Amendment No. 1 is in the name of Deputy Keogh. Amendment No. 2 is an alternative and I propose that we discuss the two amendments together. Is that agreed? Agreed.
Employment Equality Bill, 1996: Report Stage.
I move amendment No. 1:
In page 8, to delete lines 24 to 39 and substitute the following:
"'disability' means the impact on an individual of a duly recognised physical, sensory, psychological or mental impairment which affects or substantially reduces their prospects of securing, retaining and advancing in employment; and 'physical, sensory, psychological or mental impairment' means—
(a) the total or partial loss of a person's bodily or mental functions, including the loss of a part of a person's body, or
(b) the presence in the body of organisms causing or likely to cause chronic disease or illness, or
(c) the malfunction, malformation or disfigurement of a part of a person's body, or
(d) a condition or malfunction which results in a person learning differently from a person without the condition, or
(e) a condition, illness or disease which affects a person's thought process, perception of reality, emotions or judgment or which results in disturbed behaviour,
and shall be taken to include an impairment which presently exists, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;".
I congratulate Deputy McDaid on his promotion to the Fianna Fáil Front Bench and wish him well as his party's spokesman on equality and law reform.
This amendment deals with the definition of "disability" in the Bill. We debated this in detail on Committee Stage but unfortunately the Minister was adamant that his definition of "disability" was the correct one. He also stated that the Disability Federation of Ireland had communicated to him that it was happy with his definition. However, I pointed out that many people working in the area of disability had indicated their extreme displeasure at his definition. They regard the Bill as a proactive mechanism for people with a disability and believe that it should be more enabling legislation. The Minister disagrees with their interpretation. I hope that does not mean there is disagreement among different organisations working in the area of disability. Will the Minister again consider this amendment and indicate his intention in respect of the equal status legislation? What definition does the Minister regard as appropriate for a disability Act, which I understand he favours? If such a definition were different, what effect would it have on this legislation? The Minister must have regard to the fact that many people working in the area of disability do not want as narrow a definition as that contained in the Bill. They want people with disabilities to be afforded a greater degree of protection and do not regard the medical type definition as appropriate. Will the Minister give his views on that?
We will hear Deputy McDaid and the Minister can reply to the views expressed by both Deputies.
I thank Deputy Keogh and the Minister for their expressions of goodwill, and all my colleagues who have telephoned and written to me in the past weeks. In particular, I thank my predecessor, Deputy Woods, who spent long hours over the weekend facilitating me in respect of this complex legislation.
These amendments define the word "disability" more clearly. There is a list of meanings for the word in the Bill covering a number of areas but we are more concerned about the effect of such a definition on people with disabilities. We received a number of representations regarding this definition, although I am aware the Disability Federation of Ireland is satisfied with it. If such a body agrees with the Minister on the definition, we must accept that. Fianna Fáil is firmly committed to the elimination of inequality for people with disabilities. However, will the Minister indicate the problem with the definition put forward at the ILO convention, namely, that a person with a disability is an individual whose prospects of securing, retaining and advancing in employment are substantially reduced as a result of a duly recognised physical, sensory, psychological or mental impairment? Other definitions were also proposed but we believe the medical definition in the Bill is restrictive. Will the Minister agree to qualify the definition of "disability" in the Bill by accepting these amendments having regard to their impact on people with disabilities? Am I entitled to speak again on this amendment?
Yes, there is provision for a brief intervention lasting not more than two minutes.
I join in public with Deputy Keogh in extending my good wishes to Deputy McDaid on his appointment as Front Bench spokesperson for his party on equality and law reform; I already extended my congratulations to him privately. I wish him the very best in this important position and assure him of my co-operation at all times. I join him in paying tribute to his predecessor, Deputy Woods, with whom I had a good working and constructive relationship over the past years. I know that relationship will continue with Deputy McDaid.
In response to an extensive discussion on Committee Stage on the definition of "disability" I indicated I would be willing to review the definition if it could be shown that some category of person was left unprotected by my definition. No such case has been made. Having reviewed the matter further, I am satisfied it is appropriate to retain the approach in the Bill which focuses on ensuring a wide scope of protection against such discrimination. Deputy McDaid is correct in pointing out that other possible definitions have been proposed by the ILO and others, but careful examination of those definitions show they would cut out a section of people from the protection of the Bill I wish to give them.
The definition advocated by Deputy Keogh requires, for example, that it be a duly recognised physical, sensory, psychological or mental impairment. That alone could be a subject of medical debate as to whether the particular impairment was duly recognised. Representation has been made that the definition in the Bill should not be medically based but should have a type of descriptive social base. That kind of description is acceptable for social reports and external documents, but the purpose of the Bill is to give protection to the entire range of people who require it. I had meetings with the Disability Federation of Ireland which initially advocated the same type of definition proposed here, but when I explained that the definitions it advocated would cut out some people from the protection of the Bill, it accepted that position and recognised that my definition was more advantageous.
As I explained on Committee Stage and repeat now for Deputy McDaid, there is one basis on which I would accept criticism of the definition and that is if it could be shown to me that any category of people who should have protection is left out of my definition. I have invited all and sundry to put that position to me but nobody has done so. Looking at the other definitions, especially that proposed by the ILO, I am satisfied that people whom I intend to protect would be cut out. My definition is widely cast and medically based but one must bear in mind that we are not dealing with a social report. We are dealing with legislation and the intention is to give the protection of this important Bill to the widest possible spectrum. I believe I have achieved that.
