Wednesday, 5 December 2018
Qualifications and Quality Assurance (Education and Training) (Amendment) Bill 2018: Committee Stage
Section 3 provides for the amending of existing definitions and the introduction of newly defined terms within the Act of 2012. Amendment No. 1 is a technical refinement to the definition of relevant provider. It will ensure that the definition is comprehensive and captures those listed awarding bodies providing either one or more programmes leading to their own awards, that are awards included within the framework.
Amendment No. 2 is a technical change to the definition of "validation". Validation is the process by which the authority determines if a Quality and Qualifications Ireland, QQI, award can be offered in respect of a provider's programme of education and training. This amendment ensures the definition of validation is comprehensive and that it clarifies the essential linkages between the validation of programmes, the establishment of quality assurance procedures and the capacity of a provider to deliver the programme.
Amendment No. 3 revises the definition of a "linked provider" for the purposes of this legislation. The intent is to regulate the provision of linked providers that is offered to the State. On review of the published Bill, the initial definition would go well beyond that intention and would require any provider that wishes to enter an agreement with the designated awarding body to establish its principal place of business in the State. There is also a concern that such a requirement may be considered discriminatory under EU law in relation to the establishment of businesses. This amendment redresses those issues while ensuring that regulation of provision in the State remains comprehensive.
Section 4 provides for amendments to the functions of QQI, including a specific statutory function for the sharing of information with other bodies such as a Department of State, the Office of the Revenue Commissioners and SOLAS. This amendment modifies this function to align it with legislation in the area of data protection such as GDPR and the Data Protection Act 2018. This function is further elaborated under section 5, which will also be amended to take account of relevant European and national legislation.
While I am not opposed to this amendment there are serious data protection concerns, and that will still be the case even following the acceptance of the proposed amendments. I will address those issues when I come to the relevant section. I am speaking to this section in case I need to take action on it on Report Stage.
These amendments will replace the term "investigations" with the term "reviews" within the authority's performance of its functions and that is necessary for the consistency of the terminology within the legislation and to ensure that there can be no misrepresentation or misinterpretation of the terms.
Could the Minister of State confirm that this will not mean a de facto weakening of the power and that it is simply a change of terms and that there is not a diminishment of the capacity by virtue of the change from investigations to review?
There is a substantial difference in the meanings of investigation and review. Investigation is a much more solid thing which suggests that one would go in and inquire or examine while a review is just reviewing. I am a little surprised if there was inconsistency in language that it was not noticed during the drafting of the Bill and corrected at that stage.
Section 13 of the Act of 2012 requires that providers facilitate and assist QQI in the performance of its functions, insofar as those functions relate to the functions of that provider.
Section 14 enables the authority to make a direction in writing, which a provider shall comply with, requiring that provider to provide information to the authority where it has failed to do so, following a request from section 13. The proposed amendment will include listed awarding bodies as subject to the requirements of these sections.
I have some queries on this amendment given the level of concern there is about the English language school sector at the moment. QQI is being asked to interact with providers, whether in the English language school sector or otherwise.Many providers of English language classes at present do not have any qualification marks and one might even describe some as bogus schools. They are not officially recognised and the quality of the material they are teaching is below par. Will it be the objective of QQI to provide curriculum guidance to English language course providers? On this section, will this cover linkages between the Departments of Justice and Equality and Education and Skills in the context of students who are registered with providers? Will it be possible to assess the levels of participation of registered students?
Amendments have been tabled by Senators Ó Ríordáin, Ruane and others dealing specifically with the issue of English language schools which we will come to later. Clearly that has been thrown into sharp focus with the recent closure of Grafton College, of which the Minister of State is well aware. I welcome to the Public Gallery today some of those who have been directly affected by that closure, namely, former staff members of Grafton College. They are very welcome.
They have felt, very personally, the impact of the lack of regulation of this sector. Senator Lawlor has posed some important questions and I acknowledge we will be debating the matter when we come to the relevant amendments later, that is, the grouping comprising amendment No. 57 and others. While the Minister of State is well aware of the issue, we need to ensure that this does not happen again. Some of the staff involved have experienced three closures of English language colleges in the course of their careers. We have seen 23 closures already in a sector that is worth so much money to the Irish economy. We must address this properly for the sake of the staff and students in the sector.
I concur with Senator Bacik's comments. In terms of the amendments to which she refers, many were written before the closure of Grafton College. Often on this side of the House we table amendments and are accused of doing so to try to prevent events that will never happen. We are often told we are scare-mongering, that what we fear will never come to pass, that the sector is well regulated and so forth. Today in the Public Gallery we have people who literally have no job in the run-up to Christmas. They are now engaging with the Department of Employment Affairs and Social Protection in order to get payments to survive over the Christmas period because a hand-written note was put on the door of the educational institution in which they worked. When we table amendments, we are not doing so to cause trouble or to try to embarrass anybody. We are doing it because we know these sectors well and are trying to protect workers' rights. I know the Minister of State will appreciate that and will work with us to ensure that incidents like this never happen again.
I also welcome the teachers who are in the Public Gallery today. I met them briefly earlier and gave them a commitment to meet them again after this debate and to work with everyone to come up with a good solution. I thank them for coming along to the Chamber. As a former teacher, I fully understand the gravity of the situation. The fact that we are so close to Christmas and they have not been given their wages is disgraceful.
On the issue raised by Senator Lawlor in terms of quality, under the Accreditation and Coordination of English Language Services, ACELS, rules and the Interim List of Eligible Programmes, ILEP, providers must meet certain standards for both curricula and teacher qualifications. The objective today is to introduce the International Education Mark, IEM, which will allow QQI to go underneath the bonnet and to check exactly what is happening. I am very willing to do all of that vis-à-visthe amendments that are coming up later.
I would also like to welcome the visitors to the Public Gallery. Like others, I sympathise with them on their plight although I know that they did not come in here to look for sympathy. They want solutions and answers to the situation in which they find themselves and that is the collective goal of this House. I look forward to the progress of the debate.
I would also like to be associated with the comments of my colleagues. I was a teacher in Trinity College for many years. It is an appalling prospect that these people should be turfed out, particularly when language schools, which have proliferated in recent years, charge very considerable fees to their students. They really are a profit-making machine. Later in this debate we will come to amendments that deal directly with the terms and conditions of work, limiting short-term and zero-hour contracts and various other nasty practices by employers. In case our friends from Grafton College are not here for the later part of the debate, I assure them that we will be looking at the issue of terms and conditions of work under amendments which I will be strongly supporting later on.
