Employment Equality Bill, 1996: Report Stage (Resumed) and Final Stage.
Debate resumed on amendment No. 21:
In page 26, line 2, to delete "violent".
—(Senator Lee.)
I trust the nature of my concern about the use of the word "violent" in the section emerged clearly before the debate adjourned at 6 p.m. Rather than continue in the same vein, I ask the Minister to indicate whether there is any justification for my concern that it may inhibit the operation and efficiency of the Garda Síochána in conflict situations.
I do not wish to be pedantic but the phrase "in order, within the Garda Síochána, to disarm or arrest violent individuals" could be literally interpreted to mean violent individuals within the Garda Síochána. I presume that is the converse of what it is intended.
They could be armed with a shillelagh.
These are my concerns. Perhaps the Minister could indicate whether I am interpreting the Bill correctly.
I second the amendment. A small error needs to be corrected. It was indicated during the discussion on amendment No. 16 that amendment No. 21 was being discussed with it. However, amendments Nos. 21 to 24, inclusive, are being discussed together. It is a small point but it needs to be mentioned in case the record indicates otherwise.
I agree with Senator Lee about the need for the word "violent". Is it over restrictive? Would it be better to delete the term?
Section 27 provides a limited exclusion for the Garda Síochána from the scope of the legislation as far as the gender ground is concerned. The purpose of the exclusions in subsection (1)(a)(ii) and (iii), which are the subject of the amendments, is to allow the Department of Justice to discriminate on the basis of sex where a preponderance of gardaí or prison officers of one sex, usually men, would be the more obvious and certain means of quelling or preventing certain violent situations. The effect of Senator Lee's amendments would be to broaden the scope of the exclusions, thereby allowing discrimination to apply much more widely than would be necessary to deal with violent individuals or situations.
However, I acknowledge Senator Lee's appropriate concern about security matters. He indicated a concern about how the description of violent individuals would be applied and he correctly seeks to ensure that the use of the term "violent" should not compromise the security situations and considerations which need to be taken into account in circumstances which arise for the Garda and the prison authorities. I included this provision, which enables the Minister for Justice to identify when this exclusion should operate, because of the importance of security considerations. The stringent application of EU law on gender equality requires a relatively narrow exclusion — hence the reference to violent persons. I am content for the Minister for Justice to determine which individuals or situations might be considered violent.
I must not create scope for this exclusion to be generally applicable in respect of all duties undertaken by gardaí or prison officers. If the Senator's amendments were accepted, a wide range of duties and assignments in both the prison service and the Garda Síochána would fall outside the scope of the anti-discrimination provisions of the legislation. Such a position would be most disadvantageous from the point of view of employees of both sexes in these services. For example, women prison officers would have no redress under the Bill if they were continually rostered for desk duties and excluded from the main work of a prison officer, which is to guard and escort prisoners. Despite the likelihood that a situation similar to my example would not arise in practice, it would be most undesirable and probably contrary to EU law to allow for it by way of exclusion in the Bill. The text in the Bill has operated successfully for the last 12 years since the Garda Síochána was brought within the scope of the legislation.
I take Senator Lee's point about paragraph (iii) but we do not need to be concerned about it.
I am not reassured by the Minister's response. The amendment would not open these matters to a wide range of derogations from the principle of equality because the controlling phrase states: "applies to the assignment of a man or, as the case may require, a woman to a particular post where this is essential..." It is under the control of the term "essential" rather than "reasonable", "desirable" or "necessary". It imposes a requirement for a strong prima facie case before any deviation from the principle of equality occurs.
Paragraph (ii) states "in order to guard, escort or control violent individuals or to quell riots or violent disturbances." However, the terms "riots" and "disturbances" imply a propensity for violence. Paragraph (iii) states "within the Garda Síochána, to disarm". If people are armed, I presume disarming is an activity which potentially requires a deviation, given that our police force is unarmed. The paragraph continues: "or arrest ...individuals, to control or disperse violent crowds..." The whole phraseology, even without "violent", is redolent of situations with potential confrontation involved. Given the qualification of "essential" and given that operational judgments may have to be made on the spot, I do not see how the Minister for Justice can be called up every time a problem arises if there is a decision to be made in a potentially delicate situation. Thank goodness we have not had occasions of this sort, for the most part, in recent times. However, it is not impossible to envisage those circumstances arising. To me, this legislation is unnecessarily restrictive and I do not believe there would be any breach of the principle of equality involved in removing the word "violent" and allowing the word "essential" to be the controlling consideration for gardaí and prison officers in the exercise of their responsibilities.
Is the amendment being pressed?
I am loth to press it but it is almost under protest that I am withdrawing it.
Amendment, by leave, withdrawn.
Amendments Nos. 22 to 24, inclusive, not moved.
Government amendment No. 25:
In page 30, line 4, after "employed" to insert "(in this section referred to as ‘the workplace')".
Amendment agreed to.
Government amendment No. 26:
In page 30, line 7, to delete "at that place" and substitute "in the workplace".
Amendment agreed to.
Government amendment No. 27:
In page 30, between lines 17 and 18 to insert the following:
"(2) Without prejudice to the generality of subsection (1) in its application in relation to the workplace and the course of C's employment, if, in a case where one of the conditions in paragraphs (a) to (c) of that subsection is fulfilled,—
(a) E harasses C by reference to the relevant characteristic of C, whether or not in the workplace or in the course of C's employment, and
(b) C is treated differently in the workplace or otherwise in the course of C's employment by reason of C's rejection or acceptance of the harassment or it could reasonably be anticipated that C would be so treated,
then, for the purposes of this Act, the harassment constitutes discrimination by C's employer, in relation to C's conditions of employment, on whichever discriminatory ground is relevant to persons having the same relevant characteristics as C.
