That’s all right then

“IUA continues engagement with
HEA on ECF concerns.” (tweet)

[Irish Universities Association, 16 March]

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The IUA speaks

“IUA has expressed grave reservations about the Employment Control Framework and will be seeking changes.” (tweet)

[Irish Universities Association, Twitter, 14 March]

Is there anybody there?

“#ecf11 Now there’s a surprise, not…nary a dickybird from the Irish useless, sorry, universities association on this. Hellooo??” (tweet)

[Brian Lucey, Twitter, 14 March]

Employment Control Framework for the Higher Education Sector – 2011-2014

1. Requirement for Public Sector Numbers Control

Under the National Recovery Plan 2011-2014, and in accordance with the Programme of Financial Support for Ireland agreed with the EU/IMF, the Government is committed to reducing the cost of the public sector paybill by, inter alia, reducing public sector numbers to 294,700 by the end of 2014, equating to an average annual reduction of approximately 3,300 in the number of serving public servants over the next 4 years. In this context, the annual Public Sector Numbers ceilings applicable to the Higher Education sector over this period are now as follows:

Table 1 – Public Sector Numbers Ceilings applying in the HE Sector
Public Sector Numbers – Annual Ceilings	2011	2012	2013	2014
Higher Education (Total)	24,616	24,757	24,879	25,000
‘Core Staff’ Posts	18,249	18,240	18,232	18,223
Externally funded Contract Research posts	3,801	3,901	3,981	4,061
Other Specialist posts funded from non-Exchequer sources	2,566	2,616	2,666	2,716

The above ECF ceilings now encompass all staff employed in the Higher Education sector (including contract staff and staff on secondment from other bodies) who are members of public sector pension schemes, irrespective of whether their posts are funded, in whole or in part, by the Exchequer or from non Exchequer sources. (Staff on secondment to other bodies outside of the Higher Education Sector are not included in the ECF for the Higher Education Sector, but are covered by the ECF applying where they are currently employed).

This represents a change from the previous Employment Control Framework, under which only “core staff” of the HE institutions were subject to annual employment ceilings. However, while staff who are not considered to be “core staff” of the institutions (because they are engaged in discretionary activities that are funded from external sources in the short term – whether Exchequer or non-Exchequer) were excluded from the staffing ceilings under the previous ECF, these staff have entitlements to future pension benefits which represent a deferred cost or liability for the Exchequer. As such, these “non-core staff” can no longer be disregarded when it comes to applying overall Government policy on numbers control in the public sector (as a means of containing future Exchequer expenditure requirements), and therefore such posts must, in future, be included in some manner in the overall public sector numbers ceilings applying.

However, in recognition of the differences between “core staff” posts and “non-core staff” posts that are externally funded, separate arrangements will apply under the new ECF / numbers ceilings in relation to these two categories of post, as set out in further detail below.

The annual employment ceilings, and the reduction in numbers required to comply with these ceilings, are without prejudice to any further decisions that may be taken by the Government on funding or staffing levels.

2. Continued Application of the Moratorium in the Higher Education Sector

Delivering the numbers reductions required in the core staff area requires that the general Moratorium applying to all public sector recruitment, promotion and/or payment of allowances for the performance of duties at a higher level must remain in place, as the principal mechanism for achieving the numbers reductions required to meet the new staffing ceilings set by Government. In light of the very challenging budgetary position, and taking account of the drive for efficiency savings under the Croke Park Agreement, it is expected that bodies will prioritise, reconfigure and reorganise their business to manage within the lower staffing ceilings now applying.

In respect of the higher education sector, a new Employment Control Framework will be put in place to provide for the application of the Moratorium to third level institutions over the period 2011 to 2014, subject to the continued oversight of the Department of Finance and the Department of Education and Skills, and also subject to the legal provisions applying.

The arrangements that applied up to 31 December 2010, in relation to delegated exemptions and exceptions under the Moratorium, will no longer apply as heretofore, but as set out in the following paragraphs.

3. Scope of the Framework

The framework shall encompass three broad categories of post, according to their nature and their source of funding, and specific terms and conditions shall apply to the filling of vacancies in each of these categories, as set out hereunder:

(a) Core staff, i.e. mainstream posts funded from the Core Grant, undergraduate tuition fees (including grant in lieu of fees), Student Services Charge and the new Student Contribution being introduced in 2011;

(b) Contract research and related dedicated research project posts funded from external income (either grants from other public funding agencies or non-Exchequer sources of funding), which are required to undertake additional discretionary activities in pursuance of the SSTI/Smart Economy agenda;

(c) Other Specialist project-based posts funded from non-Exchequer sources (EU grants, private sector income, international student income, postgraduate and part-time fees – but not including full-time EU undergraduate tuition fees/student contributions as non-Exchequer, non-core income), which are required to undertake additional discretionary activities in pursuance of key strategic objectives.

