Amendments Nos. 35 to 39, inclusive, are being taken together by agreement.
Employment Equality Bill, 1996: Committee Stage (Resumed).
Debate resumed on amendment No. 35:
In page 34, subsection (1)(a), line 28, to delete "reasonable" and substitute "necessary".
—(Senator O'Toole.)
A letter was read out on the "Gay Byrne Show" on RTÉ Radio One today regarding a teacher who is seven months pregnant and is in fear of losing her job. It is representative of the fear and concern throughout the country. All requirements to protect ethos, private lives, schools, etc., could be achieved if the Minister accepted an amendment which excludes from discrimination all the other grounds listed in the Bill, including sexual orientation, marital status, etc. I appeal to him to protect those who are not vociferous or prominent.
The objective is to ensure that the categories of people specified in amendment No. 38 are included in the Bill and will not be discriminated against. The amendments in the name of Senator Norris are unnecessary. It is all right to use the word "reasonable" in section 37(1)(a) and the words "reasonably necessary" in section 37(1)(b). However, it is essential to reconcile the problem of protecting the ethos of the school with protecting the employees within the school and it is possible to do so without difficulty.
My main concern is with protection of young women in the teaching and nursing professions. I wish I could say that I had not known women who had had abortions because they were afraid they would lose their jobs. I know it is not the Minister's intention that this legislation should allow for any such situations. However, figures show that, generally, four out of five Irish women who travel to England are single and give socio-economic reasons for seeking an abortion.
It is not a State secret that medical terminations up to nine weeks are increasingly common in England. As one who believes that abortion can never be the preferred end to any pregnancy, I want to ensure that women will not believe that they may lose their jobs if they continue with a pregnancy. While it is awkward for the school or hospital where such a situation may arise, we must be clear that tactical abortions cannot be condoned.
Cardinal Winning offered money to women who reconsidered their position if they became involved in a crisis pregnancy. However, it may have been more useful if he had said that no girl within his diocese would lose her job if he had the power to do so.
It is important to recognise that this is a serious problem, especially within schools and hospitals. While I understand the constraints under which the Minister is operating, he should try to ensure that everything can be done to persuade women, especially those aged 20 to 30 who are fearful of losing their jobs, not to consider abortions because of lack of support. This would be better than attempts to ensure that this is an abortion free isle.
I was interested to watch the accomplished performance by the Minister and Senator McGennis on "Questions and Answers" last Monday. In dealing with this issue the Minister made what many would see as a reasonable point. He asked how tenable it would be for any authority which had an ethos not to be permitted to refuse to hire, promote or engage the services of someone who deliberately undermined the ethos of that institution. That statement introduced a shade in the argument which is not in the Bill but which represented the Minister's thinking. Will the Minister accept an amendment, which I intend to table on Report Stage, to include the word "deliberately"? This would make it clear that an accident of fate — for example, being gay, a woman, elderly or a member of the travelling community — over which one has no control could not be construed as grounds for dismissal. The Christian Churches, if they wish to behave in a Christian manner, or the Muslim community, if it wishes to behave in accordance with the precepts of the Holy Prophet Mohammed, blessed be his name, or the Jewish community would find it difficult to resist the force of this argument on moral, ethical and humane grounds.
I will table an amendment on Report Stage to add the word "deliberately". Its acceptance would go some way to satisfy my concerns. I cannot anticipate any strong arguments against it. Given that I am quoting the Minister back to himself, he might experience some difficulty in countering it, although I know he is a man of extraordinary intellectual agility — I do not mean that in a negative sense — who can think on his feet and provide clear answers. I hope he will accept this amendment.
We are approaching St. Patrick's Day and traditionally, although not this year, the St. Patrick's Day parades in New York and Boston have been the focus of attention because of the deliberate exclusion of young gay Irish people. The opposition to them is led in New York, for example, by the likes of Cardinal O'Connell. He led a campaign to insulate the Church against provisions such as this. He made it clear that it was part of the Roman Catholic ethos to exclude people from employment and housing on the basis of their sexual orientation. If we incorporate the Roman Catholic ethos and protect it so that anybody who undermines it willy-nilly can be excluded from a job, we do so knowing that the ethos could be construed as allowing for dismissal of this kind.
