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The Higher Education and Research Bill 2014 – 5. Staff: tenure

Posted in Governance and administration, Legal issues on April 8th, 2014 by steve

Academic tenure is probably the most controversial area addressed by the Barrett bill. Unfortunately the agenda is far from clear. Senator Barrett writes of addressing “the problems created by the Cahill v. Dublin City University case [2009] IESC 80” (which are …?). He adds that “[m]uch of what is understood as tenure is actually the norms and practices of the public service being applied to higher education and research” – a controversial statement, to put it mildly. As it is, we have proposals in the draft bill, but little by way of justification or explanation. There seem to be four main issues:

Fixed-term contracts. This is flagged up as an issue by Senator John Crown, who graphically referred to researchers “living from one six-month period to the next, wondering when they will get another research grant or whether, at the whim of people whose vanity research project is satisfied by their activities, they have a job to go to”. It is not clear what, if anything, the Barrett bill will do for such people; I rather suspect that cl 24(8)(e)(ii) (“discharge of the contract by operation of law”) is meant to ensure that it does nothing at all. If this is not a problem that the bill means to address, this should be made clearer.

Progression. Cl 24(8)(c) proposes a probationary period of 24 months for all academics (“teachers or investigators”), after which they acquire tenure. Senator Kathryn Reilly has already suggested that this is on the long side. I suspect that university management will regard it as too short, as a proper demonstration of fitness will probably involve quite a bit of paperwork, and the bill requires 6 months’ notice of a refusal to grant tenure (cl 24(8)(d)(ii)). And how is this framework to deal with internal promotions? – If a lecturer with tenure is promoted to a senior lectureship, does s/he lose tenure for 24 months? On all of these issues, this seems to be an area where higher education institutions will already have settled procedures, almost certainly negotiated with union representatives, and so a careful case for outside intervention will need to be made.

Removal for cause. The bill gives various procedural rights to staff members whose removal for cause is being considered, including (“if possible”) a right to be heard both by the academic council and by the governing authority. The right to academic freedom (cl 13) would no doubt be of relevance in many such cases. Where what is alleged is incompetence, there should be evidence from teachers and scholars. Dismissal should carry a right to a year’s pay unless the case involves “moral turpitude” (cl 24(8)(d)(iv)). But what is this all for? It would help considerably if Senator Barrett could state clearly what he sees as the problem here: the existing defence of academic freedom, and procedural rights on dismissal, are already substantial. What is he trying to achieve?

Removal for redundancy. Current university law already guarantees tenure (Universities Act 1997 s 25(6)), but does this preclude redundancy? The only judge ever to attempt an answer (Clarke J in Cahill v. Dublin City University [2007] IEHC 20 para 6.3) thought not, though a carefully-written institutional statute would be needed. But the matter remains unclear. The Barrett bill guarantees tenure in general, but makes an exception for “extraordinary circumstances because of financial exigencies” (cl 24(8)(c)), which exigencies must be “demonstrably bona fide” (cl 24(8)(e)). What does this mean? Experience suggests that there are three main situations where an institution is likely to seek redundancies:

  1. where a particular income stream (grant, programme income), which pays for specific posts, dries up, and it is decided to terminate the posts;
  2. where a particular department or unit persistently makes losses, and so there is a decision to close it or scale it down;
  3. where the institution as a whole is in deficit, and it is decided to reduce total staffing bring the institution back within budget.

Case 1 is already a familiar part of the higher education scene; case 2 would change institutional politics profoundly, as “black hole” departments would suddenly find their position infinitely more precarious than hitherto; and case 3 will become the new nightmare for all staff who cannot produce instant and reliable proof of their indispensability.

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Howlin – sale of assets may fund redundancies

Posted in Governance and administration on January 15th, 2014 by steve

“Minister for Public Expenditure and Reform Brendan Howlin has said money from the sale of State assets could be used to fund voluntary redundancies in the public service …” (more)

[RTÉ News, 15 January]

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‘I’m voting no again to ministerial hot air’

Posted in Governance and administration on December 9th, 2013 by steve

“Education and Skills Minister Ruairi Quinn says ASTI members are at risk of redundancy if they don’t accept Haddington Road. I say no to ministerial ‘hot air’ …” (more)

[Barry Hazel, Independent, 9 December]

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Quinn warns teachers over redundancy risks again

Posted in Governance and administration on December 3rd, 2013 by steve

“Education Minister Ruairi Quinn has repeated the possibility of secondary school teachers being made redundant if their union rejects the Haddington Road Agreement for a second time …” (more)

[Niall Murray, Irish Examiner, 3 December]

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Teachers’ union will not accept redundancies

Posted in Governance and administration on December 2nd, 2013 by steve

“The ASTI has warned they will not accept compulsory redundancies on the back of a review of pupil-teacher ratios in schools …” (more)

[BreakingNews.ie, 2 December]

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Teachers could be first public servants to lose jobs

Posted in Governance and administration on December 2nd, 2013 by steve

“Teachers in up to 30 schools face losing their jobs next year if the ASTI rejects the Haddington Road pay and productivity deal again …” (more)

[Independent, 2 December]

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Chalk Talk

Posted in Governance and administration on October 1st, 2013 by steve

“… There were rumblings of disquiet at Trinity College Dublin this week as provost Paddy Prendergast flagged a rebranding of the 400-year-old university. A staff consultation is planned to get ideas on the venture …” (more)

[Irish Times, 1 October]

[“Chalk Talk”?! How many teachers use chalk these days?]