(3) Section 23 (3) applies in relation to subsection (1)(c) with the substitution for any reference to A of a reference to C.".
Amendment agreed to.
Government amendment No. 28:
In page 30, line 20, to delete "as C" and substitute "as C;
and any reference in this section to the relevant characteristics of C (or the same relevant characteristics as C) includes a reference to what E believes to be the relevant characteristic of C".
Amendment agreed to.
Government amendment No. 29:
In page 30, lines 24 to 26, to delete "a reasonable person would consider the action or other conduct to be, in relation to the relevant characteristic of C" and substitute "the action or other conduct is unwelcome to C and could reasonably be regarded, in relation to the relevant characteristic of C, as".
Amendment agreed to.
Government amendment No. 30:
In page 30, to delete all words from and including "practicable" in line 31 down to and including line 33 and substitute "practicable—
(a) in the case where subsection (2) applies, to prevent C being treated differently in the workplace or otherwise in the course of C's employment and, if and so far as any such treatment has occurred, to reverse the effect of it; and
(b) in a case where subsection (1) applies (whether or not subsection (2) also applies), to prevent E from harassing C (or any class of persons of whom C is one).".
Amendment agreed to.
Acting Chairman
Amendments Nos. 31, 32, 34 and 35 are related and may be discussed together by agreement.
I move amendment No. 31:
In page 32, line 28, after "special" to insert "enhanced".
I entered this amendment on Committee Stage because when I first read this section I presumed it discriminated positively in favour of a disabled person. I understood that a "special rate of remuneration for particular work" meant that if a disabled person was working alongside an able bodied person and was not producing the same number of goods, they would still be paid the same rate for the job. It was only when I reread the section that I discovered it allowed for the disabled person to be paid at a lower rate.
On Committee Stage, I stated that I understood the motivation behind this section which was to ensure an increase in the employment rate for disabled people; I think they have the highest rate of unemployment nationally. The section sought to ensure that we would not see disabled people lose out further in terms of employment.
The Minister stated that he would look at the section again and his amendments address the problem. However, instead of calling it a "special rate of remuneration" the Minister is calling it a "particular rate of remuneration for work of a particular description". It probably still amounts to the same thing as the original section; the Minister is indicating that it does not. If it does not, I would be anxious to hear what the Minister has to say. I want to ensure that my amendment would not detract from the opportunities for employment which might be available to disabled persons but I would not like an employer to read this section, certainly as it was, and presume that they could pay a lesser rate for a job to a disabled person. I would like the Minister to explain how his amendment achieves what I was trying to achieve.
On Committee Stage, I signalled to Senator McGennis that I would examine the issues she raised before Report Stage. Having looked at the matter, I remain concerned about the possible implications of amending the Bill precisely in the way suggested by the Senator.
Section 35 (1) is intended to facilitate the employment of persons whose capacity to do the same amount of work as other employees is restricted. It must be accepted that, in some cases, there will be persons with a disability who, even with reasonable accommodation, will not be able to satisfy the principle of equal pay for equal work. The NRB already recognises such circumstances and in its efforts to promote the employment of such persons, it makes arrangements to subsidise the costs of such employees. In addition, I would be reluctant to take any steps that might reduce the frequency of cases where an employer makes a genuine effort to increase the participation of persons with a disability in employment, particularly, such persons whose capacity to perform is seriously restricted. I can see there is merit in replacing the word "special" with a more sensitive and appropriate word. Accordingly, I have had drafted amendments which replace that word with the word "particular" where it occurs in relation to rates of remuneration.
I hope the amendments meet, in part at least, the concerns of Senator McGennis. At the same time, I must ensure that it remains attractive for employers to seek to integrate, into the workforce, people whose capacity to do work is restricted. I know Senator McGennis realises this is a delicate area in which it is essential to achieve a realistic balance. I put forward these amendments to section 35 in response to her concerns and in an effort to improve the text in the way that is sensitive to the concerns of the interests involved. I should, however, assure Senators that neither this provision nor my proposed amendments to it in any way preclude the application of enhanced rates of pay to persons whose capacity to work is restricted. However, I am satisfied that the use of the term "particular" rather than "enhanced" would better serve the interests of persons with a disability whose capacity to perform work is restricted as envisaged in this section.
I thank the Minister. I knew it would have been very difficult to achieve what I was trying to without reducing the employment potential available to disabled people. Can the Minister reassure me that the protection afforded under this Bill would mean that a disabled person who felt they were being paid a lesser rate for the job would have some way of taking a case to prove they were not getting an adequate or appropriate rate for the job, even if it were less than an able bodied person? Is there any kind of protection for an employee in those circumstances?
They would get equal pay for equal work. This is a special provision which will allow an employer to pay a person with a disability, who is not producing output on the same basis as another person, a particular rate of pay in order that it would not be a distraction or a discouragement for that employer to employ that person.
Would a "particular rate of remuneration for work of a particular description" not allow an employer to underpay somebody?
It would not allow the employer to pay otherwise than equal pay for equal work.
Amendment, by leave, withdrawn.