Without attempting to humiliate or aggravate the Church authorities, the addition of the word "deliberately" would go a long way to meet the requirements. I believe the Church of Ireland would feel able to support such a position, although I speak only as an ordinary member of that Church. I would deprecate the use of the Church of Ireland as a convenient alibi for introducing this measure. I could not help noticing the prominence with which the spokespersons of the other religious interest groups make use of the Church of Ireland's intervention, which I deplore, in order to indicate that their position is pluralist. I would hate to see the Church of Ireland become a Trojan horse. There should not be denominational education paid for the State.
We hear a lot about the rights of the employees. What about the rights of the employers? The management of the schools are not the employers; the employers are the taxpayers because they pay virtually all the bills. If we are talking about the employers let us talk about the decent people of Ireland who have shown themselves to be compassionate, tolerant and deeply concerned about the implications of section 37.
I urge the Minister to consider the addition of the word "deliberately". I will find it sinister if it is not possible to accept even this small step towards the protection of vulnerable sections of our community.
We have had an extensive airing of the policy and practical implications of this provision. It has been an honest discussion and we have seriously considered what we agree is an important, difficult and delicate subject. Many issues have been raised and I sought in my earlier contribution to address as many of those points as possible. I thank Senator Norris for signalling that he will table a particular amendment on Report Stage. I look forward to examining it and considering its implications. I will give him my response at that juncture.
Senator O'Toole referred to the case of a pregnant worker. Pregnant workers are fully protected in the Bill because discrimination against them is discrimination on the grounds of gender. The protection of such workers is also derived from EU case law. I am satisfied that the provision as it stands gives considerably more protection than exists at present under Irish law or under UK legislation. The Eileen Flynn case was taken under the Unfair Dismissals Act, 1977. I cannot say for certain what the outcome would have been had it arisen under the Employment Equality Act, 1977, but it is possible that the specific protections for pregnant workers in EU equality case law may have prompted a different outcome.
Strong views have been expressed about the governance of schools and the havoc which fundamentalist interests could wreak if they secured control of school boards. I have reflected on these views and I am reassured that section 37 (1) can provide an effective protection for teachers in such circumstances. I am satisfied that the redress procedures provided for in the Bill can be relied upon to outlaw any unreasonable and unnecessary actions by school authorities on religious ethos matters.
I am impressed with Senator McGennis's perceptive observation that the teachers, parents and other citizens who comprise school boards are motivated by an ethos of public service and a personal concern to ensure the good of all concerned. Senators Dardis and O'Toole seemed to agree; and I am convinced that the parent, teacher and denominational interests which constitute the school boards are strong proof against the control of education by zealots or other extremists. In the exceptional case where they fail, the director and the Labour Court can ensure that the proper balance of rights is applied.
I note Senators have indicated that they will review their proposed amendments in the light of this debate. I will continue to consider any proposals but I am committed to the maintenance of the delicate balance of rights which has been achieved in this section.
When the Minister says he will not upset the delicate balance, I take it that it is not his intention to accept any amendments at this point, although there are some issues which should be dealt with. In that case, I will not press my amendment but I am unhappy with the section.
Amendment, by leave, withdrawn.
Amendments Nos. 36 to 39, inclusive, not moved.
Question proposed: "That section 37 stand part of the Bill."
I did not think it was appropriate to press the amendment because I take the point that people were unhappy with certain aspects of the wording. I am very concerned about the impression which is been given about this section. The amendments made by the Minister on Report Stage in the other House improved the Bill. I do not object to the four quite stringent tests of what is reasonable and necessary in order to stop an undermining action. However, I have other problems with the section which has not been amended to an extent which I can accept.
