Vol. 455 No. 4
9 Dr. Woods asked the Minister for Equality and Law Reform if he has considered the equality implications of the practice whereby employers of large numbers of predominantly female staff have introduced zero hour contracts for their employees; and the implications, if any, this may have for equal pay and equal working conditions for women workers. [12205/95]
My understanding is that this type of employment is one of a number of forms of atypical employment involving predominantly female workers and that it has been raised as an issue in the context of working time arrangements which are primarily the concern of my colleague the Minister for Enterprise and Employment. I am informed that legislation is currently being prepared in the Department of Enterprise and Employment which will implement the EU Directive on Working Time and that in the context of framing that legislation, detailed consideration is being given to the possible need for legal provision to cover zero hour contracts.
I should also mention however, that any worker employed under this type of contract would have access to the redress procedures of the Anti-Discrimination (Pay) Act, 1974 and the Employment Equality Act, 1977 in the same way as have all workers. Case law developments, particularly those arising from judgments of the European Court of Justice have assisted atypical workers in pursuing claims of indirect discrimination.
I am satisfied that if difficulties relating to discrimination on equal pay or equal treatment are brought forward in respect of workers in this area the employment equality machinery as operated by the equality officers of the Labour Relations Commission and the Labour Court will be able to deal with such problems. In addition of course employers, workers or their unions may seek the advice of the Employment Equality Agency in respect of equality concerns which may arise in respect of any aspect of this form of employment.
Is the Minister aware that the Bilka Kaufhaus case decided by the European Court of Justice in 1986, which related to part-time workers, predominantly women, and their pensions, set a precedent in this respect? Would he agree that zero hour contracts, which relate principally to part-time workers, who are mostly women, should not be permitted to continue? The Minister has referred to the necessity for a possible legal provision. I had intended to ask whether he has any legislative plans to prevent this practice continuing which clearly discriminates against women. What immediate action can he take to clearly demonstrate that this is an unacceptable development in working hour arrangements?
There are two aspects to this matter. The first is that there is a European Union Directive on Working Time which will cover aspects of the practice described by Deputy Woods. That falls within the ambit of the Department of Enterprise and Employment. That Department has informed me it is at present preparing legislation to implement that directive, which will have a major bearing on the position overall. It may well be that indirect discrimination could arise where a preponderance of workers is of one sex. It would be open to any worker who feels they have been a victim of indirect discrimination on those grounds — provided the relevant European Union directive on existing case law has been complied with — to ascertain whether they would have a claim based on the facts of their case. I am sure the unions representing workers have expert advice available in that area. The Employment Equality Agency is also available to advise workers of their rights and will investigate the circumstances of any particular case. The equality officers of the Labour Relations Commission and the Labour Court have jurisdiction under existing legislation to deal with indirect discrimination claims and any worker who feels aggrieved should make inquiries about the position based on the facts of their case.
I am glad legislation is being prepared in this area. It should be brought forward as a matter of considerable urgency. I appreciate the need for flexibility among employers — if they are to be competitive they must be flexible. The marketplace demands flexibility, which can be achieved in a variety of ways but not in a way that discriminates against women who very often need to work part-time. Women who make that choice should receive support. Zero hour contracts affected social security up to a few years ago but that problem was solved by basing the assessment on money rather than hours. A similar problem arises in this regard and I am glad action is to be taken to overcome it. I ask the Minister to press ahead with that action as a matter of urgency.
The Department of Enterprise and Employment is preparing the legislation and it has confirmed the position to me. It is well established in the European Court of Justice and national case law that less favourable treatment of atypical work such as part-time employment may constitute indirect discrimination. According to EU law such treatment would amount of indirect discrimination if it affects a much greater proportion of persons of one sex than the other and — this is the key point — it cannot be shown to be based on objectively justified factors which are unrelated to discrimination based on sex. Provided criteria of that type are met, the possibility of a claim exists, even under existing legislation, and may be examined in any case.
Will the European Commission proposal on reversing the burden of proof in equal treatment cases be taken on board and, if so, will it be implemented through legislation or by way of an EC Directive?
Sin ceist eile. The question of implementation does not arise because such a directive has not yet been adopted. The matter we are dealing with here relates to the EU directive on working time which comes within the ambit of the Department of Enterprise and Employment. That Department is in the course of preparing legislation to implement the directive. Ireland supports the introduction of a directive on the subject referred to by Deputy Keogh but that has not yet been achievable.
The Minister spoke earlier about leading the way, which is what we should do in regard to the burden of proof. Perhaps we should introduce legislation in this regard without specifically waiting for a directive.
The issue of burden of proof does not arise on this question.
