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Seanad Éireann debate -
Wednesday, 18 Feb 1998

Vol. 154 No. 6

Employment Equality Bill, 1997: Committee Stage.

Section 1 agreed to.

I move amendment No. 1:

In page 8, subsection (1), line 2, to delete "a deliberate" and substitute "an".

Many amendments have been tabled on Committee Stage. I look forward to a wide-ranging debate and the Minister's co-operation in improving an extremely important and valuable Bill.

Members on this side of the House believe that use of the word "deliberate" gives employers an out clause in the context of this important section which deals with interpretation. The amendment is designed to narrow the range of the section and prevent the creation of an out clause.

The definition of the term "Act" contained in the Bill was taken from the Employment Equality Act, 1977, and it has been tried if not tested. The definition has proved adequate for 21 years. In those circumstances I see no compelling reason to change the terminology in the Bill.

Amendment, by leave, withdrawn.

I move amendment No. 2:

In page 8, subsection (1), lines 16 to 19, to delete all words from and including "with" in line 16 down to and including "1997," in line 19.

This amendment attempts to broaden the scope of the Bill which, as already stated, is good legislation. The purpose of Committee Stage is to debate in detail how a Bill can be improved and to hear views from all sides of the House in that regard. The amendment inquires why the subsection refers only to employment agencies and we are interested in broadening its scope.

The definition of "contract of employment" is in accordance with the scope of the Bill. It extends to all employees, including agency workers. The proposed amendment would have the effect of extending the scope of the Bill beyond employees to the self-employed and independent contractors and would, therefore, fundamentally alter the purpose of the legislation. I am unable to accept the amendment.

I am disappointed with the Minister's response because it is narrow. I hoped for a more flexible approach and that he would look at our amendments in the spirit in which they were intended, which is to improve the Bill. We are not being critical necessarily about how it is drafted. My party is largely responsible for the Bill in its current incarnation and is trying to be constructive, not critical. I hope the Minister approaches our amendments in that regard.

Amendment, by leave, withdrawn.

I move amendment No. 3:

In page 8, subsection (1), line 30, to delete "chronic".

What is the effect of the word "chronic" since deleting it removes any possibility of discrimination taking place? Will it be used in a temporary fashion? If so, how temporary? How long does "chronic" continue?

The spirit of the Bill is to avoid discrimination but it may occur because of the inclusion of the word "chronic". Will the Minister consider what we are trying to achieve?

Section 2 deals with interpretation and a number of meanings are set out for the word "disability". Paragraph (b) states "disability means the presence in the body of organisms causing, or likely to cause, chronic disease or illness,". That is not the only ground upon which a person may be deemed to be disabled within the terms of the legislation, but the term "chronic" in this context is the same as the definition set out in the Oxford English dictionary where it is defined as "lingering, long continued or inveterate". The inclusion of this term in the definition of "disability" is to reflect such a meaning.

The legal and medical advice available suggests the omission of the term "chronic" could lead to the common cold or other minor viral infections being construed as a disability for the purposes of the Bill. I am sure the Senator does not intend that an individual would be deemed to suffer from a disability just because he or she happened to have a cold and that is why we have included the term "chronic" in the legislation. The Senator will agree on reflection it would diminish the value of the Bill considerably if it was amended along the lines suggested by her and I hope she will consider withdrawing her amendment.

Amendment, by leave, withdrawn.

I move amendment No. 4:

In page 9, subsection (1), line 34, after "divorced" to insert ", cohabiting, annulled".

Amendment No. 4 is inspired by the Committee Stage debate on the previous Bill. In fact, this amendment is not original in the sense that it was proposed by Senator Keogh who was then a Deputy. While it was not accepted by the then Minister, I was not a Member of the previous Oireachtas so I do not feel obliged to accept what happened there. On reflection we felt that it was a valuable and worthwhile amendment and I was happy to table it. It achieves a great deal by inserting the words "cohabiting" and "annulled" in this section.

I am disappointed Senator Keogh is not here to contribute to the debate on this amendment, as it was her idea.

That is why she is not here.

It is not in order to refer to the presence or absence of a Senator.

Thank you, a Chathaoirligh. I will desist. I need not say any more as the amendment stands alone. I look forward to the Minister's response.

I support this amendment. The broadest possible definition of marital status is the one which we want. In a Bill which distinguishes itself by referring to the question of sexual orientation, it would be a pity if the definition of marital status was not broadened.

I find forms on which one is asked to indicate marital status rather embarrassing. What should I put down? I simply do not know.

The Senator is hopeful.

I am hopeful. Of course I am, but my hopes have been satisfied for the past 23 years. I think I should be able to put down "cohabiting". I normally put down something provocative if I can find the most provocative formula.

On a serious note, relationships should be given respect. For that reason, the definition of marital status should be broadened as much as possible.

I support this amendment for a reason which may seem a little obscure but which has concerned me since I read this Bill. One of the identified laudable grounds on which discrimination is prohibited in this Bill is sexual orientation. The Bill could mean that a person could not be discriminated against because of a particular sexual orientation. Nowhere is it explicit that a person cannot be discriminated against because he or she is in an unconventional relationship which might involve a relationship with a person of the same sex. I do not know which is the intention of the Bill — to prohibit discrimination against people who are actively homosexual or to make the slightly Jesuitical distinction which the Roman Catholic Church holds, which is that people should not be discriminated against because of their sexual orientation but that any active sexual expression by somebody who is gay is wrong. If the Bill does not state clearly that employers cannot discriminate against people because they are active homosexuals, then it is deficient.

One way of sorting out this matter about sexual orientation would be by including the term Senator O'Meara suggested here because cohabiting with a person of the same sex could not be used as a ground for discrimination.

My view is that without this the clause on sexual orientation will state that if one is gay and celibate, one cannot be discriminated against. Otherwise, what it says is that if one is actively gay there is no protection in the Bill. I do not believe that it was the intention of the original authors and I hope it is not the Minister's intention that actively gay consenting adults could be discriminated against other than in the sections of the Bill which allow major bolt holes for those with different religious sensitivities from me.

The principle underlying the amendment is laudable. The Bill defines marital status as ". single, married, separated, divorced or widowed ." and if that were considered a narrow definition which did not cover the relationships of the kind referred to by Senators, the Bill would contradict itself. If that is the case, although I am not sure it is, the amendment will have some value. The term "single" is rather important in this regard. I do not know if there is a legal definition of the term that would exclude persons in different kinds of relationships. As I understand it, "single" defines a person who is not married in the legal sense of that term. If that were the case "single" would encompass people in the relationships such as those referred to by Senators and the Bill would adequately address their concerns.

The definition of marital status in the Bill is standard and it draws on legally recognisable areas. It would be inappropriate to introduce in the Bill a new status which does not have any legal basis. It is not my intention to add cohabitation as a category of marital status. I understand Senator Norris does not want to be provocative and I hope he does not regard this matter as having evoked a provocative response from me. A person who is cohabiting is covered as having a marital status, because the individual is either single, married, separated, divorced or widowed. The categories are covered by the present definition which has a basis in law and has been commented on judicially. If a marriage is annulled the former partners to the marriage become single. I thank Senators for their proposals but I am not in a position to accept the amendment on the grounds that the definition in the Bill already applies whether an individual is cohabiting or whether an individual's marriage has been annulled.

With regard to Senator Brendan Ryan's comments on sexual orientation, I would point out that sexual orientation is defined separately in section 2 as meaning heterosexual, homosexual or bisexual. Therefore, the Senator's point is also covered.

I am interested and not provoked by the Minister's response except to further cerebration on the issue. The Minister's reply that this is a standard definition is the key to the matter, because it is not good enough. These definitions pre-exist not only significant alterations in the law introduced by the Minister's party some years ago but also a change in social attitudes. It is not acceptable that the reality of a person of homosexual orientation should be defined exclusively in terms of a heterosexual person's reality — that is like saying there are Roman Catholics and non-Roman Catholics. I do not find myself flattered by such a negative definition. The Minister says everyone is covered because everyone is single, widowed, married or divorced but I have no access to that reality.

He may say this requires legislation of a different sort and I agree. I hope, particularly in the light of the positive response from the Government benches to the trend of these ideas, that it will soon be found possible to introduce legislation which would give legal recognition to relationships outside the narrow existing definition of marriage. Nonetheless, for the reasons I give I hope the Minister will find it possible to look again at this matter. Although the Bill purports to protect people against discrimination on the basis of sexual orientation, its language does not recognise changes in legislation and public attitudes so the legislation itself operates to discriminate, particularly against gay people.

I do not know whether I properly understood the Minister but he seems to have a difficulty with the term "cohabiting" because it does not have a legal basis. He is a member of the legal profession and I am not but I understand the term has such a basis and would be recognised in law, as would the word "annulled". His objections do not stand up because the nature of the Bill would not be changed if these two words are inserted. He is objecting purely and simply on the basis that he needs to object to them as Minister.