Amendments Nos. 8 to 13, inclusive, are related. Amendments Nos. 11 to 13, inclusive, are physical alternatives to amendment No. 10. Amendments Nos. 12 and 13 are physical alternatives to amendment No. 11. Amendments Nos. 8 to 13, inclusive, may be discussed together, by agreement.
I move amendment No. 8:
In page 8, line 26, after “other” to insert “public”.
My set of amendments, to which the Government has tabled amendments in response, relates to section 5. Before I get into a detailed discussion of the amendments, I note that I was an English language teacher myself for four years and am looking forward to that part of the debate.
This part of the debate is very important too because it relates to data. A huge quantity of information and data will be going through QQI. At present, the language in the Bill is quite fast and loose in terms of how data will be gathered and shared. In respect of the furnishing of information by the authority to other bodies, the text currently states that subject to the Data Protection Act, the authority may furnish to a Department of State, the Revenue Commissioners, the CAO and various other bodies, and "any other body" the authority considers appropriate, "information which comes to its attention in the course of performing its functions". This section is giving the authority permission to share anything with any body. The Bill refers to anything which comes to the authority's attention. The language used is incredibly vague in the context of data protection. It is extraordinarily wide and goes against the spirit of anything we are doing now in the realm of data protection, where information is shared only for particular purposes. It is no longer acceptable for found information to be shared at will with whomsoever one deems appropriate.
Amendment No. 8 is very short. I recognise that because it is counter lapped by Government amendments which may be passed, if I press it today, it may be overtaken by a later Government amendment. In that context, I may choose to withdraw and press it again on Report Stage. Either way, I will be pressing it because it provides the most basic brake on what is being offered here. It simply says that data should be shared with any other "public" body rather than just any other body. As it is currently constituted, the section gives the authority permission to share any information that may come to its attention with any other body, whether private or public. Thus data can be shared with companies, outside actors, lobby groups and so on. Whether such sharing is appropriate is left to the authority, with no safeguards or guidance. There is no caveat that this refers only to public bodies, over which we might some measure of control.
In terms of the sharing of data between public bodies, legislation is currently on its way through the Oireachtas by way of the Data Sharing and Governance Bill 2018. The Bill before us today is pre-empting that legislation and giving permission to share data, even though the Government, in putting forward the Data Sharing and Governance Bill, acknowledges that public bodies do not currently have a legal basis for the sharing of data with one another. The Data Sharing and Governance Bill is being pushed forward because of anxiety around the lack of a proper legal basis for data sharing among public bodies. That Bill has not yet passed and here we are, jumping the gun with yet another example of an authority being given permission to share data. Moreover, when the Data Sharing and Governance Bill came through this House, the Minister of State, Deputy O'Donovan, accepted a number of amendments.These amendments were not forced on the Government, but accepted by it because it accepted that they were in line with good practice. It is now proposed to remove many of those amendments that were accepted on Report Stage in the Seanad on Committee Stage in the Dáil. We have a real concern that the Minister of State, Deputy O'Donovan, stood here, said the Government was very conscious it had legal obligations, accepted a number of amendments to ensure the better functioning of the Data Sharing and Governance Bill and is now proposing to remove these.
I will give one example that should be of concern to any parliamentarian. It was agreed that a data-sharing agreement between public bodies would be published and available for an Oireachtas committee. We are not talking about the information the two public bodies share, but just the data-sharing agreement which outlines that data are shared and how they are shared. The Minister of State, Deputy O'Donovan, agreed that those data-sharing agreements would be published. Tomorrow in the Dáil he will propose to remove that eliminating the need to publish agreements about data being shared between public bodies. It is really concerning that that legislation is not yet passed and is being pre-empted here, and also that that legislation is now looking extremely ropey if the Minister of State, Deputy O'Donovan, presses ahead with rolling back on those provisions.
In that context I must oppose the section. I note that the language of a data-sharing agreement is not even used in this. There is not even a precursor to a data-sharing agreement, which could, of course, be supplanted if the later quality legislation came in.
Amendments Nos. 10 and 11 attempt to deal with this. Amendment No. 11 puts forth a very basic form of a data-sharing agreement which sets out what are largely regarded as good practice internationally and in line with data-protection law. Therefore, if QQI is sharing information with other bodies it must: put in place a data-sharing agreement, which is not required at the moment; publish that agreement; consult with data subjects who may be affected given that this is their information; and ensure there is appropriate regulation for how the data are stored and processed. We have talked about a fast and loose environment in some of these institutions and we have real concerns about how people's data are minded. The amendment also requires that any information shared is not simply what comes to their attention, but that whenever information is shared it is done for a reason and is proportionate to that reason.
I apologise for the length of my contribution, but this is a substantive issue. I acknowledge that the Government amendment No. 13 removes personal data somewhat from the impact of this section. However, I will still press amendment No. 11 because the main language on page 8, lines 26 to 32, is still highly flawed and far too loose. We may have an opportunity to engage on the language in that section before Report Stage.
I understand the Senator's points. I thank her for acknowledging that we have tried to address what we felt might be the shortcomings she identified. I cannot accept her amendments, but I accept the initial text was not sufficient in light of the developments in data-protection legislation at national and European level. I am grateful to the Senator for raising this important issue.
Consequently, I am proposing amendments Nos. 9 and 13 which will require QQI to align its data-sharing activities with the provisions of GDPR, the Data Protection Act 2018 and other relevant national legislation in this regard. This will ensure that QQI adopts best practice in data protection and that the rights of the data subjects are protected. While the majority of QQI's data sharing will be conducted with public bodies, such as those listed, it is essential for QQI to share data with other bodies such as the CAO. That is not a public body and there are other similar private bodies. Consequently, this section cannot be limited exclusively to public bodies.
The Central Applications Office is listed separately and would not be affected by my amendment No. 8, as is SOLAS and a number of other bodies. My concern is with reference to "any other body". I accept it is a very substantial concession for the Minister of State to take directly identifiable personal data out of this exchange of information, but there are still caveats. Perhaps a further amendment might be allowed for the delay in the exchange of information until proper legal provision has been made. We can consider that further on Report Stage.