I appreciate that the Minister has to maintain a delicate balance between the different areas and he gave a fair hearing to every argument I raised. He did not concede to them but that is the job of Government. However, I do not want this section to pass without registering my opposition to it so I will not agree to it.
I conceded the last day that the Minister had significantly amended and improved the Bill in the Dáil. The only question which remained was whether it could be amended and improved even more and, in my view, it could. I listened carefully to what the Minister said and I find his argument reasonably convincing. However, the section would be improved by the insertion of an appropriate amendment on Report Stage which takes into account the various categories of people who cannot be discriminated against including, as the Minister rightly pointed out the last day, the disabled who are not covered by the terms of the original amendment. I share the concerns of Senator O'Toole on the section because, while it has been significantly improved, there is room for further improvement.
I am glad the Minister said in his reply that pregnant women are protected under this and other legislation. I do not see how they are protected in institutions which have a special ethos but if the Minister says they are I must believe him. This is my main area of concern.
Methods of legal abortion are in use which are less and less intrusive and require a person to be away from their job for less time. Medical abortions are widely used in England and have been in use in France and other European countries for more than ten years. We must be realistic about this. We hear statements being made that the Irish people are totally against abortion and we must make every effort to ensure that no one making a choice in that direction will have what they see as their interests damaged. I will take the Minister's word that everything is being done to protect women in that situation but I am unhappy with this section.
Acting Chairman
Is section 37 agreed?
No.
Question put.
Votáil.
The question is: "That section 37 stand part of the Bill." On that question a division has been challenged. Will those Senators calling for a division please rise in their places?
Senators O'Toole, Norris, Henry, Lee and Dardis rose.
The division will proceed.
The Committee divided: Tá, 26; Níl, 4.
Tá
- Belton, Louis J.
- Burke, Paddy.
- Calnan, Michael.
- Cashin, Bill.
- D'Arcy, Michael.
- Enright, Thomas W.
- Fitzgerald, Tom.
- Gallagher, Ann.
- Hayes, Brian.
- Howard, Michael.
- Lee, Joe.
- McAughtry, Sam.
- McDonagh, Jarlath.
- McGennis, Marian.
- Magner, Pat.
- Maloney, Seán.
- Manning, Maurice.
- Naughten, Liam.
- Neville, Daniel.
- O'Brien, Francis.
- O'Sullivan, Jan.
- Quinn, Feargal.
- Reynolds, Gerry.
- Sherlock, Joe.
- Taylor-Quinn, Madeleine.
- Wall, Jack.
Níl
- Dardis, John.
- Henry, Mary.
- Norris, David.
- O'Toole, Joe.
Tellers: Tá, Senators Burke and Magner; Níl, Senators O'Toole and Dardis.
Question declared carried.
Sections 38 and 39 agreed to.
SECTION 40.
Amendments Nos. 40 and 41 can be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 40:
In page 37, subsection (3), line 45, to delete "relating and" and substitute "relating".
Amendments Nos. 40 and 41 are in my name. My concern arises from the lack of access to information. My understanding of the way section 40 is written is that confidential information refers to any information which relates to a particular individual, which can be identified as so relating and to the disclosure of which that individual does not agree. My problem with that, as it is written, is that A seeking to take an equality case is arguing that he is doing exactly the same work as B but is being paid less than B. Person A should therefore be entitled to the same salary as B. To prove that case, they must have access to information, some of which is not freely available. If an under-the-counter agreement has been made between the employer and employee B, it would be easy for the employer to tell B that all they need to do is describe the information as being confidential. Therefore A, who is taking the case, will not have access to it.
The interpretation of confidential is far too loose. The individual simply has to say "I do not agree to the disclosure of that information" and A will not have sufficient evidence to initiate the case. That is why I have put down amendments Nos. 40 and 41.
