framework, conditions of employment which would become comparative and be used by other sections. That would relate to general responses rather than particular needs although, in general, a departure from centrally determined norms for pay would not be usual and would arise only where such a departure would permit a significant benefit to accrue to the university. That should meet the concerns the Deputies expressed. Where there would be particular benefit, the framework would cover arrangements for the payments to the university employees from campus companies.

Which framework?

The framework set out in amendment No. 177, that is, subsections (5)(a) and (b). In general, a departure from centrally determined norms for pay would not be usual and would arise only when such a departure would permit a significant benefit to accrue. The framework, in subsection 5 (b), would also cover arrangements for university employees in campus companies.

I cannot support the proposal in amendment No. 178, that section 22(4) should be deleted and replaced by a requirement that universities would not be accountable to the Higher Education Authority for private money. The Deputies will note the detail of my amendment to the section. The result of the Deputies' amendment, combined with the replacement of section 22(1), would be that universities in remunerating their staff might need merely to have regard to public pay norms in paying their staff. In that case it would only be for money provided by the State and a possible outcome of this could be that private money would be used to top up the pay of academics and non-academics. This would have repercussive effects which could have a large impact on public sector pay.

I cannot accept Deputy Keogh's amendment No. 179 to subsection (4) because it is not clear precisely what is meant by being accountable to the Higher Education Authority. I consider that my amendment to the subsection addresses the concerns of the Deputy.

On the related issue of pensions, I propose in amendment No. 185 to extend the provisions of the Fifth Schedule which relate to superannuation arrangements for all new employees to the National University of Ireland.

If amendment No. 177 is agreed, amendments Nos. 178 and 179 cannot be moved.

The amendments have been grouped but two issues are involved. The first relates to a statute while the second relates to payment in terms of the Higher Education Authority and the universities. On the first issue, amendment No. 174 reflects the current position in terms of how they are appointed. It states:

Members of the academic staff of a university shall be appointed subject to such terms and conditions of employment as are set down in a statute of the university.

From the discussions on earlier amendments I detect a trend away from a statute as the basis for employing academic staff towards regulations which are less binding and involve less security of tenure. It is serious if that is the case. The Minister said she will not accept amendment No. 174 but it reflects the current position.

The Deputy says the amendment covers the current position and what is likely to happen. Section 22(3) states:

Except as otherwise provided by this section, the employees of a university shall be employed on such terms and conditions as the university from time to time determines.

This relates to how exceptional matters are dealt with, an aspect which appears to concern the Deputy. However, an amendment has been introduced to deal with exceptional matters which meets the Deputy's concerns but which ensures the State is not presented with bills after the event for which it has not budgeted and cannot afford.

I thought the Higher Education Authority would outline universities' budgets and tell them they must operate within them. A university could not operate outside its budget by employing 150 extra people and then asking the State to pay for them.

If a university employs a person at high remuneration and intends to keep them for five years it must meet the cost from its budget. If it does not live within its budget, it will affect the budget it receives the following year.

I am dealing with the point in amendment No. 174, that people would be appointed by statute.

It is a matter for the university. It is not something which needs to be included in legislation.

Does the Minister agree that is the position at present?

Not all staff are statutory staff and the practice in the various organisations varies. There are strict practices in the new universities but not all staff are statutory.

I am aware not all staff are statutory but all permanent academic staff are statutory.

Not in all the institutions.

That is the case in the NUI colleges.

There are professors and statutory lecturers and then there are college lecturers. I am putting in place a framework of legislation which will not pick out people as from the NUI. The current position will probably stand but practice in the universities with which the Deputy is more familiar is different from practice in the new universities.

Is the Minister's objection to amendment No. 178, which states "a university shall not be accountable to an tÚdarás where private endowments are concerned", based on the point that salaries could be topped up by the campus company?

It was felt the requirement that the departure would be subject to the approval of the Ministers for Finance and Education would be cumbersome. I tabled amendment No. 177 to provide flexible arrangements so the universities can pursue their objectives. The universities and the Higher Education Authority will decide the framework which takes account of specific needs. There was much discussion about head hunting and the need to respond but the amendment does not give carte blanche. It recognises that staff are the backbone of a university but it will ensure that departures are taken on the basis of individual needs.