4. Conditions of Application of the Revised Framework

It is acknowledged that the higher education sector is likely to continue to face increasing student number enrolments while at the same time having to operate with reduced Exchequer provision for recurrent purposes. Taking account of this, and in order to provide some flexibility to institutions in relation to the maintenance of essential course/module provision and research capability, within the restrictions imposed by the new multi-annual employment ceilings, institutions will be allowed to operate an employment control framework within the terms set out in the following paragraphs, subject to the following conditions:

(a) The total number of staff employed in the sector, including all permanent staff (academic, administrative, research, technical, ancillary etc) and all contract staff (academic, administrative, research, technical, ancillary etc) who are members of public sector pension schemes, and irrespective of whether such posts are funded (in whole or in part) by Exchequer funds and/or non-Exchequer funds, will be subject to the annual employment ceilings specified in Table 1, in paragraph 1, above.

The HEA will allocate these employment ceilings across institutions, taking into account the student numbers, staffing levels and other relevant factors in each institution.

(b) The reductions required in the number of core staff must be achieved in a balanced manner across the grading structure and should not be concentrated at the lower grade levels, i.e. the framework should not result in ‘grade-drift’ within institutions. Paragraph 9 below sets out the requirements in relation to the distribution of posts within institutions, which must be complied with in this regard.

(c) Institutions will continue to respond positively to student participation demand and ensure that quality is maintained. Given the substantial increase in student intake over the last number of years, this will inevitably lead to a significant knock-on increase in overall student numbers for the next number of years.

(d) Institutions will also continue to engage proactively with the Smart Economy agenda and with sectoral labour market activation and other initiatives.

(e) The filling of any posts under the terms of this Framework will be conditional on an institution operating strictly within a balanced budget and having an agreed plan in place with the HEA for the elimination of any accumulated deficits.

(f) The filling of any posts under the terms of this Framework should, wherever possible, give priority to the employment of new or recently qualified staff over those who are retired.

(g) Re-employment of retired staff should only occur in very limited exceptional circumstances and in these cases the salaries offered may not exceed 20% of the full-time salary an individual was in receipt of at the time of their retirement, adjusted to reflect the application of Government pay policy in the period since their date of retirement – including in particular the application of salary adjustments imposed under the Financial Emergency Measures in the Public Interest (No. 2) Act 2009. Any such proposed arrangements should be put in advance to the HEA.

5. Conditions governing the replacement of Core Staff (as defined in Paragraph 3(a) above)

Notwithstanding the general principle that there should be no recruitment, promotion or payment of an allowance for the performance of duties at a higher level, and subject to the agreement/adherence to, and achievement of, the conditions set out at Paragraph 4 above, and in particular compliance with the employment ceilings for institutions and for the sector generally, institutions will be permitted to fill vacancies arising in the core staff area that are considered to be necessary for the continued delivery of essential services. Essential services are those which are required to deliver academic programmes, services to students, essential governance and management of the institution, including financial administration, and to comply with regulatory requirements.

In assessing whether the filling of a vacancy is necessary to deliver essential services, each institution must assess the following factors:

* The service to be provided and the consequences for services of not filling the post;
* The capacity for redeployment of staff from another area within the institution, or, failing that, for redeployment of surplus staff from other higher education institutions or other public service bodies, in accordance with the terms of the “Croke Park” Agreement;
* Whether all available lecturing capacity has been fully used (the processes in place to confirm this should be auditable e.g. assessment and/or reorganisation of timetabled hours/workload);
* The capacity to provide the service from non-Exchequer sources.

Vacancies should be filled by way of fixed term or fixed purpose contracts, as a “bridging mechanism” in terms of facilitating the orderly permanent, structural reduction in the numbers of staff serving in the public service, in line with Government policy. Limited exceptions may arise in the case of posts where scarce or specialist skills of appropriate quality cannot be secured on the basis of a fixed term / fixed purpose appointment. In such cases, proposals should be put in advance to the HEA.

6. Conditions governing the filling of contract research and related dedicated research project posts funded from external income (as defined in Paragraph 3(b) above)

Higher education institutions are involved in contracted work under a range of schemes operated by state agencies such as SFI, HRB, EPA and Teagasc, as well as under EU funded programmes. Schemes such as PRTLI may also involve such contracts, as may contracted work carried out for organisations in the private or voluntary sectors.

Notwithstanding the general principle that there should be no recruitment, promotion or payment of an allowance for the performance of duties at a higher level, and subject to the agreement/adherence to, and achievement of, the conditions set out at Paragraph 4 above, and in particular compliance with the overall staffing ceilings for institutions and for the sector generally, including the relevant ceilings applying to contract research posts funded from external income, institutions will be permitted to appoint contract staff to research and related dedicated research project posts funded from sources external to the institution where this is required to undertake additional discretionary activities in pursuance of the SSTI/Smart Economy agenda in accordance with a plan agreed with the contracting agency and the HEA.

The HEA will be responsible for monitoring and reporting on the number of such posts in place across the HE sector, in the context of the relevant employment ceilings applying. Therefore, any proposals to appoint such new contract research staff or to renew such existing contracts must be put in advance to the HEA.

The specific posts that may be filled under this delegated sanction are confined to researcher posts and related dedicated research project posts. No core staff posts (including administrative posts) may be filled under this delegated sanction arrangement.