While I accept the Minister has genuinely endeavoured to make this definition all-encompassing, he did not refer to people's fears about future legislation on disability. I have expressed the genuine concerns of people with disability and their organisations about the medical definition included in the legislation. While I accept the Minister will not agree to the original definition agreed between ICTU and IBEC, will he at least accept the genuine fears about the implications of this definition for future legislation?
The Minister is doing everything possible to ensure that all disabled persons are protected under the legislation, but is it not true that 80 per cent of people with disability are unemployed? Is that because they are categorised as disabled? TB is now a curable disease and while those who suffered from it in the past are recognised as disabled, that should not prevent them from securing employment. Why are so many disabled persons unemployed?
The Deputy is correct in stating that an unacceptably high number of people with disabilities are unemployed. One of the purposes of this legislation is to try to remedy that position by making it unlawful to discriminate against people on the grounds that they have a disability. The case of a person who suffered from TB in the past is covered at line 37, page eight of the Bill where it states:
...and shall be taken to include a disability which presently exists, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;
I expect the employment position of people with disabilities to improve substantially as a result of this Bill.
While we are all trying to achieve the same objective, I hope the Minister recognises the concerns we expressed and takes cognisance of them in future legislation on disability.
I will do that.
Amendment, by leave, withdrawn.
Amendments Nos. 2 and 3 not moved.
Amendment No. 5 is an alternative to amendment No. 4 and No. 6 is related. Therefore, we will take amendments Nos. 4, 5 and 6 together. Is that agreed? Agreed.
I move amendment No. 4:
In page 10, between lines 5 and 6, to insert the following:
"'sexual orientation' means heterosexual, homosexual or bisexual orientation;".
Following the Committee Stage discussion on this issue and the agreed amendment to section 16(4) dealing with unlawful sexual behaviour, I reviewed the question of whether to provide a definition of "sexual orientation" in the Bill. In drawing up this definition I reflected on the constructive contributions of Deputies on Committee Stage. I am satisfied this concise definition will enhance the legislation and I trust Members will reconsider the proposals for related amendments in the circumstances.
Question put and agreed to.
Amendment No. 5 not moved.
I move amendment No. 6:
In page 12, line 22, after "are" to insert "or are believed to be".
I am happy to accept the Minister's amendment. He has gone a long way towards recognising the difficulties that could arise if those definitions were not included in the legislation. I am pleased he accepted the arguments put forward on Committee Stage and amended the legislation accordingly.
In amendment No. 6 I propose that discrimination against a person who is believed to be of a different sexual orientation should be as unacceptable as discrimination against a person who has declared that he or she is of a different sexual orientation. While the Minister said it would be impossible to prove this, such discrimination should also be outlawed. Why can the Minister not provide for this in the legislation?
Deputy Keogh's proposal for an amendment to extend protection under the Bill to persons who may be subject to discrimination because they are believed to be of a different sexual orientation may not be entirely practicable. While such a concept has exceptionally been adopted in the area of disability, I am reluctant to apply it generally across all other areas given the difficulties to which it could give rise in case law and the marginal benefit that might ensue.
The point is that a marginal benefit might ensue. The Minister should afford as much protection as possible to people in this legislation. As he has tried to do this in other areas, irrespective of case law, I fail to see why he cannot extend protection in this area.
Amendment put and declared lost.
Acting Chairman
Amendment No. 20 is related to amendment No. 7 and both may be taken together. Is that agreed? Agreed.
I move amendment No. 7:
In page 12, line 23, after "ground')" to insert "save that this ground shall not apply where a person admits to being a paedophile or where a person has a conviction for an offence involving the sexual abuse of a person under the age of 18, in work situations which involve access to or control of, minors".
The purpose of this amendment is to rectify an omission from this part of the Bill, which covers discrimination on grounds of sexual orientation. The Bill does not cover situations where a person admits to being a paedophile or has a conviction for an offence involving the sexual abuse of a person under the age of 18 years in work situations which involve access to or control of minors. There has been much publicity surrounding this area and the Minister should accept the amendment.
I have accepted the spirit of the Deputy's amendment because the House has just agreed to an amended definition of sexual orientation. Amendment No. 4 defines "sexual orientation" to mean "heterosexual, homosexual or bisexual orientation". This excludes paedophilia. In the circumstances, it does not appear necessary to explicitly make a provision qualifying the definition of the sexual orientation ground in this way. The use of a definition of sexual orientation and the clear exclusion in section 16(4) of protection from discrimination based on sexual behaviour which is unlawful would appear to adequately cover the concerns raised by this amendment. While the amendment may perhaps have had force before the amendment to the definition of sexual orientation to which the House has just agreed, it is now unnecessary.
Is the word "paedophile" used in the new definition? The purpose of my amendment is to isolate this class of people. The public is concerned that they may be included. More clarification is required because of the number of cases of paedophilia that appear virtually on a weekly basis. The amendment to which the Minister referred must make it clear that paedophiles are to be excluded.
I would have preferred to discuss this within the context of section 16. Amendment No. 20 in my name states:
In page 19, to delete all words from and including "of the" in line 39 down to and including line 42 and substitute the following:
"or information from a health board or a member of an Garda Síochána, that the individual engages in, or has a propensity to engage in, any form of sexual behaviour which is prohibited by law.".
If the objective of that section is to combat paedophilia it should do so in conformity with other legislation, such as the Child Care Act, or the guidelines issued by the Department of Health.