This is a simple question: does the Minister believe this legislation will prevent an employer discriminating against a person because the employee is living with a person to whom he or she is not married? Using this legislation, can employers be prevented from discriminating between two people applying for a job because one is living with a person to whom he or she is not married? The answer is either yes or no; if it is yes we can argue about whether the Minister is right but if it is no we have a fundamental disagreement.

I, too, would like to hear the answers to the simple and direct questions put by Senator Ryan and I support what he and Senator Norris have said about the legislation. As will be said on more than one occasion, this is the Employment Equality Bill which is designed to outlaw, remove and prevent discrimination in employment across a large number of areas. We said on Second Stage we would be neglecting our duty if we did not point our that the Bill is deficient in this regard and the amendment seeks to meet and address that deficiency. The questions raised by the Senators are important and fundamental to the principle of the Bill.

All this is very interesting. I assure Senator Connor that I have no interest in objecting for the sake of it or because I happen to be the Minister of the day. We are here to tease out the Bill and to produce the best possible legislation. I hope the Senator will accept my good faith in that regard.

The question of cohabitation which Senator Norris raised is very interesting. However, the reality remains that the term "cohabiting" does not have a legal basis in this country. It is true that certain legal consequences can flow from a couple of whichever sex cohabiting but there is no legal basis for it. Senator Norris and others seem to be suggesting there should be a legal basis for cohabiting couples of whatever sex. However, there might be a considerable number of people who want to cohabit but do not want that status recognised because otherwise they might as well be married.

Senator Norris referred specifically to the situation of cohabiting homosexuals. However, it must be remembered there are far more cohabiting heterosexual couples than homosexual couples. Therefore, there is no discrimination against people with a given sexual orientation in terms of cohabitation. I anticipate that a considerable amount of difficulty would flow from giving a legal basis to the term "cohabiting" in this or any other legislation.

There are provisions in the Bill which prevent indirect discrimination. For example, Part III may be invoked if an employer discriminates against people of the same sex. The case law will decide, in due course, how this will progress. I have no doubt, given the development of legal precedent in this country, that will be done in a very fine way.

Senator Ryan asked whether an employer will be prevented from discriminating against an individual on the ground of his or her sexual orientation, and the answer is "yes". One of the purposes of the Bill is to prevent such discrimination, which is why it is called an Employment Equality Bill. There is a considerable number of measures in the legislation specifically geared towards ensuring we will not have such discrimination in our society in future.

My central point is that whether an individual is cohabiting or not, or is a heterosexual or a homosexual, the legal reality is they are single, married, separated, divorced or widowed. A person whose marriage has been annulled is a different proposition, but I respectfully submit that such a person is regarded as single by the law. The common law definition of an individual as being single, married, separated, divorced or widowed has stood the test of time for hundreds of years. Any Senator who can name an individual who is cohabiting but who is not single, married, separated, divorced or widowed wins today's prize.

I did not ask the Minister whether the Bill prohibits discrimination against homosexuals or heterosexuals; I know it does, but is it the intention to make it impossible for employers to discriminate against people who are cohabiting in a sexual relationship when making decisions about who to employ? It is possible to discriminate for a list of things, and that is very worthy, but is the Bill intended to protect those in non-standard relationships? This is a simple question, and I presume the Department of Justice can answer it.

I do not want to be tedious about this matter, but I wish to correct one of the Minister's statements. He maintained that the situation is exactly the same for cohabiting heterosexual couples as it is for cohabiting couples of the same sex. That is not true. Marriage and legal recognition of relationships remain an option for cohabiting heterosexual couples; there is no such option for gay couples. They can do nothing other than cohabit. That form of cohabitation has been removed from the sanction of criminal law only recently. We have moved a certain way, but to say the situation is the same for homosexual couples as it is for heterosexual couples is not true. Heterosexual couples have the option of marriage from which gay people are precluded.

I share Senator Ryan's concerns. Would Eileen Flynn be protected under this section? Her difficulties were caused not by whether she had been married but by the fact that she was living outside the bonds of holy matrimony with a man who had previously been married. It does not seem that she would necessarily be protected under this section because she was cohabiting. The marital status of the individuals in the relationship was not of the slightest consequence. The fact that they were living together outside marriage was held to be in conflict with the ethos of the church. The cohabiting issue is central.

In an attempt to be helpful and to reflect the debate, could the Minister consider looking at "cohabiting" in the amendment rather than "cohabiting and annulled"? If a marriage is annulled the people involved are single again, but we are more concerned with the issue of cohabiting. What would the Minister's response be to having "cohabiting" instead of "cohabiting and annulled" in the amendment?

I understand a State annulment as meaning the marriage is dissolved and the contract is over. Under a State annulment, those party to that contract are now single persons by definition. Given that definition and the Minister's elaboration of the Bill's definitions, the term "annulment" would not be irrelevant to this argument.

Given the debate on Second Stage, which referred to principles of equality of opportunity for employment and promotion, I have no difficulty with most of Senators Norris's and Ryan's points. However, the argument being advanced seems separate from the context of the principle of the Bill. It seems that what is at issue is the question of a contract for different types of relationship, not the issue of outlawing discrimination in employment, to which the Bill refers. Social prejudices in many areas must be addressed, and this Bill outlaws discrimination on the grounds of age, race, sexual orientation, etc. However, I am inclined to view the arguments advanced on cohabiting as relating more to aspirations to a legal contract rather than fulfilment of the terms and principles of the Bill. The Bill seeks to ensure fairness and equality of treatment for all categories of persons against whom discrimination was so common.

I support the Bill fully, but I would have difficulty in going along with an argument that advanced something which seems outside the scope, intent and principle of the Bill: an argument for a legal contract status for persons in different categories of cohabiting situations.

A yes or no answer from the Minister would be very helpful. "Cohabitation" is a frequently used term. There are many references to it in social welfare legislation. I remember debating the legal meaning of cohabitation with Deputy Woods when he was Minister for Social Welfare. I argued that it discriminated against heterosexual couples because his definition of cohabitation specifically referred to a man and a woman, meaning that homosexual couples could not lose their social welfare if cohabiting but heterosexual couples could. As far as I know that is still the position.

My mother is now 81 and took great exception to a note she received about her pension. It warned her that she would lose her pension if she married or cohabited. The term "cohabitation" occurs everywhere in the legal system and has a legal basis. However, the real question is whether the Bill intends prohibiting discrimination simply because people are cohabiting, whether as part of a homosexual or heterosexual couple. The protection of homosexuals in this Bill is meaningless if they are not protected when sexually active.

We have had a full discussion of this matter. It is true that people cohabit, and that those people can have pension entitlements changed as a result of cohabiting. It is true that certain legal consequences flow from cohabiting, but a cohabiting couple is not a legal entity for the purpose of legislation if one is referring to marital status. An individual is married, divorced, widowed, separated or single, all of which are marital status positions. No Senator has been able to say to me that any of those particular positions do not apply to a cohabiting person. I maintain that if an individual is cohabiting, one of the marital status positions outlined in the legislation applies to them.

This legislation is not about marital status but about discrimination where employment opportunities are concerned. It touches on an individual's marital status to the extent that it ensures that such an individual will not be discriminated against. Senator Brendan Ryan asked me if an individual can be discriminated against if he or she is cohabiting. I point again to section 31 which I referred to earlier when I spoke about indirect discrimination. That section will require interpretation by the courts before case law spells out in detail replies to specific questions. Even from a cursory reading of the section, I am convinced that if an individual is discriminated against as a result of cohabiting, section 31 should catch that in legal terms. It would then require case law to spell out what the position would be in precise terms, which is why Senator Brendan Ryan's question was a good one. The direct answer is yes in terms of section 31.

This legislation seeks to ensure equality in employment and to eliminate prejudice and discrimination. It does not seek to change the marital status of individuals or provide for different types of marital status. It utilises long recognised marital status positions to elaborate the anti-discrimination measures in that context.

The Department of Justice, Equality and Law Reform is so tedious, backward looking and sluggish in moving that it is painful to deal with it. We will eventually drag it into the 20th century, although it will probably be the 21st century by the time we get there. Does the Minister consider it appropriate to include discriminatory language in legislation which purports to outlaw discrimination?

I have not included such language.

The Minister has. Being a good Kerryman, I am sure he knows the phrase, "if the shoe pinches, do not ask the shoe ask the foot". The Minister asked for the name of one person who was not single, married, separated, divorced or widowed. I am that soldier because I know perfectly well whether I am single. I am not and I can give the Minister a telephone number in Jerusalem which he can ring and ask him if I am single. I am not married because that possibility does not exist in this State. I am not separated, except geographically, and I am not divorced or widowed. Where does my reality fit into this? It does not.

The reason I say the Department of Justice, Equality and Law Reform is so tedious is that we had these same arguments five or eight years ago when I pushed to include sexual orientation clauses. It could not be done because it had not existed in legislation before; it was not in other comparable Bills. Of course it was not because we were trying to move forward as legislators. When the Minister says the phrase, "cohabiting" has no legal meaning in terms of this Bill of course it does not and will not have until we include it. If we include it in this Bill it will acquire legal status. We are legislators; we make the law. Perhaps that is why the Department of Justice, Equality and Law Reform does not like it because then it will start to creep into other legislation. That is exactly what happened with sexual orientation clauses and that was the reason I pushed to include them and why I want to include this phrase. It should be comparatively simple and painless to do that and it will not pose a charge on the Exchequer.