Appointments in these instances must be on the basis of fixed term or fixed purpose contracts, whose term shall not exceed the scheme duration. Such contracts must also include a specific clause providing for early termination before the specified expiry date of the contract in the event of the envisaged funding stream being terminated or reduced by the funding agency. A specific reference to such a clause must be included in the acknowledgement of the terms and conditions attaching to the offer of the post to be signed by the potential employee.

The rates of pay for the posts must not be in breach of public sector pay policy.

In recognition of the fact that staff in these externally funded posts have entitlements to future pension benefits which represent a deferred cost or liability for the Exchequer, any such new posts created or any renewal / renegotiation of such existing contracts will be subject to an employer’s pension contribution charge of 20% of gross pay, representing the estimated contribution required from the project funder, in addition to the employee’s own personal pension contribution, to cover the deferred cost to the Exchequer associated with the future pension entitlements of the post holder.

7. Conditions governing the filling of other Specialist project-based posts funded from non-Exchequer sources (as defined in Paragraph 3(c) above)

Notwithstanding the general principle that there should be no recruitment, promotion or payment of an allowance for the performance of duties at a higher level, and subject to the agreement/adherence to, and achievement of, the conditions set out at Paragraph 4 above, and in particular compliance with the overall staffing ceilings for institutions and for the sector generally, including the relevant ceilings applying to other Specialist posts funded from non-Exchequer sources, institutions will be permitted to appoint contract staff to certain specialist project-based posts funded from non-Exchequer sources where there is a specific identified non-Exchequer revenue stream capable of funding the post and where the post is required to undertake additional discretionary activities in pursuance of key strategic objectives, in accordance with a plan agreed with the HEA.

The HEA will be responsible for monitoring and reporting on the number of these non-Exchequer funded specialist posts in place across the HE sector, in the context of the relevant employment ceilings applying. Therefore, any proposals to appoint such new non-Exchequer funded specialist staff or to renew existing contracts of such staff must be put in advance to the HEA.

The specific posts that may be filled under this delegated sanction are confined to lecturing and other relevant specialist project-based posts that are fully funded from non-Exchequer sources. No core staff posts (including administrative posts) may be filled under this delegated sanction arrangement.

Appointments in these instances must be on the basis of fixed term or fixed purpose contracts, whose term shall not exceed the duration of the projected revenue stream. Such contracts must also include a specific clause providing for early termination before the specified expiry date of the contract in the event of the envisaged funding stream being terminated or not being realised. A specific reference to such a clause must be included in the acknowledgement of the terms and conditions attaching to the offer of the post to be signed by the potential employee.

The rates of pay for the posts must not be in breach of public sector pay policy.

In recognition of the fact that staff in these non-Exchequer funded posts have entitlements to future pension benefits which represent a deferred cost or liability for the Exchequer, any such new posts created or any renewal / renegotiation of such existing contracts will be subject to an employer’s pension contribution charge of 20% of gross pay, representing the estimated contribution required from the non-Exchequer source, in addition to the employee’s own personal pension contribution, to cover the deferred cost to the Exchequer associated with the future pension entitlements of the post holder.

8. Other Requests for Exceptions

In line with Government policy, any requests for exceptions to the Moratorium that are not covered by the delegated arrangements set out in Paragraphs 4 to 7 above must be agreed by the Department of Finance prior to the awarding or renewal of the employment contract. This applies equally to contacts arising from the replacement of permanent and contract posts – which includes the renewal of fixed term contracts on expiry.

In the context of fixed term employees, contracts must be reviewed on a case by case basis. The Moratorium must not be used as a means of avoiding Contracts of Indefinite Duration (CIDs). Section 13(1)(d) of the Protection of Employees (Fixed Term Work) Act 2003 provides that an employer shall not penalize an employee by dismissing the employee from his/her employment if the dismissal is wholly or partly for or connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration. In making a decision as to whether to renew or not to renew a Fixed Term Contract, no regard should be had as to whether the renewal of a Fixed Term Contract would bring the employee over the four year threshold specified at Section 9(2) of the Act. Section 9(2) does not, however, prevent an employer from renewing a Fixed Term Contract if there are genuine objective grounds for so doing (Section 9(4) refers). Employers must ensure that they comply with the Protection of Employees (Fixed Term Work) Act 2003 and in particular Sections 8 and 9 thereof

9. Avoidance of “Grade Drift”

In order to ensure that there is no “grade drift” in the distribution of posts across the sector, arising from the implementation of the numbers reductions required under the ECF and the exercise of the delegated sanction arrangements for the filling of certain posts, as provided for above,

* in the case of academic posts in universities, the distribution of such posts across the sector, as between the lecturer grades and the Professor grades, must not change from the position as applying on 31 December 2010;
* in the case of academic posts in Institutes of Technology, the distribution of such posts across the sector, as between the assistant lecturer / lecturer grades, on the one hand, and Senior Lecturer (SL1, SL2 and SL3) and other higher grades, must not change from the position as applying on 31 December 2010; and
* in the case of all other grades/posts, the overall percentage of posts which have a pay scale which, at the maximum point, exceeds €70,000 must not increase above the percentage applying on 31 December 2010.

