Deputy FitzGerald reported progress on this Bill. The Chair draws attention to the fact that amendment No. 4 is consequential on amendment No. 56 and amendments Nos. 57, 58, 59 and 60 are related. It has already been agreed to take amendments Nos. 4, 56, 57, 58, 59 and 60 together.
Anti-Discrimination (Employment) Bill, 1975: Committee Stage (Resumed).
Debate resumed on amendment No. 4:
In page 2, between lines 36 and 37, to insert the following: "functions' includes powers and duties; `investigation' means an investigation under section 32;".
Before we adjourned on the previous occasion we agreed to take this large number of amendments together. They are consequential on amendment No. 4 which appeared to be a simple amendment on its own. When we adjourned on that occasion there was a certain amount of confusion in the House regarding both the time we were to conclude and when another item on the Order Paper was resuming. Therefore, it might be as well to look at amendment No. 4 again. Amendments Nos. 56, 57, 58, 59 and 60 are being taken together and they refer to the Employment Equality Agency we are establishing. Amendment No. 56 refers to the agency's power to conduct investigations. Subsection (3) states:
An investigation may be conducted by one or more than one member of the Agency delegated by the Agency for this purpose.
I agree entirely that an agency of this kind is needed for this legislation. I pointed out earlier that the legislation was empty without it. However, it must be asked if it should not be under the umbrella of the Labour Court or connected with it. The subsection provides that the agency can delegate one or more persons to carry out an investigation. On the last occasion we discussed who may be appointed to the agency but there remains the question whether there is a danger that we may be giving powers to the agency to appoint a person who may not have the necessary expertise to conduct investigations.
In this legislation a number of issues will probably be raised that may not have been contemplated by the Minister when he introduced it. We are eliminating discrimination, and quite rightly. We are providing equal opportunities for both sexes and by virtue of this Bill we will also eliminate discrimination between people of the same sex. Therefore, can we be sure that the person appointed to carry out an investigation is qualified to do so?
I do not mean any disrespect to the Minister, but for the past two years there has been too much interference with the Labour Court. It was established under the Industrial Relations Act, 1946 and its independence must never be questioned. There must not be any interference by a Minister. If we introduce legislation designed to help industrial relations, if we set down guidelines —this is all we can do—we must be very careful to ensure the independence of the Labour Court. The Minister for Labour has interfered with it and this is resented by both sectors of industrial society. By all means let us give the Labour Court the necessary powers and let us hold the necessary controls but it must be seen to be an independent body acting in the interests of industrial relations. At the moment our country is strike-ridden; there are many disputes throughout the State involving all kinds of employees.
The establishment of the Employment Equality Agency and the powers proposed to be given to it must be carefully considered. When I refer to the Minister I am not necessarily referring to the Minister in the House; everyone knows that some time later this year a member from this party will be sitting in his place. Any Minister must be careful when appointing people to the agency. At the moment he has power to nominate six members. Three of those must represent women's organisations and this is quite right. On the last occasion I made it clear that I do not think the Minister should have the power to nominate six people to the board. It could be loaded in favour of a Minister who has the power to make such appointments. There is always the danger that the people appointed may not have the expertise, experience or training to conduct investigations on their own. Paragraph (4) of amendment 56 states:
An investigation shall not be conducted in relation to the selection by the local Appointments Commission or the Civil Service Commission of a person for appointment to an office or position.
Is this putting the public sector in a different situation from the private sector?
We know that all kinds of anomalies have been created. We have seen interference by this Minister and his Government; he interfered in the building industry because he did not support the relativity increase being given— although it had been examined by the Labour Court and was agreed by both sides in the building industry. What caused it? It was the anomalies created by increases in the public sector. What will happen with regard to appointments by the Local Appointments Commission and the Civil Service Commission? Will these people be above reproach? Will they be investigated by the agency and, if not, why? The terms of reference for the investigation are set out in amendment No. 57. Amendment No. 58 will be the new section 34. Since this Bill was introduced almost one-and-a-half years ago it has been added to to a greater extent than any other legislation. The additions are enormous, complicated and inter-connected. The amendment sheet we have before us is a Bill in itself.
Quite far-reaching powers are being given to the agency in regard to obtaining information to summon witnesses. It is understandable that they be given authority to pay expenses. However, there is one area which worries me. The offences relating to investigations are outlined. The amendment, which is basically a new section, deals with the recommendations and reports by agencies. There is one paragraph in this the meaning of which I fail to grasp. If I interpret it correctly this agency can more or less conduct a behind closed doors investigation and not refer to some information submitted to them. I referred earlier to the constitution of this agency and how the Minister of the day has the appointment of six people, which I consider is completely unnecessary. Paragraph (5) of amendment No. 60 states:
Any information obtained by the Agency by virtue of the powers conferred on it by section 34——
This in effect, is amendment No. 58, to which I have been referring.
