Dáil Éireann debate -
Wednesday, 18 May 1977

Vol. 299 No. 8

Anti-Discrimination (Employment) Bill, 1975: Report and Final Stages.

Minister for Labour (Mr. M. O'Leary)

I move amendment No. I:

In page 4, between lines 3 and 4 to insert the following:

"‘employer', in relation to an employee, means the person by whom the employee is (or, in a case where the employment has ceased, was) employed under a contract of employment, and for the purposes of this definition a civil servant of the State or of the Government shall be deemed to be employed by the State or the Government (as the case may be) and an officer or servant of a local authority within the meaning of the Local Government Act, 1941, or of a harbour authority, health board, vocational educational committee or committee of agriculture shall be deemed to be employed by the local authority, harbour authority, health board, vocational educational committee or committee of agriculture (as the case may be);".

This is the definition of employer which was sought. On Committee Stage the request was made that since we had a definition of employee we should also have a definition of employer and that is what is contained in this amendment.

Mr. G. Fitzgerald

There are 26 amendments for Report Stage by the Minister and many of them were inspired by my contribution on Committee Stage. I do not oppose this amendment because it was inspired by an amendment of mine on Committee Stage. This amendment seeks to rectify an obvious omission. No other Bill had so many amendments introduced on Committee and Report Stages than this and most of them were occasioned by the fact that the introduction of the legislation was inspired by political motives.

While the need for the Bill was obvious, more preparation and more time was obviously needed to prepare a Bill that would produce the desired result. This definition of "employer" in the amendment is necessary. It describes the employer as must be done in legislation of this nature. I accept the amendment.

Amendment agreed to.

An Ceann Comhairle

Amendments Nos. 2 and 3 are related. Therefore, I suggest that both amendments be taken together.

Mr. M. O'Leary

I move amendment No. 2:

In page 4, line 28, to delete "where a person of one sex" and substitute "where because of his sex or marital status a person".

This refers to the definition of "discrimination" and to the fact that we wanted to include in section 2 (c) discrimination on grounds of marital status.

Mr. G. Fitzgerald

I have no objection to the amendment as it obviously makes the situation clear from a sex and marital status point of view. With such an amendment it appears that somewhere along the line there is a fall-out regarding the Anti-Discrimination (Pay) Bill which means that the double elimination which this amendment suggests has not been implemented in the 1974 legislation. At that time the Minister said that he was introducing further legislation to bolster this. The Minister was referring to the Bill now before the House. At that time our spokesman Deputy Dowling referred to the fact that any legislation which needed such support was in itself bad legislation and that the correct procedure would be to ensure that each piece of legislation could stand by itself. We all know how the back-tracking occured in the 1974 legislation. It does not say a lot for the Minister's complete commitment to this type of legislation. I have no objection to these amendments.

Amendment agreed to.

Mr. M. O'Leary

I move amendment No. 3:

In page 4, line 33, after "sex" to insert "or (as the case may be) of a different marital status but of the same sex".

Amendment agreed to.

Mr. M. O'Leary

I move amendment No. 4:

In page 4, line 37, after "opposed" to insert "by lawful means".

Deputy Fitzgerald suggested that in page 4 line 37 after "opposed" we should insert "by lawful means" and this amendment meets that suggestion.

Mr. G. Fizgerald

I thank the Minister for considering this amendment. It was desirable and it proves the necessity for scrutiny by the Opposition of a Bill. Undoubtedly, the Minister realised the need for this amendment when we brought it to his attention. On Committee Stage the Minister said that he was not convinced by my argument in relation to this amendment but that he would have a look at it. The Minister has now looked at it and has decided to include the amendment. The fact that there is an Opposition committed to the principles of the Bill which is basically designed to give equal opportunity of promotion to women tends to improve the final legislation. The other House of the Oireachtas will probably debate some of the sections and amendments to this Bill in great detail also. I agree with the amendment entirely.

Amendment agreed to.

Mr. M. O'Leary

I move amendment No. 5:

In page 5, to delete lines 40 to 44, and substitute the following:

"(6) Without prejudice to the generality of subsection (1), a person shall be taken to contravene that subsection if he discriminates against an employee in the way he offers or affords that employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access or if in those circumstances he refuses or deliberately omits to offer or afford that employee access to opportunities for promotion.".

We had a lengthy discussion on Committee Stage about the provision on promotion. It will be recalled that I was concerned to ensure that equal opportunity in promotion be covered in the Bill. I believe this amended provision meets that objective as well as some of the objections that were voiced on the original section. Under the amended provision, if the process under which promotion is made, that is the arrangements for selection, are shown to be discriminatory, a disappointed woman applicant would have means of redress. The employer would have to prove that he did not deliberately omit to afford a woman the same opportunities for promotion as were afforded to a man if she was as eligible and as qualified as he was. Equal access to opportunities for promotion would cover areas such as the application of discriminatory rules in relation to promotion, seniority, selection criteria or job assessment or appraisal schemes.

Mr. G. Fitzgerald

This amendment created much controversy on Committee Stage. I had submitted an amendment that the original subsection (6) be deleted. I was disappointed when we discussed the Bill at a later stage that the Minister had not seen the sense in the point I was making. It was not that I wanted the subsection deleted. In the form that it was in the Bill at that stage it was absolutely impracticable. Many of my colleagues pointed out the defects in that original subsection. Those defects meant that it was unworkable because a ridiculous situation could arise where if there were only two opportunities and six people were equally qualified despite the fact that there were only two promotion opportunities the employer concerned would commit an offence by failing to promote six qualified people. Despite the fact that we spent some time on it and the Minister was inclined to charge me with taking the real content out of the Bill, if that subsection were removed. The pleas and the reasons for them have been appreciated at last. The amendment has tidied up the situation and has made it specific. The ridiculous charge I maintained could have resulted under the original section cannot arise now. The amendment reads:

In page 5, to delete lines 40 to 44, and substitute the following:

"(6) Without prejudice to the generality of subsection (1), a person shall be taken to contravene that subsection if he discriminates against an employee in the way he offers or affords that employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access or if in those circumstances he refuses or deliberately omits to offer or afford that employee access to opportunities for promotion."