Furthermore, within the overall restrictions on academic posts outlined above, additional restrictions will apply to changes in the distributions within the groups of academic grades. Further details of these restrictions will be issued by the HEA shortly.

Details of the number of posts in the sector at these levels on 31 December 2010 should be provided by 31 March 2011, to serve as a benchmark for future monitoring purposes.

10. Accounting Arrangements for Pensions Purposes

The new employer’s pension contributions to be collected in respect of all new externally funded posts, or renewals of such existing posts, together with all other employee and employer pension contributions should be retained by institutions and used exclusively for the purposes of paying pensions. (This arrangement will be subject to review when the new single pension scheme for all new entrants to the public sector is introduced).

In order to ensure full transparency for accounting purposes, institutions will be required to account for all pension related receipts and payments, on a gross basis, in a Pensions Control Account. Within this account, any pension contributions and payments relating to staff who were members of the former funded schemes which transferred to the NPRF under the Financial Measures (Miscellaneous Provisions) Act 2009 must continue to be identified and accounted for separately from all other pension contributions / payments.

Any overall surplus balance remaining in the Pensions Control Account at the end of a year must be surrendered to the HEA. Where a deficit arises in the Pensions Control Account at the end of a year, it will be funded by means of the HEA’s grant allocation system.

Each institution’s Pensions Control Account must be included as a disclosure note in its annual financial statements and accordingly will be subject to audit by its auditors and/or the C&AG.

11. Monitoring of Framework

This Framework shall be monitored by an Employment Control Framework Monitoring Committee comprised of the HEA, which shall chair the Committee, and members of the Departments of Education & Skills, and Finance. The Committee, at its discretion, shall invite the IUA, IOTI and others, as relevant, to meet with it from time to time to discuss matters of common concern.

12. Reporting and Records

Institutions shall maintain appropriate records in relation to their observance of these conditions and shall make these records available for inspection by the HEA and the Employment Control Framework Monitoring Committee, as required, from time to time.

Staff numbers shall continue to be reported on a quarterly basis. These returns shall include all staff employed in the institution (including all permanent staff, all contract staff and all staff on secondment from other bodies) who are members of public sector pension schemes, irrespective of whether the posts are funded (in whole or in part) by Exchequer funds or from non-Exchequer sources. (Staff on secondment to other bodies should not be included in an institution’s returns, but will be returned where they are currently employed).

13. Conditions

The allocation of Exchequer funding will be conditional on adherence to the terms of this Framework. Failure to comply with the framework or with the required reporting arrangements will be considered to be a breach of the Framework.

14. Review

The Framework will be reviewed in 2012.

15. Contact

Enquiries regarding the content of this Circular should be addressed to Louise Sherry lsherry@hea.ie or Valerie Harvey vharvey@hea.ie.

10 March 2011

University heads’ group gets €1.4m despite cutbacks

“Cash-strapped third level institutions are to spend almost €1.4m this year funding a company that represents the interests of university presidents …” (more)

[Shane Phelan, Independent, 7 March]

IUA expenditure rises amid universities’ financial crisis

“The Irish Universities Association (IUA), of which UCD is affiliated, had close to a €2 million increase in both income received and expenditure against a backdrop of education cutbacks between 2008 and 2009, The University Observer can reveal …” (more)

[Amy Bracken, University Observer, 15 February]

IUA funding: reaction and analysis

“When presented with the information regarding spending of the IUA, a representative from UCD academic staff told The University Observer that he was ‘gobsmacked’ about the figures. He expressed concern that there was no notice within the university’s books that alluded towards their contribution to the IUA …” (more)

[Quinton O’Reilly, University Observer, 15 February]

Statement by Campaign for academic Freedom in Reply to Irish Universities Association

The Irish Universities Association (IUA) issued a statement on February 4 in response to a call to defend the principle of tenure on which academic freedom is based. This call, signed by 160 academics, was published in the Irish Times on January 20.

We note that the IUA has no authority to speak on behalf of Irish universities. It is a private company of which the seven university presidents are directors.

In its response, the IUA could have given clear assurances that it was opposed to any changes to the relevant clauses in the Universities Act. As the law of the land trumps industrial relations processes, we would have taken considerable comfort from such a declaration.

As it is, however, the IUA makes no such declaration. Indeed, the IUA statement is replete with ambiguity and dissimulation. Most remarkably, it suggests that the principle of tenure might be seen as protecting academics from dismissal for misconduct, though this is not the case.

The IUA statement is causing increased concern in the academic community.

Steve Hedley, Professor of Law at UCC, and a signatory to the call, has given a detailed reply to the statement on the blog Ninth Level Ireland.

The IUA states: “What we must do as a foundation for that defence (of academic freedom – PH), is to distinguish between freedom and licence. This is what we are seeking to do in the proposed contractual provision which states that it is to be acknowledged that the freedoms which are contained in Section 14 of the Universities Act are to be exercised in the context of the framework of rights and obligations contained in the contract.”

It should be understood that the contract to which the IUA refers is not the existing contract but a new contract to be put in place pursuant to the Public Services Agreement (Croke Park Deal).