——as to any organisation of workers or any person or as to the business carried on by any person, which is not available otherwise, shall not be included in a report under this section without the consent of the organisation of workers or the person concerned (unless such non-inclusion would be inconsistent with the duties of the Agency and the object of the report) and any person concerned in any proceedings under this Act shall not disclose any such information without such consent.
I believe that certain secretive powers of investigation are being given to this agency where they can more or less spy behind closed doors. I do not believe this is right in our democracy. We have seen how the Government introduced emergency measures less than a year ago. What guarantee have we that this agency will not go around spying, get information behind closed doors and not mention the source of that information in their reports?
I have no amendment down on this on Committee Stage but I believe it is something which the Minister should consider very seriously. It is not enough for him to say that it is identical with any other Act setting up any other body. We are talking now about setting up an agency. We have quite a number of Bills in the social sphere. The previous Bill extends the powers of the redundancy tribunal to hear cases. Now we have an equality agency investigating complaints in relation to anti-discrimination. During the debate on the Unfair Dismissals Bill I stated that the experience of this legislation in England was that the investigating bodies were damned by trivial claims, which were now being referred to as "the £50 settlement". Those trivialities should never have been brought before them but for the sake of getting rid of them expeditiously and without causing harm to any of the individuals concerned an amicable settlement was arrived at and they were called "the £50 settlement".
I do not believe we should follow England in any legislation we introduce but we should learn from their mistakes. Let those bodies which we are setting up be compact and simple. We should not give them any powers which appear to my party to be unnecessary. It is not enough for the Minister to say that such a body were introduced in a previous year or decade. We are now talking about the seventies. If we are introducing a lot of those tribunals we should introduce them in a simple way and not give them powers that could be abused by appointees of the Minister, who may not be suited or not be qualified in any way except in a political support way.
It is important, when talking about this agency, that we recognise the need for it, that it should be reasonably broadly based and that we allow for representation from women's organisations. We already discussed the need for this agency to operate as efficiently as possible, that it should seek to investigate areas of discrimination, where such exist, and that it should be adequately staffed. From what I understand no objection to the actual idea of the agency has been suggested by members of the Opposition but there are different points of view about the actual composition and the representation of the agency.
I believe it will be accepted by all who are concerned in this area that if we are to advance the cause of equality in employment it is necessary to have an agency specially charged with that task. The purpose of this section is that we will have an agency, consisting of a chairman and ten ordinary members. Deputy Fitzgerald said that this was too large for such an agency. I believe even he accepts the need for inclusion in the representation of the governing body of as many as possible of the various elements and organisations that exist which are pledged to eliminate discrimination from our society. Obviously we must have on such an agency's governing body union representatives, employer representatives and it is only right that we should have representatives of the women's organisations.
Deputy Fitzgerald indicated that he may have some amendments to put down for Report Stage on the actual changes he wishes to see in the functions of this agency. I do not believe that there is any disagreement between us on the principle of it but he has put forward certain points of difference on the actual composition of the agency. I look forward with interest to see what those amendments of his wish to institute instead of the arrangements we have here. If it is possible to meet him on any of the changes he would like to see I shall try to meet him. So far, with respect to the opinions he has expressed here in relation to the governing body and the reasons for its representation as set out previously in this debate, I have not heard any weighty reasons for alteration. No doubt we shall hear about these in the course of the discussion.
I want to reiterate Deputy Fitzgerald's concern about the Labour Court when he spoke about the equality agency. The Labour Court must be sacrosanct and must be preserved with its present powers. The Labour Court must be preserved with its present powers and must not be in any way inferior to any other agency. Therefore, appointments to the agency —about which Deputy Fitzgerald spoke—or to the Labour Court are of great importance to us. Recently appointments to the Labour Court were criticised by no less a person than the general secretary of my union. We should examine in great detail the personnel of the equality agency and the powers given them. There should be no interference with the powers or the influence of the Labour Court. I would feel much happier if the Minister would examine the composition of the equality agency bearing in mind that in no way must its powers be antagonistic to the Labour Court.