That conveys what I believe should be in the Bill and what the Minister originally intended to have in the Bill. It does not create the stupid position which arose under the original subsection which read:

(6) Without prejudice to the generality of subsection (1), a person shall be taken to discriminate against an employee if he refuses or deliberately omits to promote that employee to a post for which the employee is qualified in circumstances in which other persons equally qualified are promoted.

We spent some time on this subsection. Column 848 of the Official Report of 31st March reads:

The Minister has had a full week to look at this matter, discussion of which ended in a rather unmannerly fashion on the last occasion. I need hardly stress that the bad manners did not emanate from this side of the House. If the Minister refuses to comply with our request to amend the subsection let it be on his head that we are sowing the seeds of disruption in industrial and commercial concerns.

That is what we would have been doing. The quotation continues:

However, I am still hoping that the Minister will meet us on this point in order that this Bill, like the two previous ones, may make a contribution towards better industrial relations.

I thought the Minister should have introduced an amendment at that stage. However, he has now introduced a new subsection which guarantees equal opportunity and improves the section. The subsection is now a practical one. It can be implemented and it is understandable. A lot depends on it and, in its original form, it was not realistic. I am glad that later on we will be discussing changing the title of the Bill. I do not like the word "anti".

I charge the Minister with using legislation for political ends. As we all remember, this Bill was introduced hurriedly prior to the Mayo by-election of 1975. My recollection is that its First Reading was in October of that year. We have had many amendments since for which the Minister and his staff are to be thanked. The Bill, as passed in Committee, which we are discussing today bears very little, if any, relation to the Bill as introduced other than that the principle and intent are the same.

An Ceann Comhairle

The generality of the Bill does not arise now. We are dealing with a specific amendment.

Mr. G. Fitzgerald

I am sorry if I strayed a little from the subject matter of subsection (6). I accept amendment No. 5.

Amendment agreed to.

Mr. M. O'Leary

I move amendment No. 6:

In page 6, lines 48, 49 and 50, to delete "any service" in each line and substitute "any of its services" in each line.

The point was made that "any service" was too vague and we are inserting "any of its services" to make the intent clearer.

Mr. G. Fitzgerald

I want to claim credit for having highlighted the difficulties presented to employment agencies in the original section 7. I asked for the omission of subsection (1) (b). I thought there was a necessity for a refinement here—"in the terms on which it offers to provide any of its services" has a completely different meaning from, "in the terms on which it offers to provide any service". Paragraph (b) reads: "by refusing or omitting to provide any service". That was very wide and far-reaching. Possibly it could have meant that the agency should provide unlawful services—"by refusing or omiting to provide any of its services" has an entirely different meaning and makes things easier for employment agencies and yet contains them within the restraints of the Bill.

In its original form the Bill could have had the effect of putting employment agencies out of business. The National Manpower Service and private employment agencies should get all the assistance and encouragement possible. I welcome the amendment. It changes the nature of how agencies could be alleged to have discriminated. An individual running an agency has the right to decide that he will provide only a service of a particular nature, let it be clerical, manual or managerial. It may be a small agency with expertise in one field and not in another and the owner might want to contain his business to a certain size and specialise in a particular area. That can be done with this amendment and for that reason I accept the amendment.

Amendment agreed to.

An Ceann Comhairle

I observe that amendments Nos. 7, 8 and 9 are related and I suggest that we debate them together.

Mr. M. O'Leary

I move amendment No. 7:

In page 6, after line 53, to insert the following:

"(3) Subsection (1) does not apply where the service concerns only employment which an employer could lawfully refuse to offer to the person concerned."

This amendment provides that the subsection does not apply to occupations which are excepted. Amendment No. 8 protects an agency against liability if it acts on false statements by an employer. It is important that an agency should not find itself in conflict with the law arising from a misleading statement by an employer who seeks the services of an agency. The purpose of amendment No. 9 is to put a penalty on an employer who misleads an agency by making a false statement which could result in the agency discriminating and thus getting itself into trouble.

Mr. G. Fitzgerald

These amendments are welcome. They give a certain amount of latitude to an agency which may have been taking the rap or which was the victim or the target of a charge and perhaps was saving the employer who was guilty of an offence. It also gives a certain amount of latitude. I said on Committee Stage that it was very difficult for an employment agency to distinguish between selection and discrimination. They must be allowed the freedom necessary for these powers of selection otherwise the employers will dispense with the services of these agencies because they are too tightly controlled and genuine selection will not be available. An agency will not be free to produce an application list in case a charge of discrimination could be brought. These amendments do allow a certain amount of latitude and they go part of the way to easing the burden.

Amendment No. 7 provides that subsection (1) does not apply where the service concerns only employment which an employer could lawfully refuse to offer to the person concerned. Amendment No. 8 is also an improvement. It relieves the employment agency of some of the responsibility which could be attributed to it and it prevents the terms of the Bill from being circumvented.