I will not press the amendment because I realise it will be overtaken by amendment No. 13, but I will reserve the right to reintroduce it on Report Stage.
I move amendment No. 11:
In page 8, lines 27 to 32, to delete all words from and including “may” in line 27 down to and including line 32 and substitute the following:“may put in place a data sharing agreement with a Department of State, the Office of the Revenue Commissioners, An tUdarás um Ard- Oideachas, Solas and the Central Applications Office. The Minister shall, having consulted with the Minister for Justice and Equality and the Data Protection Commission set out suitable and specific measures in respect of any such data sharing agreement. These measures must include but not be limited to:(a) publication of the data sharing agreement;
(b) consultation with any data subjects who may be affected;
(c) appropriate regulation in respect of the storage and processing of any data;
(d) measures to ensure that any sharing of data is necessary and proportionate; and
(e) other measures as required.”.
I will press this amendment because it is important to set out what a data-sharing amendment should look like.
Colm Burke, Paddy Burke, Maria Byrne, Paul Coghlan, Martin Conway, Frank Feighan, Anthony Lawlor, Tim Lombard, Gabrielle McFadden, Michelle Mulherin, Catherine Noone, Kieran O'Donnell, John O'Mahony, Joe O'Reilly, Pádraig Ó Céidigh, Neale Richmond.
Amendments Nos. 14 to 16, inclusive, 19 to 38, inclusive, and 80 are related. Amendments Nos. 22 and 24 are consequential on amendment No. 21. The amendments may be discussed together, by agreement. Is that agreed? Agreed.
Section 8 provides QQI with statutory powers to evaluate a provider's corporate fitness. These provisions will enable QQI to examine the bona fidesof a provider and its capacity to engage, in the round, with quality assurance processes. The powers are to be extended by means of statutory instrument so as to provide for regulatory responsiveness to innovative modes of provision and forms of provider organisation.
To ensure this section is comprehensively applied and delivers on its intent, the proposed amendments will include as subject to the provisions of this section listed awarding bodies, associated providers and linked providers, as defined under the term "specified provider". This series of amendments includes a consequential change to the Title of the Bill at amendment No. 80, which ensures that specified providers are captured within the scope of the Bill. Amendment No. 29 will enable QQI to set criteria for "fit and proper" persons when assisting the corporate fitness of providers. In addition to this amendment, I want to inform the committee that I will be bringing a further amendment to this section on Report Stage. This amendment will also address "fit and proper" persons in order to enable QQI to set and apply criteria to the key staff and personnel of providers, such as their owners and directors.
It is. By "providers", I mean the schools or other facilities that are providing the courses that are being recognised by QQI. Will the providers have to facilitate the authority with a list of students who are attending those schools, so they can link with the Department of Justice and Equality in order to make sure - I go back to the transfer of data from one Department to another - the relevant Departments are not working in silos, as they are now, but are communicating with one another? In this way, they would know to which provider each individual student is going.
Will QQI be able to speedily recognise new schools and provide them with the necessary award marks so they can be recognised internationally, given this is an international business and its reputation has been tarnished by what has happened in the last week. I know some teachers from Grafton College are present. There are other schools in similar situations to that of Grafton College that would have provided visas for students who never attended the schools. Will QQI quickly assess new facilities that open up to ensure students who are entering them are able to complete their courses?
Will QQI liaise with providers to ensure the fees that are charged are relevant to the course involved, meaning there will be no undercutting of the cost of fees being charged to students. This is what has indirectly led to the loss of, for example, Grafton College and other schools. Providers are undercutting to make sure they get students in but are probably not providing the education the student has paid for. Many of the schools that have gone under have done so as a result of not being able to financially support what they are supposed to deliver.
QQI will be sharing data with the Department of Justice and Equality, which is very important in regard to international students who require visas.This will be done in accordance with best practice.
The Senator asked about new schools and the fees that are charged, undercutting and if we will have good quality schools. That is the reason I am here today. The purpose of that International Education Mark is to ensure there is best practice in schools. They are the schools that will get that IEM. Fees are an issue for the providers and QQI does not set fees.
Fees are a major issue. There are schools, which I would call "visa factories" that are just charging students, getting them into the State where they can start working, but the students are not attending the schools. I am sure that some of the teachers from Grafton College would be aware that legally they are supposed to have about 15 students per class in a full classroom, but sometimes there may only be five or ten. The register might not note the reason those students are absent. I am concerned that this is across the sector, and now we are being looked at internationally, especially by those in the UK who would want to set up English language schools in Ireland as a result of Brexit. The fees that are being charged must reflect the cost associated with providing that service. We cannot have situations where schools are charging students while fully knowing that the fee would not cover the cost of the tuition involved. This is what is happening in the sector.
There is the interim list of eligible programmes, ILEP, recognition and then there is the accreditation and coordination of English language services, ACELS, recognition. The majority of English language schools operate under those accreditations. I hear what the Senator is saying. Currently there are voluntary national schemes. In 2018 there were 88 ACELS recognised schools, now there are 87. There were the ILEP schools also. I can assure the Senator there is a minimum number of contact hours and maximum class sizes. These are inspected by the Department of Justice and Equality. That is what is happening in the sector.
I note that amendments Nos. 21 and 29 relating to criteria and specified providers, and I reserve the right to examine those on Report Stage. It is also important to recognise the large number of students who come to Ireland looking for education because Ireland is one of those English speaking countries that offers and extraordinary and important educational opportunity, and the valuable contribution made by the very professional English as a second language teachers to their students' learning and in building their students' skills. While there may be instances that show otherwise, it is very important that we do not create a false impression that there is not very high quality teaching. This is why we need these provisions around quality for such institutions and in how they treat their staff and students. We would not, however, want to create a false message that might unnecessarily scaremonger around the intent of many students who come here, which is usually very positive.
Amendments Nos. 17 and 18 are technical amendments that will provide Quality and Qualifications Ireland, QQI with the discretion to determine when an existing provider must demonstrate its compliance with the criteria established for corporate fitness. The effects of these amendments is twofold. Firstly, it will enable QQI to provide a transition period for existing providers before they become subject to this section. Secondly, it will ensure that providers who frequently invoke certain provisions of the Act will not be required to demonstrate compliance unless QQI requests them to do so.