The family is also defined in this section. It states:

"member of the family", in relation to any person, means—

(a) that person's spouse, or

(b) a brother, sister, uncle, aunt, nephew, niece, lineal ancestor or lineal descendant of that person or that person's spouse; That means I do not have a family either. I am like Topsy; I just growed. There are a few more growing around the country even in County Kerry.

This should be broadened because it does not recognise a form of reality which I accept may not be as widespread as heterosexual couples living together. However, it might not be that far behind if one looks at the figures. Marriage is available to and is still the majority choice for heterosexual people so people wishing to live together can be siphoned off into that institution but that option does not exist for gay people. Any gay person in a relationship is cohabiting because they are not legally married. It seems it would be possible to discriminate against them.

I know of a large number of people who were discriminated against and fired from their jobs because they were persons of the same sex living together. If I were an employer who wished to continue that practice, I would look at this Bill and say I did not discriminate because you are single, married, divorced, separated or widowed but because you are a pair of fairies living together and I did not like it. That type of practice is not outlawed by this Bill. The Minister will be hard put to satisfy me that it is.

In reply to Senator Brendan Ryan's question, the Minister referred to section 31 and the fact that the courts would have to interpret the section or delineate its limits. That is not a sufficient response to the important questions raised by him and by Senator Norris. Cohabitation does not have a legal status. The Minister will not give it a legal status in this Bill, yet certain legal consequences flow from it. We know that under the social welfare code cohabitation has a status, although not a legal one. While I understand the Minister's reluctance to insert it in this Bill, it does discriminate against a growing number of people. I urge the Minister to take on board what we said and to respond to my earlier question about removing the word "annulled" from the section.

To return to the question of discrimination against homosexuals, it is clear this legislation ensures there will be no discrimination in terms of employment opportunities against people because of their sexual orientation. We all agree on that point. On the question of whether there could or would be discrimination against cohabiting homosexuals, this is covered by section 31 and it is a form of indirect discrimination which is outlawed by the legislation. I repeat that case law will have to build up in that regard.

I do not want to engage in a game of ping-pong with Senator Norris or any other Senator on this matter but a state of mind is not a marital status in law. It may do a man's health a great amount of good if he floats down Grafton Street thinking he is married to Naomi Campbell, although he is not. We cannot have a state of mind operating as a marital status because it is not possible. There are people of both sexes who are very committed to one another who cohabit. I do not want to be overbearing on this matter but "marital status" clearly means an individual who is single, married, separated, divorced or widowed. There is no cohabiting person, homosexual or heterosexual, who is not in one of those categories.

That is not so.

It is. We move on the question of whether the legislation will allow for discrimination against people on the grounds of their sexual orientation. This Bill will ensure there will be no discrimination against an individual on the grounds of his or her sexual orientation.

The final question which Senator Norris and Senator Ryan, in particular, and Senator O'Meara, to a lesser extent, want answered is will cohabiting homosexuals be covered by the legislation? In other words, can they be discriminated against? Section 31 will ensure this will not happen, although I have repeatedly acknowledged that case law will have to build up in that regard so that specific instances may be replied to in greater detail.

I confess I share Senator Norris's concern in relation to tedium. However, I assure him there is no tedium in the Department of Justice, Equality and Law Reform. I hope that in those circumstances Senators will accept my explanations. It must be remembered there are 197 amendments to the Bill, which must be a record in this House. If we keep discussing this provision, discrimination will continue in the workplace for a long time.

I had thought the most important aspect of this legislation was that it would be as inclusive as possible. Surely acceptance of this amendment would ensure that. I listened to the Minister's explanations but I would have thought the inclusion of this amendment would improve the Bill rather than take from it. I urge him to accept it.

I was the first person to raise the legal status of the term "cohabiting". Will the Minister, who has been asked simple questions which I do not believe he answered, give us an undertaking that a cohabiting couple, for the purpose of housing, social welfare and employment, will find protection against discrimination under this Bill?

I find myself in slight disagreement with the Minister. I understood him to say a marital status was a state of mind.

I said it was not a state of mind.

I agree, it is not. I completely misunderstood the Minister.

In reply to the question whether cohabiting homosexuals will be discriminated against under the Bill, the Minister said probably not having regard to section 31 which will require determination by case law. If that is his intention, he should anticipate that determination by making it explicit in the legislation. I will approach this issue in a completely different way and try to undermine his resistance to the inclusion of this phrase. Since the Minister believes the inclusion of this phrase is unnecessary — which means it is fairly neutral — can he turn it on its head and explain if its inclusion would damage the legislation? If not, he should be in a position to accept it to reassure those of us who have made a strong argument for its inclusion.

I thought I had been as explicit as possible on this matter. I am satisfied and I assure Senator Norris that section 31 covers the situation about which he spoke. Even a cursory reading of section 31 cannot but convey the clear assurance that individuals living in a homosexual relationship and cohabiting may not be discriminated against in terms of employment under the Employment Equality Bill, 1997. The question of marital status and so on is a different matter but I am satisfied section 31 covers the position about which Senator Ryan and Senator Norris in particular are concerned.

The Minister said the Bill, as it stands, ensures there will be no discrimination against people on the grounds of sexual orientation, which is inaccurate. Unless we manage to remove, delete or dilute the operation of section 37, nothing could be clearer than that this Bill enshrines the capacity to discriminate on the grounds of sexual orientation by excluding churches and other groups from its operation. The Minister may not believe me but the Roman Catholic Church is not shy about making this clear not only in Ireland, but all over the world. For example, Cardinal O'Connor of New York paraded around the Border counties saying he was opposed to discrimination against Catholics in employment and housing and then went back to New York and led a campaign to enshrine discrimination against gay people in employment and housing. Despite this, section 37 provides that if the lifestyle of people conflicts with the ethos of the Catholic Church they can be fired.

Let us not pretend with the Minister that the Bill effectively outlaws discrimination on the grounds of sexual orientation; it enshrines it in section 37. Perhaps with a fair wind we may get rid of section 37, or at lest effectively dilute it. In terms of its protection of gay people it is incorrect to say they are protected; they are not. Not in this respect, nor in respect of section 37.

I will not press the amendment because I reserve the right to reintroduce it on Report Stage.

Amendment, by leave, withdrawn.

An Leas-Chathaoirleach

Amendments Nos. 5 and 26 are related and both may be discussed together. Is that agreed? Agreed.

I move amendment No. 5:

In page 10, subsection (1), lines 11 and 12, to delete "in relation to an employee, does not include pension rights but, subject to that,".

The amendment relates to the European Court of Justice which ruled that pay, as interpreted, for example, under the Equal Pay Act, 1974, includes pensions. The Pensions Act, 1990, also includes equality provisions but the test is different and does not present a model of equality. We are not satisfied that the provision in this Bill is in line with EU law, indeed we suggest it is regressive in that it removes an equality protection in the pensions area.

The Senator's amendments would have the effect of introducing pensions equality into the Bill. There is already a sophisticated code of equal treatment law in the form of Part VII of the Pensions Act, 1990. Any amendments to the pensions legislation would be pursued by my colleague, the Minister for Social, Community and Family Affairs, Deputy Dermot Ahern. He has responsibility for this matter and for the application of EU obligations on equal treatment of pensions and the development of proposals for equality of pensions outside the gender area. This provision is, therefore, inappropriate to this legislation.

Based on our advice I must disagree with the Minister. This is a fundamental point. We are all concerned about pensions. Our advice is that the Pensions Act, 1990, does not present a satisfactory model of equality in this regard, especially in respect of the ruling by the European Court of Justice.

I accept that the decision to provide for equality of pensions under pensions legislation as opposed to provision under this Bill is finely balanced and that there are arguments on both sides. When Fianna Fáil and Labour cohabited——

That option does not exist in law.

——the pension legislation option was taken. As the Senator outlined, a complex volume of European Court of Justice law exists which has arisen from cases of equal pay for work of equal value. However, these judgments impinge as much on Part VII of the Pensions Act, 1990, as they will on cases arising under Part III of this Bill. On balance, there is no specific advantage at this stage in deviating from the policy provided in the Bill. Accordingly, I am not in a position to accept the amendments although I acknowledge the motivation behind them and I accept it is a close call.

Amendment, by leave, withdrawn.

I move amendment No. 6:

In page 10, subsection (2), between lines 38 and 39, to insert the following:

"(c) an officer of any other body established by statute shall be deemed to be an employee of that body." This is a largely technical amendment. It is designed to make the Bill more comprehensive and is moved in the spirit of being helpful in examining and improving the legislation.