No doubt after 30 years of existence we might take a look at the Labour Court, as the Government are doing, to ascertain whether any improvements or changes are necessary. But, pending the result of such examination, we should be zealous in safeguarding the Labour Court and ensuring that it is not impinged on by any other agency. If we keep that foremost in our minds then we will be contributing in a constructive way to this Bill. Otherwise we should have to be very critical indeed.
One might appeal to the Minister not to pursue the line he took when he made a new appointment to the Labour Court. Rather he should take a much broader view and endeavour to meet the wishes of the Opposition and those of the trade union movement, as enunciated by the general secretary of the Workers' Union of Ireland when making any such appointments.
Is amendment No. 4 agreed?
Agreed sir, although I would point out that the Minister, in his reply, was speaking more on the Schedule than on the appointment of the equality agency with which we dealt the last day. However, I have no objection to this amendment being agreed.
Amendment agreed to.
Amendment No. 5 in the name of the Minister and amendments Nos. 10, 12 and 13 are related. Perhaps, by agreement, we could take these amendments together.
Yes.
I move amendment No. 5:
In page 2, to delete lines 37 and 38.
I have given serious consideration to these provisions since the circulation of the Bill. Observations have been made to me by representative interests that if the equal value concept in the definition of "like work" were applied in regard to subsections 3 (3), (4) and (5) these subsections could turn out to be difficult to interpret. The equal value concept is "where demands made on each worker are equal, that their work is of equal value". Obviously entry requirements for a machine operator would demand manual dexterity and mental alertness to a far greater degree than for a packer. Again, it could be said that conditions of employment which include overtime, shiftwork, short-time, layoffs and redundancies have to be the same in both cases. Of course, training would also have to be different.
For those reasons I believe the formula of words now substituted by amendments Nos. 10, 12, and 13 should gain general acceptance. The definition: "work which is not materially different" in substitution for "like work" will mean that the work of the packer and the machine operator will be materially different. Therefore, it will not be regarded as discrimination on grounds of sex where such different occupations are treated differently.
Amendment No. 5 is a consequential one arising as a result of amendments Nos. 10, 12 and 13.
The deletion of this definition causes certain eyebrows to be raised. While accepting entirely the difficulties that could be created under the definition in relation to the 1974 Act, a logical question to ask the Minister now is: in view of his decision in introducing this amendment and talking about persons whose employment is not materially different, then what is the position regarding the 1974 Act? Does he intend to amend that Act? Of course that Act was the Equal Pay Act, which has been reneged on completely by the Minister and the Government.
There will be other sections of the Bill under which we shall refer to the marital status of people and how that cannot in any way hinder their equal opportunity. Yet at present, in the public sector, it does hinder their equal payment.
With regard to "like work", in view of what the Minister said, in view of the introduction of the amendment, bearing in mind also certain difficulties that could be created using this definition but seeing that the term is used in the 1974 Act, does the Minister now intend to allow that definition to remain in that Act and remove it from this Bill? It should be remembered that throughout the Minister's and Deputy Dowling's dialogue in the debate on that Act the Minister was at all times saying that he would be introducing further legislation to bolster that Act. This is the Bill about which he was then speaking. They are linked very closely. The Minister must now explain—if he feels that this is now necessary—what happens then to the definition in the 1974 Act.
Of course, equal value work in the 1974 Act deserves equal pay. But here we are discussing whether equal training is required for different work. We are dealing with something different here. I would contest the fact that we have in any way reneged on the obligations of the Equal Pay Act of 1974. All its provisions are in operation and apply throughout the State. We are conforming in every respect to the requirements of that Act.
The Minister does not believe that.
In answer to the Deputy on whether any change is required in the equal value concept of the 1974 Act, obviously no change is required. But, where we are speaking here about different jobs requiring different training, then this definition is necessary to meet those particular requirements. I agree that in this whole area of definition vast confusion reigns. I have always held that this Bill before us—which goes to the root of inequality in employment, which seeks to make the training for jobs and put the sexes on an equal footing; which seeks to put them on an equal footing in relation to promotion—is basically much more important than other similar equality legislation. If the Deputy will understand that this relates to training, and that this is why this change is required, he will see the reason.
I do not understand how the Minister contends that it is in relation to training—to an extent, of course, it does as anybody is trained for any employment. In my opinion it relates to exactly the same thing, the work of equal value to which we referred in the 1974 Act. It is expedient now for the Minister to refer to it as being relevant only to training. I do not agree that that is so. The consequential amendments Nos. 10, 12 and 13 all refer to section 3 which is subtitled "Discrimination by employers prohibited". I fully sympathise with the Minister in his effort to defend the action which was forced upon him by the Government in reneging on the principles and terms of the Acts as passed by both sides of this House. We will see as we go on how it was an absolute reneging of the commitment under that Act.