Steve Hedley comments: “The other, and more pessimistic, interpretation (of the IUA statement – PH) is that academic contracts are to be read as limiting the guarantee in the Universities Act – in other words, that academic freedom should only exist to the extent that each academic’s contract allows for it. This is extremely worrying. Academic freedom is, in large part, freedom from university management – and so is not worth much if it can be removed by a simple clause in an employment contract, drafted by that same university management. I don’t know what is intended here; and I certainly hope that this reading is wrong. But if the object of the statement was to reassure, then it has failed in its object.”

On the question of tenure the IUA states: “Here, we are seeking to establish that tenure is consistent with the established corpus of employment law and, in that context, refers to the duration of contract. However, the concept of tenure dates from a time when employment law was much less well developed. We now have a national legal framework incorporating, inter alia, the Unfair Dismissals and Fixed Term Workers Acts which provide considerable protections to employees generally. We strongly support employment security for staff.”

Steve Hedley comments:

“With that introduction, the IUA statement gives a number of reasons why tenure is positively undesirable. Tenure is an ‘amorphous concept which somehow subsists in a parallel realm’ to the rest of employment law; this ‘creates ambiguity, and at worst, creates the impression that tenure will be advanced to create an absolute prohibition on dismissal or sanction, even in the worst and thankfully extremely rare cases of misconduct’ … The solution is ‘to establish that tenure is consistent with the established corpus of employment law and, in that context, refers to the duration of contract’. This seems to mean that tenure, properly understood, should only mean that each academic’s contract lasts as long as it lasts – in other words, that ‘tenure’ is to be all but meaningless, adding nothing to ordinary employment rights.”

To be clear: the signatories of the January 20 letter never suggested that tenure could or should preclude disciplinary procedures in cases of misconduct and/or breach of duty. Academics have never been “unsackable” on foot of such allegations as some commentators and propagandists have claimed. Nor have they been absolutely free to exercise their academic freedom (or responsibility?) to defend academic values without fear or favour. As a number of documented Irish cases show, some of them have been subjected to harassment and intimidation for speaking out in defence of academic standards and intellectual integrity, even if they haven’t been subjected to the ultimate silencing, namely redundancy.

It is because tenure confers immunity from this ultimate abuse of power that it is internationally recognised as essential to academic freedom by UNESCO and by other international bodies such as Education International. And it is because academic freedom as currently protected by Irish law is such a fundamental principle of democracy that all repressive regimes have sought to eliminate or to limit that freedom.

Instead of allaying the concerns that we expressed in our original letter, the IUA response has heightened them.

Following persistent work by the IFUT Branch, the Board of Trinity College has already issued a declaration in support of academic freedom and tenure in December 2010.

We therefore call now on the governing authorities of all academic institutions to dissociate themselves from the IUA statement and to issue a similar declaration.

Paddy Healy 086-4183732
Convenor of Gathering for Academic Freedom
On behalf of the Signatories to the Call
88 Griffith Court,
Fairview
Dublin 3

Academic freedom – is it really under threat?

“A large lobby group of academics – including several top scholars – says yes, while the seven university presidents emphatically say no …” (more)

[Education Matters, 7 February]

All Too Clear? – IUA Statement of Clarification on the Croke Park agreement

This IUA statement is a response to much recent comment by academics and others, following negotiations over implementation of the Croke Park Agreement, and in particular following the recent letter to the Irish Times (20 January 2011) and the subsequent Dublin gathering. The statement is clearly meant as a clarification of the IUA’s position, and in many respects it succeeds – sometimes intentionally, sometimes (I suspect) not. As one who signed the Irish Times letter and attended the gathering, I give my own reaction to the new statement.

Irish University Presidents need to be proclaiming the achievements of their staff to the wider world, sending the message that we have achieved marvellous things, and that with better resources we can achieve even more. Unfortunately, they have now been misled into criticising staff for raising points for discussion, seeking input into wider strategy, or doubting whether the right path is being followed. We are entitled to more than this.

Public confidence

The statement makes much of the need for public confidence in universities. It is ironic, therefore, that the main object of the statement seems to be to stop university teachers from having too high an opinion of themselves. Academics have misunderstood the situation, they are wrong to see any threat to their freedoms, it says, and they have work to do in gaining the public’s trust. They have shown “widespread excellent commitment”, but apparently not in a way that demonstrates “accountability”, and so their efforts are insufficient. The IUA statement has accordingly been reported in the Irish Times as an attack on the academics who have been complaining of infringement of their rights, and indeed it is hard to read it any other way. Academics squabbling with one another is a familiar newspaper cliché, and that is the slot to which this story has been assigned.