In amendment No. 41, I have tried to strengthen the provision by inserting "and which is not reasonable for X to require". For example if X, in taking the case, makes unreasonable demands, that should not be acceptable. I believe my requirements are reasonable and it would be reasonable for the Minister to concede to them. Perhaps he will raise some point with which I am not familiar against the acceptance of these amendments but I think it is reasonable for me to say that simply allowing B to say the information is confidential is too loose. What I am proposing achieves two things: it makes it more difficult for B to withhold information and it puts in a fail-safe to ensure that a certain element of confidentiality is protected.
I appreciate that Senators O'Toole and Henry would wish to give a prospective claimant under the Bill access to as much information as possible to assist her in bringing forward a claim. I, too, have such a concern — hence, the provision of section 40 of the Bill. However, I did not consider that the Bill should give a right to confidential information to another employee without that employee's agreement. This does not mean that such information cannot be accessed by the Director of Equality Investigations or the Labour Court in determining the case. That is a crucial point. There are powers for the director and the Labour Court to obtain such confidential information without the agreement of the person concerned. They may also use this confidential material to reach a decision but they must respect its confidential nature. I consider it is sufficient that the redress bodies have access to this type of information. I do not think it is desirable or necessary to provide access to such information to another employee who may not use it at all to pursue an equality case. As the director and the court have this power, I hope the Senators will reconsider the need for their proposal.
I cannot dispute the logic of the Minister's point; I do not disagree with the way the Minister said this Bill would work. If I may give a practical example, I have a meeting tomorrow morning at nine o'clock of a group which in our union we call the prima facie committee. The meeting is being called to decide whether the union will take an equality case on behalf of a member. We take a very strict view of these things and weigh the evidence presented to us by the member. That evidence will commit us, one way or another, to taking a case which could continue through many stages until it reaches its conclusion. If the information is not there or cannot be found, we may have to decide whether or not it is an equality case. It makes it very difficult to initiate a case or protect a member if the information is not available.
The Minister must know from experience that at the point at which the Director of Equality Investigations decides to start looking for information from the employer or board of management in order to decide whether or not a a case has to be taken against a teacher or another employee, it is probable that by the time the letter arrives from Dublin with a harp insignia on the envelope, word will go around that the employee in question is dragging half the Government down on top of the school, small industry or whatever. It becomes a major issue. I agree that the director can get access to the information. However, there is one unfailing principle of conflict resolution and that is that conflicts should be dealt with at the lowest possible level and at the first stage. An employee who does find access to relevant information, information which it is reasonable for them to require, may prevent the entire panoply of State becoming involved.
If one considers the principles of delivering better government or the Bill we will be discussing in the coming weeks with regard to the operation of the Civil Service, it is clear that we want things dealt with at local level. I know from 25 years' experience of dealing with grievance procedures that those with the best long-term chance of success are those which are resolved at stage one. Stage one in this is for the person to find out they do not have a grievance. For example, I could say that I am certain that I am being discriminated against because I am being paid less than Senator McGennis for doing the same work. I have a grievance; but when I look for certain information, I am deprived of it. That nurses my grievance more. By the time I reach the next stage, when I have made a decision to set the process in train, outsiders begin to get involved. Everybody in the industrial relations area, be they employers, employees, unions or management, will always say that it is better to sort out the problem without getting outsiders involved.
I am not disagreeing with the points the Minister is making. However, I would like him to focus in on what is wrong with what I am proposing. My proposals do not upset the integrity of the Bill and they do protect confidentiality, of which I would be very jealous. I would be interested to hear from the Senator on the other side of the House who is a member of the Employment Appeals Tribunal. I wonder what his view would be on this matter, although I know the situations are not exactly comparable. Would it not be much easier if the information was made available at the first stage and people would realise whether they had a case or not?