The amendments are accepted. As it read on Committee Stage this was one of the more objectionable sections. I welcome this improvement and hope that the contributions from this side of the House have helped the Minister to introduce these amendments which will no doubt be of assistance to employment agencies in continuing their business. Very substantial problems could be raised even for the National Manpower Service. It would be under control because of being a Government agency and people might tend to abuse it in order to find ways and means around the Bill. There are other points one could make but the important factor is the extra latitude.

Amendment agreed to.

Mr. M. O'Leary

I move amendment No. 8:

In page 6, after line 53, to insert the following:

"(4) An employment agency shall not be under any liability under this section if it proves—

(a) that it acted in reliance on a statement made to it by the employee concerned to the effect that, by reason of the operation of subsection (3), its action would not be lawful, and

(b) that it was reasonable for it to rely on the statement."

Amendment agreed to.

Mr. M. O'Leary

I move amendment No. 9:

In page 6, after line 53, to insert the following:

"(5) An employer, who, with a view to obtaining the services of an employment agency, knowingly makes a statement such as is referred to in subsection (4) (a) and which in a material respect is false or misleading shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £200.".

Amendment agreed to.

An Ceann Comhairle

Amendments Nos. 10, 16, 17 and 22 are related and may be discussed together.

Mr. M. O'Leary

I move amendment No. 10:

In page 7, to delete lines 18 and 19, and substitute the following:

"(9) A person shall not procure or attempt to procure another person to do in relation to employment anything which constitutes discrimination.".

Some fears were expressed that the term "procure or counsel" might lend itself to excessively wide interpretation. Therefore, we have replaced the phrase "procure or counsel" by the term "procure or attempt to procure".

Mr. G. Fitzgerald

I want to claim a certain amount of credit for that improvement. On Committee Stage this was section 8 of the Bill; it is now section 9. Taking amendment No. 10, on which the others hang, the new form of section 9 is far more desirable and seems to aim at the right people. The original section was very far reaching.

I will quote from my Committee Stage speech on this section:

I am concerned about the wide interpretation of section 8. The section states that a person shall not procure or counsel another person to do anything which constitutes discrimination. That is very wide; it embraces anybody. If you, a Leas-Cheann Comhairle, in West Limerick or I in Mid-Cork held a "clinic" and in a moment of forgetfulness untentionally gave some wrong counsel or advice to someone as a result of which they commited an offence under this Bill, would it be possible that you or I could be brought before the tribunal here on a charge? There could be a very wide interpretation of this.

The new section is a substantial improvement. Section 9 now states:

A person shall not procure or attempt to procure another person to do in relation to employment anything which constitutes discrimination.

This is a definite improvement and we accept the dependent amendments in their entirely.

Amendment agreed to.

An Ceann Comhairle

Amendments Nos. 11 and 23 are cognate and may be discussed together.

Mr. M. O'Leary

I move amendment No. 11:

In page 8, lines 7 and 8, to delete "Commission" in both cases and substitute "Commissioners" in both cases.

This is a drafting change recommended by the legal advisers. The effect is to delete "Commission" in each case and substitute "Commissioners". This is in line with the necessary statutes.

Mr. G. Fitzgerald

We have no objection to the amendment but it falls very far short of what I had hoped. This refers to the employments excluded from the application of the Act. We have discussed at length the Defence Forces, the Garda Síochána and the Prison Service and also the Civil Service Commission and the Local Appointments Commission. Quite honestly, I am not pushed whether it be "Commission" or "Commissioners" but it does appear that we are setting up special concessions for the commission or the commissioners which will not apply to other people. It may well appear that the public service are doing an excellent job, that there is no discrimination within the public service and that no appointments or promotions should come within the terms of this Bill. One must remember that the Local Appointments Commission covers a very wide field—the local authorities and the health boards and any position within those bodies.

One would of course assume that this would be an exemplary body, a headline setting body. At the same time it is also desirable that these commissions or bodies would be open to the same investigation, that an opportunity be afforded those people who would be interviewed by them and not appointed to complain if they feel they have been discriminated against. Remember it is in recent times only, due to the tenacity, ability, ambition and determination of women themselves, that they have succeeded in breaking through to some local authority posts, where appointments are made by the Local Appointments Commission. More power to them; congratulations and well done. However, I see no justification for differentiating here between such a body and a private interview board, whether it be an employment agency or an employer.

We had looked forward to amendments in the public service generally, in the case of the Garda Síochána and the prison service, to bring them within the scope of the Bill. Such amendments have not been forthcoming. I want to express my party's disappointment that the Minister has not seen his way to extending the Bill to cover those groups of people. There is no reason why it should not have been done. Bad as that is, and it is most disappointing, it is more disappointing to realise that this Bill as it goes to the Seanad—and I am sure Senators will have many comments to make on it—carries this section 12 excluding from application of the Act the Local Appointments Commission or the Civil Service Commission. According to the amendment we will be calling them commissioners; whether it be commission or commissioners it matters little. What is important is that they have not been included. For instance, if a county engineer was being appointed in Cork or any other county, if a woman was equally qualified but was unsuccessful at the interview, and if she felt she had been discriminated against because of her sex, she has no right to bring her case to the equality agency, as she would had she gone, for example, to a building contractor or public works contractor and been unsuccessful there. That is a glaring defect of this Bill I do not understand.

I should like the Minister to explain very clearly to the House why he has seen fit still to exclude in particular the Local Appointments Commission, but also the Civil Service Commission, because the comments I have made apply to both. The local Appointments Commission is more widespread. Indeed a Deputy from this side of the House asked a question recently whether any chief agricultural officer of the female sex had ever been interviewed. Strangely enough, soon after that question, one was appointed. I congratulate that woman who has, by her own ambition, determination and qualifications, broken through what had been a male confine. Perhaps the Minister would explain why he has excluded these interview boards and has not examined further the inclusion of the Garda Síochána and the prison service.