The Senator has raised an interesting point. However, the Bill is concerned primarily with the rights of employees. Those who hold an office in an organisation established by statute, such as the Ombudsman or the Director of Consumer Affairs, are not employees in the usual sense of that word. I am not disposed to extend the scope of the definition of "employee" for the purpose of giving coverage under the Bill to this group. In saying that, I hope the Ombudsman will not take it up with himself.

Amendment, by leave, withdrawn.
Section 2 agreed to.

I move amendment No. 7:

In page 11, subsection (1), line 11, after "order" to insert "other than under section 1(2)".

This amendment provides that a commencement order cannot be revoked. The legislation should follow precedents which have been laid down in this area.

This is an interesting drafting amendment. I will revert to the parliamentary draftsman and report back to the House on the amendment on Report Stage.

Amendment, by leave, withdrawn.
Section 3 agreed to.
Section 4 agreed to.

I move amendment No. 8:

In page 11, between lines 36 and 37, to insert the following new subsection:

"(2) The European Communities (Employment Equality) Regulations, 1982 (S. I. No. 302 of 1982) and the European Communities (Employment Equality) Regulations, 1985 (S. I. No. 331 of 1985) are hereby revoked.".

While this legislation repeals an existing Act it does not repeal these two regulations. The amendment may appear esoteric but it is part of our attempt to improve the legislation. These regulations amended, but did not repeal, the Employment Equality Act and we are advised that they need to be formally repealed.

I thank the Senator for the amendment which seeks to appeal statutory instruments which were made under the Employment Equality Act, 1977. I understand how it could occur to a person with a tidy mind — mine is not — that it would be desirable to repeal statutory instruments in the same way as the 1977 Act will be repealed in this Bill. However, I am firmly and soundly advised that it is not the convention to repeal such instruments. The reason for this is what is described as the horse and carriage syndrome; once the primary legislation is repealed, the statutory instruments made under it also fall. They no longer have any effect and, in those circumstances, the acceptance of the amendment would be superfluous.

Amendment, by leave, withdrawn.
Section 5 agreed to.

An Leas-Chathaoirleach

Amendments Nos. 9 and 13 to 16, inclusive, are related and may be discussed together by agreement.

I wish to clarify the position. Will amendments Nos. 13 to 16, inclusive, be taken with amendment No. 9?

An Leas-Chathaoirleach

Amendments Nos. 9 and 13 to 16, inclusive, may be discussed together but they can be pressed separately.

I move amendment No. 9:

In page 12, subsection (2)(d), line 16, after "are" to insert "or are believed to be".

These amendments are extremely important. The Minister may have a sense of déja vu about amendments Nos. 13 to 16, inclusive, because they relate to discrimination on the basis of political opinion or belief, trade union membership and other equally important aspects. Similar amendments took up much time during the discussion of the previous Minister's Bill and I noted during my research that Senator Keogh said much about this area and moved amendments.

Political opinion and belief and membership of political parties, trade unions and other organisations are important elements of activity in society. The amendments have been tabled to section 6 because it contains general provisions in relation to discrimination and political opinion or belief should not be a cause of discrimination. The amendments are appropriate to this section because we want to ensure that such discrimination is outlawed. The amendments also make it clear that racial discrimination will not be legalised where exceptions may apply. I read the Committee Stages debates of the previous Bill and it is important to introduce these amendments at this point.

I support the amendments. One tends to think that legislation is intended to cover current events, but this Bill will apply in the future and we do not know what changes will occur in terms of views about membership of trade unions or political parties. We do not know what political parties may be formed in the future and we may not agree with them. However, people should not be discriminated against because of their membership of such parties. I said plenty about this matter during the debates on the previous Bill. The amendments should be accepted because they are most important.

I tabled amendment No. 16 more in hope than confidence that the Minister would accept it because one of the most extensive grounds of discrimination is one's address. A vast number of young people are aware from an early stage of their education that if they live in certain areas of Cork and Dublin cities and apply for a job, they need to use the accommodation address of their grandmother, uncle or another person, otherwise, their applications may not even receive a reply and they have even less chance of getting the job.

This is the general principle. The specific issue in the city in which I reside is the widely held view that one of the reasons places in two fee paying boys' schools are in great demand is that it guarantees the pupil will be further up the pecking order in terms of employment in many areas relating to financial services in Cork city. This aspect is built into society but we do not like to talk about it because we consider ourselves egalitarian and democratic. However, Ireland is riddled from top to bottom with snobbery and a belief in the almost unshakeable nature of social advantage and its privileges. My amendment states that it should be illegal to discriminate against people in terms of employment just because of their address. This is practised extensively.

The amendment relating to membership of a trade union is particularly apposite at present. This is not something, as Senator Henry almost suggested, that might happen in the future. We are in the throes of a dispute about the rights of people to be represented by a trade union which will determine the way society is organised in the future. We will either have social partnership or that will not be the case. The right to membership of a trade union is a necessary prerequisite to social partnership. There cannot be social partnership if one half of the partnership is not allowed to be represented by institutions of their choice. If employers can decline to employ people because they are members of a trade union, the basis of social partnership will be undermined.

Society, because of the way it is organised, believes membership of a trade union is not neutral but good. It believes trade unions are good and they constitute one element of social partnership. Therefore, it should be wrong for employers to discriminate against people because they are members of trade unions, otherwise, it makes a mockery of social partnership. However, many people are starting to think that social partnership as practised in Ireland is a mockery of social partnership.

From a cursory glance at the amendments, one would consider them laudable principles that should be included in the Bill. However, when one considers them in greater detail one can envisage a number of additional areas which would merit equal attention by the Minister in terms of inclusion in the legislation.

Why does he not include them?

Why were they not covered in the amendments? Amendment No. 14 refers to trade unions and their role in social partnership. Any parliamentarian worth his or her salt who analyses the value of social partnership in recent years will agree that it has been very meritorious, it has worked spectacularly and should be promoted in every way possible. The purpose of the amendments is to legislate for trade union membership and social partnership. I do not want to think employers would discriminate against a person solely because he or she is a member of a trade union, but would such legislation be coercive? Would it border on coercing people in certain respects? It could be said we are coercing people by virtue of legislation in many other ways, but until now social partnership has evolved on the basis of its voluntary dimension. It has been extremely successful. The argument inherent in amendment No. 14 is do we make progress by coercing people or do we continue the voluntary evolution of the partnership? I am inclined to go along with the latter.

Amendment No. 16 refers to a background characterised by social, educational, income or other disadvantage. We all have the experience of people coming to us to make complaints about alleged discrimination due to social background. There is ample evidence of it and it concerns me. I appeal to the Minister to examine this issue as soon as possible.

There are grounds for concern in relation to other areas which the Senator has included in these amendments but it is a case of which areas should be included and which should be excluded. The Minister set out on the basis of a principle that identifies nine specific areas. If the four areas identified in the amendments were taken on board in addition to the nine areas targeted by the Minister, it could be said that we were deliberately excluding others which should be equally targeted.

I support the amendments. This is the second time in a short period that the Houses have given attention to this legislation. It will have received so much attention by the time it is enacted that it is unlikely it will be revisited very quickly. It is important, therefore, that we ensure it is as comprehensive as possible. It is only logical, in relation to amendment No. 13, that we should outlaw discrimination on the basis of political opinion. It is accepted that expression of political opinion is a basic human right. It follows from that it should be part of our domestic law. Anyone who discriminates in employment on the basis of political opinion should be seen to be committing an offence.

Political expression is a basic human right and should be protected in our legislation. One might say discrimination on those grounds is unlikely to arise but in the other jurisdiction on this island cases of discrimination have occurred not alone on grounds of religious belief but political belief. It is not beyond the bounds of possibility to expect the same might happen here. We should safeguard ourselves against this danger by clearly stating now that discrimination on the grounds of political belief is against the law rather than amending the legislation later.

I agree with the previous speakers about the importance of amendment No. 14 which would disallow in law discrimination on the grounds of trade union membership. It is sad to return to this subject at the latter end of this century . The social partnership since 1987 may have lulled many of us into a false sense of security. Social partnership can be credited with contributing to a large degree to the economic turn around of the last decade but from a macro point of view that turn around has blunted our senses to much of what is happening to people. The Ryanair dispute shows attempts are being made to discriminate on the basis of trade union membership.

Those of us in touch with employment on a daily basis will know not only is it a potential ground for discrimination to belong to a trade union, it can be grounds for discrimination to even inquire about becoming a member of a trade union. When we laud the advantages of the social partnership, we should not forget many of the new jobs are in sectors unprotected by trade unions where employees have no right to be represented by a trade union. I can give examples where the names of those thinking about joining trade union have been blackened so they have been prevented from gaining employment in that particular area. This is something which would have happened during the 1913 lockout or in a production of ‘Strumpet City'. It is our duty to realise that discrimination on the grounds of trade union membership, or attempted membership, is still thriving in some sectors of our socalled thriving economy. We might have thought this problem had been solved. Not only is it not solved, it is growing.

Many new jobs are in low paid service areas. I am a trade union member and I do not absolve them from complacency in this regard. The fact trade unions have been well established in organised employment has blunted their senses in regard to many people who need their protection. I am glad many of the larger unions are trying to recruit in the newer, less protected sectors of the economy.