I said on Committee Stage that the terms of the section are sweeping and leave it open to challenge. For example, the term "reliable information" could damage the intent, which is the welfare of children. The section could also be construed as encompassing non-criminal sexual behaviour and personal relationships of adult women and men. It, therefore, detracts from the intent of protecting minors from the criminal and predatory actions of paedophiles.
We must be concise in this matter. I am not convinced that the definition put forward by the Minister in the form of an amendment covers the issue as well as it might.
Will the Minister consider the amendment in the name of Deputy McDaid? We must send signals about paedophilia from this House. The effect of the Deputy's amendment would make it clear that it would not be covered by the Bill. I know the Minister intends the same result, but it should be specifically stated in all relevant legislation that paedophilia is a heinous crime which must be eliminated. The defence in not accepting the amendment, to the effect that a clause elsewhere deals with unlawful sexual acts, is not a strong argument.
Would acceptance of this amendment damage the Bill or undermine the effect of its provisions in this regard? It would not undermine the purpose of the section. I would be more convinced by the argument, which has not been made, that the amendment would undermine the Bill than that it is unnecessary. The amendment is necessary because legislators must make it clear that no legislation is intended to protect paedophiles. This is the purpose of the amendment and it should be accepted in that spirit.
We are all agreed on the objective here. The position is well covered. The amended definition of sexual orientation states: ..."`sexual orientation' means heterosexual, homosexual or bisexual orientation;". The amendment in the name of Deputy McDaid would add to this: "save that this ground shall not apply where a person admits to being a paedophile...". Paedophilia is not encompassed by this definition.
It could conceivably be argued that paedophilia is a form of sexual orientation if the words "sexual orientation" were undefined, but they are not undefined. Amendment No. 4 has defined "sexual orientation" as meaning specifically "heterosexual, homosexual or bisexual orientation". This is covered by the amended section 16(4) which states:
Nothing in this Act shall be construed as requiring an employer to recruit, retain in employment or promote an individual if the employer is aware, on the basis of a criminal conviction of the individual or other reliable information, that the individual engages, or has a propensity to engage, in any form of sexual behaviour which is unlawful.
Paedophilia is unlawful.
That is if the employer is aware.
It is if the employer is aware on the basis of reliable information or a conviction. One cannot refuse to employ a person just on a whim. One could abandon the Act if that was allowed.
I accept that.
I phrased it on the basis of a criminal conviction or other reliable information. Deputy Keogh's amendment would weaken the provision. Concerns were raised on Committee Stage about the use of the words "reliable information". I considered the matter and in view of the grave need to protect vulnerable groups from sexual abuse, section 16(4) as it stands must be retained. I am satisfied that resort to the expression "reliable information" in this context would not involve reliance on unsubstantiated rumour and would be information of an authoritative nature.
However, I do not wish to limit such information, as Deputy Keogh's amendment proposes, solely to information furnished by Garda or health authorities. Reliable information could be furnished that a person is a paedophile by sources other than Garda or health authorities. I wish to allow an intending employer to take notice of that other reliable information even if it does not come from Garda or health authorities. Protection for a person in the case of the employment of a paedophile is covered in the definition and section 4, which excludes any activity which is unlawful. The amendment would not add anything to it. It would cause confusion by seeking to introduce by way of clarification of the definition of sexual orientation included in amendment No. 4 something which is not and could not be encompassed by the definition in the first place.
I am willing to accept amendment No. 4 but the issue would be fully covered if my amendments Nos. 5 and 20, which are linked, were accepted. The Minister said less protection would be afforded by amendment No. 20 but there would be full coverage if it and amendment No. 5 were accepted. The points in relation to paedophilia were well made and it would be no harm to specifically include that aspect in the Bill. I do not fully accept the Minister's arguments in that regard and I support Deputy McDaid's amendment.
I accept the Minister's legal background and his interpretation that this matter is covered. However, from the perspective of sending a specific message about paedophilia, I intend to press the amendment. I agree heterosexuality, homosexuality and bisexuality are covered but this issue is open to interpretation in the courts. A specific provision on paedophilia should be included because that would send the proper message.
Amendment put.
The Dáil divided: Tá, 54; Níl, 71.
Tá
- Ahern, Bertie.
- Ahern, Dermot.
- Ahern, Michael.
- Ahern, Noel.
- Aylward, Liam.
- Brennan, Matt.
- Brennan, Séamus.
- Browne, John (Wexford).
- Burke, Raphael.
- Byrne, Hugh.
- Callely, Ivor.
- Clohessy, Peadar.
- Coughlan, Mary.
- Cowen, Brian.
- Cullen, Martin.
- de Valera, Síle.
- Dempsey, Noel.
- Doherty, Seán.
- Ellis, John.
- Fitzgerald, Liam.
- Flood, Chris.
- Foley, Denis.
- Gregory, Tony.
- Harney, Mary.
- Haughey, Seán.
- Jacob, Joe.
- Keaveney, Cecilia.
- Kenneally, Brendan.
- Keogh, Helen.
- Killeen, Tony.
- Kirk, Séamus.
- Kitt, Michael.
- Lenihan, Brian.
- Martin, Micheál.
- McCreevy, Charlie.
- McDaid, James.
- Moffatt, Tom.
- Molloy, Robert.
- Morley, P. J.
- Moynihan, Donal.
- Nolan, M. J.
- Ó Cuív, Éamon.
- O'Donnell, Liz.
