Rónán Mullen (Independent)

I move amendment No. 6:

In page 6, line 17, 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".

This amendment proposes to adjust section 24 by the substitution of text at 24(3). This part of the section deals with the terms and conditions of employment of teachers and staff. The issue we discussed at some length on the previous occasion was whether it should be for the Minister to determine terms and conditions of employment for teachers and other staff appointed by the board and whether it should only be with the concurrence of Minister for Public Expenditure and Reform or whether we should propose that the Minister, in determining terms and conditions of employment, does so in a manner that involves consultation and agreement with 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. 12 deals with the same issues except that the boards of recognised schools may appoint, suspend or dismiss principals, teachers or other staff in accordance with procedures to be determined from time to time with the Minister, following mere consultation, with bodies representative of patrons, recognised school management organisations and with recognised trade unions and staff associations. I am not sure whether this is an error of mine or of the Bill's Office but I should take responsibility for it. I will not press amendment No. 12 because, as I propose it, it is badly worded.

If I were to rewrite it I would have sought to replace the word "consultation" with the word "agreement".

I cannot press amendment No. 12 because there is a mistake in my wording. However, I do not believe I am mistaken in expressing to the Minister the view that the question of appointment, suspension and dismissal of staff should be dealt with in accordance with procedures determined by the Minister, in agreement with representative bodies of patrons, school management organisations, etc.

There is a core point, which I am not sure if the Minister gets or disagrees with. By imposing a particular teacher on a school board, which in effect is what is involved if these procedures are to be determined by the Minister after mere consultation with others, is it not the case that the Minister is in fact acting as the employer? In effect, he is taking away the right of an employer or the board of management to appoint a teacher of its choice in order to deliver an appropriate education to students. This arises with the redeployment issue as well.

It is worth thinking of some case law, such as the case of McEneaney v. The Minister for Education [1941] Irish Reports 430. The case limited the power of a Minister to vary contracts of employment or teachers without their agreement. There is a quote from it worthy of consideration. The court held that "The case was of importance to teachers in as much in that they must recognise a power in the department to make a general reduction of pay as the necessities of the time it may require" but in the judges' view they are not protected against changes which depend upon new qualifications for the individual teacher. The key line is that the Department is not, in the case of teachers appointed under one set of rules, entitled to modify these rules to the detriment of individual teachers who may not come up to special standards devised from time to time.

The case was upheld in O'Keefe v. Hickey, 2009. When one takes the two cases together, it becomes clear that if the Bill is enacted and amended it is likely that the Department of Education and Skills would find itself held to be vicariously liable, possibly with a board of management, in a case of wrongdoing by a teacher. This applies to my proposed amendment on redeployment as well. It might extend to a teacher recruited and employed by a school but under a contract, the terms of which were fully determined by the Minister without agreement of the employee's representative union. In such a case the Department would become, to all intents and purposes, the employer and hence might be liable for the acts of the employee.

The McEneaney case is interesting from the point of view of section 30 of the Teaching Council Act as it refers to the ability of the Minister to change, ex post facto, the qualifications which teachers are required to have in order to be registered. Has the Minister taken advice on the impact of those cases? I suggest he needs to take careful heed of them before issuing regulations proposed under the draft new section 24 of the principal Act to replace the old one. These points relate not just to the issue of redeployment, but to the general issue of appointment, suspension and dismissal because the Minister is giving himself more power to determine the procedures under which all of these things may happen.

There is quite a degree of confusion in some quarters about the roles of patron and trusteeship in schools. The role of patrons is defined by section 8 of the legislation. Does the Minister have any view on the issue of clarity on the definition of rules of patents and trusteeship? The issue was raised with me by a number of people involved in education and the management of schools. There is a degree of confusion around those terms on occasion.