Mr. M. O'Leary

We had this discussion on Committee Stage. I indicated that I would prefer there were no exclusions under this Bill. We have already covered the security aspects of this in reference to the Garda Síochána and prison service, so I will not go into that argument, and the reasons for their exclusion. But to offer a defence for the exclusions referred to in this Bill I would say this. We must remember that the work of these commissions is accountable, the selections made by them and the appointments which arise from their work of selection. The appointments are made formally by the Minister but they, in a very real sense, effect the appointments, since there are no precedents known to me where there has been a discrepancy between decisions of selection and appointment. Each of these commissions operates under statute, under which it was set up. The commission body are answerable, through the appropriate Minister, to Dáil Éireann. Therefore, it is not a group on whose work we cannot cast judgment, we can. They have been and are accountable under their statutes to this House. All commissions operating in this area are expected to comply with the provisions of the legislation by not discriminating in the selection process. It is important to bear in mind that both bodies of commissioners referred to here are independent and completely separate from the Government Department whose Minister's function, if he makes the actual appointment, is purely a formal one. I would stress that for our purposes here the actual appointment by the Minister comes within the scope of the Bill, not only that but a civil servant or a local authority employee can seek redress under its provisions on every aspect of his or her employment.

One of the main objectives of the establishment of the commissions excluded here was to ensure that candidates be treated fairly. I do not think anybody contests the impartiality of the commissions in the performance of their functions. It has been and is understood as part of the commissioners' duties that they must ensure impartiality and that part of that impartiality is that they would seek to eliminate any kind of discrimination, including that on grounds of sex. We must understand that, as distinct from the private employer area, the people taking part in the selection process under these commissions act in an honorary capacity. They are groups of civil servants and professional people who come together for the purpose purely of selection at a given time. They are in a totally different position from the direct employment connection that exists in the private area. These people are acting under statute under the commissions in question. There is accountability to the Dáil on the effect of what they do finally. Therefore, there is a very legitimate defence that can be entertained here for the exclusion of the work of these commissions in the selection process, though, I would emphasise that the result of their work comes within the scope of the Bill.

It is interesting to note that in anticipation of this legislation the grade of clerical assistant is open to boys and girls in the 1977 competition. Always, I am informed, the commissioners have taken steps to ensure that membership of their interview boards would not be confined to one sex. That initiative of theirs was taken long before there was any reference in Europe to the question of equality between the sexes. In particular, where there are female candidates for posts which had traditionally been regarded as more appropriate for men, every effort has been made to ensure that women would be on the interviewing boards in question.

These are valid arguments that can be advanced for the exclusion of the selection process and procedure of the commission in this case. Personally I would prefer to see them included, but these arguments were advanced for their exclusion and any fair-minded examination of them will accept that there is a strong case to be made for excluding them. The personnel taking part in this process are part-time or are acting in a honorary capacity to ensure impartiality. They are accountable to this House for their work, a position that does not obtain in relation to employment elsewhere in the country. For these reasons a case can be made for their exclusion.

Mr. G. Fitzgerald

The Minister has made a strong case for including them and I would ask him to look at the matter again between now and when the Bill will be sent to the Seanad.

Mr. M. O'Leary

The Deputy knows that when a piece of legislation is before the House I do not adopt a position of righteousness on each provision. All Stages of a Bill should be an exercise for constructive interplay between suggestions and the defence of a particular provision. It was not necessary for the Deputy to make that request because I continue to keep an open mind about every section. However, I do not think it will be possible to get any other changes, although I will continue to look at the matter. There are valid arguments on either side. Personally my preference would have been to have it included but, as the Deputy knows, we live in an imperfect world.

Mr. G. Fitzgerald

The Minister is the boss, at least for another few weeks. We will support him if he takes the Bill to the Seanad and provides for the inclusion.

Mr. M. O'Leary

If the Deputy is fair he will agree that a great deal has been accomplished in this measure. Even if there are some shortcomings in the Bill from the Deputy's point of view or even from my point of view in relation to certain provisions, I do not think they should obscure the main advances signalled in the Bill.

Mr. G. Fitzgerald

We should not spoil the ship for a ha'porth of tar. There is one glaring omission that is quite unnecessary.

Mr. M. O'Leary

The major contribution is the establishment of the Equality Employment Agency. That will be the significant thing during the years in the area of introducing sex equality in Ireland.

Mr. G. Fitzgerald

I agree with that, but the Minister should do as we request. I accept that the Local Appointments Commission and the Civil Service Commission are fair and impartial bodies but we should not be seen to be legislating for them in a special way as distinct from the ordinary people. Let the legislation apply to them and give a person an opportunity to see redress if that is needed.

Amendment agreed to.

Mr. M. O'Leary

I move amendment No. 12:

In page 8, to delete lines 9 to 17, and substitute the following:

"13.—Nothing in this Act shall require an employer—

(a) to employ in a position a person who will not undertake the duties attached to that position or who will not accept the conditions under which those duties are performed, or

(b) to retain in his employment a person not undertaking the duties attached to the position held by that person.".

The purpose of this amendment is to ensure that, while there would not be interference with the right of the employer to engage or retain in employment a person who does not undertake to do what is involved in the job, the intention is to prevent an unscrupulous employer from introducing a new element which was not an integral part of the job as accepted and which might make it impossible for a woman to remain on the job.