- O'Donoghue, John.
- O'Hanlon, Rory.
- O'Keeffe, Ned.
- Power, Seán.
- Quill, Máirín.
- Smith, Brendan.
- Smith, Michael.
- Treacy, Noel.
- Wallace, Dan.
- Walsh, Joe.
- Woods, Michael.
Níl
- Ahearn, Theresa.
- Allen, Bernard.
- Barrett, Seán.
- Barry, Peter.
- Bell, Michael.
- Bhamjee, Moosajee.
- Bhreathnach, Niamh.
- Boylan, Andrew.
- Bradford, Paul.
- Bree, Declan.
- Broughan, Thomas.
- Browne, John (Carlow-Kilkenny).
- Bruton, Richard.
- Burton, Joan.
- Byrne, Eric.
- Carey, Donal.
- Connaughton, Paul.
- Connor, John.
- Costello, Joe.
- Coveney, Hugh.
- Crawford, Seymour.
- Crowley, Frank.
- Currie, Austin.
- De Rossa, Proinsias.
- Deasy, Austin.
- Deenihan, Jimmy.
- Doyle, Avril.
- Durkan, Bernard.
- Ferris, Michael.
- Finucane, Michael.
- Fitzgerald, Brian.
- Fitzgerald, Eithne.
- Fitzgerald, Frances.
- Flaherty, Mary.
- Flanagan, Charles.
- Gallagher, Pat (Laoighis-Offaly).
- Gilmore, Eamon.
- Harte, Paddy.
- Higgins, Jim.
- Hogan, Philip.
- Kavanagh, Liam.
- Kenny, Enda.
- Kenny, Seán.
- Lowry, Michael.
- Lynch, Kathleen.
- McCormack, Pádraic.
- McDowell, Derek.
- McGahon, Brendan.
- McGinley, Dinny.
- McGrath, Paul.
- McManus, Liz.
- Moynihan-Cronin, Breeda.
- Mulvihill, John.
- Nealon, Ted.
- Noonan, Michael (Limerick East).
- O'Keeffe, Jim.
- O'Shea, Brian.
- Pattison, Séamus.
- Quinn, Ruairí.
- Ring, Michael.
- Ryan, John.
- Ryan, Seán.
- Sheehan, P.J.
- Shortall, Róisín.
- Spring, Dick.
- Stagg, Emmet.
- Taylor, Mervyn.
- Timmins, Godfrey.
- Upton, Pat.
- Walsh, Éamon.
- Yates, Ivan.
Tellers: Tá, Deputies D. Ahern and Callely; Níl, Deputies J. Higgins and B. Fitzgerald.
Amendment declared lost.
I move amendment No. 8:
In page 12, between lines 35 and 36, to insert the following:
"(j) that one believes himself or herself to be of a gender other than that specified in his or her birth certificate and the other believes himself or herself to be of the gender so specified (`the transsexuality ground');".
This amendment deals with transsexuality. When the Minister amended the definitions in amendment No. 4 why did he not include this aspect? That might have been helpful. On Committee Stage the Minister referred to advice on the interpretation of the European Court of Justice judgment and said there was no need for this amendment. Perhaps when he brings the Bill to the other House he might consider including this within amendment No. 4.
As I explained on Committee Stage, there is no need for this provision as the Bill already provides protection for this group. The European Court of Justice found that such discrimination is based essentially if not exclusively on the sex of the person concerned. They, accordingly, ruled that Council Directive 76/207 precluded the dismissal of a transsexual for a reason related to a gender reassignment. In the circumstances, I ask Deputy Keogh to withdraw her amendment.
Even though I am not pressing the amendment, sometimes there seems to be a reluctance to include matters in a Bill that, at least, will not detract from it and might be a welcome provision for a minority. We are talking here about a small minority but it would be useful to acknowledge them specifically within the Bill rather than say they are encompassed generally by it.
Amendment, by leave, withdrawn.
I move amendment No. 9:
In page 12, between lines 35 and 36, to insert the following:
"(k) that one has a particular political opinion or belief and the other does not ('the political opinion ground');".
This amendment refers to discrimination for the purposes of the Act. There should be general acceptance that we can express a political opinion or belief without fear of any oppression or suppression. It is a fundamental right and is supported by international human rights conventions and instruments. In other jurisdictions there has been criticism when this is absent. If this was in the Bill we would be able to ratify the ILO Convention on Non-Discrimination; Ireland, Luxembourg and the UK have not ratified that convention and this would be of assistance. On Committee Stage the Minister said there were nine grounds already provided for and we could not have everything in the Bill but this is fundamental. With the circumstances in Northern Ireland we should be sending out a signal in the way we view the expression of political opinion.
Is amendment No. 9 being taken with amendment No. 10?
Then that is an oversight on our part but I will speak on both in unison. I support Deputy Keogh. Everybody has political opinions, there is no reason people should not have them and we should not believe that our civil servants do not have political opinions. The great majority of Irish people have political opinions which they express. We should not deny them the right to express those political opinions openly. It is foolish to think we are doing so by the manner in which we are acting at present. There are grounds for Deputy Keogh's amendment to be accepted and I am anxious to hear the Minister's response, bearing in mind the huge numbers of people to whom this amendment pertains.
