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Seanad Éireann debate -
Thursday, 20 May 1993

Vol. 136 No. 6

Unfair Dismissals (Amendment) Bill, 1993: Report and Final Stages.

Before we proceed with the amendments, I would like to remind Senators that the proposer of an amendment may close the debate on that amendment but no other Senator may speak more than once on each amendment. Also on Report Stage, each amendment must be seconded. Amendment No. 2 is an alternative to amendment No. 1 and both may be discussed together.

I move amendment No. 1:

In page 4, between lines 23 and 24, to insert the following:

"(c) the deletion of paragraphs (d), (e), (i) and (j) in subsection (1)."

This amendment is to extend the scope of the unfair dismissals legislation to include An Garda Síochána, members of the Defence Forces, officers of local authority and health boards. We debated this on Committee Stage and the point was made that there was no reason to exclude these people from the provisions of the Unfair Dismissals Act. At their conference, the Garda Síochána recently passed a motion proposing that they come under all areas of employment legislation. It is silly that some who work for health boards and vocational education committees are covered while others are not. A hospital cook, who is an officer is not covered while a hospital porter, who is an employee, is covered. Why should everyone in these circumstances not be covered under the Unfair Dismisals Act? I propose that the groups not included here be accorded the same rights and cover as those at present included under the Unfair Dismissals Act.

I second the amendment.

We had a good discussion earlier with regard to the amendment proposed now and an amendment proposed earlier by Senator O'Toole and I promised to come back to the matter on Report Stage. Since that time, I have had extensive discussions and have liased with the various Departments concerned. Is the matter concerning civil servants in Senator Neville's proposal?

Then it is in Senator O'Toole's proposal. May I speak on both, a Chathaoirligh?

Yes. Amendment No. 2 is an alternative amendment and both may be discussed together.

After extensive consultation with the Civil Service unions, they showed no enthusiasm for the extension of the protection of the Unfair Dismissals Act to their members, largely because they consider that such a development would probably entail a change in the current tenure arrangements, which in practice affords civil servants a higher degree of protection than their counterparts in the private sector, who are covered by the Act. We must accept that the representatives of groups speak for their members. We could all speak as individuals if we wanted to but those of us involved in organisations know one deals with large numbers of people through representative bodies.

A disciplinary code for the Civil Service was introduced in early 1992, providing for appeal to an independent appeal board in disciplinary cases involving dismissal. Accordingly, civil servants now have an alternative appeals procedure available to them.

The tenure of office relating to officers of health boards is governed by the relevant——

On a point of order, the Minister is speaking to paragraph (h) of the Principal Act, which is not included in Senator Neville's amendment or in my amendment.

I am speaking to the amendment to which the Cathaoirleach directed me.

We are speaking to amendment No. 1.

But civil servants are covered under paragraph (h) and that point is not covered in either amendment. I am not objecting to what the Minister says but wish to bring to the attention of the House that there is no proposal——

Senator O'Toole is correct. His amendment refers to subsection (1) (e). I am speaking on matters raised by Senators on Second and on Committee Stages. I said I would come back to the Members on the issues raised then. If I did not deal with these issues now Senators would have something to say about it.

In relation to removal from office, sections 23 and 24 of the Health Act, 1970, are specific on the matter and it is considered that they provide sufficient protection for officers of health boards against unfair dismissal.

Regarding the continuing exclusion of members of the Garda Síochána from the scope of the Unfair Dismissals Act, 1977, neither the Garda authorities nor the Department of Justice is convinced that the present system needs to be changed. The Garda procedures are governed by the provisions of the Garda Síochána Discipline Regulations, 1989. These regulations were drawn up with the approval of the Garda Commissioner and the various Garda representative associations. We are aware that recently one of the Garda representative groups made the case for becoming a member of Congress. I am sure that case will be pursued through the representative organisations and that the Department of Justice has already been approached in that regard.

With regard to the Army, which was raised on Second Stage and on Committee Stage, members of the Defence Forces are taken on in accordance with the provisions of the Defence Acts and Defence Forces regulations. These provisions include the right of appeal in the event of a non-consensual discharge including ultimately the right of appeal to the Minister for Defence for redress of wrongs. Accordingly it is not considered necessary or appropriate that legislation designed to safeguard the rights of civilian employees should apply to members of the Defence Forces.

I have covered the points which were raised on Second and Committee Stage. Essentially what I am saying is that I will not accept the amendments.

I raised the question of the civil servants on Committee Stage in particular and I referred to it on Second Stage also. My view is that every worker should have access to the protection of the law and to the remedies and appeals offered by law. At the end of Committee Stage the Minister indicated that it was her understanding that civil service unions were opposed to being included under this legislation.