Mr. G. Fitzgerald

I have no objection to the amendment. It is an improvement on the original section. However, the amendment is not far-reaching and it is more specific than what was originally intended.

Mr. M. O'Leary

If a woman is let go for not carrying out an additional duty which she considered to be outside the range of tasks normally attached to such a job, she will have the option of seeking redress not only under this Bill, where the Labour Court has the central enforcement role, but she will also have that right under the Unfair Dismissals Act her passed some weeks ago. If she proceeds under the Unfair Dicmissals Act her case will be dealt with either by the rights commissioner or by the employment appeals tribunal. I want to indicate to the Deputy that she would have that right.

Amendment agreed to.

Mr. M. O'Leary

I move amendment No. 13:

In page 8, between lines 44 and 45, to insert the following:

"16.—Nothing in this Act shall make it unlawful for an employer to arrange for or provide special treatment to women in connection with pregnancy or childbirth.".

This provides that, if an employer chooses to give a woman special treatment in circumstances of pregnancy by giving her time off during working hours, by allowing her to attend a clinic, to leave work early or by giving her lighter work, he will not be open to a charge of discrimination.

Mr. G. Fitzgerald

This provision must be welcomed. At least one Deputy from this side referred to it during Committee Stage. I support the amendment.

Amendment agreed to.

Mr. M. O'Leary

I move amendment No. 14:

In page 9, between lines 21 and 22, to insert the following:

"(f) where it is necessary that the post should be held by a member of a particular sex because it is likely to involve the performance of duties outside the State in a place where the laws or customs are such that the duties can only be performed by a member of that sex.".

This amendment adds another category to the excepted posts where sex is an occupational qualification. The point was made on Committee Stage that, increasingly, jobs are being taken up abroad in countries where the customs are discriminatory. We wish to avoid the position whereby an Irish employer having such employees abroad could be penalised under this legislation. The number of women becoming engineers and geologists is on the increase and more Irish firms are taking contracts in Middle East countries whose cultures are, as yet, very hostile to the idea of equality between the sexes.

Mr. G. Fitzgerald

I welcome the fact that the Minister has seen the necessity for an amendment of this nature. One of our amendments on Committee Stage gave rise to this; I think it was amendment No. 31a. This could present difficulties even for some of our State bodies as well as the contractors the Minister mentioned.

I am not entirely happy with the wording of the amendment and I would ask the Minister to have it examined before the Bill is sent to the Seanad. The amendment refers to "a place where the laws or customs are such that the duties can only be performed . . . ". I am not so sure that the problem is confined to the laws and customs of a country outside this State. I know something about the construction business and its tough nature. As the Minister said, an increasing number of women are engineers and many are working at various levels in the building and construction industry. In fact, a few of them are very successful managers and managing directors of very successful building companies in the country. I feel that a very different situation exists regarding contracts in the Middle East or Far East where not only may there be a problem of laws and customs but there could be very practical problems as well. This may be covered in some of the other sections of the Bill. The Minister may need to have this examined between now and the time he brings it to the Seanad.

There could be a practical reason why it would be impossible or undesirable from a woman's viewpoint to be engaged in one of those contracts. Other problems may arise. Our State bodies are doing some of those contracts abroad. They may be in an even more embarrassing situation at times than the other contractors. I believe this area needs a little more attention. I said on Committee Stage that I had been approached in regard to this amendment. I said that people believe, not only the ESB but public contractors, that this could present real problems for women. I believe they may like to mix the sexes. I accept the amendment but I believe some further broadening other than the laws and customs of the countries where the work is carried out, is necessary.

Amendment agreed to.

An Leas-Cheann Comhairle

Amendment No. 16 is consequential on amendment No. 19 so, by agreement, they may be discussed together.

Mr. M. O'Leary

I move amendment No. 15:

In page 9, line 26, to delete "A dispute" and substitute "Subject to sections 25, 26 (1) and 26 (2), a dispute".

This is a consequential amendment arising from the insertion of a new section 26 which provides two remedies for discriminatory dismissals dealt with under section 3 (4) and which would bring these in line with remedies provided for retaliatory dismissals.

Amendment agreed to.

Mr. M. O'Leary

I move amendment No. 16:

In page 10, to delete lines 5 and 6, and substitute the following:

"(c) that a person has procured or attempted to procure another person to do anything in relation to employment which constitutes discrimination, or".

Amendment agreed to.

Mr. M. O'Leary

I move amendment No. 17:

In page 10, lines 51 and 52, to delete "or counselled another person to discriminate" and substitute "or attempted to procure another person to do in relation to employment anything which constitutes discrimination".

Amendment agreed to.

Mr. M. O'Leary

I move amendment No. 18:

In page 13, line 25, after "appeal" to insert "or, where there is an appeal under subsection (1) (e), within two months of the date of the order of the High Court on the appeal".

This is purely a drafting amendment. In the case of a retaliatory dismissal a person must carry out an order of the Labour Court within two months. The purpose of this amendment is to provide for an elapse of two months before a person who has already appealed to the High Court against such an order on a point of law can be prosecuted for non-compliance with the Labour Court order. It will be seen that it is necessary in a drafting sense to have it.

Amendment agreed to.

Mr. M. O'Leary

I move amendment No. 19:

In page 14, between lines 11 and 12, to insert the following:

"26.—(1) A dispute as to whether or not there has been a contravention of section 3 (4) in relation to the dismissal of a person may be referred to the Court by that person.

(2) Where a dispute is referred under this section to the Court, section 25 shall apply to the dispute as if it were a complaint under that section.