I support Senator O'Toole's amendment and will not rehash the reasons because he outlined them very cogently. If the Minister is in a position to answer the following question, it may expedite matters. Is my instinct correct that the Minister will not be able to accept any amendments because of the complex nature of the Bill and the political fabric which supports it, so there is no point doing more than stating the argument and returning to it again will not do any good? Even if we were to convince the Minister, there are political reasons that will ensure no amendments are accepted, possibly because of a fear that if the situation was opened up the relationship between the parties might unravel the legislation. Is the Minister politically in a position to accept any amendments? Is it simply a question of going through the motions of putting our arguments on the record and then if we are can on Report Stage, assist the Minister by inserting at least one of the amendments we are considering this afternoon?
I assure Senator Norris that I intend to resubmit amendments discussed on Committee Stage on Report Stage.
Maith an cailín.
The Minister indicated that he would return to many of the amendments. I would not like Senator Norris to think the Minister has a closed mind since I was given the opposite impression.
The option of a closed mind.
It amounts to the same thing if an amendment is not accepted. I hope the Minister will say that is not the case and that amendments will be accepted on Report Stage.
I would like to pick up on a point made by the Minister about something being reasonable for X to require as proposed in amendment No. 41. He rightly suggested that the director or the designated officer has wide powers to investigate and require people to produce books, documents and other information. That is not the same as saying the person who is the subject of the case should not have access. I envisage circumstances where the director may not believe certain information is required and where person X may consider it reasonable. I take the point that we do not want to get into a vexatious area where somebody should trawl through files and information willy-nilly. I do not believe the amendment would open up that possibility.
I would welcome the opportunity to have an exchange of views on the theories of political science with Senator Norris at a future date. That would be a very enjoyable exercise but this is neither the time nor the place. Anybody who knows my record over the past four and a half years as a Minister will know that I frequently accept amendments and have no hang ups in so doing if they are appropriate, reasonably placed and will add to the legislation. I accepted amendments to legislation on many occasions, including this Bill. If Members are patient, I may accept amendments on Report Stage; but not these two amendments.
This section addresses giving the right to a person to get certain information before they bring an application. That is a major step forward. In a normal lawsuit, a person does not get any information, confidential or otherwise, before proceedings are underway. When proceedings are underway, a person may make an application for discovery of documents and so on which one may or may not get. That is not what this section deals with. This is a request for information by a person who has not brought any proceeding and has not referred the matter to the director and perhaps never will do so.
A person might like to know the earnings of employees in Senator Quinn's firm so they make a request for information about those working there because they may decide to bring a claim. Senator Quinn's employees might rightly say their earnings are a confidential matter and not to be disclosed to a person merely because they say they may bring a claim. Taking the analogy of Senator O'Toole and Senator McGennis, Senator McGennis may not be pleased to have her earnings disclosed on the basis that Senator O'Toole may bring a claim before the director. Salary comparisons and so on would be relevant at the hearing and that is not excluded by the legislation. On the contrary, if a person is convinced they have a claim and initiates an investigation before the director, he or she may then access all information that is necessary for the director to make an appropriate determination, whether confidential or not, which must surely be fair and reasonable. Any argument to the contrary is totally untenable.
I fundamentally disagree with the points made, although I do not disagree with points made about seeking information on other people's salaries no more than if I asked the Minister what was in his bank account, it is irrelevant. I do not believe the Minister read my amendment and I feel somewhat let down by that. My amendment states: "which it is not reasonable for X to require"." It would be unreasonable for anybody to seek the information the Minister used as an example. The only way such a situation would arise is if the employees say to an employer that they believe they are being discriminated against. The only way in which they can be discriminated against is on the basis of salary where somebody in like employment is being paid more. I do not understand how somebody could ask for a list of the salaries or wages of employees in a firm. That is a specious argument and this issue is worthy of closer consideration.
If somebody seeks information, it must be on the basis that they feel they are being discriminated against. The employer must decide if it is reasonable to make the information available. If the employer decides it is not reasonable, the person thinking of bringing the case must decide if they wish to take the next step and take it to the director. This amendment introduces another stage before lawyers, counsel and unions become involved and is sensible and worthwhile.