In her reply today the Minister said that those unions have shown no enthusiasm for a change. That is correct and that is why I have not included civil servants in my amendment. They are not opposed to it but they do not see any point in the change. I studied the number of civil servant dismissals over the last ten or 12 years with the unions and it became a purely academic discussion. I hold the view, however — and the unions do not oppose it — that every worker should have the right to protection under this legislation. Temporary workers in the Civil Service do not have access to the internal remedies and the unions said they were concerned about that. However, I am not prepared to deal with such a minor area in my response.

Regarding the Garda I wish to make it absolutely clear to the Minister that she cannot have it both ways. If she expresses the views of representative bodies for arguing against one of the amendments, will she then accept that I have spoken during the last week with the Association of Garda Sergeants and Inspectors and the Garda Representative Association and that both organisations want their members to be included under the provisions of this legislation? My understanding is that other Members of the House also spoke to those associations during the week and can confirm this. It is in the same context that the associations wish to be viewed as trade unions and to affiliate to Congress but I will not deal with that here.

I wish the Minister to answer a number of questions. I recognise on Report Stage, that I can put the case only once and that I am at the Minister's mercy in terms of the response she chooses to give. I appreciate the full response that she gave on Committee Stage.

In the last ten years a senior member of the Garda, a commissioner, challenged in the courts — I use the Minister's phrase — his non-consensual departure from his position. As I recall he won his case. I am told for instance by the association that in a number of ongoing cases gardaí are challenging their dismissals. Nobody has indicated that there is any threat to State security in a member of the Garda having access to the Unfair Dismissals Act if he or she felt a dismissal was unfair. What happens if a garda is dismissed and wants to challenge it? What happens if a soldier is dismissed through a non-consensual discharge? The Minister said that under the provisions of the Defence Act a soldier has various avenues of redress. This is not unusual. Teachers also have a domestic remedy. Most courts in dealing with dismissal cases first ask if every opportunity to find a domestic remedy has been exhausted. Internal or domestic remedies are not alternatives. The idea is that problems be sorted out locally and in a grievance procedure, whether from a trade union side or management side, the objective is to get the matter resolved at the lowest possible level. As the Minister said in her Committee Stage speech, we do not want to be overly legalistic. The lower down the line a problem can be resolved, the better. Therefore the Army should be covered by this legislation.

If a garda wants to challenge his or her dismissal there are a number of grounds on which they can do so. One is that the tenets of natural justice were not complied with in the dismissals procedure. This is a difficult and convoluted argument which involves senior counsel. A garda can also seek a judicial review by the courts of the way in which the dismissal was decided upon. The review would examine if the authorities had the competence to do what they did, and if they acted honourably, correctly and acceptably in following their internal rules. The third way is to find a precedent in common law. The more cases that are taken the more common law develops, but this depends also on which court hears the case. Nowadays, most cases tend to be dealt with at the court below that which determines a common law precedent. This worsens the situation, because each time the case must start from scratch which necessitates numerous lawyers. The Minister has said repeatedly that she is opposed to this practice. Fourthly a person who was discharged might claim that his or her constitutional rights were infringed.

Instead of having to go through all of that procedure there is a remedy under the Unfair Dismissals Act, which would not require people to go to court.

Can the Minister outline what is wrong with that proposal? Is it not a neater way? It also saves the State money because going through the courts is a costly procedure. The State has lost many cases brought by gardaí. This amendment reduces the workload of the Department of Justice and is a less cumbersome way of dealing with a dismissal. It determines it as easily and clearly as a court and in a way which saves the State money. I cannot see any reason for that amendment — or a similar one — not being part of the Act.

I am worried about the number of special categories. The law should facilitate and apply to everyone equally. I do not understand why some of these categories have been selected for special mention. This could have the undesirable effect of making these people appear to be in a privileged position.

Senator Neville gave an example of a cook working in a hospital being in a different position from that of a porter employed under similar circumstances. I cannot see why these categories should be taken out of the general legislation. It gives the impression that some people are in a more privileged position than others. We all should be equal before the law and the fewer special categories there are, the better.

Senator O'Toole's argument is convincing. He obviously had discussions with the Garda authorities on this matter. When legislation is being enacted or amended, is it not desirable and sensible to include all those categories? In this context I refer particularly to PDFORRA, which was mentioned previously.

I understand that Senator Neville can speak again because he moved the amendment.

On a point of order, does Senator Neville speak now and then may all Members speak a second time?

No, only the mover of the amendment can speak twice.

Does that apply to the mover of both amendments?