Amendments Nos. 177 and 178 are related. Amendment No. 177 states:

A corporation referred to in section 12(2)(c) may pay to employees of a university remuneration, fees, allowances and expenses only in accordance with a framework which shall be agreed between the universities and An tÚdarás.

It should not be a general top up. I foresee a situation in the campus companies where a mechanism would be put in place for a general top up. The provision is not about using the private company mechanism as a general top up. The point is to ensure there will be no general top ups which affect the public sector. Such top ups would affect the acceptable pay norms in the public sector because it involves a sector which receives public money, takes the general framework which is acceptable to everybody but then dips in to other funds to top up salaries.

I presume the company must be established under company law. It would be an independent private sector organisation which must be transparent in terms of how it employs anybody in the university or contracts services.

That is fine and a framework exists. However, the need for it must be agreed by the universities and the Higher Education Authority so it does not become the norm. The amendment allows flexibility in exceptional or unusual conditions.

On balance this should be encouraged. Some universities have up to 30 companies which create jobs in the universities. Some universities employ up to 400 people in companies, some of which are research based. I am concerned a control mechanism is being put in place which aims to determine what the companies pay their staff. I do not understand why they must go to an tÚdarás for that purpose.

They are part of the staff of the university affected by the budgetary position. There can be exceptions but they must be agreed by the governing body. These people are employees of the university.

Would they not be seconded by the company?

If they are not employees they are not covered. The amendment states a corporation may pay to employees of a university remuneration, fees, allowances and expenses. This means the university is already paying them. However, the amendment also states, only in accordance with a framework which shall be agreed between the universities and An tÚdarás.

What is the position if a top science or electronics professor wants to get involved in a company in addition to his teaching and research duties? Are we are saying there will be a limit to what a person can earn for doing extra activities?

There is no limit because it cannot be done like that.

There could be a limit.

No, because it can only be done within a framework which has been agreed between the university and An t-Údarás. That is the protection for existing statutory staff who are the backbone of the university. We have already discussed the head hunting of employees with particular talents.

I am not just talking about head hunting. Biotechnology and micro-electronic companies may require people at different times.

I am satisfied there is a mechanism which will not establish pay rates as a norm but will acknowledge a person's needs and requirements. A decision will not be taken behind closed doors but within a framework so that people will know that the pay rate for the job is not the norm but that it was agreed between the governing body and the Higher Education Authority in light of the person's talents.

If a statutory lecturer, who is entitled to a certain level of pay, is offered work by a corporation, which may be above and beyond what they do in the university, and is paid £50,000 a year, which is agreed between the university and An tÚdarás, is the Minister afraid that unless a framework is put in place the next person appointed to the position of statutory lecturer will expect the same level of remuneration?

I am afraid that somebody else at the same level will use the top up mechanism. People know that if they get work in a university which is associated with a particular corporation, there will be a top up mechanism for statutory pay rates. That is what I am protecting against.

I see the dead hand of the Department of Finance watching every penny that is spent.

I am not blaming the Minister, but public pay policy is its prime consideration. A framework should be provided to allow private corporations or companies to develop and expand as much as they can because that will be good for the country.

We are talking about people who are paid to be on the staff of a university not about individuals.

That is my point; it is a separate issue.

This reminds me of an industrial relations dispute.

We are trying to keep the peace here.

It should be possible to table an amendment to the Bill to ensure that any relationship between a campus company and a university is transparent. It is in the interests of the governing body to establish criteria for its staff and for those employed by a company. All services and contracts should be fully accounted for. Rather than discussing an individual's remuneration or expenses, An tÚdarás should tell a university that it agrees with the establishment of campus companies, provided there are clear guidelines about who does what in the company and the university. This would not allow for a top up mechanism. I am against people creaming off money from a company because that would not be good for it or for the university. A framework should be established so that there is complete transparency and everybody knows what function each person has in the corporation and the university. It should be left to the company to pay remuneration as it sees fit in the context of a private company and it should only pay someone on the university staff for services rendered or contracts undertaken, which can be accounted for. Payment should not be seen as some type of gratuity.