(3) A person who accepts in respect of a particular dismissal redress awarded under section 9 or 10 of the Act of 1974 or under section 7 of the Unfair Dismissals Act, 1977, shall not be entitled to accept redress awarded under this Act in respect of that dismissal, and a person who accepts in respect of a particular dismissal redress awarded under this Act shall not be entitled to accept redress awarded under section 9 or 10 of the Act of 1974 or under section 7 of the Unfair Dismissals Act, 1977, in respect of that dismissal.".

Amendment agreed to.

An Leas-Cheann Comhairle

Amendments Nos. 20 and 21 are cognate and I suggest that they be taken together.

Mr. M. O'Leary

I move amendment No. 20:

In page 14, line 53, after "occurred" to insert ", but not in any case more than 104 weeks' remuneration".

I mentioned on Committee Stage that it was my intention that redress for dismissal under this Bill and the Equal Pay Act should be in line with a similar provision under the Unfair Dismissals Act. One of the options for redress in the case of dismissal is that the Labour Court and the court of law may order compensation or damages subject to a limit of 104 weeks for remuneration at the rate the person was receiving at the date of the dismissal. These amendments provide for this limit in the case of compensation which may be awarded by a court of law where a dismissal case is referred to it either, in the first instance, under section 9 of the Equal Pay Act, or under section 10 of that Act, where a prosecution case is referred to it because of non-compliance with the Labour Court order.

Mr. G. Fitzgerald

There is no objection to this amendment. The 104 weeks is more or less set as a standard as a maximum and I have no objection to either of those amendments.

Amendment agreed to.

Mr. M. O'Leary

I move amendment No. 21:

In page 15, line 37, after "occurred" to insert ", but not in any case more than 104 weeks' remuneration".

Amendment agreed to.

Mr. M. O'Leary

I move amendment No. 22:

In page 16, line 1, to delete "discrimination, counselling, procuring," and substitute "discrimination, procuring or attempting to procure".

Amendment agreed to.

Mr. M. O'Leary

I move amendment No. 23:

In page 17, lines 18 and 19, to delete "Commission" in each case and substitute "Commissioners" in each case.

Amendment agreed to.

Mr. M. O'Leary

I move amendment No. 24:

In page 21, between lines 13 and 14, to insert the following:

"(2) (a) The Minister may by regulations provide that a particular provision (or particular provisions) of this Act specified in the regulations shall not apply to an appointment to which this subsection applies.

(b) This subsection applies to an appointment to an office or position specified in the regulations and made or to be made before the expiry of the period of six months from the commencement of this section consequent on a selection by the Local Appointments Commissioners or the Civil Service Commissioners.".

This amendment is to give me power to make regulations to exclude panels for appointments from the scope of the Act for six months. We had this problem on Committee Stage. It concerns the situation where competitions have already been held and appointments stand to be made from the panels of successful competitors determined on order of merit when the Bill becomes law. Obviously we cannot go back over those now. It is practically necessary in view of those who have been successful that it should apply.

Mr. G. Fitzgerald

In other words, we are referring to existing panels, in the civil service mainly, which would be applying probably for a number of months yet.

Mr. M. O'Leary

Yes. The competitions have been held and the appointments have been made from the successful panels of competitors who in most cases have been informed but have not yet taken up duty.

Mr. G. Fitzgerald

If we had this Bill introduced in time we would not have been concerned with this year's panels and this six months saver would have applied to last year. This year's panels would have been wide open and it would not have been necessary to have this section applied to this year's panel lists.

Amendment agreed to.

An Leas-Cheann Comhairle

Amendment No. 26 is consequential on amendment No. 25 so, by agreement, they may be discussed together.

Mr. M. O'Leary

I move amendment No. 25:

In page 21, lines 22 and 23, to delete "the Anti-Discrimination (Employment) Act, 1977" and substitute "the Employment Equality Act, 1977".

I indicated earlier that I was giving consideration to the renaming of the Bill. I believe the name proposed here "The Employment Equality Act, 1977" is more relevant to the contents of the Bill than the original title. The renaming of the agency also follows. It will be Employment Equality Agency.

Mr. G. Fitzgerald

I welcome this amendment. My Committee Stage amendment suggested calling the Bill "Equal Opportunities Employment Act, 1977". I knew the Minister would not accept that word for word and I am quite happy with his new name for this Bill. Since I assumed the role of spokesman for my party on the Department of Labour I have consistently made the point that I did not agree with the word "anti-discrimination". I did not feel at any stage that "anti-discrimination" should have been used in any of the Bills brought before the House. I am glad that the Minister has now seen, not only in this Bill but in some of the others as well, that a positive title to a Bill appears more progressive than talking about anti-something, whether it is anti-discrimination or anything else. The Minister should not introduce a Bill with such a title. Perhaps he thought there were political kudos to be gained by introducing a Bill with such a title, but I advised him to amend the name of the Bill. The Minister seeks to substitute "Employment Equality Act, 1977" for the "Anti-Discrimination (Employment) Act, 1977." The latter was introduced in 1975 but did not reach Second Stage until the latter part of 1976 and it is being put through Report Stage on the eve of a general election.

I agree with the amendment. The tragedy is that the Minister ever called one of these Bills an anti-discrimination measure. It was not a proper title and did not give the impression that the Minister or the Government were looking positively at this matter. To me "anti" denotes a negative approach. Such legislation should have a positive title to it. I have consistently looked for changes in the titles of Bills introduced here and I am glad that the Minister has agreed with the suggestion I made on this and other pieces of legislation.

Amendment agreed to.