Amendment No. 1 is before the House at present, as I said quite clearly, amendment No. 2 is an alternative to No. 1 and both are being discussed together. Only one amendment can be before the House at any time. We are dealing with amendment No. 1 and Senator Neville has the right to speak twice as he moved the amendment.

I am disappointed that the Minister has not accepted her own argument that where a trade union or representative is in agreement with changes in this legislation, it should be examined. There is no logical reason for the inclusion of these categories. The Minister stated that the Civil Service might not fully support this change, of which we took note, and, therefore, did not include section (f) of the Principal Act in these amendments. However, we consulted other bodies, as Senator O'Toole said, and PDFORRA, and the Garda representative bodies are anxious to be covered by this legislation. To use the Minister's argument, why is this opportunity being lost when the Garda representative associations wish to be included?

Employers were very apprehensive about the Unfair Dismissals Act, 1977, but it has worked well for the groups which it covers. Extending cover to other groups would reduce the costs incurred in their attempts to obtain justice and would give them the option to take their case to the Employment Appeals Tribunal.

As Senator Henry said, we now have a ludicrous situation in the health boards where the new Bill covers temporary and part-time officers, but if they are made permanent they lose their rights.

I am disappointed that the Minister has not seen fit to include the positions and areas to which we referred and has not taken into account the fact we took note of the people who needed further consideration. I am extremely disappointed that the Minister has not seen the logic of our argument.

The position has not changed since I spoke earlier.

Question put: "That the words proposed to be deleted stand."
The Seanad divided: Tá, 18; Níl, 12.

  • Byrne, Seán.
  • Calnan, Michael.
  • Cashin, Bill.
  • Daly, Brendan.
  • Farrell, Willie.
  • Finneran, Michael.
  • Fitzgerald, Tom.
  • Gallagher, Ann.
  • Hillery, Brian.
  • Kelleher, Billy.
  • Kelly, Mary.
  • Kiely, Rory.
  • Lanigan, Mick.
  • Maloney, Sean.
  • Mooney, Paschal.
  • Mullooly, Brian.
  • Townsend, Jim.
  • Wall, Jack.


  • Belton, Louis J.
  • Burke, Paddy.
  • Dardis, John.
  • Doyle, Joe.
  • Henry, Mary.
  • Honan, Cathy.
  • Howard, Michael.
  • Neville, Daniel.
  • O'Toole, Joe.
  • Ross, Shane P.N.
  • Sherlock, Joe.
  • Taylor-Quinn, Madeleine.
Tellers: Tá, Senators Mullooly and Wall; Níl, Senators Neville and O'Toole.
Question declared carried.
Amendment declared lost.
Amendment No. 2 not moved.

I move amendment No. 3:

In page 6, between lines 29 and 30, to insert the following:

"(b) the deletion of all words from and including ‘unless —' down to and including ‘notwithstanding pregnancy.' in paragraph (f) of subsection (2).".

The Department of Equality and Law Reform was established by this Government with a lot of brouhaha; it was intended to show us the light and to bring equality to Irish society. It would be the beacon for all Europe hurrying up the process of equality and showing the way forward. However, on the basis of its performance so far, it has been a total waste of money.

Under the Unfair Dismissals Act, 1977, a woman's pregnancy may not be used as a reason for dismissing her. However, the Act goes on to say that for a woman to lose her job because she could not adequately do the work for which she was employed by reason of her pregnancy would not constitute an unfair dismissal.

I will quote from Article 10 of an EC Directive of 19 October 1992 of which I know the Minister is aware:

Member States shall take the necessary measures to prohibit the dismissal of workers, within the meaning of Article 2, during the period

that is simply a definition

from the beginning of their pregnancy to the end of maternity leave...

A woman may not be dismissed for any reason during the period of pregnancy. The Irish Government is required to comply with this directive before the end of October next year. Yet, this legislation is in direct contravention of the EC Directive. I, therefore, tabled an amendment to take the objectionable section out of the Act, in other words, to remove those aspects of the Act which are in breach of the European Directive.

The Government will be required to take many other measures under the terms of the EC Directive. That is not in dispute, and is irrelevant, because no matter what else has to be done, section 6 (2) of the Principal Act will have to be deleted. The Minister of State informed the House of this the other day.

The Government has undertaken to comply with this part of EC law. That is why I tabled this amendment and it should now be accepted. If not, this legislation will go through this House and will be in breach of an EC Directive. However, the EC Directive is only one aspect of the argument, for the moment let us forget it, because it is being used to slow down the process of equality.