Government amendment No. 32:
In page 32, lines 28 and 29, to delete "special rate of remuneration for particular work" and substitute "particular rate of remuneration for work of a particular description".
Amendment agreed to.
Government amendment No. 33:
In page 32, line 30, after "his" to insert "or her".
Amendment agreed to.
Government amendment No. 34:
In page 32, line 32, to delete "the work" and substitute "work of that description".
Amendment agreed to.
Government amendment No. 35:
In page 32, line 44, to delete "special" and substitute "particular".
Amendment agreed to.
Acting Chairman
Amendments Nos. 36 and 37 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 36:
In page 34, line 31, after "from" to insert "deliberately".
I will not detain the House because I made substantial arguments on this point during the progress of the Bill. It is difficult to understand how the Minister can make a public broadcast and tell the people that the purpose of the Bill is to prevent deliberate undermining and then refuse to accept his own words in the legislation. It seems absurd.
As I said earlier, I am concerned we are accepting and incorporating something described as the religious ethos, which is not defined in the legislation. It is either a nebulous concept or one which is generally understood. I understand the ethos of the Roman Catholic Church as enunciated very clearly and rather nastily by people such as Cardinal Ratzinger, who said quite unequivocally that it is not only reasonable, but it is almost a moral obligation to discriminate against gay people in employment and housing. That will surely form part of the ethos being protected by the Bill unless we include the Minister's own word "deliberately". In other words, being gay or a member of the travelling community, a circumstance over which the individual has no control, should not constitute sufficient grounds for discrimination. Something additional must be included, such as a deliberate act, stance, speech or provocation which would undermine the ethos of the institution.
This is a perfectly reasonable provision for which to look. I hope the Minister will reiterate his own words instead of being forced to eat them. I sincerely hope I do not detect visions I thought had passed of belts of croziers being delivered. It will be interesting to see if the Minister will act, and I am sure he would like to. If not, it may be necessary to test this in the democratic way provided by this House. It will be an interesting exercise in ascertaining the views of individuals and parties in the Seanad.
I second Senator Norris's amendment, but I warned him I would not necessarily vote for it. He made a fair point that religious ethos is not defined in the legislation and, therefore, there is an element of ambiguity as regards behaviour compatible with the religious ethos. Is it behaviour, attitudes or beliefs? Does it have to express itself in performance?
Given the position in which we find ourselves, the greatest deviation from religious ethos which will occur in practice will arise in the case of divorce. Inevitably, there will be thousands of divorces in the near future and on the law of averages, there will be divorces among those teaching in schools at present and applicants for teaching posts. The Minister may remember I was one of the few Members of the House who opposed the principle of no fault divorce, and I have seen nothing since to make me revise my views on that.
We must, however, look at the implications of this. Not only will there be thousands of divorced people but there will be thousands divorced against their will. If there is a blanket injunction on the part of school or hospital authorities that somebody who is divorced is by definition subversive of the ethos of the Catholic Church, in particular, it would involve an unfair interpretation of the concept of undermining the religious ethos. As it is virtually impossible in practice to determine who is the innocent victim in a divorce, it would be an unacceptable intrusion into individual cases to distinguish between divorced people, although one may have views or suspicions in particular cases. That is the reason I tabled amendment No. 37. This amendment should be inserted, if not to define a religious ethos, at least to indicate an area which should not be open for discussion, investigation or interrogation. It is necessary to try to give some guidance as regards the intention of the Legislature in using such phrases and to try to anticipate the most frequent situation which may conceivably arise in the foreseeable future.
I assume Senator Lee has tabled amendment No. 37, on which I wish to concentrate. I second his amendment in the same spirit as he seconded Senator Norris's. I am defending his right to table an amendment rather than indicating a willingness to vote for it. An important point is at issue here. I envisage circumstances where the governor of a school would regard the position of a divorced teacher as being contrary to the ethos of the school. There should be a provision whereby that person could not be excluded from employment by virtue of divorce. From that point of view, I agree with Senator Lee. I envisage circumstances, almost to the point of legitimacy, in which schools would regard it contrary to their ethos to employ divorced persons. The point is that divorced people are acting within the law and from that point of view should not be discriminated against. I and a few other Members registered opposition to section 37 and acknowledged the substantial improvements made in the Dáil. However, it would have been appropriate to include the grounds, such as disability, age and marital status. This is part of that same argument. I would support Senator Lee on balance, but I see a difficulty.
I will not go over what I said before. Senator Lee and Senator Dardis were worried that people may be discriminated against because of divorce, but I worry people may be discriminated because of single parenthood and abortion. If we must look at the religious ethos of schools, we must ask them if it is more acceptable for a single mother to take a private and perhaps more tactful route by having an abortion. I pointed out that it is more easy to have a private medical termination of pregnancy, which is internationally available. Is this an Irish solution to an Irish problem? Although that is a hackneyed phrase, why not use it again? The Bill does not provide any protection for women who become pregnant outside marriage and who are working within an institution which might consider this contrary to its religious ethos.
It is pleasant to see that Senator Lee is looking after the interests of divorced people. That is a welcome development so far as his political philosophy is concerned.