An amendment similar to amendment No. 9 was discussed on Committee Stage. As I stated then, a proposal to add new discriminatory grounds to the nine grounds already provided for in the Bill cannot but be an attractive one to any Minister for Equality and Law Reform. Amendments Nos. 9 and 10 identify political opinion and trade union membership as two of a range of further options available to me. There could be very many more but I have achieved progress on this difficult Bill because its scope, although quite broad, has remained focused. That focus has been to give effect to the Government's commitment to enact legislation which would outlaw discrimination on the grounds of sex, marital status, family status, sexual orientation, religious belief, age, disability, race and membership of the travelling community. There are many other grounds which could be considered but they will be matters for another time.
In bringing forward this legislation, the Government has covered a very broad spectrum and is providing anti-discrimination protection to a wide range of groups who have had no protection since the foundation of the State. I do not claim that the list is exhaustive but we are making great strides in providing protection for these categories, most of which have had no protection until now. Other grounds can be considered on another occasion. With regret I oppose the amendment.
I am disappointed. I realise there is wide scope within the Bill and referred to it earlier. However, if the Northern Ireland Fair Employment Act includes political belief we should try to have the same protections within our law. The Minister should address this.
Political opinion and membership of political parties should be actively considered by most people and, unfortunately, it is not. It is extremely important to get young people involved politically and we should nurture this, but when someone can be discriminated against because of their political beliefs, that makes it more difficult. We should remove barriers and encompass as many matters as we can within the scope of this Bill. Many people would consider the political ground when thinking of an employment equality Bill. Ours is a very politically aware nation and many people have vociferous political views. Because of particular circumstances such as the troubles in Northern Ireland there is great sensitivity about this issue. Will the Minister reconsider this? It would make sound sense to have this included in the Bill.
On a number of occasions people have told me that because they are in a specific position or a particular job they are not able to join a political party until they retire. That is not right. Discrimination on political grounds is antiquated. As Deputy Keogh said the Minister should include this and try to make the Bill as broad as possible. This is a specific area which the Minister can and should include.
Amendment put and declared lost.
I move amendment No. 10:
In page 12, between lines 35 and 36, to insert the following:
"(1) that one is a member of a trade union and the other is not (`the trade union membership ground')."
Will we have any more joy on this amendment than we had on the last one?
I am afraid not.
In the interests of time, it is not necessary to have a vote on this. Many people recall a time when there was total discrimination in regard to membership of a trade union and if anybody even attempted to join one in some industries they were fired. We have come a long way since then and there are protections in labour law. We should include membership of a trade union in the protections of this Bill because it is specific to employment and it makes sense to include it. On Committee Stage, the Minister did not want to take this on board and he used the argument that we are extending the remit of this Bill and are making it even broader. So what? That is what we should do. The purpose of putting down amendments is to try to improve the Bill as much as possible. The Minister has a pecking order of nine grounds and says that political opinion or belief and membership of a trade union do not come as high in the pecking order as other grounds. That is not the way I look on it. We should examine those issues under which people can be and have been discriminated against. In the past membership of a trade union has been the cause of discrimination and has prevented people from being employed. There are people who have a known record in fighting for the rights of other members in a particular industry. When they go to seek a job in another company they do not even get an interview. It is difficult for people to prove that but were it within the compass of the Bill, employers would think long and hard about discriminating against such people.
As with amendment No. 9, this amendment seeks to extend the scope of the Bill. While amendment No. 9 seeks to add political opinion as a new discriminatory ground, this amendment seeks to add trade union membership. For the reasons I outlined in regard to amendment No. 9, I regret I must also oppose this amendment.
Amendment put and declared lost.
I move amendment No. 11:
In page 12, line 38, to delete "18" and substitute "16".
This is a self-explanatory amendment. Many of our children leave school at 16 and become unemployed.
Deputy McDaid's amendment seeks to lower the age threshold of 18 in respect of which age discrimination in employment applies under the Bill. His colleague, Deputy Woods, asked me on Committee Stage to consider this matter further. I have done so and I am satisfied that given the lower age threshold of 16 which applies in respect of all other grounds of discrimination in the Bill and in view of the application of this lower age threshold for protection against discrimination as regards vocational training, 16 to 18 year olds enjoy wide cover in this legislation. My resistance to moving the threshold in respect of age discrimination in employment continues to relate to the unique and special protection already afforded to employees under 18 in the Protection of Young Persons (Employment) Act, 1996, and the need to accommodate transition from school to work for such young people, notwithstanding the special obligations on employers under the 1996 Act. I am unable to accept the amendment.
The National Youth Council of Ireland has canvassed public representatives regarding this issue. It does not feel the Bill adequately covers 16 to 18 year olds. In their interests I will press this amendment as they are not adequately covered.
The Minister should take that point on board. If there is a feeling among the people affected that there is not adequate provision within this Bill, perhaps the Minister will reexamine the amendment.
Question put, "That the figure proposed to be deleted stand."
The Dáil divided: Tá, 69; Níl, 52.
Tá
- Ahearn, Theresa.
- Barrett, Seán.
- Barry, Peter.
- Bell, Michael.
- Bhamjee, Moosajee.
- Bhreathnach, Niamh.
- Boylan, Andrew.
- Bradford, Paul.
- Bree, Declan.
- Broughan, Thomas.
- Browne, John (Carlow-Kilkenny).
- Bruton, Richard.
- Burton, Joan.
- Byrne, Eric.
- Carey, Donal.
- Connaughton, Paul.
- Connor, John.
- Costello, Joe.
- Coveney, Hugh.
- Crawford, Seymour.
- Crowley, Frank.
- Currie, Austin.