This is a technical amendment to section 13, to better reflect the structure of the national framework of qualifications, NFQ. The framework is comprised of levels and types of awards. The amendment will ensure that this is appropriately reflected in the legislation.
This amendment is a technical change to the definition of the associative provider.The associated providers are those providers who enter into arrangements with listed awarding bodies to offer programmes leading to their awards. This alteration limits the scope of this legislation to the activity and programme of education and training offered in this State by this class of provider.
These are technical amendments which will allow QQI the flexibility to remove individual awards of listed awarding bodies from the national framework of qualifications, NFQ, where they no longer meet the relevant policies and criteria. I would like to inform the committee that I will be bringing further amendments to this section on Report Stage. This section provides the legislative mechanism for the inclusion of awards in the NFQ. Following consultation with stakeholders, amendments will be brought forward to provide a more streamlined process primarily for the inclusion in the framework of those awards made by designated awarding bodies. This new process will serve to avoid the duplication of regulatory activities and reduce administrative burden both on the bodies in question and on QQI.
Sections 24 and 25 contain provisions to facilitate the introduction of the international education mark, IEM. The IEM will serve both as a quality mark to promote Irish education to international students and as a regulatory tool to underpin the student immigration system. These amendments will serve to limit the scope of the IEM to those providers and bodies with whom QQI will have a direct regulatory relationship. Associated providers are providers who enter into arrangements with listed awarding bodies to offer their awards in the State. In these cases, the quality assurance oversight of these providers will be conducted by the listed awarding bodies. As a result, QQI will not have direct oversight of this element of the activities of the associated providers. As the IEM will be utilised as a key facet of the student immigration system, regulatory oversight of provider activity is key. These associated providers who wish to have access to the IEM can get such access by directly engaging with QQI or a designated awarding body.
I move amendment No. 57:
In page 33, to delete line 16.
I thank the Minister of State for her time in the Seanad this afternoon. I will speak to all the amendments together. I welcome the Bill but I want to express my disappointment at how it has been progressed through the Oireachtas. In the Joint Committee on Education and Skills we decided not to hold pre-legislative scrutiny sessions on this Bill on the understanding that stakeholder engagement would be held later in the process. Before the summer, we invited submissions from relevant stakeholders and based on those submissions we planned to invite particular stakeholders to a public stakeholder engagement session in the autumn. However, during the summer recess, when no one was here, the Bill was introduced to the Seanad, printed in the month of August and then Second Stage was taken, with no warning given to committee members, almost immediately after the summer on 10 October. The joint committee was then informed that, because the Bill was under active consideration by the Oireachtas, Standing Orders forbade us from holding a public stakeholder engagement session on it. As much as I would hope that this was accidental, the Minister’s own Department actually made a submission to the consultation, so I can only assume that it was fully aware the consultation was in progress. Surely it knew that the practical effect of its progression through the Oireachtas would be to circumvent the role of the joint committee.
Moreover, despite not holding a public session, we released a report with recommendations and a summary of the submissions. I note that not a single recommendation from that cross-party committee of politicians has been introduced by a Government amendment. This is even more inexcusable given that the whole reason this Bill exists and is being brought through the Oireachtas is that QQI was found to have exceeded its legal authority in a case before the High Court. That we would not thoroughly interrogate the provisions of this Bill after its predecessor was the subject of legal action is just not good enough.
I want to put on record that I am extremely disappointed with how the Minister of State has gone about this Bill. The wide array of the amendments tabled today shows that this Bill needs further scrutiny, further changes and further analysis of how its provisions will impact the relevant sectors. I have met with providers who will be affected by this Bill and who have no idea how it will impact on their businesses because the Minster of State's Department has done no outreach work on the impact of the reforms. Especially in light of the events over the weekend in respect of Grafton College, it could not be clearer to me that we needed to do proper and thorough stakeholder engagement. I am very sorry we were not able to do that.
All these amendments have been tabled with the intention of raising employment standards in the English language teaching sector. As the Minister of State will have been made aware through the work of Unite the Union and its organisers, the English language teaching, ELT, sector in Ireland is largely unregulated with poor employment standards and often terrible working conditions. I went into detail on the specific issues on Second Stage so I will not repeat them but they are serious and need to be dealt with in this legislation. The Minister of State has said that the authority should not be given responsibility for monitoring this area but that is simply not good enough. The closure of Grafton College over the weekend shows just how poorly regulated and in need of State intervention this sector is.
The amendments I have proposed simply seek to give the authority a role in assessing one more provision on its checklist when evaluating a provider's eligibility to operate with the international education mark. This provision relates to whether the provider is complying with employment law in respect of its English language teacher employees. If we are legislating for this new sign of internationally recognised high quality English language learning, mainly for international students, we should also be including provisions that will raise standards for the teachers teaching them. It is a simple ask and one that would strengthen the Bill.
In terms of the specific amendments, amendment No. 58 would add minimum employment standards for English language teachers to the code of practice issued by the authority and would have a similar practical effect to the Labour Party's amendment, which I also support. This amendment is particularly justifiable as the subsection above, which is on issues that will be addressed in the statutory code of practice, includes requirements in respect of the tax compliance of a provider. QQI may not be the Revenue Commissioners but, in setting up guidelines for the English language schools, it would be given a recognised role to play in monitoring and checking compliance with other areas of law outside its remit, in this case tax law. If that can be said for tax law, it is very easy to argue and accept that checking compliance with employment law could easily be added to the code of practice as well. Workers deserve the same level of regulation and compliance as is provided in respect of providers’ tax obligations. Amendment No. 63 would require the providers of the courses to demonstrate that they have procedures for complying fully with employment legislation before they could apply for the IEM. Amendment No. 64 would add compliance with relevant employment legislation to the criteria that the authority would take into consideration when determining an application for the IEM. Amendments Nos. 62 and 65 are technical amendments to address grammatical issues. They have the same policy intention as the previous amendments and add compliance with employ merit legislation to the IEM application process at different points.
The simple fact is that the schools are not complying with employment law. We need to give the authority some sort of stake in monitoring this. None of these amendments would impact on schools operating without the IEM. It just means that if schools want this very high standard mark of excellence, the students who are seeking to enrol in these courses can be comforted that those teaching them have their rights to fairness in the workplace fully vindicated.
