John Curran (Dublin Mid West, Fianna Fail)
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I sought to raise this issue with the Minister a number of weeks ago. However, such is the nature of the Topical Issues debate that it has taken some time for it to come up for discussion in the House. I did not remove the matter from the agenda because, having corresponded with the Minister and the Department and spoken to those who raised it with me, I noted a level of dissatisfaction with the manner in which the individuals in question were being treated. One could argue that if they wanted to have a collective voice, they should join a trade union. However, some of them made a conscientious decision not to join a trade union and were happy not to be union members.

Their concern is the manner in which they are treated by the Department.

While I am not going to identify a particular school, I want to look at one particular person. The manner in which he has related his story to me clearly outlines the nature of the issue. He is a teacher in a designated community college under the auspices of the Dublin and Dún Laoghaire Education and Training Board. The board is his employer and, in accordance with the Education and Training Boards Act 2013, comes under the auspices of the Department. The school in which the gentleman in question works was founded in 1984 by a then VEC as a designated community college on a greenfield site. Since its inception, teachers at the school who have sought to join a trade union have been represented only by the Teachers Union of Ireland, TUI. In the school's history there has never been a teacher who has been represented by the Association of Secondary Teachers of Ireland, ASTI. This, apparently, is quite common in designated community colleges, even though the ASTI has negotiating rights in such colleges. In non-designated community colleges, only the TUI has negotiating rights.

The TUI has agreed to accept the Lansdowne Road public service agreement, but the ASTI has chosen to reject it. As a result, according to the Department, teachers who are members of the ASTI are subject to the financial emergency measures in the public interest, FEMPI, legislation. However, in order to apply FEMPI legislation penalties to ASTI members, the Department must be able to distinguish between them and other teachers. Even though it has the information on which teachers are members of the ASTI for payroll purposes to enable union dues to be deducted at source, under data protection legislation, it cannot use this information to identify members of the ASTI for the purpose of applying the FEMPI legislation. Accordingly, it has taken another route. It has decided to ask teachers who are members of the TUI to identify themselves to it or the education and training boards, whichever is relevant to the type of school involved, in order that the benefits of the Lansdowne Road agreement can be applied to them because the TUI has accepted the agreement. Accordingly, any teacher who does not indicate he or she is a member of the TUI will be, according to the Department, treated as not subscribing to the terms and conditions of the Lansdowne Road agreement and will, therefore, face the penalties of the FEMPI legislation. However, currently there are teachers in designated community colleges who are not and never have been members of any trade union. By the measure being taken by the Department, teachers who are not members of a trade union and, therefore, cannot indicate that they are members of the TUI will now face penalties under the FEMPI legislation. In other words, teachers in designated community colleges who conscientiously and continuously chose not to join a trade union will be subject to financial penalties as a result. That is the crux of the problem.

In the particular school every teacher is a member of the TUI, bar a handful who are non-union members who are not being afforded the opportunity because of the manner set out by the Department in Circular 0045/2016 which the Minister has indicated to me in correspondence. No matter how I look at this, there is an inequity and unfairness. Those who have chosen not to join any union are prepared to carry out all duties expected of them, but they do not have an opportunity to express this view to the Department.

Richard Bruton (Dublin Bay North, Fine Gael)
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I understand the Deputy's frustration. However, one must go back to how collective agreements are put together. It is the norm in industrial relations practice in the public service that the decision of the trade union recognised as holding representative rights for a particular grade or sector will determine the position for all relevant staff in that grade or sector. This context does not allow for acceptance or rejection of collective agreements by staff on an individual basis. There are sound reasons for this approach. The Lansdowne Road agreement is a collective agreement between the Government and the public services committee of the Irish Congress of Trade Unions and applies to members of affiliate unions. Allowing for acceptance or rejection of collective agreements by staff on an individual basis would not be consistent with the collective approach taken to public service pay agreements to date. In addition, it could also give rise to issues in the negotiation of change and industrial relations agreements on an individual basis with every public servant. It would also give rise to the converse question of whether individual union members would be allowed to opt out of agreements reached by their union.