Public perceptions are clearly an issue to be addressed, but for the IUA to attack their own staff in public makes it worse rather than better – it only adds to the impression that the universities have committed some great wrong against the public, for which they must now do penance. They have done no such thing. In recent years, Irish universities have taught more students, at a cheaper and cheaper rate, and in research terms they hold their own with international universities receiving much better funding. They have had to put up with attacks from public figures who have accused them of laziness and fecklessness, on no substantial grounds. The IUA strategy seems to be to gather statistics to prove our collective case, and only then to launch an effective counter-attack – hence the recent attention to full economic costings and workload models. But those are not the rules of engagement in national politics. A Batt O’Keeffe or a Roisín Shorthall shoots from the hip and looks for evidence later, as their public utterances show – and we do ourselves a disservice by waiting years for the statistics before venturing an opinion. If the IUA really believe that our commitment is “excellent”, that abuses of academic rights are “extremely rare”, and that academic freedom is “essential” – all claims made in passing in the statement – then they need to be making these claims from the housetops, to all comers. As it is, these claims have by some perverted or twisted logic come to be used as sticks to beat their staff with. So, for example, the IUA say that some academics have denied that lazy academics exist – and so the fact that only the overwhelming majority work hard somehow becomes a point against us! If senior university management is openly attacking the views of its staff, then this is a disservice to universities’ public reputation. We should all be on the same side here – but whose side are the IUA on?

Autonomy and accountability

The IUA statement makes much of “accountability”, which it assumes to be in short supply, and the lack of which is supposed to be at the centre of all our problems. There is even an attempt to link lack of university accountability to the causes of the current economic crisis (though if there is a coherent line of argument there, then I have missed it). The focus on accountability comes from the Hunt Report, and the IUA statement echoes Hunt’s call for a new balance between the accountability and autonomy, a balance which is assumed to need correction by adding to the accountability side of the scale.

This is management-speak, and while it is not entirely fair to call it meaningless, nonetheless it is vague, almost chameleon-like. What is “accountability”? Hunt doesn’t say. Why is it good, if it is? Again, not a word. Hunt proposes “accountability” as the answer to every problem, often with no evidence, and frequently without even stating what problem it is that “accountability” is supposed to solve. There is a brief discussion in Hunt about a supposed “balance between institutional autonomy and accountability”, but not a word about why the latter is supposed to be superior, or even an acknowledgment that its proposals make heavy inroads into autonomy. Someone who speaks this way needs to be very carefully watched. It is all very well for the IUA to say that accountability is not the same thing as control, but very often measures of “accountability” look very much like tools of control. And insistence that universities are to remain autonomous in certain areas are double-edged – do they mean that individual academics or departments are to be autonomous (from management), or do they mean that university management is to be autonomous (from government)? In many contexts, those two are just about opposites.

What is missing is any acknowledgment that there is already considerable accountability in the university system, at least on any ordinary definition of the word. The Higher Education Authority Act 1971 and the Universities Act 1997 already mean that universities are heavily monitored in many of their activities; their money is rigorously accounted for; the terms on which they can hire staff are regulated; and all university departments are regularly reviewed for quality. Recent years have also seen the rise of international university rankings in many areas, which the universities cannot afford to ignore however flawed these new measures may be, and which provide a further impetus towards accountability. And legal controls have become even more intense in recent years, particularly under the Employment Control Framework, which ensures that universities must now ask permission before making any new appointment or promotion of any significance. Hunt briefly acknowledges all of this, and notes that Ireland has performed very creditably against these standards. Yet despite all of this, Hunt insists that more accountability/control/direction (call it what you will) is needed. Why? What is the intellectual justification for this? What university ever achieved eminence by submitting to government control, rather than by being left to discover its own way to the top? And why are the IUA making only the most muted of protests against this state of affairs, and making public attacks on staff who can see the fallacy of the Hunt approach, rather than agreeing with them and enlisting their co-operation?

Demands now being made

The IUA statement is vague on what each university will actually be asking their staff to do, and to that extent it fails in its purpose of clarification. We read all sorts of stories in the press and on the net, many of them emanating from those involved in the negotiations – that staff will be required to be at their desks for specified periods, whether or not the work that needs doing is desk work; that there will be a set time limit for answering e-mail queries; even, that one university now demands that its staff wear name-badges, McDonalds-style, whenever they deal with members of the public! I do not know how accurate any of this is, or what is a real demand and what a mere bargaining posture; I do know that I am not in the least reassured by the bland statement from the IUA, which attempts to be reassuring without, in fact, promising very much – except that the IUA have a deep respect for academic freedom, so long as it is the IUA who are allowed to define it.

We need to recognise managerialism when we see it. All the signs are there: the refusal to admit that staff are doing their jobs until there are figures “proving” it; even a refusal to admit that they can do the job, until all staff have certificates saying so (the certificates being issued by people who don’t do the job); the demand that staff specify precisely what they spend their time doing, and the refusal to admit they do anything at all until these statistics are provided; the selective blindness, as universities agree that more and more students are being taught, but refuse to admit that those doing the educating must have been working harder. Worst of all, there is the pervasive assumption that academics are work-shy, and can only be truly motivated by the fear of being exposed as slackers – and so the main strategy for increasing efficiency is the deliberate creation of insecurity and uncertainty. It is not any one bureaucratic control that is the problem; a few of them are individually defensible. What is truly insupportable is the constant introduction of additional surveys, checks, and contractual commitments, as if we had nothing better to do than fill in forms or cajole others into doing so. We did not come into this job to fill forms. Every form we have to fill represents time we could have spent doing our real jobs.