The Labour Party amendment to this section is strong - perhaps even stronger than mine - because it applies to all staff rather than teachers alone. Therefore, I reserve the right to introduce a variant amendment on Report Stage to incorporate some of the language in the Labour Senators' amendment, for which I thank them. I support the Labour amendment and hope it will be accepted. I also reserve the right to table a Report Stage amendment on legal requirements regarding teachers and staff when a school folds suddenly, as was the case with Grafton College.
Amendment No. 66 takes a different approach. If the earlier more straightforward amendments are not accepted, we will have to push for the sort of explicit protections that are required for a provider who wishes to have the IEM in the terms of conditions they offer to English language teachers. It would create a requirement for certain amounts of fixed-term contracts to give teachers more certainty. It would prohibit bogus self-employment, and would require work done outside contact hours to be recognised, leave entitlements to be set out and accessible and the publication of information relating to pay scales. It would also prohibit the practice of automatically paying English language teachers more where English is their first language. I would prefer that the Government would accept our earlier amendments because amendment No. 66 represents a blunter means of achieving the same outcome. If we have to add a new explicit section on employment standards, then so be it.
These are extremely important amendments which go to the matters at the heart of the Bill. They deal with terms and conditions of employment. There is no doubt that the employers in this case are well able to meet their obligations. Their student fees range from €2,000 to €4,500 for a part-time six month course. A lot of money is coming into these institutions. I received a briefing from Unite the Union on this matter. It highlights teachers' very precarious employment conditions and the variable pay rates. Unite has highlighted several abuses which currently exist in the system on foot of the fact that there is no provision for minimum employment standards. I urge the Minister of State to accept these amendments. It is unacceptable that minimum employment standards are not implemented in respect of certain employments. Those standards should be implemented universally. There is no reason to stand against what is proposed being applied in the limited areas to which this Bill relates. The abuses include the misuse and abuse of fixed-term contracts of between three months and one year. This idea is new to me, and I am 74 years old. In my day, by and large, people looked for jobs, had the for life and received pensions at the end. Now there are contracts for three months or a year in the teaching profession. That is absurd. Then there are the notorious and noxious zero-hour contracts. There may be a very limited justification for these generally but there is none in the context of the teaching profession. There is also the matter of people who do not have contracts at all.
I have a question to which Senator Ruane might reply in the context of amendment No. 66. It features a clause which specifies that "no less than twenty percent of these employees are employed under contracts of indefinite duration". I would think that ought to be "no more than". We do not want people to be employed in these bad conditions. I may have understood this but I hope that Senator Ruane will address this.
The matter of bogus self-employment has very much entered the political discourse. These are people who have been coerced by their employers into pretending that they are independent agencies who employ themselves. That is absolute rubbish. It is done so that employers can get away with abrogating their responsibilities in respect of employees.
This is a very important section of the Bill and these amendments are crucial. I strongly urge the Minister of State to accept them. It is quite wrong to contemplate a situation where the conditions applying to workers are below the minimum requirements for employment. How can any Minister stand over that? How can the Government not accept this amendment. Surely to God it should insist that minimum standards of employment are universal across this island and accept that there is absolutely no reason for this section to be excluded from that requirement.
I take this opportunity to recognise the presence of the teachers from Grafton College in the Gallery. They are at the coalface in the context of this issue.
In support of Senator Ruane's comments about the process and how we reached this point, I see no reason the Government or any particular party should have difficulty with workers rights being peppered through every item of legislation. A frustration felt by my party, which is shared by others, is the Government's sense of taking the employers' best goodwill as a given at all times. Recently, I had a meeting with an education NGO which pointed out the number of educational bodies that have trade union representation compared with employer representation. The trade union representation on the bodies was paltry compared to that of employers. Senator Norris has articulated the point very well that all we are doing is trying to protect the workers in the colleges. That needs to be done via legislation. I do not understand why that would challenge or upset people or make them uneasy. Ministers will be advised that it is unnecessary and over the top and that it is implicit in other employment legislation. However, one cannot say that to the people sitting in the Gallery. Last weekend, these people saw a noted pinned to the door of the institution at which they taught telling them that it was over. They are now looking forward to Christmas without employment. They have children that they need to look after and feed. No Minister can say that employment rights or workers rights can ever be overstated in any legislation. They cannot. The Minister of State might not agreed but I believe that the market has no conscience. When dealing with a market economy with no conscience, one must regulate it within an inch of its existence or else situations such as that experienced by the people in the Gallery will arise. Companies will do what they will to survive and make money. It is people such as those with us this evening who endure the fallout.
Labour tabled its amendment, and Senator Ruane did likewise, prior to this controversy arising. We are not reacting or doing anything on the basis of having held a meeting today or there being media attention on a particular situation that arose at the weekend. The position has been highlighted by unions such as Unite, which helped to draft these amendments.The unions see this industry as unregulated and the workers therein as being potentially exploited and certainly vulnerable. Nobody can accuse us in this Chamber of knee-jerk reactions to a particularly newsworthy issue because these amendments were tabled some time ago. The Minister of State, Deputy Mitchell O'Connor, and the Government should not be opposed to what we are seeking to achieve today. Amendment No. 59 states:
(8) Without prejudice to the generality of subsection (1), a code of practice established under that subsection shall specify requirements relating to compliance with quality standards for the recruitment, employment and cessation of employment of employees, and with employment law generally, by relevant providers.
(9) In specifying requirements of the type referred to in subsection (8), the Authority shall consult, in such manner as it thinks fit, with trade unions or staff associations that represent education and training staff or other employees of relevant providers.".".
We are trying to do the right thing. I know that the Minister of State is also trying to do the right thing. We may have different interpretations of what is the best legislation that can come out of this House but surely the Minister of State is aware of what is wrong with this industry and it is her responsibility to fix it.
I, too, welcome the Grafton College teachers to the Public Gallery. I reiterate how sorry we all are at the situation in which they find themselves given the recent and sudden closure of the college, which, as stated by Senator Ó Ríordáin and others, highlights the issues we had already flagged through these amendments. I commend the work of Unite, the union with whom the Labour Party worked on this issue. I note Senators Ruane and Norris and others have also worked with that union. This recent closure of a college is another glaring example of the lack of regulation in a sector that so badly needs regulation. We know that there has been a series of closures of private language colleges, leaving not only students teachers and other staff in those colleges high and dry. I support the call of my colleagues for the Minister of State to accept some of these amendments. Senator Ruane has set out eloquently which of the amendments are preferable and which we intend to press if the Minister of State chooses not to accept them. I think the Government should accept at least some of them.