Mr. M. O'Leary

I move amendment No. 26:

In page 21, to delate lines 24 to 26, and substitute the following:

"(2) The Act of 1974 and this Act shall be construed together as one Act".

Mr. G. Fitzgerald

Will the Title of the 1974 Act still remain the same?

Mr. M. O'Leary

Yes.

Mr. G. Fitzgerald

Would the Minister agree to amend that?

Mr. M. O'Leary

It will now be called the Employment Equality Act, 1977.

Mr. G. Fitzgerald

Would the Minister investigate the possibility of renaming the 1974 Act between now and the Seanad debate on the Bill?

Mr. M. O'Leary

Is the Deputy talking about the Anti-Discrimination (Employment) Act?

Mr. G. Fitzgerald

Yes.

Mr. M. O'Leary

I would be inclined to agree with the Deputy and I will have a look at the matter.

Amendment agreed to.

Bill, as amended, received for final consideration.

Mr. M. O'Leary

I move: "That the Bill do now pass."

Mr. G. Fitzgerald

There was agreement on this Bill regarding the provision of equal opportunity of employment for women in our society. Such legislation has been supported by my party and we were committed to it from the time the Commission on the Status of Women issued their recommendations. Women have achieved a lot in our society and many organisations have contributed a great deal by highlighting areas of discrimination. They deserve to be complimented on this. The women in our society who reached the top of their profession through their own ability, ambition, determination and dedication to the task are also deserving of our compliments. Attitudes were the main obstacle we had to this progress for a long time, but they are breaking down. I agree that the establishing of the equality agency is of great importance, but what an ideal situation it would be if that agency never had to be used. That is an ideal we might never reach in this life because, human failings and frailities being what they are, I expect there will be either an alleged breach or a breach brought before the agency.

Many functions have been given to the equality agency and I regard that as a major step forward. I do not agree with its composition because the Minister has power to appoint too many. A colleague this morning expressed similar reservations about ministerial powers in the appointment of an agency in another Department. He said that because of the performance of the Government in the making of appointments we must, of necessity, suspect the political affiliations of the people appointed to any agency. If the equality agency is to be successful it must be seen not to discriminate in any way, not only on grounds of sex but on political grounds also. If it is seen that the agency carries with it a certain political flavour, that will be the first nail in its coffin as far as efficiency is concerned. The Minister will have to accept the blame for that. The Minister must see to it that the appointments are impartial and are based on suitability and experience in the organisations that have done so much for women, particularly in the field of employment.

I realise the Minister agrees with me on the issue I raised in relation to the Civil Service Commission and the Local Appointments Commission. Certain credit must be given to the Minister for the Bill but it could go a lot further if an equal opportunity of investigation of an allegation, wrong though it may be, was given. The public must see that they have in certain cases access if they suspect discrimination. I appeal to the Minister to see to it that this facility is given to people and have included under the terms of the Bill the members of the Civil Service Commission or the Local Appointments Commission.

I have never heard of a case of unfair appointment that could be substantiated against those august bodies. That does not mean that there should not be the same facility for investigation of their activities as is available for assessing the operation of private interview boards. That is an omission. It is also disappointing that the Garda Síochána and the prison service especially have been excluded from the terms of the Bill. The point was made very strongly by Deputy Geoghegan-Quinn that the Garda Síochána could be and were excluded. I leave her to deal with that aspect.

I hope that we have contributed something to equal opportunity in promotion and access to employment for women. Again I say that all this legislation has come together as a package. We have had some very interesting Committee Stages in this House, Committee Stages that have undoubtedly, as has again been proved this morning, improved the content of the Bills before us. This can be seen from the Report Stage amendments to this Bill.

I am still concerned as I have said many times, about the small employer who does not and would not deliberately set out to commit an offence under this or any other legislation. Because he is small he is probably doing his own books, or perhaps his wife or one of his family is doing them part-time for him. He or she may not be up-to-date on legislation of this nature. The point I would like to make on this is that the equality agency, particularly in the early stages, would act probably in an advisory capacity to this type of employer. I am not so concerned about the bigger company or industry that would have personnel sections or personnel managers to look after legislation such as this. The Minister should encourage the equality agency to act in an advisory capacity, particularly to the small business.

No Bill in this House has ever changed so much from its introduction to its Final Stage as has this Bill. The First Stage was introduced in October, 1975, for political purposes prior to the Mayo by-election. It lay on a shelf somewhere until the real content of the Bill was promised almost a year later on Second Stage when the obvious omission of an equality agency or an agency of that nature was seen. That omission was made good on Committee Stage. The whole proceedings have taken a long time. We would have taken less time and done less changing and there would not be such a different Bill from the original if a little more time had been allowed for its preparation. Any Minister, no matter what Government or Department he represents, has a duty to the people not to introduce legislation for party political or narrow political motives, but rather for the common good. The only worry I have is that while now the Bill is for the common good and originally it may well have been intended to introduce it for the common good, the rush about its introduction was influenced very strongly by the timing of the West Mayo by-election.

Mrs. Geoghegan-Quinn

There is tremendous significance in the fact that the Minister has seen fit to complete the Bill and bring it to this Final Stage in the Dáil, particularly when we remember that from the introduction of the Bill in October, 1975, the main reason for its expedition had been political. That is very wrong in any legislation that comes before the House. The Minister may smile about it but it is a fact that on the eve of a general election it is particularly significant that the Minister would be anxious to woo the votes of the women of the country——

Mr. M. O'Leary

That is rather unfortunate terminology.