In reality, the Minister of State is as opposed as I am to the fact that a woman could be dismissed as she could not do her work because of pregnancy. I am not claiming any high moral ground on this matter as I know the views of the Minister of State and they are not different from mine. However, the Minister of State is guiding the Bill through this House and the record will show that, regardless of discussion, she allowed these sections to go through.

On Committee Stage we discussed representative groups and their views. Since we discussed this matter I raised it with the Employment Equality Agency, the Council for the Status of Women, the women's committee of ICTU, the equality officer of ICTU and various like-minded people. These interested parties are appalled that this legislation will go through the House without making this change. They cannot understand the logic that will not allow a Department accept this amendment.

I have written to the Minister for Equality and Law Reform about this matter, because — as the Minister of State indicated on Committee Stage last week — it is the responsibility of his Department who indicated it did not propose to deal with it in this legislation. That is balderdash. There is an amendment relating to equality which the Minister of State apparently wishes to support but the Department of Equality and Law Reform will not allow her to do so.

The Minister charged with creating an equal society — enshrining equality in legislation, in administration and in the operation of the State — now says that this House should not improve the Bill in line with the Programme for a Partnership Government, the objectives of his Department and of the EC Directive. This improvement would also be in the spirit of the report of the Second Commission on the Status of Women and consistent with the policy of the Employment Equality Agency and of the Council for the Status of Women. All the groups set up by the State to advise the Government on equality are of one mind except one, the newly created Department.

The Department has written back to me, and I quote:

As you know, I am committed to preparing the requisite national legislation to give effect to...

the EC Directive

...This will involve detailed consideration of a number of issues which require attention, before your proposed amendment to the 1977 Act can be taken on board.

It is not true that will involve detailed consideration of other aspects of the directive before my amendment can be taken on board. My amendment can be taken on board now. It is in line with the directive and it will not impact on the detailed consideration of the other matters, other than making the job of implementing the directive easier, because one requirement will have been dealt with.

I do not accept the response of the Department of Equality and Law Reform. It does not stand up to even the most cursory scrutiny. The letter says: "I am satisfied that if the amendment proposed were accepted, the resulting provision would not achieve the desired effect of implementing in full the EC Directive which it intends". I do not know to whom these people talk. Do they think we cannot read? The EC Directive in my possession is quite long. I am simply talking about the implementation of Article 10 of that directive. This amendment is required under that Article. I never indicated that this amendment would fully implement the pages and pages of EC Directive 92/85 of 19 October 1992 but I cannot see how anybody can tolerate this part of the Act which is repugnant to everything in which we believe about equality. I can see no option but to accept either my amendment or a similar one.

The division between chaos and cohesion in any form of life can be very narrow at times. It would appear to me that the establishment of the Department of Equality and Law Reform, far from achieving cohesion in the drive for equality, is creating chaos. On three occasions over the last week the Minister indicated instances where the policies of the Department of Equality and Law Reform were slowing down the process of equality proofing legislation.

What is happening to taxpayers' money if this is the reality? Instead of accepting clear and logical procedure from Europe we are moving in the opposite direction.

Members on the other side of the House will take the Whip to walk through the lobbies today. That is the reality of political life. However, would somebody ask what nonsense stops this kind of positive proposal being accepted by a Minister. I move the amendment.

This legislation is so at variance with what I know the Minister has accomplished in the Department of Education, where she did so much to further equality for men and women that I sympathise with her having to bring it here today.

While there has only been a slight increase in the number of women in the workforce in the last ten years — it is still around 30 per cent — there has been a large increase in the number of women who are married and working. That number has increased from about 30 per cent in 1981 to about 48 per cent at present. Therefore this legislation will affect a large number of women who are working. One does not have to be married to become pregnant and it would be a serious situation for a lone parent to realise that pregnancy can be used as a reason for dismissal.

The Minister has been influential in bringing forward legislation in the areas of health and safety for all in the workplace regarding toxic chemicals, hours of work, night work, radiation and so on. Of all the categories of work the only category where pregnancy might be a problem is in lifting heavy weights. I understand in those circumstances employers have to show that they have made the utmost efforts to introduce automation to reduce load lifting wherever possible. Lifting heavy loads is inadvisable in all circumstances.

Senator O'Toole indicated that protection was already available under the Unfair Dismissals Act, 1977. More importantly, the EC Directive from the Council of Ministers has to be introduced by the end of next year and it appears extraordinary that we should insert this clause in this legislation now when it will have to be changed next year.

Senator O'Toole also referred to the Council for the Status of Women and the Employment Equality Agency. The women in both organisations whom I consulted could not believe legislation was being introduced with such a clause. I urge the Minister to exclude this clause as it could easily be used as a means of excluding women from certain work.