There are two issues, the first of which is the short-term one concerning the immediate future of staff who have just been let go. I note that the Minister of State has already met some of them and she has indicated a willingness to meet them again, which is welcome. Similarly, the Minister for Education and Skills, Deputy McHugh, has indicated a willingness to meet them, which is also welcome. The staff and all of us have a strong interest in ensuring that this does not happen again. The second more long-term issue is to ensure adequate regulation of the sector and adequate protection of the rights of workers and students within the sector to make sure it remains sustainable because otherwise we will come to a point where it will be impossible to recruit prospective students or staff for colleges.
I again appeal to the Minister of State to accept some of the amendments. As I said, we are happy to withdraw some of them in the interests of ensuring others are accepted such that better protections are put in place. Also, we all reserve the right to bring further amendments on Report Stage if we cannot progress this issue now.
I, too, welcome the teachers from Grafton College. I also welcome the Minister of State, Deputy Mitchell O'Connor, to the House. What we witnessed this week at Grafton College serves to highlight how badly needed regulation in this sector is for workers. Grafton College represents another fiasco surrounding an English language school that has flagrantly disregarded existing workers rights legislation and has left another 23 workers abandoned by their employer, empty handed without their hard earned wages.
On Second Stage of this Bill, I spoke of a similar incident which occurred last March in Limerick, where another English language school collapsed without warning. We now know that the owner purchased that school in 2017 for €100. He had no idea how to run a business and he drove the school into insolvency, leaving not only students but teachers, high and dry. What happened in Limerick and what has happened this week at Grafton College has been allowed to happen because of a severe lack of regulation in the industry. We cannot allow this to continue. Teachers and students need certainty and protection. For this reason, I support these amendments, in particular amendments Nos. 58, 59 and 66.
While I acknowledge that a lot of good work has been done on this Bill, to deal with the issue of regulation without addressing the pressing needs of workers is akin to deciding to paint a house, forgetting that it is on fire. This is too important an issue to address it in that way. It would send out a negative signal not only to the people in the Public Gallery today but workers throughout Ireland engaged in this sector if the Minister of State does not take the opportunity of this Bill to address these key concerns. I thank my colleague, Senator Ruane, and colleagues of the Labour Party for these amendments, which provide us with the means to address those concerns.
On amendment No. 66, if this House is in agreement that the best way to regulate the English language sector is through the awarding of an International Education Mark, IEM, then we must ensure that the standards we set for schools to attain that mark include a strong and rigorous application of workers' rights, otherwise little will change for those who currently work in the sector. It is, therefore, essential that the IEM includes provisions which set standards for how we expect employers to act in this sector. For this reason, Sinn Féin will be supporting Senator Ruane's amendment to section 61 of the principal Act. Under the International Education Mark, if a school were to contravene, for example, health and safety regulations, it would be sanctioned and it could potentially lose its IEM accreditation. Amendment No. 66 seeks the application of the same consequences where a school contravenes employment regulations. Senator Ruane's amendment sets out some of these basic standards, including that the school must be in compliance with section 9 of the Fixed Term Working Act 2003; it must not engage in bogus self employment; it must pay workers for work outside of class contract hours and it must adhere to the Working Time Act and the Paternal Leave Act. In this regard, all we are doing is bringing the English language sector in line with existing employment standards.
I have a background in trade union work. I have spoken to my colleagues in Unite and I know first-hand the horror stories in this sector. It would be a missed opportunity if the Minister of State did not use this Bill to address those issues, otherwise we are failing thousands of workers who deserve better.
The consequences of not adhering to such basic provisions include that a school will not be granted an International Education Mark by the Department. We do not accept the response we received on Second Stage from the Minister of State to the effect that a worker in the sector should use existing law and take a case to the Workplace Relations Commission, WRC. The reality is that a worker on a short-term contract will never take a case to the WRC because to do so would mean his or her contract would not be renewed. I know this to be the case. The Department needs to take responsibility for the abuse of workers' rights in the education sector rather than off-loading it to the WRC.
Amendment No. 58 addresses minimum employment standards for teachers. While we welcome the principle of the Bill we also recognise there is a distinct lack of focus therein on regulating employment practices in the sector. This is a sector characterised by low pay, precarious employment and a prevailing culture of disregard for workers' rights. For example, we are aware that fixed-term contracts are abused by employers on a regular basis. They are misused and over-used to control workers. Teachers are often released prior to Christmas and re-hired in January so that the payment of holiday pay can be avoided, which is a scandalous practice that has been happening for years. Zero-hour contracts are rife in the sector, as is bogus self employment. This is the reality for workers in the English language sector. Neither the Department nor the Minister for Education and Skills can continue to turn a blind eye to this abuse and expect the WRC to deal with the consequences. Most workers, especially those on short-term fixed contracts, will not take a case to the WRC because they know if they do so when their contracts expire they will not be renewed. It is for this reason we need to ensure that this legislation provides for minimum employment standards for teachers as a key pillar of any code of practice which employers must meet to be awarded an International Education Mark.
On amendment No. 59, proposed by my colleagues in the Labour Party, if we are serious about regulating this sector then we need to consult with the appropriate stakeholders. This amendment must be accepted to ensure the relevant authority must consult with trade unions on how the Department specifies its requirements in subsection (8).We must remember the fantastic work carried out for years by Unite the Union in the sector and the input of its organiser, Mr. Roy Hassey, who has had an important role in strengthening sections of the Bill in the interests of workers in the sector. We must respect the experience and knowledge that Unite the Union has in the sector and we agree it is vital the Department consult with unions, such as Unite the Union, during the implementation and ongoing governance of the Bill to ensure workers' rights are maintained to a very high standard.
The Minister of State has an opportunity today. I hope she will take it and that she will listen not just to a range of voices in the Chamber but, more important, to the people here watching and listening who are desperately in need of support and recognition that things need to change.
Yes, very much so. I am very much to the point today.
