Rónán Mullen (Independent)

I move amendment No. 9:

In page 5, line 43, to delete "Minister," and substitute the following:

"Minister after consultation with and with the agreement of bodies representative of patrons, recognised school management organisations and any recognised trade union or staff association representing teachers, or other staff as appropriate and".

All of these issues are related but essentially, we are back to the debate about what "consultation" and "agreement" means. I propose a range of amendments and this amendment relates to the numbers and qualifications of teachers and other staff of a recognised school. These issues should be determined from time to time by the Minister with the concurrence of the Minister for Public Expenditure and Reform. As the Minister knows, I am arguing that we should talk about consultation and agreement of bodies representative of patrons, recognised school management organisations and any recognised trade union or staff association representing teachers, or other staff as appropriate.

Amendment No. 11 relates to a similar issue, namely, the terms and conditions of employment of teachers and other staff of a recognised school. Amendment No. 36 relates to dismissal. The issues are clear-cut. The partners in question do not feel they were consulted on the preparation of the legislation. It does not augur particularly well from their point of view. The preamble to the Education Act 1998 specifically refers to the shared objective of education being provided in a spirit of partnership between the various stakeholders. Any move towards the Minister having the power, without consultation and agreement, to unilaterally set such issues as, for example, the dismissal and suspension procedures and terms and conditions of employment for teachers, would be in direct contravention of the preamble and of the spirit of partnership upon which the model of education here is founded and on which it has thrived to date. The various stakeholders are being sidelined and this is ignoring and devaluing the huge contribution made by voluntary members of boards of management.

If I heard the Minister correctly, he suggested that one could say there was sometimes too much consultation by the Department of Education and Skills in the past. We need to talk about that. That is a big statement. Is that the reason the various stakeholders were not consulted prior to the legislation being brought forward? That is not the way to go. I respect the Minister's grasp of his brief. He should explain to me if there is something I do not understand. The legislation is causing concern. What I say is reasonable and logical. I am concerned that we are devaluing the contribution by voluntary members of boards of management. I understand the requirements of the ECF, employment control framework, and the financial and other constraints on decision makers at the moment. However, I look on it as a person who benefited from a good education for which I am very grateful. I have a vested interest in that I am a member of the board of trustees of the CEIST secondary schools. It seems to me that when one appoints a teacher one conducts an interview and one tries to select the best candidate for the job. One views it through the lens of what is best for the student.

Senator Power said redeployment is a good thing. Surely it is a necessary evil rather than a good thing. Once one begins to talk about redeployment panels one is talking about less choice and less authority for those who have the responsibility to make an appointment for the benefit of the students who are in their care. Without wishing to over-simplify the issue, one could view this through the lens of what is good for bureaucracy or what is best for children. In any conflict between the Department of Education and Skills - I intend no disrespect to the personnel involved - and the board of management of a school, backed up by patrons and trustees, I would trust the board of management. I would favour the subsidiarity principle. I trust the judgment of the members of a board to decide what is best for the children in their care when they want to make an appointment. There are certain realities that we must negotiate and deal with in terms of redeployment but let us not try to suggest that it is the answer to all prayers and that it does not contain problems because it does. If a situation arises from time to time and one cannot empty a panel then there is probably a reason for that. We must be open about that. I am concerned about deliberately ignoring and devaluing the contribution by voluntary members of boards of management. The Minister should correct me if I am wrong - I am totally open to that - but I wonder why there was not consultation prior to bringing forward the legislation. The board members have a right to consultation and to make an input into a process that intimately affects and restricts how they run the schools for which they work so hard. I do not need to tell the Minister about the amount of voluntary work being done by committed people on boards of management, etc., on other people's behalf.

In the Minister's previous Seanad contribution, he mentioned how the Department had embraced consultation and agreement, but a legislative requirement to this effect is not evident in the proposed subsections 24(2), (3) or (10). It may be the Minister's intention to consult and to seek the agreement of various stakeholders, but the Bill does not oblige him or his successors to do so. It could be argued that these provisions represent a unilateral amendment of the contracts of employment of thousands of publicly-employed individuals. There could be contract law and employment issues. I will reserve my position in this regard, but I wish to flag my concern.

The 1998 Act and other legislation make it clear that the board of management is the employer of teachers. Would these sections have the effect of altering the relationship between the employer and the employee without the agreement of the supposed employer?

The Minister referred to the powers he is seeking under these sections as being solely an administrative convenience to be relied upon in cases of emergency, but there is a question of whether he is transferring the attributes of an employer to the Department of Education and Skills in a way that might have implications in terms of liability. Although it is a separate question, it is worth asking whether the Department, the Minister and the taxpayer will be exposed to additional risk.

Without the checks and balances that exist when one has an obligation to consult and agree - this obligation should exist in legislation, given the distinctive nature of education - the level of discretion granted to the Minister by this section is almost legislative. The power to decide hiring and firing mechanisms unilaterally is being delegated. Other sections of the Bill define in detail the Minister's power to make regulations in the context of the Teaching Council, yet there is no defining objective listed in this provision. Questions arise.