It should not take until 1998 for us to protect someone from discrimination on the grounds of trade union membership. This amendment is entirely reasonable and should be accepted by the Minister.

I concur with Senator Brendan Ryan's remarks about discrimination on grounds of social, educational, income or other disadvantage. People from certain areas will not put their address on a job application because they know from experience it will lessen their chances of employment. There are many institutions dealing with social inclusion. This would be a practical way to combat social exclusion, by ensuring wherever a person lives in the State they are given a fair chance when making a job application.

A proposal to add three new discriminatory grounds to those already provided for in the Bill is an attractive option. Amendments tabled by Senator O'Meara identifying trade union membership, political opinion, social, educational, income and other disadvantages are some of a range of options for amendment presented here.

Progress has been achieved on this Bill on the basis that it was focused. The focus has been to give effect to the Government's commitment to enact legislation which would outlaw discrimination on the grounds of sex, marital status, family status, sexual orientation, religious belief, age, disability, race and membership of the traveller community. My predecessor, the Minister for Equality and Law Reform, Mr. Taylor, was pressed to accept the whole gamut of analogous amendments when the Employment Equality Bill, 1996, was introduced. In response to proposals made to him at the time he agreed to broaden the scope of the Bill and added subsection (4). This subsection commits the Minister to review the operation of the Bill within two years of its enactment. Accordingly, I regard the principles for change to the Bill contained in these amendments is a matter for another time. In other words, I am not discounting these amendments but the legislation as presented has been focused and is the reason so much progress has been made.

Senators will be aware that the legislation is complex and straddles a fine line. It has been difficult to draft. In those circumstances additions to the scope of the Bill would involve a lot more drafting work but, more importantly, would involve policy developments which go far and beyond the simple amendment of section 6 as proposed in these amendments.

For all these reasons I hope Senators will understand that, no more than it was practical for my predecessor to accept the gamut of analogous amendments, it is not possible for me to accept them either. I am not rejecting the amendments on the grounds that they are not laudable but because the legislation must remain focused at this time. The legislation will be reviewed in two years time. It is possible that that will be the time to carry out the necessary drafting work and to develop policy along the lines mentioned in these amendments.

Despite the fact that a short time has elapsed since Mr. Taylor's original Bill was before the previous Dáil, much has changed outside the Dáil. Obviously the Ryanair dispute has put a different complexion on the reality faced by trade union members throughout the country and they are deeply concerned. Another example is Seagate which finally closed today. Its workers were not unionised either.

The Minister says more drafting and policy development would be required to again look at how the inclusion of this principle might affect the Bill but now is the time to do that. This is an urgent matter which cannot wait for a review in two years time. We do not know whether the fragile nature of social partnership will have been shattered by the Ryanair dispute in the interim. We, on this side of the House, feel that this issue is extremely important if only because of the Ryanair dispute. As pointed out by Senator Fitzgerald and others, we have happily muddled along on the basis of the voluntary nature of social partnership hoping that the current situation would not arise, in other words, that the partnership would be put to the test by an employer who simply refuses to recognise the rights of a union to negotiation and the rights of workers to be members of a trade union.

This is the discrimination general provision section which states: "For the purpose of this Act discrimination shall be taken to occur where. . " on gender, marital status, etc. Now is the time to include this section in the Bill. This is an employment equality Bill and relates to one's experience as an employee. For many people, particularly those in Ryanair, trade union membership and the conditions that pertain to them as employees are specifically relevant at this time because we are debating this legislation. If it requires more drafting and examination of policy we should do it. We could postpone the Bill for a few weeks. This issue is extremely important and I urge to Minister to take this on board.

It is an axiom of 20th century life that the poor always have to wait. Notwithstanding the rhetoric of social exclusion the legislative basis for ending it is always something which needs further consideration. Like Senator O'Meara I do not want to force into a Bill an amendment which the Minister says the Government has not had adequate time to consider in terms of the technicality of drafting amendments. Having read the 105 page Supreme Court judgment on the previous legislation, I sympathise with the Minister in terms of the problems of drafting legislation like this. We could accept the principles here and postpone Report Stage for two months while the Department of Justice, Equality and Law Reform and the Government take time to consider them. To do otherwise would imply that these principles are not as important as others.

My view is that for a huge number of people living in our major urban areas some of the issues mentioned, particularly the issue of knowing that you are discriminated against from the day your are born, are far more important in their lives than many of the grounds for discrimination that are being prohibited in this Bill. As it is written, there is a degree to which this is middle class legislation but it protects and deals with the preoccupations of the Dublin liberal intelligentsia. I support all these preoccupations but it does not represent the priorities of those who are most at risk of discrimination in our society. It is over-whelmingly on one side of a class division. It provides for a whole lot of laudable objectives which I support but it leaves out the most disadvantaged in Irish society. We do not want the Minister to revolutionise the Bill now but there is a fundamental issue here about whether equality applies to people who are poor or to people in certain categories who are in a position to make a fuss.

The Minister has refused to accept the amendment. I find that strange. The amendment seeks to insert the words "or are believed to be". The paragraph would then read: "that they are or are believed to be of different sexual orientation. ..". If people object to your lifestyle or general behaviour, and wish to deny you your rights or discriminate against you, then that is very important and I cannot understand why the Minister will not accept this simple amendment.

Discrimination against someone in the workplace because they wish to join a trade union or introduce a trade union into a place of employment breaches a fundamental right. The Ryanair dispute has brought this question home to all of us. I accept that the Government is unhappy with what is happening in Ryanair and with the attitude of the company in the dispute and the Minister has an opportunity to put Government feelings into legislative effect.

I have had experience of discrimination against trade union activists in the workplace. Employers will deny promotion and responsibility to an active trade Unionist and will see such an employee as a troublemaker. The Minister says the amendments are laudable. If they are why can they not be inserted now instead of waiting for a review of the legislation in two years time? Enough is happening to convince us of the need for these amendments.

All that glisters is not gold.

The fact that these amendments are laudable does not make it practicable to insert them now. The issue of freedom of association has been considered in the courts. The question of whether membership of a trades union should be a ground for discrimination has constitutional implications. It would not be possible to come back in a couple of weeks and amend this legislation in the way proposed. A considerable amount of work would have to be done and a considerable amount of legal advice taken. Even then I do not know if the grounds stated would be constitutional. The interpretation of the constitutionality of legislation is a matter for the Supreme Court. That said, analogous amendments were put before the previous Minister for Equality and Law Reform, Mr. Taylor, and he amended the legislation only minimally. He did not accept analogous amendments. There were very good reasons not to do so then and, even if circumstances have changed, there are still very good reasons. Not least of these are those I have outlined. There are others which I outlined in my initial contribution. They relate to the question of the development of policy in the areas with which the amendments deal.

The legislation will be reviewed in two years time and I have said that I would be amenable to amendments. Irrespective of how many grounds for discrimination are included in the legislation, an argument could be made by any half decent philosopher that the list of grounds for discrimination is not exhaustive. Some grounds are clearer and require to be tackled more urgently than others. I intend to maintain the focus of the legislation on this occasion and the question of further amendments must await another day.

Amendment, by leave, withdrawn.

An Leas-Chathaoirleach

Amendments Nos. 10, 34, 42, 59, 86, and 87 are related and may be discussed together by agreement.

I move amendment No. 10:

In page 12, subsection (2)(h), lines 27 and 28, to delete "ground of race" and substitute "ethnic ground".

These amendments are textual in nature. The Bill provides a wide definition of the ground of race which prohibits discrimination on the basis of race, colour, nationality or national or ethnic origin. I take it that the Senators do not wish to alter the definition itself but merely to change the name of the definition in the Bill. The change is one of nomenclature and is not intended to impact on the purpose or scope of the anti-discrimination provisions of the Bill. I am not convinced that significant benefits are to be gained by acceding to the Senators' proposals and I ask them not the press these amendments.

Amendment, by leave, withdrawn.

An Leas-Chathaoirleach

Amendments Nos. 11, 12, 60, 61 and 63 are related and may be discussed together by agreement.

I move amendment No. 11:

In page 12, subsection (2) (i), line 29, to delete "traveller" and substitute "Traveller".

These amendments are self-evident. We propose to delete the lower case "t" and insert upper case "T" in the word "traveller". This is an important distinction and I would like to hear the Minister's response.

These amendments are also textual in nature. Late last year the National Economic and Social Forum published its opinion on the equality provision of Partnership 2000. The Forum took the opportunity to ask for consideration to be given to changing the term "travelling community", which was included in the 1995 Bill, to "traveller community" which is a more commonly used term. I acceded to this request which resulted in the terminology in this Bill.

Amendment, by leave, withdrawn.
Amendments Nos. 12 and 13 not moved.

I move amendment No. 14:

In page 12, subsection (2), between lines 31 and 32, to insert the following new paragraph:

(k) that one is a member of a trade union and the other is not ('the trade union membership ground');".