There was considerable food for thought on the Committee Stage debate on section 37(1). In the course of that debate I was asked a number of questions. Could I guarantee that the Lincolnshire case of dismissal of a teacher for marrying a divorced person would be overturned under this Bill? Would the Eileen Flynn case be repeated under this Bill? Would the gardener of a Scottish school who was dismissed for association with gays be protected under this legislation? I can give the same guarantees as any other Member of the Legislature. Each case is argued separately on its own merits and redress authorities will determine each case based on the particularities in question. It is for the Judiciary, not the Legislature, to interpret this law.
I am satisfied that the provision as it stands provides considerably more protection than exists under Irish or UK legislation. The Eileen Flynn case was taken under the Unfair Dismissals Act, 1977. While I cannot say what the outcome would have been if that case had arisen under the Employment Equality Act, 1977, it is possible that the specific protections for pregnant workers in EU equality case law may have prompted a different outcome.
Senator Norris has put forward a thought provoking amendment which would involve inserting the word "deliberately" before "undermining". The text of this provision already leans some way towards the meaning which Senator Norris seeks. It does not read that action must be reasonably necessary to prevent the undermining of the religious ethos. Rather, it requires that the action must be reasonably necessary to prevent the employee from undermining the ethos.
Senator Norris's amendment would go a little further and would upset the delicate balance in the current text. I am not convinced that his amendment is necessary. He may be correct that I used that word in the course of a heated television debate. I cannot recall using it, but if he says I did then I am sure he is right. If I said that a person who deliberately undermined the ethos of an institution would have to be kept on, then a fortiori that would be the position. A reasonable position is being adopted in the amended section 37(1).
From the perspective of ethos, a person's activities in the course of their employment in an educational institution could fall into one of three categories. These are not exclusive and there could be grey areas in between. Category A is where the institution requires the employee to pro-actively work for the ethos of the institution. Many institutions require this and are disappointed that it is not provided for in the Bill.
Category B is where the employee does not pro-actively advance or work against the ethos of the institution. They do their job and go home. Category C is where the employee undermines the ethos of the institution. I am not saying that an employee has to pro-actively advance the ethos of the institution, nor that they may be neutral. My point is that they must not undermine the ethos of the institution. That is a reasonable provision.
We must work from the base that we have a denominational system of education. If one was working from the base of a secular system the position may well be very different. Once one accepts this position then it could not be tenable that a person should be maintained in employment if they undermine the ethos which is one of the primary raisons d'être of the institution.
I appreciate Senator Norris's motives in this regard. However, I must also acknowledge the concerns of denominational interests in this provision. They have expressed equal disappointment at the present text. They have criticised this provision as a serious dilution of their need to protect, maintain and advance a religious ethos.
Senator Henry mentioned that she had received many letters expressing concern that teachers' rights could be infringed as a result of this provision. I too have received volumes of correspondence of a similar nature. However, I received an equal, if not greater, volume of letters supporting the retention of the original section 37(1) text. I have a balance to achieve and that is provided by the current text.
A wide range of consultations took place with social partners, including all the teacher unions and denominational and parent interests, before Government agreement on the revised version of this subsection was secured. There are significant improvements in the current version which respond to the concerns of teachers. This has been acknowledged by Senator O'Toole. The new text has been welcomed by the Association of Secondary Teachers of Ireland. Given that disputes on section 37(1) are for adjudication by an independent Director of Equality Investigations and that the provision is also regarded as satisfying the constitutional and legal requirements of denominational education, I propose that the existing text be retained.
As regards the amendment on divorced people, I understand the sentiment behind Senators Dardis's and Lee's amendment. There are a variety of other situations which might be listed in such an exercise. The itemisation of this one issue in the subsection could reasonably leave other situations such as separation, non-marital relationships and a plethora of other private life issues open to being deemed by their exclusion to undermine the religious ethos of the institution. I know this legal interpretation is not one the Senators had in mind when they tabled the amendment but it is a reasonable albeit unacceptable interpretation of the text. The amendment, like others tabled on this subsection, seeks to determine the meaning of religious ethos. I have already indicated that the decision as to what constitutes the undermining of religious ethos rests with the statutorily independent redress mechanisms established under this Bill.
Acting Chairman
Is the amendment being pressed?
Yes, it is. The Minister has done his best to be fair and reasonable and I accept that he believes this section balances the absence of freedoms slightly. It is interesting to notice how the general secretary of one of the biggest trade unions in the country representing teachers takes a completely opposite view and makes the point clearly, vigorously and firmly that by incorporating the notion of ethos into law for the first time it gives authorities a peg on which to hang their decision to discriminate and to attempt to legitimise it.
The Minister answered one of my questions, whether the Eileen Flynn case would be repeated, by saying he could not say. I also asked if people who have conscientiously left the Roman Catholic Church or are no longer practising Catholics would be discriminated against. I am sure the Minister will again find it difficult to provide a concrete answer and will say it must be left to the equality officer or the courts to decide. I was also asked to put a third question about non-attending Christians being allowed to teach religion. Again, I imagine the Minister is not in a position to answer that clearly.
Far be it from me to upset the delicate balance which the Minister believes himself to have achieved, but he gave the example to this House of three categories: someone who proactively supports the ethos of the school, someone who teaches mathematics and does not support or attack the ethos of the school and someone who undermines it. However, the Minister scrupulously avoided the fourth category, which is the person who conscientiously teaches mathematics, who does not set out to undermine or advance the ethos of the school or institution, maintains a strictly neutral position and yet, by virtue of his or her human reality, is held to undermine the ethos of that school and we are now enshrining that in legislation for the first time.