I am speaking about the terms and conditions of work and the enormous disparity in pay. The average teacher's pay in this area is approximately €18 an hour but some of them are only paid €13. Many of them are only allowed to work a 30-hour week and if we put this in the context of a 39-hour week and average it out, they receive less than the minimum wage. This is something about which we should be concerned. It comes under terms and conditions of work.
There is also the absence of any payment for non-contact hours. I was a teacher in Trinity College Dublin. If I had only been paid for the hours that I lectured, I would have received half of what I did. Quite a lot of time is spent on marking essays at home, preparing for lectures and so on. There is as much work outside of the classroom as there is inside and to have no pay at all for this is a violation of workers' rights.
Then there is the question of entitlement to sick pay. Most of the schools involved do not have any sick pay arrangements. That is dreadful because it is a hazard of life that people get sick. What are they to do? They will be stranded. There is also a nasty element with regard to holiday pay. I was shocked that people were let go just before Christmas and hired again in January just so that they did not have to be paid over the holidays. That is Dickensian and certainly should not be allowed. A range of issues must be confronted and resolved through the application of a minimum employment standard. I certainly hope if the Minister of State does not accept these amendments that we, as independent parliamentarians and party members, will stand for the workers and vote these amendments through.
Given everything that has been said so articulately by my colleagues, I will keep my contribution to a minimum. I was an English language teacher in Ireland for four years when I saw the extraordinarily bad practice that is in the sector. It was an area that lacked unionisation and I am delighted to see people are organised and unionised now. I support the provisions and the Minister of State should take on board the sign that people throughout the House are supporting each other. We have put forward a number of proposals to deal with this and we are willing to co-operate. I ask her to join in this spirit of co-operation to ensure the issue is addressed.
Quality must include quality employment. There cannot be any credibility in an international education mark that does not reflect quality of employment and does not deliver quality assurance, which is in the Title of the Bill. Decent working conditions are fundamental and gaps need to be addressed. It must also be borne in mind that representatives of Ireland go abroad on trade missions and speak about Ireland being a wonderful land of saints and scholars and invite people to travel and be educated here. If there is a proposal to speak abroad about this type of quality mark but it does not include quality conditions for staff, it is somewhat meaningless and lacks robustness. This needs to be taken on board. Grafton College is an example but there have been many other cases of staff and students being left high and dry. This is an opportunity to ensure there is meaning behind the standards being provided for in the Bill and a number of constructive proposals have been put forward on how to achieve that. I urge the Minister of State to engage.
I will be brief because I am anxious that these amendments are voted on this evening. This is an urgent matter, as I hope the Minister of State will agree. This is not a new experience, and every speaker has referenced this. What has happened in Grafton College is illustrative of a wider problem regarding the gaps in employment rights' coverage in this State. I have sought to address these gaps in recent years, with some success to some degree, but there are still gaps that need to be addressed and filled.
The English-language sector is, in effect, a byword for exploitation and all that is wrong with the worst forms of business practice in this country. It is not necessarily only a matter to do with employment rights and their enhancement. This goes to the heart of problems associated with the enforcement of company law. I worked hard during my short spell as Minister of State to address some of the issues relating to tactical insolvencies. I produced the Duffy Cahill report, which identified ways in which workers can be better protected in the context of what we describe as tactical insolvencies. These are where directors simply walk away from their businesses leaving workers on the breadline, creditors at arm's length and the State to pick up the bill for the costs associated with statutory redundancy entitlements. This is no way to run a system. The Minister State and her colleagues in Government need to review their position on the Duffy Cahill report. Time and again tactical insolvencies of this nature have come back to bite us. Recently, in Dundalk, the Authentic Food Company closed down overnight leaving workers on the hook and leaving the State on the hook to pay statutory redundancy.
Elements of company law can be used to pursue errant directors involved in these cases. One of these particular sections, as the Minister of State will be aware, remains untested. This is section 599 of the Companies Act whereby, in effect, the State or any other creditor can go after the related assets of the directors of a company to try to ensure that moneys owed to the State are recovered. This was something that Duffy Cahill report focused on clearly and methodically. This element of company law has been in place since 1991. It was introduced by Desmond O'Malley but it is yet to be tested. It should be enforced to the nth degree, at least to dissuade people who may be considering tactical insolvencies of this nature, to stop them in their tracks and ensure creditors are paid and that workers have their rights vindicated in tactical insolvencies. As it stands, they do not. I refer to what happened with Clerys and the Authentic Food Company in Dundalk. The same is happening to the workers of Grafton College in Dublin. I support the amendments and I hope the Minister of State will accede to our request to support them and a clear position can be enunciated by the House this evening on this critical matter.
I thank the Senators. My officials and I have met Unite the Union. I have deliberated on our meeting and what came up. I have thought a lot about it. I share the concerns of Senators regarding the employment practices in the English language education sector, which have been brought to the fore in the context of the recent closure of Grafton College. We all want an English language education sector in which we have confidence to provide a quality education to students coming to Ireland to learn English. I fully agree that those working in the English language sector are central to the quality of that provision. None of us wants English language teachers to go without paid or being allowed access to the full suite of employment rights supported by the State.It is also important to recognise the respective roles and responsibilities in this important policy area. The issue of employment rights for English language teachers falls outside QQI's regulatory responsibility. It is not all within the remit of the Department of Education and Skills. I believe there was a debate here last night and the working conditions were raised by my colleague, Senator Maria Byrne, and by Senator Gerald Nash when the Minister, Deputy Regina Doherty, was here.
It is important that we recognise there is an extensive legislative framework in place in Ireland to protect employment rights, including for those working in the English language sector. There is also comprehensive industrial relations machinery in place for dealing with workplace relations issues, including collective bargaining at firm and sectoral level. It would not be appropriate to duplicate or undermine these statutory schemes through affording QQI powers in respect of matters beyond its viresto regulate. I note that Senators, as I said, have been discussing the Employment (Miscellaneous Provisions) Bill and I understand that the Minister, Deputy Doherty, gave a commitment last night that she would look at this area and meet the teachers from Grafton. This is going through. I understand it has to come back to the Seanad and it is important that this is raised again on Report Stage.