Amendment put.
The Committee divided: Tá, 15; Níl, 26.

  • Burke, Paddy.
  • Coghlan, Paul.
  • Connor, John.
  • Costello, Joe.
  • Doyle, Avril.
  • Doyle, Joe.
  • Gallagher, Pat.
  • Hayes, Tom.
  • Henry, Mary.
  • Manning, Maurice.
  • McDonagh, Jarlath.
  • Norris, David.
  • O'Meara, Kathleen.
  • O'Toole, Joe.
  • Ryan, Brendan.


  • Bohan, Eddie.
  • Bonner, Enda.
  • Callanan, Peter.
  • Cassidy, Donie.
  • Chambers, Frank.
  • Dardis, John.
  • Farrell, Willie.
  • Finneran, Michael.
  • Fitzgerald, Liam.
  • Fitzgerald, Tom.
  • Fitzpatrick, Dermot.
  • Glynn, Camillus.
  • Keogh, Helen.
  • Kett, Tony.
  • Kiely, Dan.
  • Lanigan, Mick.
  • Leonard, Ann.
  • Lydon, Don.
  • Mooney, Paschal.
  • Moylan, Pat.
  • O'Brien, Francis.
  • Ó Murchú, Labhrás.
  • Ormonde, Ann.
  • Quill, Mairín.
  • Quinn, Feargal.
  • Walsh, Jim.
Tellers: Tá, Senators Gallagher and O'Meara; Níl, Senators T. Fitzgerald and Keogh.
Amendment declared lost.

With regard to amendment No. 15 I want to read a correction into the record. The words "new paragraph" and the word "one" in the first line of the amendment should be deleted.

Amendments Nos. 15 and 16 not moved.

I move amendment No. 17:

In page 12, subsection (3)(b), line 34, to delete "who".

This is a simple drafting amendment.

This is an interesting drafting point and I will consult with the parliamentary draftsman between now and Report Stage. I will come back to the Senator then with a more definitive response.

Amendment, by leave, withdrawn.

I move amendment No. 18:

In page 12, subsection (3)(b), line 34, to delete "18" and substitute "16".

The amendment seeks to reduce the age of discrimination and is inspired by an amendment put down by the Minister's party on Report Stage in the Dáil during the debate on the original Bill. It was put to a vote and, unfortunately, defeated. It has a great deal of value considering the law allows people to work at the age of 16 and it makes sense that the Bill reflects that.

The Senator seeks to lower the age threshold in respect of which age discrimination in employment applies under the Bill. One rationale for the age threshold provided in the Bill is the unique and special protection afforded to employees under the age of 18 in the Protection of Young Persons (Employment) Act, 1996. It is comprehensive in its safeguards for young people and as a result of this legislation persons under the age of 18 are not entitled for socially good reasons related to their protection from exploitation, to participate on an equal footing with other employees in the labour market.

The age threshold of 18 only applies in respect of age discrimination and does not apply in respect of protection against discrimination on all the other grounds covered in the Bill. In addition, access to vocational training is governed by a separate age threshold, which is the minimum statutory school leaving age. Accordingly, I am not disposed towards accepting the amendment.

Amendment, by leave, withdrawn.
Question proposed: "That section 6 stand part of the Bill."

The Minister referred extensively to subsection (4) and the review which he is required to carry out within two years on the operation of the Bill when it is enacted. Is it intended to publish the review?

I envisage no difficulty with that. It is not in the interest of openness and democracy for it not to be published and I anticipate that will happen.

Question put and agreed to.

Acting Chairman

Amendments Nos. 22 and 23 are related to amendment No. 19 and all may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 19:

In page 13, subsection (1), line 1, to delete "subsection (2)" and substitute "subsections (2) and (3)".

These are drafting amendments designed to introduce greater clarity on the operation of the Bill.

The proposed amendments are not considered necessary as subsection (3) does not in any way limit the application of subsection (1). The purpose of subsection (3) is to clarify the entitlement to equal pay in respect of work of equal value and extends to a situation where lower paid workers do work of greater value.

Amendment No. 22 is a matter of drafting style which I do not propose to accept. With regard to amendment No. 23, when the Bill was drafted there was a conscious decision not to overlook the position of agency workers. However, the labour market for them is considerably different to that for employees generally. For example, their pay levels, hours of working and contractual arrangements are often at variance with those of employees generally. To generalise, I would say that the pay of agency workers is characteristically higher than that of other workers, but their working and contractual arrangements are commonly less beneficial.

If, under this Bill, I were to provide for equality between agency and non-agency workers, the consequences are evident. Agency workers would tend to claim equality with workers generally in respect of those aspects of the contracts of other workers which are more beneficial than those of agency workers. Other workers, in turn, would seek to attain, through equality cases, those elements of the agency worker's contract which are more beneficial than their own. In an ideal world I would be well disposed to the Senator's amendment. However, the complexity of the labour market makes it essential that agency and non-agency workers should be distinguished under the Bill.

This amendment seeks to make the position of agency workers who are employed for a period longer than two months identical with that of non-agency workers covered in the Bill. Quite apart from the difficulties to which I have already referred, there is potential for considerable problems if a timescale such as two months employment were to be introduced for eligibility for agency workers under the Bill. For example, employers would be likely to let agency workers go just as they come up to the two month threshold. The development of such a practice, even to a limited extent, cannot be in the interests of agency workers. In the circumstances, I deem that the provisions in the Bill protect the interests of all workers, including agency workers, and employers.

Amendment, by leave, withdrawn.

I move amendment No. 20:

In page 13, subsection (1), lines 2 and 3, to delete "is employed to do, another person shall be regarded as employed to do" and substitute "does, another person shall be regarded as doing".

This amendment is also inspired by Senator Keogh's contribution in the Dáil during the debate on the previous Bill. It was designed to meet a particularly worthy concern about the job description versus what one might be doing in reality. The comparison applies to what they do more than what they are employed to do. It provides clarification and additional protection. It is a short amendment but it would strengthen the operation of the Bill.

This amendment does not add anything to the text of the Bill, as drafted. It may be based on a misreading of the Bill. It does not matter in section 7(1) whether an applicant for equal pay can or cannot establish that the work she is doing is in accordance with her terms of employment. What matters is that she can establish that the work actually being performed by her is the same as that of another employee, is similar in nature to that being done by another employee or is of equal value to that being done by another employee. In other words, what matters is that the employee can satisfy one or more of the conditions set out in paragraphs (a) to (c) of subsection (1). Once that fact is established the applicant for equal pay must be regarded as employed to do like work with the other employee.

Amendment, by leave, withdrawn.

Acting Chairman

Amendment No. 21 is in the name of Senator O'Meara. Amendment No. 24 is related. Therefore, amendments Nos. 21 and 24 may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 21:

In page 13, subsection (1), lines 4 to 16, to delete paragraphs (a), (b) and (c) and substitute the following:

"(a) both perform or, if both were employed would perform, the same work under the same or similar conditions or each is, or if both were employed would be, interchangeable with the other in relation to the work; or

(b) the work performed by one is, or if both were employed would be, of a similar nature to that which is, or would be, performed by the other and any differences between the work which is, or would be performed, or the conditions under which it is, or would be performed, by each either are, or would be, of small importance in relation to the work as a whole or occur, or would occur, with such irregularity as not to be significant to the work as a whole; or

(c) the work which is performed by one is equal in value to the work which is or would be performed by the other, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.".

This amendment and amendment No. 24 raise the issue which is central to this legislation. It is a point which has dogged this legislation from the beginning, but it is a particularly important one. It is the notion of a comparator or how one compares work, particularly for the purposes of eliminating discrimination. My concerns with it reflect the concerns of ICTU, the National Women's Council, etc. , specifically in relation to people who are largely in low-paid employment. My concerns reflect those raised by Members of the then Opposition at the time the previous Bill was debated, specifically Deputy Woods and Senator Keogh, who was then a Deputy, who were happy to make arguments on this issue. It would be wrong of us not to look at it again in that regard.

I know it is an extremely difficult subject which caused great drafting and other difficulties for the previous Minister. However, I appeal to the Minister to look at it again because the question of a comparator and being able to compare work is central to an Employment Equality Bill, particularly because it largely relates to work areas where women, for the most part, are grouped in low-pay environments.

Having regard to what Senator Ryan said about his earlier amendment, this should not be seen as legislation which applies only to the concerns of middle class people. The laudable objective of the Bill, which is largely achieved, is to proactively root out discrimination. This central point is extremely important in achieving that and that is why we tabled amendments Nos. 21 and 24. I appeal to the Minister to consider these amendments carefully.

The purpose of these amendments is to introduce the concept of the notional or hypothetical comparator into the Bill. There is little doubt but that there is some merit in the proposal. It was, in fact, considered by my predecessor. When I took over at the helm of the Department, I, too, gave this matter my consideration. Having considered it deeply, both Mr. Taylor and I would appear to have reached the same conclusions. Unfortunately, for Senator O'Meara, that conclusion is that the amendments should not be accepted.