I have placed several times on the record of the House what the most senior figure in the Roman Catholic Church has indicated as the ethos of that Church. Once we protect that, they can turn around and state that we had the opportunity to protect people against it and that we knew full well what was their ethos. Cardinal Ratzinger produced the infamous Hallowe'en pastoral which advocated discrimination. If one protects an ethos which advocates discrimination, how can one pretend one is protecting people against it? No one could accuse Cardinals Ratzinger or O'Connell of having concealed their motives or concealed or fudged what they believe to be the ethos of a Church of which they are princes. Incidentally, princes are not an especially democratic phenomenon.
I am not convinced. I recognise the Minister's considerable political difficulties, his humane outlook in these areas and the remarkable work he has done. However, I must continue to believe he is wrong on this matter and I will press the amendment. However, I am a realist and have done a little homework as regards the support I might receive, which will not be great. There will not be huge antagonism, but the principal Opposition party has not found itself in a position to support the amendment. It will not vote against it but will not support it either. I will call for a voice vote because it would be irritating for my colleagues and for those who have been here all day if I were to go through the rigmarole of wasting another few minutes in order to score a political point. However, I would like the House to believe that I hold what I say to be incontrovertibly true and that there is nothing in what the Minister has said which reassures me in the slightest.
An ethos which is inimical to the security of employment of a significant section of the population is for the first time being enshrined in law. Let no one say afterwards they did not know what this meant. I pointed out there is no definition of ethos in the world so we are left with what the most senior representatives of the Roman Catholic Church have to say on this matter. I do not want to attack them exclusively.
The Senator would not want to discriminate against them.
However, the Church of Ireland has been used as a cloak beneath which it is easy to hide. I heard it said on radio yesterday that they were grateful to the Church of Ireland because it made the running and that if anything is to be done, the minority must be trotted out so as to get in on its coat tails, because the majority is under pressure these days.
I am very disappointed. I reassure the Minister that he did use that form of words. Perhaps it was a little unfair of me to pin him to it, but it was not a heated debate. Even when debates are, the Minister has shown a remarkable capacity to remain detached, clear and logical and I admire the clinical exactitude with which he enunciated the form of words which I, in an attempt to be helpful, wished to insert into this Bill. I must press the amendment but I will not push it to a vote. However, I would have done so if I could have won it.
Amendment put and declared lost.
Amendment No. 37 not moved.
Acting Chairman
Amendments Nos. 38, 39, 44, 46, 47, 49, 52, 54 and 60 are related and they may be debated together.
Government amendment No. 38:
In page 35, to delete lines 29 to 47 and in page 36 to delete lines 1 to 11 and substitute——
"(2) The Minister, with the consent of the Minister for Finance, shall appoint a person to be the Director of Equality Investigations to perform the function conferred on the Director by or under this Act or by any other enactment.
(3) The office of the Director shall consist of the Director and such staff as, subject to subsection (4), may be appointed by the Minister, with the consent of the Minister for Finance, to assist the Director in carrying out the Director's functions; and the Director and the persons so appointed to the staff of the Director shall be subject to the Civil Service Commissioners Act, 1956, and the Civil Service Regulation Acts, 1956 and 1958.
(4) Any person who, immediately before the commencement of this subsection, was holding office as an equality officer of the Labour Relations Commission shall, at that commencement and by virtue of this subsection, become, as an equality officer, a member of the staff of the Director.
(5) From among the Director's staff the Director may—
(a) appoint persons to be equality officers; and
(b) appoint persons, including those who are equality officers (whether by virtue of subsection (4) or of appointment under paragraph (a), to be equality mediation officers;
and the Director may delegate any function conferred on the Director by or under this Act or any other enactment to an equality officer or equality mediation officer.
(6) The Director, equality mediation officers and equality officers shall be independent in the performance of their functions.".
Section 38 already provides for the appointment of a director of equality investigations under the aegis of the Labour Relations Commission. In the section as presently drafted, the director provides the avenue of initial redress in employment equality cases. The purpose of the present amendment is to provide, through the director, a single, publicly identifiable forum for redress both for discrimination cases arising out of this Bill and the Equal Status Bill, 1997. To this end I am establishing an independent statutory office under the aegis of my Department to deal with discrimination cases whether in the area of employment or the provision of goods, services or facilities. This initiative will allow a sensible concentration of resources and facilitate a high quality service.
I am also concerned to provide one locus for initiating discrimination cases and to aid the development of consistency and coherence in the case law emerging under both Acts for complainants. I am also conscious, in providing a single locus for redress, that there are accessibility considerations, both physical and otherwise, which will fall to be provided in order to cater for some of the minorities protected in the two Bills. I envisage the new office providing a strong model of excellence in this area.
The first amendment in this grouping is the substantive amendment. The amendment to the definitions of equality officer and equality mediation officer in section 39 and the four amendments in sections 43, 45, 47 and 53 are technical amendments arising from the substantive amendment. I have also decided, in the context of that substantive amendment, to amend section 69, which deals with codes of practice and it has been necessary also to make consequential amendments to the Industrial Relations Act, 1990, and these amendments are achieved in the new section 69 which has been inserted in the Bill.
Senator McGennis has tabled amendment No. 48, which is a revised text for section 43(6). This amendment has been re-entered and resembles a similar amendment on Committee Stage. In redrafting Government amendment No. 47, I have sought to cover Senator McGennis's point.
Amendment agreed to.