Section 3 (1) reads:
A person who is an employer or who obtains under a contract with another person the services of employees of that other person shall not discriminate against an employee or a prospective employee or an employee of that other person in relation to access to employment, conditions of employment (other than remuneration and superannuation), training or experience for or in relation to employment, promotion or regrading in employment or classification of posts in employment.
Subsection (3) reads:
Without prejudice to the generality of subsection (1), a person shall be taken to discriminate against an employee or prospective employee in relation to access to employment if...
(b) by specifying, in respect of one person or class of persons entry requirements for employment which are not specified in respect of other persons or classes of persons where both such persons or classes are or would be employed on like work.
The words "where both such persons or classes are or would be employed on like work" are amended to "where the circumstances in which both such persons or classes would be employed are not materially different". We are talking about access to employment, not necessarily training for employment. Training can be one aspect of it. It is not good enough for the Minister to say that because this refers to training it is completely different from the other. It need not necessarily refer to training. In other words access to employment does not mean that the person has to be trained. One can move from one job with tremendous experience to another job, and such may be the type of person being recruited. I can see the many arguments the Minister could logically make on this but there is a vast difference between it and what is denied in the 1974 Act.
Regarding the section itself we have no objection to it.
Amendment agreed to.
Amendment No. 6 is consequential on amendment No. 61 and amendments 61, 62, 63 and 64 are related. Therefore, by agreement amendments Nos. 6, 61, 62, 63 and 64 may be discussed together.
I move amendment No. 6.
In page 2, between lines 39 and 40 to insert the following:
" `non-discrimination notice, means a notice under section 37;".
The agency will be empowered to issue a non-discrimination notice if in the course of a formal investigation they find that a person is contravening the Anti-Discrimination (Employment) Bill or the Anti-Discrimination (Pay) Act, 1974. The purpose of this notice is to bring about an end to discriminatory practice without penalty. We have something similar under the Factories Acts when an effort was made to improve the situation. A breach does not in itself carry any penal consequence, and it is our experience that this kind of remedy being available is helpful.
Amendment No. 61 defines the circumstances in which the non-discrimination notice may be served. It may be served on a person who is unlawfully discriminating. Amendment No. 62 provides for appeal to the Labour Court against a non-discrimination notice or any requirement of it, and such appeal must be lodged within 42 days of the date of service. Amendment No. 63 provides that the agency will keep a register of notices which have become final and amendment No. 64 that it will be essential for the agency to follow up findings of general discrimination in order to ensure proper compliance with the legislation in the public interest on behalf of the community as a whole.
We are referring to the agency and the non-discrimination notice. I have no objection to amendment 6 but I wish to make a few points regarding the consequential amendments 61, 62, 63 and 64 regarding the powers of the agency. With regard to amendment 61 I am not happy with the terms as specified of how an investigation should be conducted by this agency. Amendment 61 reads:
37. —(1) Where in the course of the conduct of an investigation or after an investigation has been conducted the Agency is satisfied that a person—
(a) has discriminated or is discriminating,
(b) has failed or is failing to comply with an equality clause under section 4,
(c) has contravened section 7 (1) or section 8,
(d) has engaged in or is engaging in a practice referred to in section 3 (2), or
(e) has failed or is failing to comply with an equal pay clause (within the meaning of section 7 of the Act of 1974),
it may serve a non-discrimination notice on that person.
Regarding clause (e) will the Minister bring the Minister for Finance, Deputy R. Ryan, before this equality agency as the first person to be interrogated on his lack of commitment on the Equal Pay Act passed by this House? This equality agency will have to deal with a novel first case when the first person whose malpractice is being investigated will be the Minister for Finance who has reneged on the legislation introduced by this Minister in all good faith in 1974. This will be the first duty of the equality agency under this section, and non-discriminatory notice will obviously be served on the Minister for Finance and we will have an opportunity of testing out this agency at the very highest level.
I am glad to see an improvement here on previous methods of notifying people. The amendment continues:
(2) (a) Where the Agency proposes to serve a non-discrimination notice it shall before serving it notify in writing the person on whom it is proposed to serve the notice of its proposal.
It goes on to say how the notice shall be served. We had the awful sentence in one of these pieces of social legislation where the notice in particular circumstances could be left at premises.
Progress reported; Committee to sit again.