When will the Presidents learn? We will know that university presidents are serious here when they undertake never to introduce a new monitoring or management tool, without abolishing an existing one of comparable breadth and complexity. Change is acceptable, new ideas are welcome; gridlock is not. Until this is recognised, staff will undoubtedly view all such exercises with scepticism, a scepticism born of long experience.

Academic freedom

The IUA statement is strongly supportive of academic freedom, at least in principle: “it is the essence of what defines a university”, though worth little, apparently, unless society generally has confidence in the universities: “in the absence of such trust and confidence [it] would be a debased currency of little or no value. It would reduce universities to voices crying in the wilderness, dependent on society for their subsistence but powerless to influence it”. So the IUA are prepared to support academic freedom, as reflected in the Universities Act 1997, but appropriate steps must be taken to restore public trust. “This is what we are seeking to do in the proposed contractual provision which states that it is to be acknowledged that the freedoms which are contained in section 14 of the Universities Act are to be exercised in the context of the framework of rights and obligations contained in the contract.”

But what on earth does this last bit mean? This final sentence is a masterpiece of ambiguity. Some might say it is a piece of legal gobbledygook. Speaking as the holder of several law degrees and a few decades’ experience of Law, I beg to differ. The sentence is no clearer to someone who understands all the legal jargon, even if entirely familiar with both the law of contract and the Universities Act. I suppose there are two things it could mean, though neither of them is particularly encouraging.

It might mean that the guarantee of academic freedom, while powerful, is not a fig-leaf to excuse idleness. It guarantees freedom of thought and the right of an academic to do their job in the way they think is right, but it does not protect an academic who fails to turn up for work at all. In other words, it is not a blanket permission for academics to behave (or misbehave) as they please. But who has suggested the contrary? No-one, so far as I am aware, has claimed that it protects the work-shy, and no tribunal has ever been likely to read it that way. If this is the IUA’s point, it hardly seems worth making; once again, the statement makes a great show of affirming propositions which no-one has denied, and which have never been in question.

The other, and more pessimistic, interpretation is that academic contracts are to be read as limiting the guarantee in the Universities Act – in other words, that academic freedom should only exist to the extent that each academic’s contract allows for it. This is extremely worrying. Academic freedom is, in large part, freedom from university management – and so is not worth much if it can be removed by a simple clause in an employment contract, drafted by that same university management. I don’t know what is intended here; and I certainly hope that this reading is wrong. But if the object of the statement was to reassure, then it has failed in its object.

Tenure

It is when the IUA statement comes to tenure, that it makes itself all too clear in its meaning, despite the vagueness of terminology. Tenure, we are told, is a legal relic, dating from before modern employment protection. That modern law is grand, but (by implication) it also renders tenure obsolete. And while academic freedom too is wonderful, it is a mistake to see tenure as in any way related to it – to believe the contrary is “a completely wrong characterisation”. To those outside the IUA, all of this is highly dubious, of course. No serious case has been made that tenure has passed its sell-by date, and most people who have thought seriously about academic freedom have seen an extremely strong connection with tenure. (Those who want to dismiss staff for voicing unpopular views rarely admit what they are up to – a guarantee of academic freedom is valueless if it only catches employers who admit they are infringing it!) But the general gist of the IUA’s argument is clear enough – Tenure not to be confused with anything valuable or worth preserving.

With that introduction, the IUA statement gives a number of reasons why tenure is positively undesirable. Tenure is an “amorphous concept which somehow subsists in a parallel realm” to the rest of employment law; this “creates ambiguity, and at worst, creates the impression that tenure will be advanced to create an absolute prohibition on dismissal or sanction, even in the worst and thankfully extremely rare cases of misconduct”. (I would have thought that it was one of the first duties of university presidents to correct such a false impression wherever it is encountered, but it seems not. We are to go with the flow, it seems, even when the flow doesn’t understand what it is talking about.) The solution is “to establish that tenure is consistent with the established corpus of employment law and, in that context, refers to the duration of contract”. This seems to mean that tenure, properly understood, should only mean that each academic’s contract lasts as long as it lasts – in other words, that “tenure” is to be all but meaningless, adding nothing to ordinary employment rights.

This complaint at lack of clarity in the legal meaning of “tenure” is ironic, to say the least of it. The employment protection provisions of the Universities Act 1997 – principally section 25(6) – are in most respects absolutely clear, stating that academic staff can be dismissed, but that the universities should establish appropriate procedures by statute, and make provision for tenure. When the Act came into force, university management spent as long as they could in denying that either “in a statute” or “shall provide for the tenure of officers” meant what they so clearly said – only after explicit court rulings, which took a decade to secure, would the universities adhere to the plain wording of the Act. (The first point – that “statute” means “statute” – was established in Fanning v. UCC [2008] IESC 59, the second – that “shall provide” means “shall provide” – was established in Cahill v. DCU [2005] IEHC 264. Not all Irish universities have complied with the second ruling, even now.) So while we are all in favour of clarity in the law, this sudden concern for clarity on the part of the IUA seems to be more strategic than heart-felt. And the new IUA position on tenure – which, as Paul Cahill points out, is precisely the view the High Court rejected in DCU’s litigation with him – cannot be regarded as a mere attempt at clarification. It “clarifies” it into oblivion. And this “clarification” is aimed at removing something that has, up until now, been treated as fundamental to academic life.