It is important to note that many women today are interested in a career rather than just a job. The average Irish family has two children almost as low as the European average. Because of this clause, a woman may lose not only her job but her career if an employer takes advantage of the fact that she is pregnant and says she is unable to do the prescribed work.

I wish to thank both Senators. We had a long debate on this matter on Second and Committee Stages. All Senators would agree that women have a special feeling for women who become pregnant and might be in danger of losing their jobs. I said I was sympathetic with the sentiments expressed in this House and I subsequently contacted the Minister for Equity and Law Reform, Deputy Taylor and he replied:

With regard to the implementation of the EC Directive on pregnant workers, I have responsibility to bring this into Irish legislation by October 1994. One of the areas of the Directive involves an amendment of substance to the present Irish Maternity Protection Act, 1981.

The EC Directive on pregnant workers raises a series of new and complex issues relating to risk assessment, transfer to other jobs and entitlements to leave and pay. Consequently it is essential that these issues be adequately resolved and that the necessary implementing measures be included in comprehensive legislation which must be introduced by 1994. Meanwhile pregnant workers are not precluded from protection under the Act simply by amendments not being taken on board.

It will be possible under amending legislation which will give effect to the pregnant workers' directive to strengthen as necessary the provisions of the Unfair Dismissals Act.

Representations from the Council for the Status of Women and from the Employment Equality Agency were made to myself and others. I received the EC Directive of 19 October 1992 and I read it. The EC will have to use language that people will understand. The directive covers many complex issues as the Minister said and I have no reason to doubt him. He is a man of integrity with high principles. He confirmed that his aim is to ensure that the legislation he will introduce will enhance and extend the rights of pregnant women. I will urge him to introduce this legislation as soon as possible to relieve the concern expressed by people who speak about the needs of pregnant women.

We pay a lot of lip service to motherhood, to the ideal of motherhood and to women as the bearers and rearers of children. Rearing may be a joint parental task but bearing is the woman's job. We must pay the same regard to a woman's rôle as a worker and to every other aspect of her life as we do to motherhood. All politicians say our biggest asset is our young people, and that is obviously the case.

I wish I was bringing in that legislation. I do not mean to be sexist because Senator O'Toole, has spoken passionately about it, as has Senator Henry and others but it would be appropriate if a woman introduced it. However, that is beside the point. I have faith that my Government colleague, Deputy Taylor, the Minister for Equality and Law Reform with his fine legal mind will introduce comprehensive legislation to implement the directive. This legislation will show the Minister's commitment and that of the Government to protecting the rights of pregnant women.

The Minister is anxious to implement this amendment but is unable to do so. It is disappointing that the Labour Party is slowing up the process of equality. This amendment would establish a necessary right for pregnant women.

There is a growing number of married women in the workplace. The work women do extends further into what was previously the male domain. In many instances pregnant women cannot do their jobs because of the physical nature of their work. It is unfortunate that the existing law shall apply for another 12 months and that the Minister is forced by her Labour colleagues not to accept what she knows is proper legislation.

That is not the case but I was as honest as I could be on the matter.

I share the feelings of the previous speaker. I find it difficult to comprehend this situation. Ireland must comply with an EC Directive. As an amendment to the amending legislation is accepted as being reasonable, it would appear logical to accept it at this point.

I want to ask Senator O'Toole a question: what device is being used to bring in the EC Directive? Will it be further amending legislation or a ministerial order? If the 1977 Act does include pregnancy as a means for an unfair dismissal, would he clarify that the grounds of pregnancy cannot be used?

I too support this amendment. I appreciate the Minister would like to bring in this provision.

We have a Minister for Equality and Law Reform. The Second Commission on the Status of Women recommended a full Government Minister to deal with women's affairs. Perhaps the Minister for Equality and Law Reform has so much to do that he does not have enough time to deal specifically with issues which relate to women. He has a wide brief and he caters for many minority groups, but women make up almost 50 per cent of the population. As Senator Henry said a substantial number of them are of child bearing age and they will be affected.

For a number of years women have been very patient, but no longer. It takes so long to bring legislation before the Oireachtas that when an opportunity like this arises we should use it to enact that section of the EC Directives with which we must comply by this time next year.

Many things have to change in Ireland to give women equality yet we are not taking this opportunity. That is unacceptable to me and other Senators. It is not even acceptable to the Minister. I do not understand why the Minister cannot accept this amendment.