I was and am still, indeed, interested in finding a means to gradually dismantle vertical and horizontal segregation in the labour market. Unfortunately, it does not appear to me at this time possible to develop a viable model for a hypothetical comparator which would achieve the results which are intended by the amendments. I regret, therefore, that I am not in a position to accept the Senator's amendments. I understand precisely from where she is coming. I appreciate the desirability of the change which she is suggesting. Unfortunately, I, like my predecessor, am unable to come up with a viable model now. In those circumstances I must reject the amendments.

I agree with the Minister that it is a difficult area, but I would have hoped that we would not just abandon trying to achieve the objective here on which we are all agreed. In fact, I had hoped the Minister would table an amendment on the matter which would indicate that at least his Department and the Government were anxious to address this problem. I wonder if the Minister has given any thought as to whether there is another avenue for dealing with it. Obviously, this legislation setting out a statutory authority and giving it various powers to have a conscious and proactive approach to outlawing discrimination must have some powers to address obvious discrimination against a group. Other sections of the Bill give the authority some scope in that regard. Has any thought been given to how one might deal with this matter or whether it might be addressed in the context of other legislation? I am disinclined to leave the matter lie because it has been a policy issue of considerable importance, particularly to women's groups and the ICTU.

I do not wish to abandon the matter. I hoped for greater discussion on it and that the initiative would not come from me alone. I am disappointed the Minister did not put forward an amendment. Are we going to give up on this issue? Is there no other means by which to pursue it? Can the Minister assure me that there may be another means of tackling it in the broader context of the Bill?

If one were to condense the amendments into one idea it would be the elimination of low pay. In so far as I have been able to do so in this legislation within the constraints in which I operate, I tried to expand the rights to equal pay. For example, the place requirement restriction which existed in the previous legislation has been deleted. I also provide that a comparison can be made with the a previous incumbent of a job, not necessarily with someone currently employed. They are advances.

Tackling low pay should be considered in the context of minimum pay legislation, not in the context of this Bill. The Programme for Government specified that the introduction of a national minimum hourly wage should be priority. To give effect to this commitment, the Tánaiste and Minister for Enterprise, Trade and Employment has established a National Minimum Wage Commission which is examining the issue. I understand that the commission is to issue its report in March. When that report is available and noting that the objective of a hypothetical comparator is desirable, I may revisit this issue. If so, I will do so in the context of a minimum wage.

I trust these commitments are sufficient. The Bill has been amended from the original legislative proposal to achieve some of the desirable objectives which these amendments seek. However, I was constrained in what I could do because it is very difficult to come up with a viable model and we have not done so to date. The issue can be revisited appropriately in the context of a minimum wage.

I thank the Minister for his remarks. I agree that the issue could be dealt with in the context of the minimum wage but that is not sufficient. This Bill seeks to outlaw discrimination on a number of grounds, including gender. The Minister's party declared in its manifesto — a document with which I assume the Minister had some input — that it would amend anti-discrimination pay legislation to allow the use of notional comparators and it indicated that this would mean that workers in occupations which are over-whelmingly female would be able to base equal pay claims on the earnings of other groups of similarly qualified workers doing similar jobs.

I accept that on taking office and examining the matter the Minister encountered the same difficulties as his predecessor. However, this problem applies largely to female workers and, in that context, it is correct to look at it in discrimination legislation. One of the primary objectives in this Bill is to increase the powers of the equality authority and to specifically examine the way in which women are discriminated against. Unless we deal with this issue we will fall short of achieving our objectives.

I accept there are great difficulties in coming up with a viable model that could be successfully included in legislation. I urge the Minister to engage in discussions with the National Women's Council, the women's committee of the ICTU and unions representing women in low paid occupations, to consider how the problem might be tackled other than by a minimum wage. It must be possible to come up with a legislative framework. We can aspire to achieve all we want with codes of practice, ministerial statements and task forces. We want to eliminate low pay for women and young people but without a legislative framework we will not do so. That is why this reforming legislation is so welcome. It creates an authority with power. It is disappointing that this issue appears so intractable and I am sure it is one to which we will return.

I support the sentiments of the amendment and I understand the complexity of the issue. However, a good place for the Government to start would be to make sure that women who work in the public sector are paid properly. I attempted to assist people in Cork who are paid £1.70 an hour by the State to work as home helps. The simplest, albeit expensive, solution is to ensure that women who work for the State are not discriminated against in employment is to ensure they are paid properly. That would be a good start. I would find it easier to be at one with the Minister's bona fides if the State paid its employees properly.

Amendment, by leave, withdrawn.
Amendments Nos. 22 to 24, inclusive, not moved.
Section 7 agreed to.

I move amendment No. 25:

In page 14, subsection (4), line 8, after "employees" to insert "or prospective employees".

The intent of this amendment is self-evident — it is a constructive, positive attempt to extend the scope of the Bill, make it more comprehensive and include in it protections not only for employees but for prospective employees.

This is an interesting amendment which seeks to extend the scope of the provision to prospective employees. I will examine the proposal and return on Report Stage with a response. It has merit and I will give it consideration.

I thank the Minister for his response.

Amendment, by leave, withdrawn.
Amendment No. 26 not moved.
Section 8 agreed to.

I move amendment No. 27:

In page 15, subsection (4), line 37, to delete "the first anniversary of" and substitute "3 months after".

This amendment is designed to extend the protections in the Bill to ensure that, as regards collective agreements, the applications come into place after three months rather than a full year. The provisions will come into place after a shorter period.

I am providing that the Bill will apply to all employment regulation orders and collective agreements made after the coming into operation of this Bill. In the case of current agreements and orders which exist before and continue after its commencement, I am providing a period of one year for employers and trade unions to sort out provisions which discriminate on grounds other than the gender ground. I am satisfied that, given the potential for collective agreements to exist across many employments, it would be unrealistic to expect that such agreements and other collective bargaining instruments could be reviewed in detail and renegotiated in a short period.

I ask Senators to consider the impact of the Bill and reflect on the wide range of additional discriminatory categories which require to be addressed in the extensive review of agreements and orders. I also draw attention for the need, in that review process, to examine not only provisions which give rise to direct discrimination but also those less obvious, indirectly discriminatory provisions. In all these circumstances and in deference to the contribution which the social partners can make to implementing this legislation effectively, I continue to support the one year derogation provided in the section and appeal to Members to do so also.

Amendment, by leave, withdrawn.
Section 9 agreed to.

Amendments Nos. 28 to 30, inclusive, are related and may be discussed together by agreement.

I move amendment No. 28:

In page 16, subsection (4), line 24, after "false" to insert "or who publishes or displays and advertisement contrary to subsection (1)".

Section 10 is extremely important and welcome because it covers advertising and we have seen instances where advertisements for employment obviously discriminate. We will now have a legislative and statutory framework to ensure that is outlawed. It is a comprehensive section and I look forward to seeing it applied.

As the Bill stands, there will only be an offence if a false statement is made, in other words, publishing a discriminatory advertisement without making a statement in relation to it does not appear to be outlawed by the legislation. Amendment No. 28 is designed to make it clear, in the strongest possible terms, that any type of discriminatory advertising or false statements would be outlawed. It is a constructive amendment designed to ensure the section has the widest and strongest possible application and is allowed to do everything which it sets out to do.

I support Senator O'Meara's amendments. Some employment advertisements can be blatantly discriminatory and the Bill goes almost all the way towards addressing this problem, as I said on Second Stage. Nevertheless, these amendments, especially amendment No. 28, are eminently reasonable and I urge the Minister to accept them.

The purpose of this Bill is to prohibit employment discrimination on nine specified grounds by means of providing redress for persons who have suffered discrimination. Under the Bill, discrimination is part of the civil code; criminal offences do not arise except in limited circumstances, for example, where a person knowingly and deliberately acts in an illegal matter such as in the circumstances set out in section 10(4) and there is no other appropriate remedy.

The effect of the proposed amendment to subsection (4) would be to make the publication or display of a discriminatory advertisement an offence even in circumstances where the person publishing or displaying the advertisement is unaware that it is discriminatory. Such a broad provision would, in my view, be contrary to natural justice. In any event the existing procedures set out in section 10(5) provide more satisfactory results for those who would suffer disadvantage as a result of discriminatory advertising. This amendment would leave the matter open for interpretation by the courts as to the appropriate redress in cases of discriminatory advertising.

Subsection (5) is clear in its purpose and empowers the equality authority to seek a High Court or Circuit Court injunction to prevent the filling of a post in a discriminatory manner. In addition, the authority is empowered under section 79 to refer an advertisement which it considers to be discriminatory to the Director of Equality Investigations for investigation, or to the Circuit Court or the High Court to seek an injunction to prevent a further publication or display of a discriminatory advertisement. I am not disposed to accept amendment No. 29 because the policy I wish to pursue is one of injunctive relief.