That is why I want a framework to meet the Deputy's concerns. We are talking about meaningful work.

Subsection (5)(b) of amendment No. 177 does not state that. It states that "A corporation referred to in section 12(2)(c) may pay . . . . . . . only in accordance with a framework. . . . .".

It states "in accordance with a framework which shall be agreed between the universities and An tÚdarás".

There should be a clear framework between the companies and the university.

Will these people be seconded from their positions in the university and paid a higher rate?

I am not interested if they are not in the universities because we are talking about university employees. I want to put in place a framework. A procedure must be established between the universities and An tÚdarás because we do not want a top up mechanism. I am not talking in terms of individuals but in terms of different disciplines within the universities. The Deputy mentioned the technological sector which may require people from outside it. There is no reason this cannot be accommodated in such a way that the State is not presented with something for which it has not budgeted.

Is the Minister talking about the company's liability if the person is an employee?

We are not trying to set new pay norms but to put in place a mechanism which will allow the universities to meet the exceptional circumstances. They must decide what those circumstances are because I will not spell them out.

Public pay norms are the problem. Could the Minister not table an amendment to state that the relationship between corporations and universities shall not undermine public pay norms as determined by the Government from year to year and in accordance with national wage agreements?

That is the purpose of the framework, so I do not need an amendment.

The framework does not do that.

It does because it is an agreed procedure. The Deputy should not forget the importance of the HEA.

It is the type of procedure which could be restrictive.

I am satisfied with it.

We should table an amendment on public service pay so they know they cannot do something which ——

The Higher Education Authority operates a funding mechanism and it is guided in the sums of money it makes available. It is a statutory advisory body and that is why the partnership is included in this section. I am satisfied I can meet the Deputy's concerns without being overly prescriptive. In giving a role to the Higher Education Authority and the universities, we are talking about something that is agreed between them.

Amendment put and declared lost.

I move amendment No. 173:

In page 20, subsection (3), line 4, after "employees" to insert "or officers".

Amendment put and declared lost.

I move amendment No. 174:

In page 20, between lines 6 and 7, to insert the following subsection:

"(4) Members of the academic staff of a university shall be appointed subject to such terms and conditions of employment as are set down in a statute of the university.".

Amendment put and declared lost.

Amendment No. 175 may have already been discussed with amendment No. 16 in so far as it deals with the Board of Visitors. Accordingly, repetition on this point should not be allowed. However, the substance of amendment No. 175, as well as amendments Nos. 180, 181 and 182 may be discussed. Amendment No. 182 was tabled on 3 February.

I move amendment No. 175:

In page 20, between lines 6 and 7, to insert the following subsection:

"(5) A university may not remove any officer from his or her office, except for failure to discharge the duties of such office. Prior to any such removal from office coming into effect, the person whose removal has been proposed may appeal against any such proposal to the Board of Visitors, and the appeal shall be heard and determined in a manner provided in the charter of the university.".

We are essentially concerned here with the suspension or removal of staff. Amendment No. 175 proposes the insertion of an appeal mechanism. Amendment No. 180 proposes the deletion of line 15 from page 20 which states that a university "may suspend or dismiss any employee". In its recommendations to the Minister, the Higher Education Authority suggested that this would be more appropriate to the charter of a university and is not appropriate for legislation.

The provision is baldly put in the Bill and should be deleted. Existing industrial relations regulations covers staff and the concept of social partnership is involved. I do not see, therefore, why the provision should be included in such blunt terms. It excited many staff associations prior to Committee Stage and we received considerable representations. The section does not contain any qualifications on the basis on which somebody could be suspended or dismissed.

Amendment No. 181 also deals with this aspect. The Minister recognised concern about this and has tabled an amendment. The insertion of the phrase that a university "may suspend or dismiss any employee" was shocking. The words "in accordance with law" should have been included so that due process would apply. The Minister has obviously received representations because her amendment refers to consultation through normal industrial relations structures, etc.