The Minister has been open and honest. No one questions her bona fides in the matter. This is a question of where the functional responsibility for meeting EC Directives lies, which is clearly in the Department of Equality and Law Reform. Not alone that but the relevant legislation is in course of preparation. When the obligation under the EC Directive is met through legislation, the protection for pregnant women will be more comprehensive than the narrow inclusion that is proving not possible today. Even if we did accept this amendment, it would only cover one aspect of the issue.

I have expiated myself and run out of energy. I have a great sense of disappointment. It is a privilege for a Member of either House to be involved in the legislative process. When people hold conflicting views the majority rules and a decision is taken. That is democracy and people have to take the good and the bad.

The most worrying time is when consensus is reached but there is no movement. That is the process of parliamentary debate and legislation through democracy stymied and not finding fulfilment. The Minister has responsibility not only for equality but law reform.

For the Minister's information and to respond to the point Senator Sherlock raised, the effect of my amendment would be to make it unfair for a woman to be sacked because of pregnancy or any matter associated with it. I am trying to remove a provision from the Bill as it stands.

The last section of this Bill says the 1977 Act and this Bill when enacted, may be cited as one. This Bill will form part of the consolidated unfair dismissals legislation.

Senators on the Government side are about to walk through the lobbies voting against what they stood for during the election. There must be some honesty in politics. I am not inferring dishonesty but this is not an unemotional or remote issue.

Most people are as often wrong as they are right; nobody has a monopoly on the truth. Neither is the Government always right because it has a majority. Not all wisdom is sited in one body.

I do not disagree with any of the points made by the Minister for Equality and Law Reform in his letters to the Minister present and to me. However, he neglects to say that if he is to achieve his aims he will have to amend this section. The suggestion in his letter that this would slow down, stymie or pervert the process of reform is incorrect. It must be done in response to the European Directive. He is the Minister for Equality and Law Reform and this is law reform. This House is, to a greater extent than the other House, a reforming one when dealing with legislation.

Not only is my amendment necessary, there is no conflict between it and what the Minister for Equality and Law Reform said in his letters to the Minister and me. Refusal to accept my amendment brings the process of Government and democracy into disrepute and raises the fundamental question of whether the establishment of the Department of Equality and Law Reform slowed down the process of achieving equality. I urge the Minister to accept this amendment.

I am aware that Senators are familiar with the provisions of the original Unfair Dismisals Act, 1977. The dismissal of an employee shall be deemed, for the purposes of this Act, to be unfair if it results wholly or mainly from one or more of the following: the employee's membership of a trade union; the religious or political opinions of the employee; civil and criminal proceedings, whether actual, threatened or proposed against the employer; the race or colour of the employee and the pregnancy of the employee. There are four sub-clauses dealing with pregnancy. The Principal Act specifically refers to the "pregnancy of the employee' as being grounds for unfair dismissal. There are clauses qualifying this and it is these which Senator O'Toole and Senator Henry are discussing.

If she cannot lift something she can be sacked.

Senator O'Toole is addressing the sub-clause. The Minister for Equality and Law Reform, Deputy Taylor, wants to go beyond that and introduce comprehensive legislation providing for equality in its fullest sense. The Minister is a man of honesty and integrity and I have no doubt that he will fulfil this commitment.

Is the amendment being pressed?

Amendment put.
The Seanad divided: Tá, 12; Níl, 20.

  • Belton, Louis J.
  • Burke, Paddy.
  • Dardis, John.
  • Doyle, Joe.
  • Enright, Thomas W.
  • Henry, Mary.
  • Honan, Cathy.
  • Howard, Michael.
  • Neville, Daniel.
  • O'Toole, Joe.
  • Ross, Shane P.N.
  • Sherlock, Joe.


  • Byrne, Seán.
  • Calnan, Michael.
  • Cashin, Bill.
  • Daly, Brendan.
  • Farrell, Willie.
  • Finneran, Michael.
  • Fitzgerald, Tom.
  • Gallagher, Ann.
  • Hillery, Brian.
  • Kelleher, Billy.
  • Kelly, Mary.
  • Kiely, Dan.
  • Kiely, Rory.
  • Lanigan, Mick.
  • Maloney, Sean.
  • Mooney, Paschal.
  • Mullooly, Brian.
  • O'Brien, Francis.
  • Townsend, Jim.
  • Wall, Jack.
Tellers: Tá, Senators O'Toole and Neville; Níl, Senators Mullooly and Wall.
Amendment declared lost.

Senators will note that there is an error in amendment No. 4 and an amended version has been issued.

I move amendment No. 4:

In page 6, after line 47, to insert the following paragraph:

"(c) the insertion of the following new paragraph in subsection (2):

‘(eee) membership of the travelling community.'.".