As to amendment No. 30, the right to seek an injunction in respect of discriminatory advertisements is confined under subsection (5) to the authority, as the publication of such advertisements is considered a public interest issue rather than one which affects any one individual. If individuals were allowed to refer such cases to the courts, one advertisement could result in the unnecessary reference to the courts of a multiplicity of cases and that would not be desirable. In addition, no discrimination will have occurred against any individual under the Bill until the individual comes in contact with the advertiser and he or she is treated less favourably than another person responding to the same advertisement. At that point a prospective employee would have a right of redress under the Bill in the normal way. I, therefore, do not propose to accept the amendments.

Amendment, by leave, withdrawn.
Amendments Nos. 29 and 30 not moved.
Section 10 agreed to.
Section 11 agreed to.

I move amendment No. 31:

In page 17, subsection (2), line 34, to delete "section" and substitute "Act".

This is a drafting amendment and I would like to hear the Minister's response.

This is a technical amendment to which I will give consideration. I will, obviously, have to consult with the parliamentary draftsman but when I have done so I will return to the House on Report Stage, when I will give a more definitive response to Senator O'Meara.

Amendment, by leave, withdrawn.

I move amendment No. 32:

In page 17, subsection (2), line 38, after "exclusively" to insert "or primarily".

This amendment applies to vocational training and is designed to close off a loophole we think we have identified which would allow a certain avoidance of the obligations under this section.

The purpose of the amendment is to extend the definition of vocational training. I am sure Senators are aware that the definition of vocational training set out in section 12(2) is precisely the same as that set out in section 6(2) of the Employment Equality Act, 1977. However, this is an interesting proposal which I will have examined and I will respond to the Senator in that regard on Report Stage.

Amendment, by leave, withdrawn.

Amendments Nos. 33 and 79 to 85, inclusive, are related, with amendments Nos. 81 and 82 being alternate proposals. Amendments Nos. 33 and 79 to 85, inclusive, may be discussed together by agreement.

I move amendment No. 33:

In page 18, between lines 19 and 20, to insert the following new subsection:

"(6) Where an educational or training body wishes to apply to reserve places in a vocational training course it shall, after consultation with the Authority, prepare and publish a statement describing the religious ethos of the institution and explaining why it proposes to reserve places. Such a statement shall be prepared and published by the persons responsible for the day to day management of the institution.".

Members of these Houses have probably had an earful of this topic over the past five years. It is true these sections have been scrutinised by the Supreme Court and found, to the surprise of many people, to be constitutional. However, the judges said that just because a provision is strange or anomalous does not render it repugnant to the Constitution.

I am happy to send my children to a denominational school because I value a great deal about that. However, I greatly resent institutions which are not directly involved using education, training and health as instruments of power by proxy. The purpose of these amendments is to render accountable the power contained in sections 12 and 37 to give some rights to defend religious ethos in its variety of fashions.

This Bill is extraordinarily carefully worded in many ways but it leaves the Minister with the power to extend the application of section 12 beyond the named institution, which is the Adelaide Hospital. We all understand why this is being done and agree with it. However, section 12(4)(b) refers to "or places in a vocational training course specified in an order made under subsection (5)".

Subsection (5) allows that where an education or training body applies to the Minister for Education and Science or the Minister for Health and Children "for an order permitting the body concerned to reserve places in a vocational or training course offered by the body" the Minister may "by order allow the body to reserve places in such as number as seem reasonably necessary. to meet the purposes set out in subsection (4)". The purpose of subsection (4) is to ensure the availability of nurses and primary school teachers of a particular denomination.

If people believe they have a right to this — and most of society would accept that principle, in so far as it is honestly articulated — then we, as a society, are entitled to know precisely what they want. Orders under this section to extend this privilege to reserve places ought to be made in as public, transparent and accountable a fashion as possible, so that they do not do more than is intended under this legislation.

Amendment No. 33 states that:

Where an educational or training body wishes to apply to reserve places in a vocational training course it shall, after consultation with the Authority [it seems appropriate to specify consultation with the Employment Equality Authority], prepare and publish a statement describing the religious ethos of the institution and explaining why it proposes to reserve places. Such a statement shall be prepared and published by the persons responsible for the day to day management of the institution.

I used that language in the amendment, which is similar in spirit to one which I have tabled later, because if people wish to seek recognition of their ethos they ought to have to explain to us what is meant by that ethos. It ought not to be a moving target so that, depending on which issue they wanted to make difficult for people at a particular time, they could invoke vaguely worded provisions and argue in private with the Minister for Education and Science or the Minister for Health and Children. Where people want to exercise these rights, they should make public the basis on which those rights would be exercised.

This is a very simple request which is not trying to take anything from them or to inhibit their right to look after the well being of the schools or hospitals which concern them. It is simply saying that we are entitled to know what is meant by an ethos and that that knowledge must have a legal basis.

These rights should be sought by the people who run the institutions concerned; it should not be a matter of the Catholic hierarchy or the Church of Ireland hierarchy negotiating with the Government. Too often, good people in education or health care must front power plays operated by other people, which is why amendment No. 33 specifies that the statement should "be prepared and published by the persons responsible for the day to day management of the institution".

I have never been very keen on the grouping of amendments but I am even less keen in this case because it is unfair both to the House and to me to have to jump from section 12 to section 37, but that is how it is. Section 37 was trumpeted across the nation, often from a position of hostile, illiberal liberalism. Some people seem to wish to use legislation to force things on others that they should not be asked to accept. I have no problems with denominational education. However, I have a problem with the use of denominational education to enforce a view of Roman Catholic or Church of Ireland morality. When section 37 makes an exclusion of discrimination on particular grounds and in certain employments, particularly in the cases of religious, educational or medical institutions, the right is being given to give favourable treatment on religious grounds to an employee over another person where it is reasonable to do so.

Short of saying "where it is in the opinion" of somebody, that wording is about as weak as one could use, and there are a variety of attempts to change it. Senator O'Toole and I want to insert "taking all the circumstances into consideration" and to substitute "reasonable" with "necessary". People ought to be able to demonstrate these things. If it is necessary to discriminate between people on religious grounds because the ethos of the school is at risk, that should be open to intelligent people's scrutiny. It should not be done behind closed doors by interview panels that are accountable to nobody but the bishop or whoever the patron is. The process should be open; let us have the reasons why it is necessary to do so, not why it is reasonable to do so.

Many people have tremors of horror at the provision that the institution "takes action which is reasonably necessary to prevent an employee or a prospective employee from undermining the religious ethos of the institution." Who undermines the ethos of an institution? Is it the eminent secondary school teacher, who owns 15 slum dwellings in a small town and rips off the poor, or is it the person living with someone who is not their spouse? I know which has been sacked and which has not. These amendments relate to leaving the privilege or right of denominational education to those who wish to have it, but not leaving prejudice and antiquated concepts of morality to them. Those have nothing to do with a proper Christian ethos.

My amendments require a school to show that an action has to be proven to be necessary to prevent an employee or prospective employee from undermining the religious ethos of a school. It is one thing to say we cannot have a collection of people with militantly atheistic views propagandising our young people; it is another to say that people who are not accountable to us, to the Minister or anybody else, can look at somebody and say: "It is reasonable to believe that something you are doing is undermining the religious ethos of the institution." Those people do not have to define the ethos of the institution. It is likely that a board of management will not make such a decision.

I appreciate that the wording here is essentially that of the previous legislation. To quote the Supreme Court on another matter, this is "a strange and anomalous provision". That does not mean it is unconstitutional, but it is assuredly strange and anomalous. I appeal to the Minister to look at these amendments. He should at least ask those with these extraordinary powers to be more accountable to those of us who fund them, who give them their legal rights and who entrust our children to them.

I support Senator Ryan. Section 12 and related parts of section 37 contributed to the rejection of the previous draft of the Bill by the Supreme Court. I acknowledge the difficulty of any Minister in drawing up provisions which would allow the pluralism we wish to see and which would allow people of various religions to act without undue interference by the State. On the other hand, unwarranted treatment cannot be enshrined or promoted by the legislation. It is a difficult area in which to draft provisions. I told the Minister's predecessor that it was easy to offer criticisms, but it was less easy to offer constructive solutions. This Minister has been willing to listen, and improvements have been made to the Bill.

Amendment No. 33 is reasonable. It is in order for us to provide that institutions run by religious orders, in the education or health sectors, may provide for the recruitment or training of their members. I was involved in the campaign of the Adelaide Hospital to secure recognition of its right to train non-Catholic nurses in the new Tallaght hospital. I was glad that the then Government acceded to their request. This type of provision should be protected. However, when a body such as a hospital or training college applies to the relevant Minister for the order outlined in this section, that body should publish a statement as requested by the amendment explaining its ethos and why it proposes to reserve places. That will strengthen the legislation against those who criticise it. I appeal to the Minister to accept this amendment.

I also support Senator Ryan's amendment. Ironically, when this Bill was referred to the Supreme Court, the provisions regarding religious ethos were not the grounds on which the Bill was found unconstitutional. The effect has been to encourage the Minister not to be inclined to alter any of the sections. Without pre-empting the Minister's response, I anticipate a certain difficulty in relation to any amendments in this section, apart from the controversy it has caused in the past.

Progress reported; Committee to sit again.