If the Minister is asking me if it is reasonable for somebody to seek information on other employees in a firm, the answer is in my amendment. If it is not reasonable, the person does not get the information and if it is, they do. The person being asked for the information, the employer, decides if it is reasonable. It is unfair to use that specious argument and it does not do justice to the point I made. I do not disagree with the Minister's description of how the Bill will operate and with what the director may do. If there are problems, they should be dealt with at the lowest possible level. I made an arguable case on deciding whether information sought is reasonable, which is the best way to deal with this.
I have nothing further to add.
Amendment, by leave, withdrawn.
Amendment No. 41 not moved.
Acting Chairman
Amendment No. 43 is an alternative to amendment No. 42. Amendment No. 44 is related. Amendment Nos. 42, 43 and 44 may be discussed together by agreement. Agreed.
I move amendment No. 42:
In page 38, lines 8 to 25, to delete subsection (5).
The provisions in this section relate only to the Civil Service, the Local Appointments Commissioners, the Minister for Defence and the Commissioner of the Garda Síochána. The section states that "information shall not be regarded as material information for the purposes of this section if it relates to communications with external advisers to any of the persons referred to". It seems that this information does not form part of the information which would be made available through the Bill. If it only applies to the Civil Service, the Local Appointments Commissioners, the Minister for Defence and the Commissioner of the Garda Síochána, then why does it appear to discriminate against their employees? I anticipated that I might be wrong and unsuccessful in having this section deleted.
Will the Minister look again at the wording of subsection (5)? The subsection states "In a case where a person considers that he may have been discriminated against". The Bill states that he means she and she means he. However, it would be preferable if the subsection was gender neutral.
The 28 day period allowed for in section 41 may cause a problem if, for example, someone was away when a decision was taken. The time limit is too short and needs to be extended to three months.
Amendment No. 42 seeks to delete the special arrangements contained in section 40 in relation to the information which must be disclosed to a person who considers that he or she may have been discriminated against in the course of an interview by the Civil Service Commission, the Local Appointments Commissioners, the Minister for Defence, in respect of recruitment to the Defence Forces or the Garda Commissioner. The Civil Service, the Local Appointments Commissioners and the Defence Forces were excluded from the provisions of the Employment Equality Act, 1977. They are, for the first time, brought within the scope of equality legislation in this Bill.
As far as the Garda Siochána is concerned, I have curtailed the exclusions which existed under the 1977 Act. These four public service recruiting agencies deal with high numbers of prospective employees every day. They have a strong commitment to fair recruitment practices. Given the large number of applications they receive, there is potential for a large volume of correspondence concerning the outcome of competitions for appointments. The special provision in subsection (5) gives these agencies the opportunity to deal with this correspondence in a reasonably systematic way.
In addition, these agencies rely on purely voluntary, experienced external practitioners from the private and public sectors for most of their competitive interview programmes. The section excludes the communications of these practitioners from the important process under section 40.
These arrangements apply to the preliminary information process. Once a formal complaint is lodged, all information necessary to the case would be available to the director and the Labour Court under the strong investigative powers provided for in sections 58 to 61. In these circumstances I ask Senator McGennis to withdraw her amendment.
Amendment No. 43 has the effect of making this provision gender neutral. In drafting this Bill, the parliamentary draftsman sought to use, as far as possible, gender neutral language. I am aware that there are a few provisions which are not couched in gender neutral terms. In these cases the parliamentary draftsman has indicated that the use of gender neutral language would make the provision unduly cumbersome and defeat good English. I am grateful to Senator McGennis for taking the trouble to identify this departure from gender neutral language in the Bill. I agree with her that it would be desirable if a more politically correct form of words was prepared. I will look at this issue again before Report Stage.
Amendment No. 44 would extend the period which the complainant may wait before referring a claim to the Director of Equality Investigations or the Circuit Court from 28 days to three months. The 28 day limit specified in this subsection is provided so as to allow the complainant the benefit of the 28 days he or she may have lost waiting for a response to an information request. Twenty eight days is the maximum period allowed to the Civil Service Commission and other agencies to reply to the request. The 28 day period is a top up to the general time limit of six months for initiation of a claim provided for in section 41(6)(a). There is provision for an extension of the six month time limit to 12 months if there are exceptional circumstances. I am sure Senator McGennis will agree that these are generous time limits for bringing a case and will look favourably on my request to withdraw this amendment.