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Quinn warning for ASTI members

Posted in Governance and administration on September 25th, 2013 by steve

“The Government tonight warned secondary teachers they would lose their protection from compulsory redundancy after rejecting the Haddington Road agreement …” (more)

[RTÉ News, 24 September]

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Quinn says teachers will lose protection against compulsory redundancies

Posted in Governance and administration on September 25th, 2013 by steve

“Minister for Education Ruairí Quinn has warned teachers who are members of the ASTI that they will lose protection against compulsory redundancies on foot of their decision to reject the Haddington Road agreement on pay and pensions …” (more)

[Martin Wall, Irish Times, 25 September]

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Quinn warns teachers they are endangering job-for-life status

Posted in Governance and administration on September 25th, 2013 by steve

“… Mr Quinn said the decision by the Association of Secondary Teachers Ireland (ASTI) to remain outside the agreement, and to withdraw from existing commitments, meant that its protections and benefits, including those relating to security of tenure, were not available to their members …” (more)

[Michael O’Regan, Irish Times, 25 September]

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Fixed Term Contracts, Funding and Unfair Dismissal

Posted in Legal issues on September 11th, 2013 by steve

“In last month’s reported employment appeals tribunal cases, the tribunal was asked to consider in Patrick Fournet v NUI Galway UD 1262/2011 MN 1367/2011 whether the claimant had been unfairly dismissed from his post when funding ceased for his role …” (more)

[Wendy Doyle Solicitors Blog, 11 September]

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£40m spent on staff severance in college sector

Posted in Legal issues on August 18th, 2013 by steve

“More than £40 million has been spent on staff severance pay as part of a series of mergers designed to cut costs in Scotland’s college sector …” (more)

[Chris Marshall, The Scotsman, 18 August]

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Fixed-term contracts case taken to Europe

Posted in Legal issues on August 6th, 2013 by steve

“A legal challenge has been launched over law changes that unions claim make it easier to remove staff on fixed-term contracts …” (more)

[Jack Grove, Times Higher Education, 5 August]

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Disappearances

Posted in Governance and administration on July 3rd, 2013 by steve

“Summer is a time when academics tend to disappear. But in many universities currently undergoing drastic reorganisation disappearances have been a bit more permanent …” (more)

[Mark Johnson, Improvisation Blog, 3 July]

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MacDonncha & Anor v. Minister for Education and Skills & Ors [2013] IEHC 226

Posted in Legal issues on May 30th, 2013 by steve

“… For my part, however, I see no reason to alter the views which I expounded at greater length in Holland v. Athlone Institute of Technology [2011] IEHC 414, [2012] ELR 1 regarding the legal status of the C[roke ]P[ark ]A[greement]. In that judgment I stressed that the whole tenor of CPA was that it was an agreement designed to operate in the political and industrial relations spheres. Everything therein suggested that it was not intended to create legal relations, not least through its use of imprecise and aspirational language and the creation of particular dispute resolutions mechanisms (paragraphs 1.18 to 1.22 of the CPA) which plainly operate outside the conventional legal sphere …” (more)

[Hogan J, MacDonncha & Anor v.
Minister for Education and Skills & Ors
[2013] IEHC 226]

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Howlin vows compulsory redundancies unless public servants accept deal

Posted in Governance and administration on May 21st, 2013 by steve

“Public servants face compulsory redundancies unless they accept a new deal on cuts in pay and pensions, the Government has warned …” (more)

[Sarah Stack, Independent, 21 May]

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Public servants have two weeks to agree pay deal

Posted in Governance and administration on April 27th, 2013 by steve

“Public servants face pay cuts and a permanent freeze on increments if they fail to agree a deal to reduce the public sector pay bill within the next two weeks. They will also will lose protection from outsourcing and compulsory redundancy …” (more)

[RTÉ News, 27 April]

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Teachers union to protest over compulsory redundancies

Posted in Governance and administration on April 25th, 2013 by steve

“Teachers are set to protest outside the Dáil this evening over plans by the Education Minister Ruairi Quinn to force through the compulsory redundancies of more than 400 teachers nationally …” (more)

[BreakingNews.ie, 25 April]

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No deal on public pay means no protection against job cuts – Kenny

Posted in Governance and administration on April 24th, 2013 by steve

“Taoiseach Enda Kenny says the rejection of the Croke Park 2 public pay deal means public sector workers no longer have any automatic protection against mandatory redundancies …” (more)

[TheJournal.ie, 24 April]

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Lack of clarity on compulsory redundancy

Posted in Governance and administration on February 27th, 2013 by steve

IrelandSo very often in negotiated agreements, the parties have to choose between an agreement that is clear and an agreement that is, well, actually agreed. A case in point is the new draft Croke Part II provision on “exit mechanisms”, which has this to say on compulsory redundancy:

4.2 The Government reaffirms the commitment given under Paragraph 1.6 of the Public Service Agreement that compulsory redundancy will not apply within the public service. However, this commitment is subject to the following exceptions:

– Where existing exit mechanisms have applied, such arrangements will continue.

– The commitment on compulsory redundancy continues to be subject to the agreed flexibility on redeployment being delivered. Where redeployment is not an option and taking account of the business needs of the organisation there may be circumstances where voluntary departure would be appropriate. In such situations there will be discussions with the relevant unions on the terms of any arrangement (which will be in line with any centrally agreed arrangements) …”

Now obviously this makes no (semantic) sense. Any proposed redundancy is a case where the employer considers that “departure would be appropriate”, and either departure is voluntary or it isn’t. If it is really voluntary, then it shouldn’t be discussed under the heading of “compulsory redundancy”. If it isn’t, then it’s inaccurate to apply the word “voluntary” to it. I suppose the real question (on which the wording gives little clue) is, Who gets to decide whether “voluntary departure would be appropriate”. Guesses, anyone?

The Blogmeister

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