Mrs. Geoghegan-Quinn

——particularly in his own constituency, and the votes of women who may be influenced by their various organisations who have done such tremendous work down the years and in particular since this Bill was introduced. The expedition with which this Bill has been dealt has been due largely to pressure put on the Minister by the various women's organisations.

There are exclusions in the Bill, and if we are serious about getting rid of discrimination of all kinds ideally there should be no exceptions. I will refer in particular, as my colleague, Deputy Fitzgerald, has already done to the prison service and the Garda Síochána. The Minister will remember that on Committee Stage we urged that the Garda Síochána and the prison service should be included. The female members of the Garda Síochána cannot be categorised and therefore cannot be asked to perform a certain type of job within the force. They are entitled and are supposed to be able to cope with all situations. The Minister mentioned on Committee Stage that they could not be expected to cope with a riot situation. In the past we have seen that they have done so and were asked to do so just as any member of the Garda Síochána should and must do. Therefore, these exceptions should and must, if at all possible, be eradicated before the Bill leaves the Seanad. I hope the Minister was serious today when he said that he would have another look at these two exceptions in particular.

I said on Committee Stage that once again in the anti-discrimination Bills before this House the public sector have been left out to a considerable extent and that they have been given loopholes where may be, as the Minister said, they may not discriminate. However, I feel they should have been included in the Bill. We all know the scandalous situation which resulted in the public sector after the Equal Pay Bill where the Minister tried to omit the discrimination and in fact created a further discrimination by bringing in the marital status. The public sector should set an example for all employers throughout the country. If the Minister feels that he must shield or protect them in some way through the medium of this Bill this is wrong. I urge him to have another look at this before it goes to the Seanad.

It was interesting to hear the Minister's claim this morning that the most important part of this Bill was the inception of the equality agency. This was not included at the beginning when the Bill was introduced and when the Fianna Fáil speakers had continuously called for the setting up of an equality agency. There would be no redress if this agency had not been set up. It is tragic that so many of the appointments to the equality agency have been left in the hands of the Minister. As my colleague has already stated, we know what has happened in the semi-State bodies throughout the country and the type of appointments that have been made. To any of us who are serious about cutting out discrimination, political discrimination is the worst type that can be carried out by any Government. There was much talk by the Minister and his colleagues when they were in Opposition about the type of jobs for the boys provided by the Fianna Fáil Government. Beyond a shadow of a doubt there was nothing of any significance then compared with what is being done by this Government. It would be a sad reflection on this Bill if such appointments were made now to the equality agency.

I urge the Minister to have a look at the various points we have made regarding the shielding of the public sector, the exceptions of the prison service and the Garda Síochána which should be included. Again, regarding the Minister's appointments to the equality agency, I urge that the criteria for this should be that they be the best people possible, that there should, if possible, be representation from both sexes and that most definitely appointments to this equality agency should not be made, as they have been made by the present Government, because of political bias or favour.

Mr. Coogan

In fairness to the Minister there is no sign of any discrimination in regard to his secretariat. We note that all his advisers today are of the fair sex.

Mr. G. Fitzgerald

Are we on the Bill?

Mr. M. O'Leary

Those advisers who are with me today are on the staff of the equality section of the Department. They have been advising me during the course of this legislation. As Deputy Coogan points out, in this case all are women.

Reference has been made to the overall significance of this piece of legislation. The Bill is significant because it addresses the question of the most basic inequality between men and women in our society; that is, the difference that exists between the kinds of jobs open to men and women. Women take the lowliest jobs. The remedy for this sad situation lies in the improvement of the education and training that is provided for women before they enter employment. This Bill seeks to remedy the imbalance in job opportunities. I have said always that it is the status of women's jobs which more than anything else determines their place in the economy and, ultimately, their place in society. It would be my hope that this legislation would provide women with equal opportunity with men to realise their full potential and employment in respect of job training, job promotions and working conditions. The most significant aspect of this Bill will be the establishment of the employment equality agency. That will be an independent agency, a governing body, staffed by people for the purpose of carrying out its functions. My hope for that agency is that it will be a significant force in achieving equality for women in the years ahead.

Deputies opposite refer to the Bill being introduced for political reasons. Obviously, all such measures coming before the House are the result of my political convictions. I believe in them for political reasons. There is nothing to be ashamed of in that.

Mr. G. Fitzgerald

Are they not brought forward in the interest of the common good?

Mr. M. O'Leary

As a member of the Labour Party every piece of legislation in the area of equality carried my political convictions. That should not astonish anyone.

Mr. J. Gibbons

Nothing would astonish us anymore.

Mr. M. O'Leary

Perhaps what surprises Deputies opposite is that for them politics and expediency are interchangeable terms.

Mr. J. Gibbons

Is not the Minister a Coalition politician?

Mr. M. O'Leary

Allowing for the normal exaggerations that one would expect from Opposition spokesmen in dealing with legislation, Deputy Fitzgerald has scrutinised diligently the various sections of this Bill and of other Bills with which he has been concerned. I have not agreed with him in all instances but it is all part of the exchanges that take place here. This is the eighth Bill in the area of labour reform to be introduced here in recent years. There remains only the Safety, Health and Welfare Bill. As yet, there has been no agreement between the Whips as to when the summer recess will take place.

Mr. G. Fitzgerald

The Minister is joking.

Mr. M. O'Leary

But I would be anxious to get the Second Stage of that Bill into the House as quickly as possible. I look forward to the same diligent scrutiny on that Bill from Deputy Fitzgerald as we had from him in relation to the other legislation in this area.

Mr. G. Fitzgerald

It will be our task to take that immediately after the election. The fact that it has not been introduced so far will make it all the easier for us to deal with.

Question put and agreed to.