I thank the Minister. I obviously missed the point he makes in relation to amendment No. 44. In view of what he stated about the gender neutral language, I withdraw the amendment and will not move the other two.
Amendment, by leave, withdrawn.
Amendment No. 43 not moved.
Section 40 agreed to.
SECTION 41.
Amendment No. 44 not moved.
Section 41 agreed to.
SECTION 42.
I move amendment No. 45:
In page 41, subsection (7), lines 25 to 28, to delete paragraph (b) and substitute the following—
"(b) shall automatically be returned to the Director for a resumption of the hearing of the case, and".
This section seems to place the onus on the complainant to pursue a case further. If someone brings a complaint and feels that they have not got satisfaction it seems logical that the case should go futher. This amendment seeks to ensure that if a case is not resolved, it would go to the next court of appeal.
In drafting this provision I decided to provide that in a case where mediation fails the complainant should indicate an interest in relodging the claim before the director or the Labour Court would recommence investigation of the claim. The reason I took this approach is to afford the claimant an opportunity to abandon the case if they wish. It is not uncommon for a complainant to decide not to pursue a legal remedy which fails at mediation in the light of information which became available in the course of that process.
Alternatively, the employer and complainant might reach a private settlement in relation to the dispute. Accordingly, I am concerned that the amendment provides, in an overly prescriptive way, for the treatment of cases after mediation when in practice the appropriate post mediation action will vary from case to case. I ask the Senator to withdraw her amendment.
In my desire to ensure that whoever brought the complaint was catered for, I omitted to note that they may not want to proceed with it. I withdraw the amendment.
Amendment, by leave, withdrawn.
Section 42 agreed to.
SECTION 43.
I move amendment No. 46:
In page 42, subsection (4), lines 13 and 14, to delete "with the consent of" and substitute "having consulted with".
I wonder why the Minister needs the consent of the Minister for Enterprise and Employment; it should be sufficient to consult with him.
Section 43(4) provides that the consent of the Minister for Enterprise and Employment must be obtained before making regulations governing the procedures to be followed by the Director of Equality Investigations or the Labour Court. The court comes within the remit of the Minister for Enterprise and Employment. In view of his responsibility for the Labour Court, it is appropriate that the court's procedures should only be regulated with his consent. It would have been possible to provide merely for consultations with the Minister as envisaged in the amendment. However, a consenting role for the Minister represents a more equal balance in law and is appropriate to the matter in question.
Amendment, by leave, withdrawn.
I move amendment No. 47:
In page 42, subsection 6 (a), line 34, to delete "and" substitute "and/or".
I tabled the amendment because a case can be decided by either an equality officer at mediation or by the courts. It is not correct to say it has to be both.
I have examined this provision in the light of Senator McGennis's proposed amendment. The use of the word "and" in this provision is in order. I consider it might be more appropriate to use the word "or". I have not seen in legislation to date an "and/or" amendment along the lines sought by the Senator. However, I will discuss the issue further with the parliamentary draftsman and will return to it on Report Stage.
Amendment, by leave, withdrawn.
Section 43 agreed to.
Sections 44 to 69, inclusive, agreed to.
SECTION 70.
I move amendment No. 48:
In page 63, subsection (5), line 32, to delete "50" and substitute "10".
This amendment deals with the size of a company. The powers conferred by subsection (4) do not apply to any business which has fewer than 50 employees. The vast majority of businesses have fewer than that. We do not want very small companies brought within its remit but many service industries, especially those which employ women, have fewer than 50 employees. The limit should, therefore, be reduced. The amendment proposes to reduce it to ten but I will wait to see what the Minister has to say on the matter.