Government amendment No. 39:
In page 36, to delete lines 29 to 31 and substitute—
"equality mediation officer' and 'equality officer' shall be construed in accordance with subsections (4) and (5) of section 38;".
Amendment agreed to.
Government amendment No. 40:
In page 38, line 8, after "he" to insert "or she".
Amendment agreed to.
Amendment No. 41 not moved.
Government amendment No. 42:
In page 38, between lines 32 and 33, to insert the following:
"(7) The provisions of this section are without prejudice to later provisions of this Part relating to the obtaining of information.".
The concerns raised by Senators with regard to the right to the information provision of section 40 prompted me to look again at how to clarify the distinct rights of information of potential claimants and the redress authorities. It is obviously particularly essential that the redress authorities in the form of the director and the Labour Court should have comprehensive powers to access information. Accordingly, sections 58, 59 and 60 provide explicitly strong powers to enter premises and obtain information, require persons to provide information and impose sanctions for failure or refusal to supply information or documents. Section 58 gives the director or his or her staff or the Labour Court the power to enter premises and obtain all information relevant to the case and to inspect books, records or computer information. Section 59 provides powers to question individuals who may have information relevant to a case. Section 60 sets out sanctions for failure or refusal to provide information or to attend before the director or the Labour Court. These represent very extensive powers and ensure that in determining any case before them, the director and the Labour Court have all necessary legal backing and access to all relevant information.
Senators would agree that it would not be appropriate to confer equivalent rights to information merely on potential claimants. However, section 40 recognises there is a need for such persons to have access to information to allow them to decide whether or not to take a case under the Bill. This right is duly qualified so as to protect the privacy of third parties. For example, it would not be appropriate for a potential claimant to have access to details of pay of another person who did not wish such information released, or for a potential claimant to have access to details of another employees pay or bonuses or remarks of a selection board on another candidate. On the other hand, such information would be accessible to the director or the Labour Court. To clarify that such information, while not available to a potential claimant, is available to the authorities, I am moving an amendment to section 40 to record this. I am sure there is no legal requirement for this amendment but I table it in the hope that it will reassure Senators and remove any doubts they may have that important facts in a case would be withheld in any case.
Amendment agreed to.
Government amendment No. 43:
In page 41, line 8, after "officer" to insert "concerned or, as the case may be, the Court".
This is a drafting amendment.
Amendment agreed to.
Government amendment No. 44:
In page 42, lines 13 and 14, to delete ", with the consent of the Minister for Enterprise and Employment,".
Amendment agreed to.
I move amendment No. 45:
In page 42, lines 13 and 14, to delete "with the consent of" and substitute "having consulted with".
Amendment No. 45 relates to amendment No. 44, so the fact that amendment No. 44 is agreed to makes amendment No. 45 irrelevant. Does amendment No. 46 not reintroduce this matter?
I dealt with this on Committee Stage and said it was not acceptable.
But the Minister can draw up regulations. The section requires the sanction of the Minister for Enterprise and Employment.
The consultation arises in connection with the Labour Court, but in the case of the director it would be the Minister for Equality and Law Reform.
Amendment, by leave, withdrawn.
Government amendment No. 46:
In page 42, line 23, to delete "Labour Relations Commission" and substitute "Director; and any such regulations relating to functions of the Court shall be made only with the consent of the Minister for Enterprise and Employment".
Amendment agreed to.
Government amendment No. 47:
In page 42, to delete lines 33 to 40 and substitute—
"(3), the Director shall issue a decision or, as the case may be, the Court shall make a determination and, if the decision or determination is in favour of the complainant,—
(a) it shall provide for redress in accordance with section 46; or
(b) in the case of a decision on a preliminary issue under subsection (3), it shall be followed by an investigation of the substantive issue.".
Amendment agreed to.
Amendment No. 48 not moved.
Government amendment No. 49:
In page 43, line 33, to delete "Director," and substitute "Director".
Amendment agreed to.
Government amendment No. 50:
In page 44, line 42, to delete "or," and substitute "or".
This is a technical amendment to the punctuation of the sentence.
Amendment agreed to.
Government amendment No. 51:
In page 45, line 15, to delete "sub-paragraph" and substitute "subparagraph".
It is hardly an embellishment.
Amendment agreed to.
Government amendment No. 52:
In page 46, line 4, to delete "Labour Relations Commission" and substitute "Director".
Amendment agreed to.
Government amendment No. 53:
In page 50, line 10, to delete "43;" and substitute "43,".
This is another amendment involving punctuation.
Amendment agreed to.
Government amendment No. 54:
In page 50, line 30 and 31, to delete "Labour Relations Commission" and substitute "Director".
Amendment agreed to.
Government amendment No. 55:
In page 51, line 38, to delete ", subject to section 57,".
This is a drafting amendment.
Amendment agreed to.
Government amendment No. 56:
In page 53, line 41, to delete "he may reasonably require" and substitute "may reasonably be required".
Amendment agreed to.
Government amendment No. 57:
In page 54, line 48, after "his" to insert "or her".
Amendment agreed to.
Government amendment No. 58:
In page 61, line 27 to delete "sub-paragraph" and substitute "subparagraph".
I do not want to be irritating, at least no more than usual, but why adopt this particular practice of running two words together without the hyphen?
It is the spell check on the computer.
It is not particularly good practice.
Acting Chairman
The amendment has already been discussed and the Senator cannot speak twice on an amendment on Report Stage.