- De Rossa, Proinsias.
- Deasy, Austin.
- Deenihan, Jimmy.
- Mulvihill, John.
- Nealon, Ted.
- Noonan, Michael
- (Limerick East).
- O'Keeffe, Jim.
- O'Shea, Brian.
- Pattison, Seamus.
- Quinn, Ruairí.
- Rabbitte, Pat.
- Ring, Michael.
- Doyle, Avril.
- Durkan, Bernard.
- Ferris, Michael.
- Finucane, Michael.
- Fitzgerald, Brian.
- Fitzgerald, Eithne.
- Fitzgerald, Frances.
- Flaherty, Mary.
- Flanagan, Charles.
- Gallagher, Pat (Laoighis-Offaly).
- Gilmore, Eamon.
- Harte, Paddy.
- Higgins, Jim.
- Hogan, Philip.
- Kavanagh, Liam.
- Kemmy, Jim.
- Kenny, Seán.
- Lowry, Michael.
- Lynch, Kathleen.
- McCormack, Pádraic.
- McGahon, Brendan.
- McGinley, Dinny.
- McGrath, Paul.
- McManus, Liz.
- Moynihan-Cronin, Breeda.
- Ryan, John.
- Ryan, Seán.
- Sheehan, P. J.
- Shortall, Róisín.
- Stagg, Emmet.
- Taylor, Mervyn.
- Timmins, Godfrey.
- Upton, Pat.
- Walsh, Éamon.
- Yates, Ivan.
Níl
- Ahern, Bertie.
- Ahern, Dermot.
- Ahern, Michael.
- Ahern, Noel.
- Aylward, Liam.
- Brennan, Matt.
- Brennan, Séamus.
- Browne, John (Wexford).
- Burke, Raphael.
- Byrne, Hugh.
- Clohessy, Peadar.
- Coughlan, Mary.
- Cowen, Brian.
- Cullen, Martin.
- de Valera, Síle.
- Dempsey, Noel.
- Doherty, Seán.
- Ellis, John.
- Fitzgerald, Liam.
- Flood, Chris.
- Foley, Denis.
- Gregory, Tony.
- Haughey, Seán.
- Jacob, Joe.
- Keaveney, Cecilia.
- Kenneally, Brendan.
- Keogh, Helen.
- Killeen, Tony.
- Kirk, Séamus.
- Kitt, Michael.
- Lenihan, Brian.
- Martin, Micheál.
- McCreevy, Charlie.
- McDaid, James.
- Moffatt, Tom.
- Molloy, Robert.
- Morley, P. J.
- Moynihan, Donal.
- Nolan, M. J.
- Ó Cuív, Éamon.
- O'Donnell, Liz.
- O'Donoghue, John.
- O'Hanlon, Rory.
- O'Keeffe, Ned.
- Power, Seán.
- Quill, Máirín.
- Smith, Brendan.
- Smith, Michael.
- Treacy, Noel.
- Wallace, Dan.
- Walsh, Joe.
- Woods, Michael.
Tellers: Tá, Deputies J. Higgins and B. Fitzgerald; Níl, Deputies D. Ahern and L. Fitzgerald.
Question declared carried.
Amendment declared lost.
I move amendment No. 12:
In page 13, lines 2 and 3, to delete "is employed to do, another person shall be regarded as employed to do" and substitute "does, another person shall be regarded as doing".
The Minister said on Committee Stage that this was unnecessary and added nothing to the Bill. I will, therefore, withdraw the amendment.
Amendment, by leave, withdrawn.
, Carlow-Kilkenny): We come to amendment No. 13 in the name of Deputy Keogh. Amendment No. 14 is related. Amendments Nos. 13 and 14 can, therefore, be discussed together.
I move amendment No. 13:
In page 13, to delete lines 4 to 16, and substitute the following:
"(a) both perform or, if both were employed would perform, the same work under the same or similar conditions or each is, or if both were employed would be, interchangeable with the other in relation to the work; or
(b) the work performed by one is, or if both were employed would be, of a similar nature to that which is, or would be, performed by the other and any differences between the work which is, or would be performed, or the conditions under which it is, or would be performed, by each either are, or would be, of small importance in relation to the work as a whole or occur, or would occur, with such irregularity as not to be significant to the work as a whole; or
(c) the work which is performed by one is equal in value to the work which is or would be performed by the other, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions."
This is an extremely important amendment. The absence of what is described as a male comparator is a significant lacuna in the Bill. This amendment is designed to address that because women still earn substantially less than men. There is no debate about that; it is a fact. There is a high propensity at the moment to use women as cheap labour. We must, therefore, have a mechanism to ensure that all women can secure what would be the male rate for the job. Where there is employment of women only, employers seem to believe they can pay them a reduced rate for their work where men doing the same type of work would be paid substantially more. We must try to deal with that within the confines of this Bill.
It was the intention originally to have a hypothetical comparator. The Minister should agree to this because one of the key criticisms of this legislation is that it does not afford an opportunity to workers in segregated employment to achieve equal pay, and that is something that must be addressed. It has been suggested that we discuss the issue of low pay for certain types of work under labour legislation, but it is important in talking about employment equality that we make the case that women are now used as cheap labour and deal with that in this legislation. Were we to do so, we would be going a long way towards redressing an imbalance in society.