I am endeavouring to respond to the points put forward by the Minister of State and Members of the House on Committee Stage. I had moved an amendment to the effect that a person's cultural background should not be a cause for him or her to be dismissed. The Minister of State pointed out — validly — that the matter was very broad and difficult to define, and gave her some problems in terms of accepting the amendment. She indicated, however, that she had sympathy with my point about membership of the travelling community.

The reason I used the word "culture" at that time was twofold. Travellers see themselves as having a cultural identity separate from the settled culture, while I would say that we are all part of the Irish culture. I used that particular word in deference to their views and I also hoped it might cover situations in future where any kind of latent racism might show its face in employment. However, that is now being replaced by the amendment before the House. Unemployment is endemic in the travelling community and it is almost impossible for them to gain or hold employment. The few travellers who get employment have to become culturally invisible in their jobs, afraid that somebody will discover their background in case it could lead to their dismissal. This comes through from talking to them at seminars. It is a minority view but it exists. It has a negative spin-off because if people knew travellers were in employment it would be good for their general image and would provide a positive role model to other members of the travelling community, perhaps motivating them to seek employment in certain areas.

We have already discussed this matter. As the Minister of State said, it is not for me to claim a monopoly on this issue. It is one in which I am involved, like many other Members of this House and I readily concede that. I was brought up in an environment in Dingle where travellers in the area integrated with the settled community and there was never a problem. I was lucky in that I got to know the background to the travellers' culture and that I had teachers who explained their argot. I saw the positive side so it is easy for me to understand. It is also the reason I have certain sympathy with the travelling community. I recall that the Minister of State, as Minister for Education, implemented important initiatives to extend access to primary education for children of travellers including the establishment of visiting teachers and other moves in that area. Will the Minister of State continue that mission by responding to a fair proposal which is consensual in that both sides of the House have agreed it? Will the Minister of State accept that membership of the travelling community should not be a reason for dismissal and that, if it happened, it would constitute an unfair dismissal?

The Minister of State, as Minister for Education, helped the travelling people to further their education which means that it is now possible for more of them to seek employment. Like Senator O'Toole, I come from the country, and it is only in recent years that the travellers have had such a bad press. When I was a child that was not the case. They were also self-employed within their own culture. Many were employed in horse dealing and others in mending and repairing. It is sad to see how, gradually over the years, their culture is regarded as demeaning. In view of the fact that the Minister of State has striven for equality in the area of education for travellers, and I praise her for that, it would help us if the travellers were in a position to help themselves to regain their former position. They do not have to be subsumed into our culture; as Senator O'Toole said, they feel they have a separate culture of their own which the settled community should accept. It was fine for them to be able to accept their culture at home but I would like those who, thanks to improvements in education and the fact that the old forms of employment are no longer there for them——

Copper kettles and tinsmiths.

Even the rural workforce is different now and casual work is no longer available. I urge the Minister of State to include the travelling community here because when they are employed, they should not feel they have to hide their origins but rather to be in a position where they can speak with pride about their culture. I hope we will see that culture return to the way it was as I remember it in County Cork years ago.

Before proceeding may I bring to the notice of Senators an error in the wording of the amendment? We spoke about putting in the amendment at the bottom of page 6 after line 47. We are informed that it should be properly placed between lines 29 and 30, half way up the page. Does Senator O'Toole agree with the correction?

The proposed amendment to the Act includes sexual orientation and we accepted its inclusion previously as being very worth while. There is provision for race and colour, in that section of the 1977 Act, it is deemed unfair to dismiss a person because of race or colour. There are many schemes for people starting employment, such as the social employment scheme, and it is envisaged that more members of the travelling community will be employed. Travellers register at the local employment exchange and, because it is a condition of receiving unemployment assistance that they must be available for work, management could have a person sacked because he or she was a member of the travelling community. For that reason I support the amendment.

I support the amendment. It is appalling that because somebody is a member of the travelling community he or she would be unfairly dismissed from employment. The legislation should confirm the equality of travellers and ensure that there is no discrimination against them. While I fully accept the amendment, which copperfastens existing legislation, I cannot envisage a situation in which the Employment Appeals Tribunal would find that somebody had been fairly dismissed from employment because they were travellers. I have no hesitation in saying that it would immediately, even without consultation between the Members, be regarded as unfair. It is important in our culture and in the way we approach travellers to have this confirmed in legislation.

We had a lively debate on this matter and we ended it by trying to get an agreed wording. While the wording proposed by Senator O'Toole sounded right, how would it be identifiable? How would one break it down to what one wanted? The "travelling community" became the words which were best suited in this regard. I have given this matter a lot of thought and I have had representations from various interest groups. Further legislation will be introduced in due course. Senator O'Toole has narrowed the amendment; he has made it more precise. I, therefore, have great pleasure in accepting the amendment.