Amendment agreed to.
Government amendment No. 59:
In page 62, between lines 9 and 10, to insert the following:
"69.—(1) The Industrial Relations Act, 1990, shall be amended in accordance with this section.
(2) In section 9 (application of provisions of Part II of that Act), in subsection (4) for the words ‘an equality officer' there shall be substituted the words ‘the Director of Equality Investigations'.
(3) In section 25 (functions of the Labour Relations Commission)—
(a) in subsection (1), paragraph (e) shall be omitted; and
(b) in subsection (8) the words 'section 8(2) of the Anti-Discrimination (Pay) Act, 1974, or' shall be omitted.
(4) Section 37 (equality officers) shall be omitted.
(5) In section 42 (codes of practice), in subsection (4), for the words ‘a rights commissioner or an equality officer' there shall be substituted ‘the Director of Equality Investigations or a rights commissioner'.".
Amendment agreed to.
Government amendment No. 60:
In page 62, line 34, to delete "question" and substitute "question; and for this purpose 'proceedings' includes, in addition to proceedings before a court and under Part V, proceedings before the Labour Court, the Labour Relations Commission, the Employment Appeals Tribunal, the Director and a rights commissioner".
Amendment agreed to.
Government amendment No. 61:
In page 65, line 22, to delete "the ‘1977'" and substitute "‘the 1977'".
This is a technical amendment.
Amendment agreed to.
Bill, as amended, received for final consideration.
Question proposed: "That the Bill do not pass."
I thank all the Senators who contributed to the passage of this Bill. The constructive nature of the contributions, particularly on Committee Stage, is reflected on the number of Government amendments proposed and I was glad to be in a position to respond in a positive manner to many of the issues raised by Senator. The Bill has benefited from these amendments.
We had a constructive and thought provoking debate on the provisions of the Bill which deal with sexual and other harassment. The debate highlighted the difficulties associated with drafting appropriate provisions to deal with harassment. In an effort to respond to that debate, I introduced a number of amendments to the key sections 23 and 32 of the Bill. These amendments respond well to the concerns of Senators and others.
I regret I was not in a position to agree to the request by a number of Senators, in particular Senator McGennis and Senator Dardis, to extend the scope of the Bill to cover political opinion and trade union membership. A fair compromise was reached in incorporating in section 6 of the Bill a commitment to review within two years the discriminatory grounds covered by the Bill.
We debated in some depth and at great length the extremely delicate religious ethos provisions in the Bill. I appreciate there is a reluctance on the part of some of the interests to accept the text of section 37 (1). However, I am convinced that the interests of all the parties concerned have been reasonably and fairly treated. I thank Senators for their constructive elucidation of the issues involved and their fulsome debate on them.
Listening to some commentators and critics over the past seven months, I felt insufficient recognition was given to the considerable merits of this momentous legislative proposal. Some critics may have lost sight of the ground breaking nature of this Bill. Others seem to suggest that Ireland should not only adopt a uniquely extensive anti-discrimination law exceeding those in most other countries but should also adopt provisions that far surpass those of the most advanced countries that have chosen to focus protective provision on a smaller number of discriminatory grounds. That suggestion is not realistic.
The vision and ambition of this and the previous Government has been to provide protection from discrimination on a wide range of grounds. In developing the proposals, I had to address many complex legal, social and economic considerations. This Bill balances those various considerations. I make no apology for seeking to introduce a measure which is sensitive to the many issues involved.
I take this opportunity to thank the chief Opposition spokespersons and Independent Senators for their contributions. I am glad I was in a position to respond to at least some of their concerns.
I thank and congratulate the Minister for the way he has conducted the Bill through the House. It is important and significant legislation and we hope it has the desired effect. I also congratulate his officials who have worked hard and taken on board many of the points we made on Second and Committee Stages. I welcome the fact that the spirit of many of the amendments put down was accepted. I hope Senator Norris's fears about section 37 prove to be unfounded.
It is important to state that there were several reasonably substantial Government amendments. The Clerk's office performed heroics this afternoon dealing with over 60 amendments in an hour. It was remarkable and they should be congratulated. It teaches us that perhaps there should be a greater interval between Committee and Report Stages. On this occasion, it worked well but it put the office under terrible pressure. It is unfair to ask the staff to deal with amendments in that length of time.
I agree with the Minister that we were dealing with some delicate, sensitive and complex issues. Even when we were clear on the intention of a section, it was difficult to find a formula of words to convey the intention. I concede the difficulty in finding that balance in certain sections. I hope that balance has been struck and that the legislation is successful. I suspect the Minister will return to the House, but in the event that he does not, I wish him well when he departs.
I thank the Minister and his advisers for the patience and courtesy with which they dealt with this matter during what has been for all of us a very long day. I accept his goodwill and good intentions. This has been a difficult and delicate balancing act for him. I hope my fears will not be realised. I pin some hope on what the Minister said about the role of the equality officer.
The Minister said that if he had taken some of the recommendations and amendments on board we would have gone further than some of the most advanced countries in Europe. While I understand his political difficulties in dealing with the real world, it is the responsibility of this House not just to refine legislation and put down amendments but to set a target that in future this is where we might go. Why should this small independent republic not be more advanced than any country in Europe?