I did not claim that my amendment was perfect, but I did ask the Minister to examine it because we did not have before us any other example of how this might be dealt with. I have tried to frame a reasonable and workable amendment. I am happy that I have done that. In talking about increased numbers in employment, we have to be realistic about what type of employment it is. If people are in low-paid, dead-end jobs, and many of them are women, we should be asking why that is so. One of the reasons is that we do not allow for comparison with a hypothetical male.
This section of the Bill is extremely important. Up to now we have been dealing with sexual orientation. Here is a completely different area where we are dealing with women, the vast majority of whom are in low-paid employment. If they have to remain in that type of employment, at least they should get recognition for the work they are doing. My party leader has expressed his concern about this, because there is no way these women can compare themselves to men in a similar position. Many women work in jobs that are not normally done by males. In order to get around this, a number of other countries have adopted the concept of the notional comparator. As I said, I am interested to hear what the Minister will say about this.
Deputies will recall that the issue of a notional or hypothetical comparator was thoroughly debated on Committee Stage. The relevant amendments proposed by the Opposition were voted on and defeated. However sympathetic I am to the concept, I am satisfied that it has not been possible to come up with an appropriate and workable provision in this area.
As Deputies know, I sought to develop a workable model for a hypothetical comparator because means must be found to gradually dismantle the vertical and horizontal segregation of the labour market. The issues I set out to address when I considered this matter are complex and ingrained in the structure of the labour market. I examined this issue in considerable detail and I consulted widely, both the public service and IBEC and ICTU, on how it might apply. Unfortunately, it did not prove possible to develop a viable model for a hypothetical comparator that would achieve the intended results.
I remind the House that the Second Commission on the Status of Women also acknowledged problems with the hypothetical comparator approach and opted instead for a minimum wage approach to address the issue of low pay. Low pay is, of course, a separate matter from equal pay and is appropriate for attention in the context of existing industrial relations machinery through, for example, the employment regulations orders and registered employment agreements. It is not an issue for attention in this Bill which is an anti-discrimination, equal pay Bill.
As far as I know, Deputy McDaid is not correct in saying that workable models of this type have been achieved elsewhere. My information is that the hypothetical comparator arrangement is not in existence in any other European state. I understand that it was tried in the Netherlands for six to 12 months, where it was found to be unworkable or unsatisfactory and was discontinued. The distinction must be drawn between the position of low pay and equal pay. I agree with Deputies Keogh and McDaid that low pay is an issue which has to be addressed. However, that is a matter for another Minister and other legislation and not for this Bill.
The whole point is that the reason women get trapped in low paid jobs is that they are women. If there were a male comparator perhaps they could be lifted out of that. History teaches us that many employers have taken the view that the income of women employees represents a second family income or that they work for "pin money". Our social strata have changed but, unfortunately, this realisation does not seem to have hit home in many industries. That is why a male comparator is needed. If employers asked themselves what would be a living wage for their employees, they would come up with different answers for men and women. Employers choose to employ women because they know that many women are prepared, because of their financial circumstances, to take on any work for virtually any wage. That is the truth of the matter.
I accept that the issue of low pay should also be addressed in other places. However, we cannot separate these issues from this Employment Equality Bill. The Minister said, contrary to what Deputy McDaid said, that we do not have an example of this model. I am not yet on the Internet and I have not been able to examine all the information, but why can we not lead the way in this? Why are we waiting to see what everybody else has done? Could we not find some way to provide a comparator? Is the Minister prepared to try to do that? To a certain extent, he seems to have given up on it on the basis that it has not worked anywhere else. That is not how it should be approached. This is a very fundamental issue.
, Carlow-Kilkenny): I do not like to interrupt the Deputy but her second intervention cannot last longer than two minutes.
We should be able to find a way to do this.
I was referring to an Australian model which I read about when I was trying to address the complexities of this Bill over the weekend. I was not aware of the model in the Netherlands. Will the Minister give us some indication of what was tried in the Netherlands? As Deputy Keogh said, what is not applicable in another country might be applicable here.
I take the Minister's point in regard to the Second Commission on the Status of Women. If it has examined this area it will have gone into it in great detail. We must recognise the complexity of the issue because I am sure no other body would be more determined to have a provision such as this included in the Bill. As Deputy Keogh said, some employers employ women because they will get away with paying them a lower wage. Unfortunately, there are some women whose situation means they are available for such work.
As I said, I would like the Minister to comment on the experience in the Netherlands. I am unaware of what the Second Commission on the Status of Women said on this issue but I accept it is a complex one which I will not press until I have more information from the Minister and the commission.
We are not saying this is not complex — it is — but let us find a solution. Building on the work of the Second Commission on the Status of Women, the National Women's Council asked that this matter be re-examined. It is essential we find a solution to this issue because otherwise women will get stuck at the bottom level of society by dint of the fact they have no way out. The argument which should be made on their behalf cannot be made because there is no comparator.
I do not have information about the situation in the Australian state to which Deputy McDaid refers. If he locates further information about it I would be interested to see it. My understanding of the position in the Netherlands is that it had some kind of notional comparator in operation for a relatively short period but I do not know its exact structure. My information is that it was found to be unworkable and was discontinued after it was in force for a relatively short period.
The key point is that it was examined in detail by the Second Commission on the Status of Women, an expert body, who sat for a long time and had all the necessary expertise available to it. It recognised that the problem was low pay rather than equal pay and, consequently, there was no recommendation for a notional comparator in that report.
Question put: "That the words proposed to be deleted stand."
The Dáil divided: Tá, 68; Níl, 50.