To explain this in layman's terms, essentially the way the system works is that schools are defined in different sectors. In the schools described by the Deputy there are mixed schools in which both the ASTI and the TUI have negotiating rights. The FEMPI legislation provides that the benefits of a collective agreement will apply to those who have signed up to it. In this instance, the ASTI took action to take itself outside the agreement by not working to the 33-hour measure. The FEMPI legislation provides that the TUI members who are party to a collective agreement will receive the benefits of it. Those in sectors in which there are joint negotiating rights do not receive such benefits.

In the instance described by the Deputy the ASTI does not have a member in the school. If it did, using the Deputy's logic, we would be changing the rule because of the ASTI suddenly having a member and would have to apply different rules. Another way of looking at it is that if one is in a dispute and rewards are going to people who are not party to it, one could be accused of encouraging people to leave unions to gain the benefits of agreements negotiated by others to which they were not party. There is a long-standing approach to this issue. As it is an element of industrial relations, this approach is part of the way in which one has to deal fairly with those who enter in good faith into collective agreements to negotiate on behalf of their members.

That is the best explanation I can offer. It makes absolute sense in managing industrial relations in a stable environment to work in this way.

John Curran (Dublin Mid West, Fianna Fail)
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The Minister has not given me a definitive position on how those teachers who are non-union members can go about exercising their rights. There is clearly a pathway for those in the TUI to identify themselves to the Department. The problem is that there is dual recognition of unions in the particular school. The assumption, therefore, is that non-union members are receiving the ASTI treatment in the sense that there is no procedure for them which is facilitated by the circular. That is the crux of the problem. Those teachers who are non-union members have worked the 33 hours and are doing everything their TUI colleagues are doing. The reason I chose this specific school is there are no ASTI members in it. Every teacher in the school is a member of the TUI, apart from a handful of individuals. They are not in dispute, but they have no method by which to advance their case. The Department's circular does not facilitate them in making a claim. They are prepared to do the work, but they are being discriminated against because of the default position taken in the circular. That is the crux of the problem. How will they represent themselves to the Department? How will they gain from the benefits TUI members have received, given that they are doing exactly the same work? I cannot see equality in the system. I acknowledge that from an industrial relations point of view, it is complex. However, I have not seen a clear opportunity for these individuals to advance their individual cases.

Richard Bruton (Dublin Bay North, Fine Gael)
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People join trade unions to negotiate collective agreements. In this instance, a union, the TUI, entered into negotiations with the Government and reached an agreement. As a result, benefits have followed. Another union chose not to enter into such negotiations and withdrew from various commitments. It does not have the benefit of the collective agreements. Those who have not made a decision to be party to collective agreements-----

John Curran (Dublin Mid West, Fianna Fail)
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They have not made the decision not to be either.

Richard Bruton (Dublin Bay North, Fine Gael)
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There is freedom of association and people have a perfect right not to join a trade union. If the TUI negotiates a deal for its members, it is a collective agreement with that union. In this instance, we would be quite happy to negotiate what we have agreed with the TUI with others, but we are in circumstances in which we have not reached such an agreement and I hope we can reach agreement. Those who have not been party to the negotiations organised by the TUI which resulted in benefits do not have access to those benefits. The only way we can do this is on a sectoral basis. If those concerned were in a union in which the TUI had exclusive negotiating rights, it would not arise, but they are in the sector in which there are two trade unions that have negotiating rights recognised. We can confer benefits only on those who have entered into the collective agreements. If we were to do otherwise and try to foster non-membership, we could be accused of trying to break unions. That would be hostile to the collective approach the Minister for Public Expenditure and Reform, Deputy Paschal Donohoe, and others have articulated as the one we want to use to resolve issues. Not using it would undermine the value of an agreement such as the Lansdowne Road agreement, whereby people would have a more à la carteview of it. That is the reasoning. I can understand the Deputy's frustration because it took me a long time to gain an understanding of why circumstances are as they are. I can understand why and have to admit, having gained that understanding, that I cannot offer to change it. It is integral to the way in which we negotiate collectively with public service unions.