Representatives of the staff interests were concerned about section 22(5) as published. In common with other employees, staff of universities benefit from comprehensive employment protection legislation. However, to address their genuine concerns I propose to amend subsection (5) by amendment No. 182 which states:

In page 20, subsection (5), line 15, after "employee" to insert "but only in accordance with procedures specified in a statute made following consultation through normal industrial relations structures operating in the university with recognised staff associations or trade unions".

Procedures or conditions may provide for the delegation of powers in relation to the suspension or dismissal to the chief officer. The main thrust of the amendment is to bring the staff unions and associations into a central role in matters relating to suspensions and dismissal, and it provides for the openness and transparency in the procedures I have sought.

The amendment provides that a suspension or dismissal must be in accordance with the procedures or conditions specified in a statute. The statute will be made only following the consultation through normal industrial relations structures operating in the university with the recognised staff associations and trade unions. The procedures or conditions may also apply for the delegation of powers relating to the suspension or dismissal to the chief officer. Staff interests must be consulted on this.

By providing that the conditions be specified in statute addresses the underlying issue of the sense of insecurity which has been expressed among the staff. Conditions could relate to the circumstances in which a person may be suspended or dismissed, deal with issues relating to the tenured staff as opposed to non tenured staff. They could also provide that it is a matter for each university to determine issues relating to suspension and dismissal with its employees, provided that such determination is made in consultation with the associations.

The amendments would also leave in the hands of each university the issue of delegation to the chief officer the power to suspend or dismiss, but staff representatives would be entitled to be consulted. Overall, the revised provision is non prescriptive. It leaves the resolution of issues which are sensitive within the university community in the hands of the community, but always in consultation with the staff unions and associations.

I will press the amendment because I know it has met the concerns already expressed by Deputies. I appreciate Deputy Keogh's concern in addressing her amendment No. 181, that any suspension or dismissal be in accordance with the law. However, it is not necessary to state this as such action cannot be voluntarily taken otherwise than in accordance with the law.

I do not support amendments Nos. 175 or 180 in the names of Deputies Martin and Coughlan. The effect of the amendments would be that an officer could not be removed from office for misconduct, however serious. This would be an extraordinary curtailment of the rights of the university and dangerous, both from the viewpoint of the institutions and their students.

In so far as the Deputies wish to protect staff from unfair treatment and ensure conditions of tenure, the law and my amendment will fully protect the rights of both academic and non academic staff. We are considering here a balance and we have achieved that balance.

Amendment, by leave, withdrawn.

I move amendment No. 176:

In page 20, between lines 6 and 7, to insert the following subsection:

"(6) Employees and officers of a university shall not be disadvantaged, or subjected to less favourable treatment, for opinions or findings advanced during the course of their teaching or research or as a result of any other activities relevant to academic expression either inside or outside the university.".

Amendment put and declared lost.

I move amendment No. 177:

In page 20, lines 7 to 14, to delete subsection (4) and substitute the following:

"(4) Subject to subsection (5) *, there shall be paid by a university to the employees of that university, such remuneration, fees, allowances and expenses as may be approved from time to time by the Minister with the consent of the Minister for Finance.

(5)(a) A university may depart from levels of remuneration, fees, allowances and expenses approved under subsection (4) where the governing authority is satisfied that it is necessary to meet the objects of the university, but may do so only in accordance with a framework which shall be agreed between the universities and An tÚdarás.

(b) A corporation referred to in section12(2)(c) may pay to employees of a university remuneration, fees, allowances and expenses only in accordance with a framework which shall be agreed between the universities and An tÚdarás.".

The Select Committee divided: Tá, 11; Níl, 9

Bhreathnach, Niamh.

Kenny, Seán.

Bree, Declan.

McCormack, Pádraic.

Costello, Joe.

McGinley, Dinny.

Flaherty, Mary.

McGrath, Paul.

Gallagher, Pat (Laoighis-Offaly).

Mulvihill, John.

Kemmy, Jim.

Níl

Brennan, Matt.

Martin, Micheál.

Coughlan, Mary.

Moffat, Tom.

Flood, Chirs.

Moynihan, Donal.

Hughes, Séamus.

Walsh, Joe.

Keogh, Helen.

Amendment declared carried.
Amendents Nos. 178 and 179 not moved.
The Select Committee adjourned at 8.15 p.m.
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