I wish to highlight again that the Qualifications and Quality Assurance (Education and Training) (Amendment) Bill will further strengthen QQI's role as a regulator in the English language sector. The Bill provides for the introduction of the international education mark, IEM, and an associated code of practice for this sector. These will help to drive standards across the sector. It is specifically intended that the code of practice for the IEM will include provisions specifying that providers authorised to use the IEM will be compliant with their statutory obligations such as employment law. The Bill will provide QQI with additional statutory powers to examine a provider's financial sustainability. At present, when a provider engages with QQI, QQI's primary focus, in line with its existing legislative responsibilities, is to ensure that the providers' quality assurance procedures and the quality of its programme content meet the required standards. However, the new Qualifications and Quality Assurance (Education and Training) (Amendment) Bill will provide QQI, for the first time, with statutory powers to evaluate a provider's corporate fitness. These provisions will enable QQI to examine the bona fides of a provider in addition to assessing that the provider has the capacity and capability to implement the quality assurance processes and to provide programmes of education and training consistent with the requirements of the Act. Providers will have to satisfy QQI with regard to issues such as the legal personality, the ownership and the corporate governance arrangements in addition to examining whether adequate financial resources are in place to ensure the viability of their business. This will mean that only providers that satisfy QQI in these areas will have their quality assurance procedures approved by QQI. It is expected that providers who can demonstrate compliance in these areas are likely to be compliant in other areas outside of QQI's direct regulatory remit, such as employment rights. This will apply to English language providers seeking to access the IEM and, taken together, these measures are intended to reduce the likelihood of future college closures once the Bill is enacted.
Having made those relevant points, I fully recognise the importance of this issue and am willing to make two commitments here today. I accept the merit in the principle of the amendments being proposed by Senators Ruane and Ó Ríordáin and his Labour Party colleagues. However, the Department needs to reflect on the nature of the amendments to ensure that they are consistent with the role and responsibilities that QQI can legitimately be expected to fulfil. While it may not be possible to accept the full text of some of the amendments, I am willing to work with Senators to try to come up with a form of wording that will strengthen QQI's role in this area without involving that organisation in responsibilities that are more appropriate to other Departments and agencies. I request the Senators to allow my Department to have the opportunity to further consider these amendments with a view to reverting with a proposal on Report Stage. My officials will work with relevant Senators in this regard in advance of Report Stage.
Senators will be aware that the Industrial Relations (Amendment) Act 2015 provides an opportunity for a registered employment agreement, REA, to be developed and registered with the Labour Court in order to regulate the pay and conditions of employment of workers specified in the agreement. The REA is a collective agreement between a trade union or unions of workers and an employer or employers on the pay and conditions of specified workers, which is registered with the Labour Court. The effect of that registration with the Labour Court makes the REA binding for subscribing parties. I am committing today to appoint an experienced mediator who would meet with bodies representing the employers and employees in the English language education sector to explore the potential for the registered employment agreement to be developed for workers in the English language sector. I wish to commence this process as soon as possible. This development will complement the provisions contained in the Qualifications and Quality Assurance (Education and Training) (Amendment) Bill that are intended to strengthen QQI's role as a regulator of quality in the English language education sector. This would be a more appropriate and stronger vehicle to improve the terms and conditions of English language teachers rather than expecting QQI to fulfil responsibilities that are beyond its remit and the remit of the Department of Education and Skills. I hope Senators will support me in this regard.
I authored the Industrial Relations (Amendment) Act 2015. Registered employment agreements are enterprise-level agreements, not sectoral agreements. The Minister of State has no function in calling the parties together and requesting that they engage in a sectoral employment order process. I understand the motivation of the Minister of State and that she may want to assist in this process but it is entirely, under legislation passed by these Houses, a matter for a trade union that is substantially representative of workers in a discrete economic sector or a representative body that is substantially representative of employers to make an application to the Labour Court for a sectoral employment order that would be universally applied across the sector. It is not the function of the Minister.
On a point of order, out of respect for the workers who are present this evening and who would like to see the Seanad working in their favour, we should allow these amendments, at least, to be voted on this evening. We would greatly appreciate even ten or 15 minutes.
What the Minister of State said was all fine and emollient, but he mentioned registered employment agreements. As far as I understand, however, there is no requirement for employers to engage in this process at all because it is not mandatory and, therefore, it does not form a central part of the argument.
The Department of Education and Skills has consulted widely with the owners, but despite requests from the teachers, it has never had a meeting or engaged in consultation with them. This is despite the teachers contacting the former Minister, Deputy Bruton, in an attempt to discuss the matter in which we are engaged, namely, the terms and conditions of work. That Minister turned them down on the basis that the businesses are private, for-profit enterprises. He said that employment law issues should be taken to the Workplace Relations Commission but, as has been effectively pointed out, people in precarious employment are not prepared to appeal to the commission because it is too dangerous for them and they will lose their jobs.
I move amendment No. 58:
In page 33, line 20, to delete “appropriate.”.” and substitute the following:(c) in subsection (6), by the insertion of the following paragraph after paragraph (c):“appropriate.”,and“(d) minimum employment standards for English language teachers.”.”.
I move amendment No. 59:
In page 33, line 20, to delete “appropriate.”.” and substitute the following:(c) by the insertion of the following subsections after subsection (7):“appropriate.”,and“(8) Without prejudice to the generality of subsection (1), a code of practice established under that subsection shall specify requirements relating to compliance with quality standards for the recruitment, employment and cessation of employment of employees, and with employment law generally, by relevant providers.
(9) In specifying requirements of the type referred to in subsection (8), the Authority shall consult, in such manner as it thinks fit, with trade unions or staff associations that represent education and training staff or other employees of relevant providers.”.”.
Ivana Bacik, Frances Black, Rose Conway Walsh, Maire Devine, John Dolan, Paul Gavan, Alice Mary Higgins, Kevin Humphreys, Pádraig MacLochlainn, Michael McDowell, Gerald Nash, David Norris, Grace O'Sullivan, Niall Ó Donnghaile, Aodhán Ó Ríordáin, Lynn Ruane, Fintan Warfield.
Colm Burke, Paddy Burke, Maria Byrne, Paul Coghlan, Martin Conway, Frank Feighan, Anthony Lawlor, Tim Lombard, Gabrielle McFadden, Michelle Mulherin, Catherine Noone, Kieran O'Donnell, John O'Mahony, Joe O'Reilly, James Reilly, Neale Richmond.