I am glad the Minister indicated he will be looking at some questions, such as the complex matter of trade union membership and that he has given an undertaking that this will be reviewed over the next few years. I do not care for the idea of a closed shop such as the NUJ, which is sometimes quite fraudulently maintained. The Minister's contribution on this matter was, as always, thoughtful and interesting. He was particularly honest when I raised the jealousies in trade unions in guarding the sectional interests of their members, as opposed to the general workers.
It is unfortunate that the text to which I will refer is in the New Testament and not in the Old Testament or in a secular text. Although I might consider it regrettable, the preamble of the Constitution invokes Christianity and I recall being told on one occasion that a decision I was seeking could not be given because of the Christian and democratic nature of the State. The parable I will outline is that of the owner of a vineyard who hired labourers at different times during the day. When he hired somebody at the eleventh hour the other labourers got into a snit and objected. However, the owner of the vineyard said it was his money, "I hired you at a particular time in the day and you are being a paid a fair wage, so that is it". My interpretation of the meaning of that parable is that one should not always be looking over one's shoulder. In order to fit in with the constitutional prescription that we should be Christian and democratic, therefore, we ought to take on the mean mindedness of certain sectional interests, even within the trade unions.
I congratulate the Minister on keeping his patience with some of us. We must have been quite aggravating. It was a good debate and I am glad we had it. I am grateful the Minister was able to include some amendments from Members of the House. The Bill is unquestionably a better Bill for its passage through the House and I hope it works to the advantage of all citizens.
I congratulate the Minister. I am sure he did not find us irritating. I have always pointed to the fact that I am a reasonable woman——
Would it be discriminatory to say that was a contradiction in terms?
I also congratulate the Minister's officials and his adviser. This Bill is far reaching and important legislation. What it will mean for many people should not be underestimated. If the Minister's Department had not been established on the banks of the Grand Canal, where would we have been without the enormous amount of legislation it has generated?
I have a challenge for the Minister. I am confident that the election will be held in November, not least because I have many Christmas cards signed "Senator Henry" and if the election is held before November and I am not re-elected, what will I do with the cards?
Senator Henry for President.
I thank the Senator. I ask the Minister to go to Cabinet and request that he be given responsibility for the much needed legislation on abortion and in vitro fertilisation. The Minister for Health might let that chalice pass from his lips on this occasion.
The Minister is being given a poisoned chalice.
If I knew the Minister were assuming this responsibility, the Equal Status Bill would make even faster progress through the House at the hands of this reasonable woman.
I congratulate the Minister on his achievements and wish him the longest possible future in his Department so he can introduce much more legislation in these areas. They are difficult areas, but their difficulty does not mean they should not be confronted and tackled through the enactment of appropriate legislation.
Almost every Minister who comes before the House introduces legislation with the phrase: "This is extremely important legislation". Often the legislation does not live up to that claim, but in this case it does. This is one of the most important Bills I have dealt with in this House and its effects will be felt for a long time to come. An employer will be unable to discriminate against a potential employee on the basis of their sex, marital or family status, sexual orientation, religion, age, disability, race or membership of the travelling community. That is a huge achievement in a State where people tended to to accept that employment was dependent not on what one knew but who one knew. It is ground breaking legislation in achieving equality for all people in employment.
Hopefully, there will be major breakthroughs in terms of employment for people with disabilities and members of the travelling community, who have been given low expectations of opportunities for employment. The problem of sexual harassment was not taken seriously before the introduction of this Bill and as a result women, who are the main victims of such harassment, have been loath to complain. When they do, they are usually dismissed as cranks or as not being good sports. Even during the debate on the definition, we discovered there are different views in the House about what constitutes sexual harassment.
I ask the Minister to continue to work for women in low paid employment for as long as he and the Government are in office. It was not possible to deal with that issue in this legislation, although I wish it had been. The Minister should press in Cabinet the cause of these women.
People often say the Seanad has no function apart from being a retirement facility or a springboard for Members of the Lower House. Debate on legislation in the Seanad means a great deal, particularly when the efforts of Members from all sides of the House are recognised by a Minister. The Seanad has an important purpose and debate in this Chamber can improve legislation, as was the case with this Bill.
I join my colleagues in thanking the Minister for his approach to this legislation. I also compliment the Minister's staff for their patience and co-operation.
I welcome the passing of this Bill. I congratulate the Minister, his officials and the staff of the House, particularly on the work they did today. It has been a long day. This is important legislation. Some Members witnessed the changes wrought by equality legislation in the 1970s. At the time I worked in industry and saw the impact on the ground of the significant changes that were achieved. This legislation is no less significant and advanced and no less welcome. We look forward to a review in the next two years of the section which details the grounds of discrimination.
This is historic legislation. For the first time people in this country, despite their age, sexual orientation, marital and family status and the fact they are members of the travelling community, have the right to seek employment on an equal basis with other citizens. That is a huge and significant achievement. There could and should be protection against discrimination on the basis of trade union membership or political affiliation and I hope those issues will be addressed in the future. However, I accept the Minister has explored every avenue and has, as always, pushed the parameters of the legislation as far as possible.
I am anxious that information on this complicated legislation is disseminated throughout the country and that notices about its provisions will be available in every place of employment to let the people whom it affects know where they stand.
I congratulate the Minister, his adviser and his hard working staff on bringing momentous legislation before the House. I am particularly proud to see an important part of Labour Party policy being implemented.
Question put and agreed to.
Acting Chairman
When is it proposed to sit again?
Tomorrow morning at 10.30.