Tá
- Ahearn, Theresa.
- Barrett, Seán.
- Barry, Peter.
- Bell, Michael.
- Bhamjee, Moosajee.
- Bhreathnach, Niamh.
- Boylan, Andrew.
- Bradford, Paul.
- Bree, Declan.
- Broughan, Thomas.
- Browne, John (Carlow-Kilkenny).
- Bruton, Richard.
- Burton, Joan.
- Byrne, Eric.
- Carey, Donal.
- Connaughton, Paul.
- Connor, John.
- Costello, Joe.
- Coveney, Hugh.
- Crawford, Seymour.
- Crowley, Frank.
- Currie, Austin.
- De Rossa, Proinsias.
- Deasy, Austin.
- Deenihan, Jimmy.
- Doyle, Avril.
- Durkan, Bernard.
- Ferris, Michael.
- Finucane, Michael.
- Rabbitte, Pat.
- Ring, Michael.
- Ryan, John.
- Ryan, Seán.
- Shortall, Róisín.
- Fitzgerald, Brian.
- Fitzgerald, Eithne.
- Fitzgerald, Frances.
- Flaherty, Mary.
- Flanagan, Charles.
- Gallagher, Pat.
- Gilmore, Eamon.
- Harte, Paddy.
- Higgins, Jim.
- Higgins, Michael.
- Hogan, Philip.
- Kavanagh, Liam.
- Kemmy, Jim.
- Kenny, Seán.
- Lowry, Michael.
- Lynch, Kathleen.
- McCormack, Pádraic.
- McGahon, Brendan.
- McGinley, Dinny.
- McGrath, Paul.
- McManus, Liz.
- Moynihan-Cronin, Breeda.
- Mulvihill, John.
- Nealon, Ted.
- Noonan, Michael (Limerick East).
- O'Keeffe, Jim.
- O'Shea, Brian.
- Pattison, Séamus.
- Quinn, Ruairí.
- Stagg, Emmet.
- Timmins, Godfrey.
- Upton, Pat.
- Walsh, Éamon.
- Yates, Ivan.
Níl
- Ó Cuív, Éamon.
- Ahern, Bertie.
- Ahern, Dermot.
- Ahern, Michael.
- Ahern, Noel.
- Aylward, Liam.
- Brennan, Matt.
- Brennan, Séamus.
- Browne, John (Wexford).
- Burke, Raphael.
- Byrne, Hugh.
- Callely, Ivor.
- Clohessy, Peadar.
- Coughlan, Mary.
- Cullen, Martin.
- de Valera, Síle.
- Doherty, Seán.
- Ellis, John.
- Fitzgerald, Liam.
- Flood, Chris.
- Foley, Denis.
- Haughey, Seán.
- Jacob, Joe.
- Keaveney, Cecilia.
- Kenneally, Brendan.
- Keogh, Helen.
- Killeen, Tony.
- Kirk, Séamus.
- Kitt, Michael.
- Martin, Micheál.
- McCreevy, Charlie.
- McDaid, James.
- Moffatt, Tom.
- Molloy, Robert.
- Morley, P. J.
- Moynihan, Donal.
- Nolan, M. J.
- O'Donnell, Liz.
- O'Donoghue, John.
- O'Hanlon, Rory.
- O'Keeffe, Ned.
- Power, Seán.
- Quill, Máirín.
- Ryan, Eoin.
- Smith, Brendan.
- Smith, Michael.
- Treacy, Noel.
- Wallace, Dan.
- Walsh, Joe.
- Woods, Michael.
Tellers: Tá, Deputies J. Higgins and B. Fitzgerald; Níl, Deputies Keogh and D. Ahern.
Question declared carried.
Amendment declared lost.
Amendment No. 14 not moved.
We now come to amendment No. 15. Amendment No. 16 is an alternative and I propose that we discuss the two amendments together. Is that agreed? Agreed.
I move amendment No. 15:
In page 15, to delete lines 32 to 41.
This amendment proposes to delete the one year derogation provided for in section 9 which states that collective agreements and orders which discriminate against workers will be null and void. The one year derogation before the section comes into operation on all other grounds except gender weakens the current legislation covering gender and marital status. I am surprised that a one year derogation was provided for and my amendment proposes to delete it. Deputy McDaid in his amendment proposes a three month derogation. If we must provide for a derogation then it should be as short as possible and I am prepared to withdraw my amendment in favour of Deputy McDaid's amendment.
I question why employees should not be able to get out of an agreement for a year and it would be more logical to reduce the time to three months.
As I stated previously, I am satisfied that, given the potential for collective agreements to exist across very many employments, it would be unrealistic to expect such agreements or other collective bargaining instruments to be reviewed in detail and renegotiated in a short period. I would like the Deputies to consider the impact of the Bill and to reflect on the wide range of additional discriminatory categories which require to be addressed in the extensive review of agreements and orders. I draw attention to the need in the review process to examine not only provisions which give rise to direct discrimination but also those less obviously indirectly discriminatory provisions.
In all these circumstances, and in deference to the contribution the social partners can make in implementing the legislation effectively, I continue to support the one year derogation provided for in this section. I appeal to the House to support this provision and to reject the amendments.
Amendment, by leave, withdrawn.
I move amendment No. 16:
In page 15, line 37, to delete "the first anniversary of" and substitute "3 months after".
Question, "That the words proposed to be deleted stand" put and declared carried.
Amendment declared lost.
Debate adjourned.
Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.