The Minister, replying to an earlier amendment, spoke of the need for clear language and proper English. There is a refreshing absence of the "in relation to" disease in this Bill. I have waged a war on this aspect of Bills. There is a proliferation of the phrase "in relation to" in legislation which is meaningless because "for", "by", "with", etc. could be used instead. There is a marked absence of the phrase "in relation to" in this Bill whereas others are littered with it and there is a greater clarity of language as a result.
The provision for equality reviews and action plans is a new Government initiative in the field of equality. It is devised to target larger employers where the impact of equality reviews and action plans would be greatest. It recognises that small firms may have difficulty becoming involved in formal mechanisms of this nature.
The special treatment of small and medium sized enterprises is generally recognised as an appropriate consideration in the context of employment regulation. In this provision, such special treatment is applied. Senators will recall the concern expressed in this House by Senator Quinn on Second Stage that excessive regulation can adversely impact on job creation, especially by small firms. While individual rights of employees for protection against discrimination should not be applied according to firm size, there is, in the context of equality reviews and action plans, a strong case for promotional measures such as these to be targeted at employments of a given size leaving smaller firms exempt. It can be argued that the targeting of such reviews and plans at smaller firms may be less effective, especially as regards representation of minorities in such employments.
Nevertheless, I have reviewed the breakdown of employment by reference to the threshold size of 50 employees. According to CSO sources, an estimated 64 per cent of employees in Irish employments are employed in firms with more than 50 workers. While nearly all public service employees are in this position, approximately half of private sector employees are also encompassed. I am satisfied, therefore, that a focus on firms of this size or bigger will ensure that firms employing close on two thirds of the Irish workforce will be subject to this provision.
The section does not rule out involvement of smaller firms in equality reviews and action plans on a voluntary basis. I am confident that effective application of this provision will have spin-off benefits for smaller employers as it will highlight employment equality deficiencies and best practice across many Irish firms. Nevertheless, I have considered how I might respond to the need implied by these amendments for the authority to have an active engagement with small firms in tackling employment discrimination. I therefore propose to take up with the authority the option of setting up a dedicated targeted service to provide ongoing support and advice for small employers. In the case of small firms, a supportive expert service responding to their needs has a greater prospect of progressing equality than the more formal imposition of equality reviews and action plans. These are more suitable to more adequately resourced firms, with more developed and sophisticated human resource functions, which can more easily participate in such activities.
The Minister will be pleased that on the completion of Committee Stage we are in complete agreement. I fully accept his reply, and there is a case for saying there is too much regulation of and intrusion in the affairs of small businesses. We must be careful not to intrude too much and not impose impossible conditions on small businesses. The Minister's answer is therefore quite satisfactory and I thank him for producing the figures he has mentioned.
Amendment, by leave, withdrawn.
Section 70 agreed to.
Sections 71 to 73, inclusive, agreed to.
Title agreed to.
Before leaving Committee Stage, I wish to inform the House that I have tabled amendments on Report Stage which have not been signalled in this debate. Amendments arise from the concurrent passage of this Bill and the Equal Status Bill. I will be amending Parts V and VI so as to provide a common redress procedure of first instance for both Bills under the Director of Equality Investigations. The necessary amendments are already contained in section 57 of the Equal Status Bill but the changes are more appropriate to this Bill and I will be arranging matters accordingly. In addition, I envisage amendments to address small differences between the two Bills — for example, in relation to the definition of disability and sexual harassment. There may be need for drafting amendments in some sections, such as sections 42 and 55.
I assume these amendments are framed by the Government that take into account the debate here rather than amendments coming from the House. Is the Minister open to amendments on these areas or has he already drafted his own?
The amendments will be circulated very shortly.
Bill reported without amendment.
Acting Chairman
When is it proposed to take Report Stage?
Today at 4.30 p.m.
Report Stage ordered for 4.30 p.m. today.
Sitting suspended at 3.25 p.m. and resumed at 4.30 p.m.