The Minister of State never ceases to take the wind out of my sails. I did not have a speech prepared.

The Minister's decision is a landmark for the travelling community and it will be a cause for celebration. It will allow travellers, in employment, to celebrate their cultural identity. It will give them a sense of protection and security. This is to be welcomed.

These measures will motivate groups who work with and support travellers and it will help travellers become more involved in their culture. It will improve the situation of the travelling community. I launched a book in Listowel, County Kerry. One of the stories in the book was about a traveller who experienced trouble at school. I mentioned that this legislation might improve the position of travellers in our society. Although it was difficult to leave Listowel, County Kerry, this afternoon, it was worth it.

If I may make a point? I am sure there will be celebrations on all the sites.

Amendment agreed to.
Title agreed to.
Bill reported with amendment and received for final consideration.
Question proposed: "That the Bill do now pass."

I referred to free legal aid. The record shows——

It is not appropriate to raise these matters at this point.

I am referring to sections of the Bill. In our discussions we stated that the restructuring and the appointment of a chairperson outside the judicial arena would be desirable.

The Senator should have raised this point at an earlier stage. It is not appropriate at the conclusion of business.

I am commenting on the Bill. If it is necessary to have a legal person as chairperson then free legal aid must be available for people to bring their case before the tribunal. This provision is absent from the Bill and I want to have that taken into consideration. The fact that compensation is awarded in a number of cases defeats the purpose of this legislation because it limits the value of the legislation as a protective measure.

The Minister of State mentioned the EC Directive. It would not be appropriate to implement this directive. The mandatory provision in the maternity protection legislation which requires a pregnant employee to give her employer formal notice of her intention to return to work must be addressed. This is important legislation but it has shortcomings.

I thank the Minister for coming to the House. This legislation is important to those of us involved in industrial relations. I have been involved in industrial relations for over 20 years. I am disappointed the Minister did not accept some of my amendments. She might reconsider her current position when this legislation is introduced in the Dáil, following discussions with the members of the Employment Appeals Tribunal. I look forward to the return of this Bill to the Seanad.

I thank the Minister's advisers for their presence. I thank the staff at the Employment Appeals Tribunal, particularly Ms. Breda Cody and Mr. Dan Honan, who do excellent work on behalf of those involved in industrial relations, employers and trade unions.

I am glad the Bill is passing and with some important amendments. On Second Stage I wished the Minister success in her new portfolio. She has brought characteristic energy, intelligence and innovation to this legislation. I extent my gratitude to her committed and well informed advisers.

I share the unease which Senators have when legislation is whipped from under them and Senator Neville has had that experience. One can introduce important legislation in the Seanad. The debates on all stages were educative. I was involved in labour relations, not so much with the unions as, in the minutiae of legislation and its effect on wokers' rights. I am glad I was given responsibility for this area.

I feel comfortable in the Seanad Chamber. I was a Member of the Seanad on two occasions. The intimacy of the Seanad, the frankness of its Members and the fact that the Cathaoirleach permits so many exchanges between Members allows for good interchange on legislation and effective debates. The vocational background of many Members allows for expertise in specific areas to be brought to bear on legislation.

I thank Senator Hillery, Senator Neville and others who contributed to the debate. It was heart warming to see the sustained interest in this Bill. I have learnt a lot from this process.

The Bill — and the debate — are important and I am glad that we were able to make significant amendments to the Bill. What is the point of legislation if one does not listen? One cannot accept all amendments — that would be a bizarre way to pass legislation — but one can listen to the views of others. Apart from these significant amendments, there was also an interesting and important debate on the Employment Appeals Tribunal and on points concerning dissatisfaction with its workings. I was glad to hear the points of view — they have already been expressed to me by representative groups — of Members, they had a clear authority and authenticity about them.

I thank the Cathaoirleach and his staff for their courtesy. When legislation is introduced, the Minister concerned should be present on Second Stage and on Committee Stage. It is important that the Minister or Minister of State responsible for the implementation of legislation listens to diverging views.

I also thank Senators for their response and for the attention given to the Bill.

I thank all the Senators who contributed to the excellent debate. I also thank the Minister of State.

I thank the staff of the Department whose work was excellent.

I also thank the staff for their help in this Bill and congratulate the Minister of State on her great knowledge of the Bill.

Question put and agreed to.

When it is proposed to sit again?

It is proposed to sit at 2.30 p.m. on Wednesday, 26 May 1993.