It is important to realise that the IUA are out on a limb here. The Hunt Report does not mention tenure except in passing, and assumes it is a settled part of the academic landscape. The Croke Park Agreement calls for “a comprehensive review and revision of employment contracts to identify and remove any impediments to the development of an optimum teaching, learning and research environment”, but says nothing to suggest that tenure is such an impediment. Tenure is embodied in national legislation, and can only be changed by further such legislation – when university presidents urge change in this way, without attempting to make a rational case for the change, and simultaneously engage in feel-good sloganising (“We strongly support employment security”), they cannot expect their staff to be much reassured. And the connection between tenure and academic freedom, which everyone but the IUA can see, will not be denied.

An established university post is hard to get. Even for the more lowly posts, a doctorate is usually necessary simply to be in contention; competition will typically be strong; and tenure can only be achieved after several years’ satisfactory performance in post have been completed. It may take half a lifetime to get this far. All this for a wage which, despite tabloid accounts to the contrary, is not so generous, when compared to other posts which such intelligent and committed individuals might have sought. It is not unreasonable that someone who has pulled off such a considerable achievement should have some solid entitlement to keep the post, so long as they continue to do the job and to behave well. No convincing reason has been given by the IUA why this should cease to be so, or why the efficient running of their institutions requires abolition of this fundamental protection. The onus is on them.

Conclusion

There is a saying, that one should never waste a good crisis. Certainly it seems that the IUA do not propose to. Unfortunately, their plan is apparently not to attack public misconceptions about universities, but to blame those misconceptions on their hard-working staff. It would be better for all concerned if university presidents and their staff could face this difficult future united in purpose. After this “clarification”, however, the prospects for this seem relatively remote.

Steve Hedley
Department of Law, UCC

College presidents reject academic freedom claims

“The seven university presidents have disputed claims by a group of prominent scholars that the Croke Park agreement threatens academic freedom …” (more)

[Seán Flynn, Irish Times, 5 February]
[The full statement is available on the IUA site]

 

 

IUA Welcomes HE Strategy Report

“The Irish Universities Association welcomes the publication of the report of the National Strategy Group on Higher Education. The report sets out a strategic framework for the development of Higher Education which establishes important parameters for how Higher Education in Ireland should evolve …” (more)

[Irish Universities Association, 11 January]

Will Third Level Education be Irretrievably Damaged Like The Banks

“Following conversations with colleagues in various universities, I now have a reasonable idea of the demands on unions being made by the University authorities under the Croke Park Deal. These demands confirm the predictions in my e-mail message but go even further. I include these demands towards the end of this piece …” (more)

[Paddy Healy’s Blog, 3 January]

NUI Presidents calls for return of college fees

“The President of NUI Galway has called on the Government to reintroduce college fees. Professor James J. Browne, along with other members of the Irish Universities Association (IUA), has asked the State to bring in a tuition charge in a bid to preserve services in the third level sector …” (more)

[Lorraine O’Hanlon, Galway Independent, 3 November]

Academic Workload

“Academic workload is a contentious topic at the moment, after the recent Public Accounts Committee grilling of the University Presidents, and their FAS moment. At one stage of this committee hearing, Roisin Shorthall TD requested to know how many hours an academic worked. I think the question of number of hours is over-simplified …” (more)

[Is this going to be on the exam?, 24 October]

Invitation to the launch of RIAN – Ireland’s portal to Open Access research publications

“The Irish University Association is inviting interested parties to attend the launch of RIAN, Ireland’s portal to Open Access research publications on Wednesday, 20th October, 1.30pm – 4pm in the Convention Centre Dublin …” (more)

[Allison Kavanagh, DIT Aungier Street Library, 1 October]

Uni heads on Stateside bid for more international students

“A delegation of senior Irish university figures is heading Stateside over the coming few days to try to lure more fee-paying international students to study at the country’s third levels …” (more)

[Cork Student News, 1 September]

IUA Report on International Students in the Irish Universities

“This report profiles international students and examines the key differences between Irish, European and Non-European student in areas such as demographics, personal well-being and study interest, financial situation, earning expectations and further study intentions …” (more)

[Education Ireland, 14 May]

Innovation and Risks for Researchers

“I spoke this morning at the Irish Universities Association event on corporate governance. The main theme of my presentation was the dangers inherent in poor stewardship of intellectual property and the processes therein. This in turn is one major reason for the urgent need for a national intellectual property protocol …” (more)

[Chrisjhorn’s Blog, 30 March]

Call for colleges to borrow from banks

“Bank finance is underutilised by Irish third-level institutions as a funding source, the head of education banking at Barclays has said. Chris Hearn was speaking ahead of meetings in Dublin yesterday with representatives from Trinity College Dublin, UCD and the Irish Universities Association (IUA) about the possible provision of bank debt facilities to third-level institutions in Ireland …” (more)

[Irish Times, 19 February]